J-S58045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KURTAVIUS JERMON SMITH

                            Appellant                No. 1092 WDA 2014


           Appeal from the Judgment of Sentence February 25, 2014
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0001172-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                         FILED MARCH 09, 2015

        Appellant, Kurtavius Jermon Smith, appeals from the judgment of

sentence entered in the Fayette County Court of Common Pleas, following

his jury trial conviction of third degree murder.1 We affirm.

        The trial court opinion sets forth the relevant facts of this appeal as

follows:

           The incident giving rise to this case occurred during the
           early morning hours of May 13, 2012 in Pershing Court
           located in Uniontown, Fayette County, Pennsylvania. At
           approximately 4:45 a.m., Officer Jamie Holland of the
           Uniontown City Police Department was dispatched to the
           housing complex for a report of a male lying on the ground
           with possible gunshot wounds. Officer Delbert DeWitt,
           who was also dispatched to the scene, had noticed a white
____________________________________________


1
    18 Pa.C.S.A. § 2502(c).


_________________________

*Retired Senior Judge assigned to the Superior Court.
J-S58045-14


          Jeep SUV leaving Pershing Court when he was entering it.
          The vehicle’s headlights were off.

          When Officer Holland arrived first, he observed a non-
          responsive male with a single gunshot wound to the head.
          The male was identified as Marlin Crawford (street name
          “Zeus”)2 [(“Victim”)] and was pronounced dead…. The
          cause of death was a gunshot wound to the head, which
          went through to his skull and brain. Two firearms, two
          cards with envelopes, and a red rose were found on
          [Victim]. The firearms were a .357 revolver with six live
          rounds in it located in [Victim’s] pocket and a fully loaded
          9mm Taurus semiautomatic pistol that was partially tucked
          underneath his right hip.

          After receiving further information on the white Jeep’s
          whereabouts, officers traveled to Millview Street in
          Uniontown. The Jeep was parked in an unnamed alley,
          and the hood was warm. An unidentified witness told the
          officers that he observed two males exit the Jeep and
          enter a residence at 20 Millview Street.        The officers
          approached the residence and demanded that all
          occupants exit with their hands up. It took between five
          and ten minutes for the first occupant to exit the residence
          and an additional twenty minutes for [Appellant] and the
          final remaining occupant to exit.

          [Appellant] was interviewed by Captain David Rutter, who
          read [Appellant] his Miranda[3] warnings.       [Appellant]
          acknowledged his rights and waived them. When he was
          asked about the shooting, [Appellant] indicated that he
          had no knowledge of the shooting, the victim, or the white
          Jeep SUV in question. He was then escorted into a holding
          cell while other interviews were being conducted. While in
          the cell, [Appellant] asked to speak with Captain Rutter
          alone. After several exchanges with Captain Rutter while
          in the holding cell, [Appellant] was escorted back into the
____________________________________________


2
 In the transcripts of the different proceedings in this case, Victim’s street
name is also spelled “Zuss” and “Zues.”
3
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



                                           -2-
J-S58045-14


       interview room approximately five hours after his initial
       interview.

       [Appellant] was again read his Miranda warnings, which
       he again acknowledged and waived.          [Appellant] told
       Captain Rutter that his girlfriend at the time, Kimberly
       Johnson, had been involved with [Victim], and he went to
       [Victim’s] home in Pershing Court to confront him about
       the relationship the night before the shooting. [Appellant]
       said he was beating and kicking the front door, and that he
       and [Victim] exchanged gunfire. [Appellant] claimed [that
       he] fled the scene.

       The next evening, [Appellant] said he was in Pershing
       Court and saw [Victim] on the street. He indicated that he
       walked over to [Victim] in order to confront him again.
       This time it had to do with negative remarks [Victim]
       allegedly made about [Appellant]. [Appellant] claimed
       that another African-American male got in between them
       and punched [Appellant] in the face. When [Appellant]
       jumped to his feet, he claimed that [Victim] fired shots at
       him, and he saw a gun on the ground, picked it up, and
       fired at [Victim] as [Appellant] ran away. [Appellant] said
       that he did not know if he had hit [Victim] because
       [Appellant] was running for his life. He claimed to have
       thrown the gun in a very specific area, but the officers
       were unable to locate it.

       Meanwhile, Captain Rutter was aware of text messages
       that [Appellant] sent to Ms. Johnson, which included,
       “…ima kill him thats my [fucking] word,” and he mentioned
       to [Appellant] these text messages would be used against
       him. [Appellant] remained in the holding cell where he
       was eventually charged in connection with the shooting.

       On January 3, 2013, [Appellant] and his counsel
       volunteered another statement, and [Appellant] was
       interviewed again by Detective Donald Gmitter at the
       Fayette County District Attorney’s Office. He was read his
       Miranda warnings, which he acknowledged and waived.
       [Appellant] said that on the evening in question a person
       named Paige Fairfax was driving the rented Jeep SUV. He
       had gone to a club in Morgantown, West Virginia, and then
       returned to [Jason] Miller’s home on Millview Street.

                                  -3-
J-S58045-14


          Another individual named Deaundrey Fielder (street name
          “K-Dub”) was with them and carried a 9mm semiautomatic
          firearm. [Appellant] and Fielder were dropped off at the
          entrance of Pershing Court in order to make a drug
          purchase. It was there that they had encountered [Victim]
          with     some    unidentified   African-American   males.
          [Appellant] and [Victim] exchanged words and a physical
          altercation between all of the men occurred. [Appellant]
          saw the gun fall out of one of the men’s [waistbands] and
          took it. While he was leaving, he claimed to have heard
          shots but did not know who was shooting. He observed
          Fielder running towards [Victim] but [Appellant] admitted
          to firing some shots as he ran away.

          Further, according to the latest statement: Fairfax picked
          up [Appellant] and Fielder, and [Appellant] claimed to
          have thrown the gun in an alley on Millview Street before
          purchasing drugs elsewhere and returning to Miller’s home.
          Fielder then retrieved the gun and put it, the drugs, and a
          scale in the floorboard at Miller’s house.

          [Appellant] was ultimately charged with [c]riminal
          [h]omicide and [f]irearms not to be [c]arried without a
          [l]icense. On August 10, 2012, following a Preliminary
          Hearing before Magisterial District Judge Michael Metros,
          all charges were bound over to the Court of Common
          Pleas.    Following his waiver of formal arraignment,
          [Appellant] filed an Omnibus Pretrial Motion, which was
          denied by the Honorable Gerald R. Solomon, Senior Judge
          on March 28, 2013.

(Trial Court Opinion, filed July 7, 2014, at 2-5).4

       Following a full hearing on March 27, 2013, concerning Appellant’s

omnibus pre-trial petition for writ of habeas corpus and motion to suppress

____________________________________________


4
  In its statement in lieu of an opinion, filed July 29, 2014, the trial court
incorporated the content of this opinion and order denying Appellant’s post-
sentence motion as well as the suppression court’s opinion, filed on July 15,
2014, in support of the order denying Appellant’s omnibus pre-trial motion.



                                           -4-
J-S58045-14


statements, the court denied relief. On February 10, 2014, a jury convicted

Appellant of third degree murder and acquitted him of the firearms charge.

The court sentenced Appellant on February 25, 2014, to eighteen (18) to

forty (40) years’ incarceration.   On March 3, 2014, Appellant timely filed

post-sentence motions, which the court denied on July 7, 2014. Appellant

timely filed a notice of appeal on July 8, 2014. The court ordered Appellant

to file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b); and Appellant timely complied on July 9, 2014.

     Appellant raises the following issues for our review:

        1. [WHETHER] THE VERDICT WAS AGAINST THE WEIGHT
        OF THE EVIDENCE AND THE LAW SINCE THE
        COMMONWEALTH DID NOT ESTABLISH MALICE AND
        WHETHER THE EVIDENCE WAS OTHERWISE INSUFFICIENT
        TO SUSTAIN THE VERDICT AS THE COMMONWEALTH
        FAILED TO PROVE THE CHARGE AGAINST APPELLANT
        BEYOND A REASONABLE DOUBT[?]

        2. WHETHER THE VERDICT WAS AGAINST THE WEIGHT
        OF THE EVIDENCE AND THE LAW SINCE THE
        COMMONWEALTH DID NOT ESTABLISH THAT APPELLANT
        DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE; AND
        WHETHER THE COMMONWEALTH’S EVIDENCE WAS
        INSUFFICIENT TO PROVE OTHERWISE BEYOND A
        REASONABLE DOUBT?

        3. WHETHER THE VERDICT WAS AGAINST THE WEIGHT
        OF THE EVIDENCE AND THE LAW SINCE THE
        COMMONWEALTH DID NOT ESTABLISH THAT APPELLANT,
        IF HE DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE, THAT
        APPELLANT ACTED UNDER SUDDEN AND INTENSE
        PASSION RESULTING FROM SERIOUS PROVOCATION
        FROM THE VICTIM AND THE DEGREE OF CRIMINAL
        HOMICIDE ONLY ROSE TO THE LEVEL OF VOLUNTARY
        MANSLAUGHTER OR INVOLUNTARY MANSLAUGHTER AND
        NOT TO THE LEVEL OF THIRD DEGREE [MURDER]?

                                     -5-
J-S58045-14



          4. DID THE COURT [ERR] IN DENYING APPELLANT’S
          OMNIBUS PRE-TRIAL MOTION[?]

          5. DID THE COURT [ERR] IN PERMITTING THE POLICE
          OFFICER [TO TESTIFY] AS TO WHAT A CONFIDENTIAL
          INFORMANT DISCLOSED?

          6. DID THE COURT [ERR] IN PERMITTING THE POLICE
          OFFICER [TO TESTIFY] ABOUT A BULLET HOLE THAT WAS
          ADMITTEDLY NOT PART OF THIS CRIME SCENE?

(Appellant’s Brief at 8).5

       In issues one through three, Appellant argues the Commonwealth

failed to prove Appellant acted with malice, a necessary element of third

degree murder.          Specifically, Appellant contends the Commonwealth

presented no evidence that Appellant was “the shooter.”         Appellant also

states without any developed argument that the verdict was against the

weight of the evidence because his actions were justified and/or in self-
____________________________________________


5
  The body of Appellant’s brief contains a duplicate issue #5, presented as
follows: Did the court [err] in permitting the police officer [to testify] as to
what witnesses, Christopher Teets and Ms. Johnson stated in an
unsubstantiated note and through unsubstantiated texts? This duplicate
issue #5 was raised in Appellant’s post-sentence motion, and the court
addressed the claim in its July 7, 2014 opinion at page 15 (reasoning that
statements in question were not hearsay; Ms. Johnson appeared at trial as
Commonwealth’s witness and authenticated text messages taken from her
phone; Appellant authored and sent those text messages, so texts were
Appellant’s own statements; likewise, note obtained from Mr. Teets was sent
to Mr. Teets from Appellant and was in Appellant’s own handwriting). This
duplicate issue #5, however, was not raised in Appellant’s Rule 1925(b)
statement or listed in the formal “Statement of Questions Involved”
(Appellant’s Brief at 8) in violation of Pa.R.A.P. 2116(a). Therefore, this
duplicate issue #5, concerning the texts and the note, is waived; and we
give it no further attention.



                                           -6-
J-S58045-14


defense. Appellant submits the Commonwealth’s evidence was insufficient

to establish third degree murder, and the jury’s verdict was likewise against

the weight of the evidence. Appellant concludes he is entitled to an acquittal

or, in the alternative, a new trial. We disagree.

      This Court has observed:

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying [the above]
            test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we
            note that the facts and circumstances established by
            the Commonwealth need not preclude every
            possibility of innocence. Any doubts regarding a
            defendant's guilt may be resolved by the fact-finder
            unless the evidence is so weak and inconclusive that
            as a matter of law no probability of fact may be
            drawn from the combined circumstances.            The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the [finder] of
            fact while passing upon the credibility of witnesses
            and the weight of the evidence produced, is free to
            believe all, part or none of the evidence.

         The following principles apply to our review of a weight of
         the evidence claim:

            The weight of the evidence is exclusively for the
            finder of fact who is free to believe all, part, or none
            of the evidence and to determine the credibility of
            the witnesses. An appellate court cannot substitute
            its judgment for that of the finder of fact. Thus, we
            may only reverse the…verdict if it is so contrary to

                                     -7-
J-S58045-14


           the evidence as to shock one’s sense of justice.

        Moreover, where the trial court has ruled on the weight
        claim 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 the trial court palpably abused its discretion in
        ruling on the weight claim.

        The Crimes Code defines murder as follows:

           § 2502. Murder.

           (a) Murder of the first degree.—A criminal
           homicide constitutes murder of the first degree when
           it is committed by an intentional killing.

           (b) Murder of the second degree.—A criminal
           homicide constitutes murder of the second degree
           when it is committed while defendant was engaged
           as a principal or an accomplice in the perpetration of
           a felony.

           (c)   Murder of the third degree.—All other kinds of
           murder shall be murder of the third degree. Murder
           of the third degree is a felony of the first degree.

                                  *    *    *

        18 Pa.C.S.A. § 2502(a)-(c). To establish the offense of
        third degree murder, the Commonwealth need only prove
        beyond a reasonable doubt that the defendant killed an
        individual, with legal malice, i.e., …wickedness of
        disposition, hardness of heart, wantonness, cruelty,
        recklessness of consequences, or a mind lacking regard for
        social duty. … Malice is established where an actor
        consciously disregard[s] an unjustified and extremely high
        risk that his actions might cause death or serious bodily
        harm.

Commonwealth v. Devine, 26 A.3d 1139, 1145-46 (Pa.Super. 2011),

appeal denied, 615 Pa. 783, 42 A.3d 1059 (2012) (most internal citations


                                      -8-
J-S58045-14


and quotation marks omitted). We also observe: “A weight of the evidence

claim concedes that the evidence is sufficient to sustain the verdict, but

seeks a new trial on the ground that the evidence was so one-sided or so

weighted in favor of acquittal that a guilty verdict shocks one’s sense of

justice.” Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067

(2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1792, 188 L.Ed.2d 761

(2014).

     Instantly, Appellant’s conclusory argument devoted to issues one

through three is inadequately developed, although liberally seasoned with

legal citations. Therefore, we could deem issues one through three waived

on that basis alone.   See generally Commonwealth v. Palo, 24 A.3d

1050, 1057-58 (Pa.Super. 2011), appeal denied, 613 Pa. 663, 34 A.3d 828

(2011) (emphasizing need for developed, reasoned, intelligent argument

appropriate for appellate review; otherwise, issue is subject to waiver).

With respect to Appellant’s second and third issues only, he makes no

argument and cites no relevant law in his brief to support self-defense,

voluntary manslaughter, or involuntary manslaughter.         Thus, Appellant

waived issues two and three on this basis as well.

     Moreover, the Commonwealth produced evidence at trial for each

element of third degree murder. As the trial court stated:

                           Third Degree Murder

                                 *    *    *


                                     -9-
J-S58045-14


       In the instant case, the Commonwealth presented a
       myriad of evidence that a reasonable jury could have
       properly convicted [Appellant] of Third Degree Murder.
       First, the Commonwealth had the text messages sent by
       [Appellant] to Ms. Johnson. [Appellant] admitted to the
       police that he was upset that Ms. Johnson, who was
       [Appellant’s] girlfriend at the time, was also involved with
       [Victim]. One of the text messages [Appellant] sent to Ms.
       Johnson said, “Lmao…then you told this nigga where im
       at? Bitch yur way too much right now! Ima kill him that’s
       my [fucking] word.” That message was sent on May 12,
       2012 at 5:28 p.m., less than 12 hours before [Victim’s]
       body was found.

       Second, [Appellant] changed his version of events three
       (3) different times.      When Captain Rutter initially
       interviewed him, [Appellant] indicated that he had no
       knowledge of the shooting and had never heard the names
       “Zeus” or “Marlin Crawford” in his life. [Appellant] also
       gave a detailed description as to his whereabouts at the
       time of the shooting.

       Several hours later, [Appellant] gave Detective Rutter a
       different version of events. This time, [Appellant] said
       that he knew [Victim], and he was very upset that Ms.
       Johnson was ‘messing with [Victim].” [Appellant] then
       gave the version of the story where he went to [Victim’s]
       home the night before the shooting in order to confront
       him, and the two men exchanged gunfire. The two men
       encountered each other the following evening, and a
       physical altercation ensued with other unaffiliated parties.
       The altercation ended with more gunfire, and [Appellant],
       who picked up a gun off the street, returned fire as he was
       running away. [Appellant] did not know if he hit [Victim],
       and [Appellant] claimed to have thrown the gun in a
       specific location, which the police were unable to locate.
       When asked why he threw the gun, [Appellant] responded,
       “Because I knew what I had done.”

       Several months after the shooting, [Appellant] voluntarily
       came in for questioning at the District Attorney’s Office
       and gave an entirely different version of events to
       Detective Gmitter. [Appellant] told the story of riding in
       the white Jeep in question to Pershing Court with Fairfax

                                  - 10 -
J-S58045-14


       and Fielder in order to purchase drugs. [Appellant] and
       [Victim] encountered each other, and [Appellant]
       attempted to “squash the bad blood between them.” A
       physical altercation ensued with unaffiliated parties, and
       [Appellant] picked up a gun from the ground and began
       running. [Appellant] claimed to have heard shots but was
       unsure of who the shooter(s) was (were) when he fired
       back while still running. All [Appellant] observed was
       Fielder running towards [Victim] with a gun. [Appellant]
       then claimed that Fielder asked [Appellant] why he threw
       the gun, and Fielder retrieved it and hid it in a floorboard
       at Miller’s house. [Appellant] had no justification for not
       calling the police after this had occurred.

       Third, the Commonwealth presented a letter that
       [Appellant] had written to a friend from prison where
       [Appellant] pleaded with her to present a false account of
       his whereabouts on the night of the shooting.

       Commonwealth witness Diana Long had received a letter
       from [Appellant] that read in relevant part:

          I got my situation under control and the table is
          starting to turn around now. My lawyer will be
          coming to see you very soon. I need you to write
          this down and remember it and tell him when he
          comes.      I came in your house a little bit after
          two−two a.m., you let me in and went back to sleep.
          You woke up at four a.m., heard the TV, came down
          and turned it off. At this time, I was still on the floor
          sleeping, and went back to sleep after you turned
          the TV off. I will call you soon to make sure you got
          this letter.
          Miss you very much. Love always.

       This version of events was never conveyed to police by
       [Appellant] in any of the three (3) times he spoke with
       them regarding this case.

       Fourth, the Commonwealth presented both a conversation
       between [Appellant] and Gerald Secrest and a letter
       written by [Appellant] to Secrest.

       Secrest described the first conversation as follows:

                                   - 11 -
J-S58045-14



          [Appellant] was reading the paper after a young
          male was shot here in Uniontown and he said about,
          you can’t be a porch nigger, you got to be a real
          nigger. His situation, as soon as he seen the guy, he
          shot him…. He said about him, another fellow and
          his girlfriend went that night and shot [Victim].

       [Appellant] also wrote Secrest a letter from prison, which
       read:

          What’s up? This is Tay. I want to know what Chris
          Teets tell you about my case and why is he trying to
          take my life away? Whatever he said, he is lying. I
          never talked to him about my case. He came to me
          once on C block and asked me if I wanted him to
          help with my case, and I said no, I am good because
          I know he worked for the police. The only thing that
          I told him was the truth, that my life was in danger
          and I didn’t do it. I could have been dead right now
          with my mom crying because her baby child is gone,
          but God protected me. That’s why I pray to him
          even right now for keeping me safe. I am thanking
          him for protecting me. I am not that type of person.
          The boy, Craig rug, on C block told me Chris told him
          that he is going to set me up because I slapped him
          when I caught him stealing out of my cell. So,
          please don’t do nothing to take my life.

       Finally, Secrest testified to a conversation he overheard
       between [Appellant] and Teets where [Appellant] “asked
       [Teets] to be an alibi for him. [Appellant] was willing to
       pay [Teets].”

       The decedent was killed by a gunshot to the head. There
       is ample circumstantial evidence to show that [Appellant]
       had motive, opportunity, and actually did fire the fatal
       shot.   The jury was not required to believe any of
       [Appellant’s] self-serving statements.

       Based on this evidence, it was reasonable that the jury
       found that the Commonwealth met its burden of proof for
       a Third Degree Murder conviction.


                                 - 12 -
J-S58045-14


                               Self-defense

       Next, [Appellant] argues that the Commonwealth could not
       prove that [Appellant] did not act in justifiable self-defense
       when [Appellant] shot [Victim].

       Under Pennsylvania law:

          [§ 505. Use of force in self-protection

                                 *     *      *

          (b) Limitations on justifying necessity for use
          of force.−

                                *     *       *]

              (2) The use of deadly force is not justifiable under
              this section unless the actor believes that such
              force is necessary to protect himself against
              death, serious bodily injury, kidnapping or sexual
              intercourse compelled by force or threat; nor is it
              justifiable if:

                (i) the actor, with the intent of causing death
                or serious bodily injury, provoked the use of
                force against himself in the same encounter; or

                (ii) the actor knows that he can avoid the
                necessity of using such force with complete
                safety by retreating, except the actor is not
                obliged to retreat from his dwelling or place of
                work, unless he was the initial aggressor or is
                assailed in his place of work by another person
                whose place of work the actor knows it to be.

                                 *     *      *

          18 Pa.C.S.A. § 505(b)(2)

       In the instant case, the Commonwealth presented
       sufficient evidence to refute that [Appellant] acted in
       justifiable self-defense.   First, …[Appellant] gave law
       enforcement officials three (3) different versions of what

                                     - 13 -
J-S58045-14


       happened on that night.        Two (2) versions included
       [Appellant] throwing away the gun, and one established
       that [Appellant] was the initial aggressor since he claimed
       to have confronted [Victim]. Second, [Appellant] sent a
       text message saying that he was going to kill [Victim].
       Third, [Appellant] asked different individuals to lie on his
       behalf.

       Based on this evidence, the jury could have found that
       [Appellant] was the initial aggressor, that he was not
       actually in fear, and that he failed to retreat.

               Voluntary and Involuntary Manslaughter

       [Appellant] argues that the Commonwealth may have been
       able to establish his conduct rose to the level of Voluntary
       or Involuntary Manslaughter but not Third Degree Murder.

       Under the law, Voluntary Manslaughter is defined as
       follows:

          [§ 2503. Voluntary manslaughter

          (a) General rule.―]A person who kills an individual
          without    lawful   justification commits    voluntary
          manslaughter if at the time of the killing he is acting
          under a sudden and intense passion resulting from
          serious provocation by:

              (1) the individual killed; or

              (2) another whom the actor endeavors to kill, but he
              negligently or accidentally causes the death of the
              individual killed.

       18 Pa.C.S.A. § 2503(a).

       The Pennsylvania Superior Court further analyzed the
       statute:

          “Passion” includes any emotions of the mind that render
          it incapable of reflection, such as anger, rage, sudden
          resentment or terror.       Once it is found that the
          defendant was confronted with sufficient provocation,

                                     - 14 -
J-S58045-14


          the focus shifts to the defendant’s response: did the
          defendant actually act in the heat of passion when he
          committed the homicide; did the provocation directly
          lead to the killing of the person responsible for the
          provocation, or was the individual killed negligently or
          accidently in the course of the defendant’s endeavor to
          kill his provoker; and was there insufficient “cooling
          time,” thus preventing a reasonable [person] from
          regaining his capacity to reflect.

       Commonwealth v. Galloway, 485 A.2d                  776,   783
       (Pa.Super. 1984) (other citations omitted).

       Furthermore, a person can be guilty of Voluntary
       Manslaughter for what is known as “imperfect self-
       defense”:

          [§ 2503. Voluntary manslaughter

                                  *    *    *

          (b) Unreasonable belief killing justifiable.―]A
          person who intentionally or knowingly kills an individual
          commits voluntary manslaughter if at the time of the
          killing he believes the circumstances to be such that, if
          they existed, would justify the killing under Chapter 5 of
          this title (relating to general principles of justification),
          but his belief is unreasonable.

       18 Pa.C.S.A. § 2503(b).

       Here, the jury was not persuaded by any possible
       testimony regarding a killing in the heat of passion or
       “imperfect self-defense.” [Appellant’s] different versions
       of events, the text message, and asking others to lie for
       him all refute that argument.

       Furthermore, any argument that [Appellant] was angry
       over an alleged affair between his girlfriend and [Victim]
       also fails because even if it could be deemed adequate
       provocation, [Appellant] had a more than sufficient cooling
       period since the killing took place more than 24 hours after
       he was made aware of the alleged affair.


                                   - 15 -
J-S58045-14


        For these reasons, it was reasonable for the jury to find
        [Appellant] did not commit Voluntary Manslaughter.

        As to [Appellant’s] argument regarding Involuntary
        Manslaughter, the [c]ourt finds this argument fails as well.

        Under the law, “A person is guilty of involuntary
        manslaughter when as a direct result of the doing of an
        unlawful act in a reckless or grossly negligent manner, or
        the doing of a lawful act in a reckless or grossly negligent
        manner, he causes the death of another person.” 18
        Pa.C.S.A. § 2504(a).

        With the evidence that was presented to the jury, it was
        reasonable for them to find that [Appellant] was much
        more culpable than merely reckless or negligent when he
        shot [Victim] in the head.

(Trial Court Opinion at 6-13) (most internal citations omitted).       Even if

Appellant had properly preserved and presented issues one through three,

we would conclude the Commonwealth presented sufficient evidence for the

jury to find, beyond a reasonable doubt, that Appellant had fired the gun

which killed Victim, and Appellant did so with a hardness of heart or

recklessness of consequences. See 18 Pa.C.S.A. § 2502; Devine, supra.

Given the trial evidence, we would likewise see no reason to disturb the

court’s decision to deny relief on Appellant’s weight claim.   See id.    See

also Lyons, supra.

     Appellant’s fourth issue concerns his omnibus pre-trial motion to

suppress statements he made to the police. Initially, Appellant asserts the

police arrested him without a warrant. Appellant then avers the police failed

to advise him of his Miranda rights when he was first arrested, he did not


                                   - 16 -
J-S58045-14


understand those rights when he finally received Miranda warnings, and he

was incapable of waiving those rights.         Appellant claims he did not

voluntarily and understandably waive his rights or make statements to the

police.   Appellant claims Captain Rutter played on Appellant’s emotions by

telling Appellant the crime scene would be tainted if Appellant did not hurry

up and give his version of the events; if it was self-defense, Appellant should

say so or the police could do nothing for Appellant. Appellant insists Captain

Rutter knew Appellant did not want to talk about the incident, but Captain

Rutter pushed Appellant for a response.       Appellant concludes the court

should have suppressed Appellant’s statements under these circumstances,

and we should grant him a new trial. We disagree.

      We review the denial of a suppression motion subject to the following

principles:

          Our standard of review in addressing a challenge to a trial
          court’s denial of a suppression motion is limited to
          determining whether the factual findings are supported by
          the record and whether the legal conclusions drawn from
          those facts are correct.

              [W]e may consider only the evidence of the
              prosecution and so much of the evidence for the
              defense as remains uncontradicted when read in the
              context of the record as a whole. Where the record
              supports the findings of the suppression court, we
              are bound by those facts and may reverse only if the
              court erred in reaching its legal conclusions based
              upon the facts.

Commonwealth v. Hope Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008)

(en banc) (internal citations and quotation marks omitted). Further, “It is

                                     - 17 -
J-S58045-14


within the suppression court’s sole province as factfinder to pass on the

credibility of witnesses and the weight to be given their testimony.”

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting

Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).

     Additionally:

        Statements made during custodial interrogation are
        presumptively involuntary, unless the accused is first
        advised of [his] Miranda rights. Custodial interrogation is
        questioning initiated by law enforcement officers after a
        person has been taken into custody or otherwise deprived
        of his freedom of action in any significant way. The
        Miranda safeguards come into play whenever a person in
        custody is subjected to either express questioning or its
        functional equivalent. Thus, interrogation occurs where
        the police should know that their words or actions are
        reasonably likely to elicit an incriminating response from
        the suspect. In evaluating whether Miranda warnings
        were necessary, a court must consider the totality of the
        circumstances. In conducting the inquiry, we must also
        keep in mind that not every statement made by an
        individual during a police encounter amounts to an
        interrogation. Volunteered or spontaneous utterances by
        an individual are admissible even without Miranda
        warnings.

Hope Williams, supra at 30 (internal citations and quotation marks

omitted).

     In response to this issue, the suppression court offered the following:

                           FINDINGS OF FACT

        1.   On May 13, 2012, Officer Matthew Painter of the
        Uniontown Police department responded to the scene of an
        unresponsive male and observed a single gunshot wound
        to the male’s forehead.

        2.    As Patrolman Delbert [DeWitt] arrived on the scene,

                                   - 18 -
J-S58045-14


       he observed a white Jeep SUV pull out with its headlights
       turned off.

       3.   Chief Jason Cox, who also responded to the scene,
       was given information by a confidential informant that the
       shooter possibly had a nickname of “Tay,” was seen in a
       white Jeep, and was staying at 20 Millview Street.

       4.   Chief Cox patrolled the area looking for a white Jeep
       and found it in an alley north of Millview Street.

       5.   Together with other officers, Chief Cox proceeded to
       20 Millview Street and, using a [P.A.] system, had the
       occupants, including Appellant, exit the home.

       6.  Captain David Rutter of the Uniontown Police
       department responded to the crime scene and interviewed
       Appellant at 9:17 [a.m.] that same morning.

       7.    Appellant, who did not appear to be under the
       influence of drugs or alcohol, was given his Miranda rights
       by Captain Rutter and acknowledged that he understood
       his rights.

       8.     Appellant then executed a rights waiver form.

       9.  The waiver of his rights was made voluntarily,
       knowingly and intelligently by Appellant.

       10. Appellant then made a statement in which he denied
       knowing the victim, Marlon Crawford, and that he had
       never heard the name “Zuss” in his life.

       11. On May 13, 2012, Captain Rutter, who is certified to
       conduct such test, completed a gunshot residue kit on the
       hands of Appellant.

       12. Later that day, at 3:04 [p.m.], Appellant was again
       advised of his Miranda rights and again executed a rights
       waiver form.

       13. No threats, promises or other improper incentives
       were made to Appellant to cause him to waive his rights
       and make a statement.

                                   - 19 -
J-S58045-14



       14. The waiver of his rights was made voluntarily,
       knowingly and intelligently by Appellant.

       15. Appellant then made a second statement in which he
       stated that he confronted Zuss regarding Appellant’s
       girlfriend and that they exchanged gunshots before
       Appellant fled.

       16. Appellant further stated that the next night he again
       confronted Zuss, and that Zuss pulled a gun and started
       shooting at [Appellant], causing Appellant to pick up a gun
       lying on the grounds and fire it at Zuss as Appellant was
       running away.

       17. During the interview of Appellant, Rutter advised
       [Appellant] that the police had text messages from him to
       Kim Johnson.

       18. With regard to the text messages, Appellant stated to
       Rutter that the text “looks pretty bad” and asked if there
       was “any way to make them go away.”

       19. Trooper Donald Lucas, of the Pennsylvania State
       Police, was given a cell phone to examine regarding this
       matter and downloaded the available data from the phone.

       20. The telephone number for the cell phone was 724-
       963-2340.

       21. On May 12, 2012, the phone received a message
       from “Tay” stating, “bitch, you fuckin’ Zuss, oh you nasty
       bitch, you let him nut in you, then let me fuck, you a slut.”

       22. Another message was received from “Tay” that day
       stating, “omg bitch, I know you didn’t let him drive my car.
       I fuckin’ hate you.”

       23. A third message from “Tay” was received by the
       same telephone that day stating, “Imao, then you told this
       nigga where I’m at. Bitch you are way too much right
       now. Ima kill him. That’s my fucking word.”

                                *     *      *

                                    - 20 -
J-S58045-14



         The omnibus pretrial motion of Appellant…contended that
         Appellant did not knowingly, intelligently and/or voluntarily
         waive his right to self-incrimination. Instantly, Appellant
         made two incriminating statements, both on May 13,
         2012.     Captain David Rutter of the Uniontown Police
         Department, after he had responded to the crime scene,
         interviewed Appellant at 9:17 [a.m.] that morning.
         Appellant, who did not appear to be under the influence of
         drugs or alcohol, was given his Miranda rights by Captain
         Rutter and acknowledged that he understood his rights.
         He then executed a rights waiver form and made an
         incriminating statement. Later that day, at 3:04 [p.m.]
         while still in custody, Appellant was again advised of his
         Miranda rights, again executed a rights waiver form and
         made a second incriminating statement.          No threats,
         promises or other improper incentives were made to
         Appellant to cause him to waive his rights and make this
         second statement.

         The only evidence offered at the omnibus pre-trial hearing
         was that the waiver of [Appellant’s] Miranda rights was
         made voluntarily, knowingly and intelligently by Appellant,
         and we so found.

(Suppression Court Opinion, filed July 15, 2014, at 2-5, 9) (internal citations

omitted). We see no reason to disturb the suppression court’s decision to

deny relief on this issue. See Hope Williams, supra; Clemens, supra.

      In his fifth issue, Appellant asserts the Commonwealth offered, for the

truth of the matter asserted, Chief Cox’s testimony regarding information he

received from a confidential informant (“CI”) that Appellant was the shooter.

Appellant avers this testimony was the only information that supposedly

linked Appellant to the crime. Appellant claims the Commonwealth should

have disclosed the identity of Chief Cox’s CI.              Appellant complains the

Commonwealth     led   the   trial   court   to   believe    the   only   reason   the

                                       - 21 -
J-S58045-14


Commonwealth wanted to use information obtained from the CI was to

develop how the police learned where the white Jeep seen leaving the crime

scene could be found.    Appellant insists the court told the Commonwealth

before trial that it could not offer information from the CI to name Appellant

as the shooter, and nothing happened at trial to change the court’s ruling.

Appellant contends the CI was not present at trial or subject to cross-

examination, so anything the CI reported was inadmissible hearsay.

Appellant concludes the erroneous admission of Chief Cox’s testimony

warrants a new trial. We disagree.

     Initially, we observe:

        Regarding the disclosure of a confidential informant, the
        Pennsylvania Supreme Court has stated:

           [N]o fixed rule with respect to disclosure of the
           confidential informant’s identity is justifiable. The
           problem is one that calls for balancing the public
           interest in protecting the flow of information against
           the individual’s right to prepare his defense.
           Whether a proper balance renders the nondisclosure
           erroneous     must    depend     on    the   particular
           circumstances of each case, taking into consideration
           the crime charged, the possible defenses, the
           possible significance of the informer’s testimony and
           other relevant factors.

        Commonwealth v. Bing, 551 Pa. 659, 663–64, 713 A.2d
        56, 58 (1998) (internal brackets and citations omitted).
        Further:

           This balance is initially weighted toward the
           Commonwealth, which holds a qualified privilege to
           maintain an informant’s confidentiality to preserve
           the public’s interest in effective law enforcement.
           However, the balance tips in favor of disclosure

                                     - 22 -
J-S58045-14


          where guilt is found solely on police testimony from
          a single observation and testimony from a
          disinterested source, such as the informant, is
          available.

       In re R.S., 847 A.2d 685, 688 (Pa.Super. 2004), appeal
       denied, 581 Pa. 679, 863 A.2d 1148 (2004) (quoting
       Commonwealth v. Belenky, 777 A.2d 483, 488
       (Pa.Super. 2001)).

       “However, where other corroboration of the officer's
       testimony exists, disclosure of the informant's identity is
       not necessarily required.” Bing, supra at 664, 713 A.2d
       at 58.      Moreover, a defendant must meet certain
       thresholds for the court to determine whether to order the
       disclosure of an informant’s identity:

          Before the informant’s identity may be revealed…the
          accused must show the information is material to the
          defense and the request is reasonable.             The
          defendant need not predict exactly what the
          informant will say, but [the source] must
          exonerate [the defendant].            More than the
          mere     assertion      that   disclosure     of   the
          informant's identity might be helpful is
          necessary. Only after this threshold showing that
          the information is material and the request is
          reasonable is the trial court called upon to determine
          whether the information is to be revealed.

       In re R.S., supra at 688 (emphasis added).

       Where the confidential informant is not a witness to the
       incident at issue, the defendant must show that the
       Commonwealth’s disclosure of the identity of the informant
       is (1) material to his defense; (2) reasonable; and (3) in
       the interests of justice.

          It is important to note that the Rule [Pa.R.Crim.P.
          305B(2)(d)] speaks in terms of a showing by the
          defendant. These conditions cannot be assumed,
          and they must be supported by evidence on the
          record.   It is in this context that the evidence


                                  - 23 -
J-S58045-14


           presented at the hearing must be examined to
           determine whether the defendant met his burden.

        Commonwealth v. Hritz, 663 A.2d 775, 778 ([Pa.Super.]
        1995) (quoting Commonwealth v. Novasak, 606 A.2d
        477, 483 ([Pa.Super.] 1992), appeal denied, 532 Pa. 662,
        616 A.2d 984 (1992)) (internal citations and footnote
        omitted) (emphasis in original).

        Regarding the element of materiality, the defendant must
        show as a threshold matter that the informant’s identity is
        germane to the defense. Commonwealth v. Heater, 899
        A.2d 1126, 1130 (Pa.Super. 2006), appeal denied, 592 Pa.
        779, 926 A.2d 973 [] (2007). Evidence is “relevant and
        material to the defense if it tends to show that a specific
        crime of which a defendant stands accused was committed
        by someone else.” Novasak, supra. The record must
        disclose a reasonable possibility that the information
        sought will materially aid the defendant in presenting his
        defense and is not obtainable from another source. Hritz,
        supra at 780 (emphasis in original).

Commonwealth v. King, 932 A.2d 948, 952-53 (Pa.Super. 2007).

     Pennsylvania Rule of Evidence 801 defines hearsay as follows:

        Rule 801. Definitions That Apply to This Article

        (a) Statement.      “Statement” means a person’s oral
        assertion, written assertion, or nonverbal conduct, if the
        person intended it as an assertion.

        (b) Declarant. “Declarant” means the person who made
        the statement.

        (c) Hearsay. “Hearsay” means a statement that

        (1) the declarant does not make while testifying at the
        current trial or hearing; and

        (2) a party offers in evidence to prove the truth of the
        matter asserted in the statement.

Pa.R.E. 801.

                                  - 24 -
J-S58045-14


         The hearsay rule provides that evidence of a declarant’s
         out-of-court statements is generally inadmissible because
         such evidence lacks guarantees of trustworthiness
         fundamental      to   the   Anglo–American     system     of
         jurisprudence. [T]he focus of the Confrontation Clause is
         testimonial hearsay. However, when a hearsay statement
         is offered for a purpose other than proving the truth of its
         contents, it is not hearsay and is not excludable under the
         hearsay rule. [T]he [Court in Crawford v. Washington,
         541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)]
         makes clear that even the use of testimonial statements is
         not barred by the Confrontation Clause for purposes other
         than establishing the truth of the matter asserted. In any
         event, it is a long standing rule of jurisprudence that an
         out-of-court statement offered to explain a course of
         conduct is not hearsay.

Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa.Super. 2006), appeal

denied, 591 Pa. 671, 916 A.2d 1101 (2007) (most internal citation ans

quotation marks omitted). See also Commonwealth v. Johnson, 615 Pa.

354, 386, 42 A.3d 1017, 1035 (2012), cert. denied, ___ U.S. ___, 133 S.Ct.

1795, 185 L.Ed.2d 818 (2013) (quoting Commonwealth v. Rega, 593 Pa.

659, 693-94, 933 A.2d 997, 1017 (2007), cert. denied, 552 U.S. 1316, 128

S.Ct. 1879, 170 L.Ed.2d 755 (2008) (stating: “[A]ny out-of-court statement

offered not for its truth but to explain the [witness’] course of conduct is not

hearsay)); Commonwealth v. Smith, 378 A.2d 1015, 1017 (1977) (stating

trooper’s testimony in bookmaking prosecution, concerning informant’s

statement that trooper could place bets by calling specific telephone

number, was not hearsay, as it was offered to explain trooper’s subsequent

actions; statement was not offered to show it was true, but only that it was

said).

                                     - 25 -
J-S58045-14


      Instantly, on the fourth day of the jury trial, the court convened an “in

camera” proceeding to determine whether to disclose the identity of Chief

Cox’s CI. Chief Cox testified that the CI had provided reliable information to

the police over the past six or seven years, that there were few CIs in

Pershing Court, and that the culture and atmosphere of the environment

would result in physical threats and physical harm to the CI, if his identity

were disclosed. The jury heard none of this testimony. In response to this

claim, the trial court said:

         Appellant argues that the [c]ourt erred in allowing
         testimony regarding what the [CI] disclosed to the police.
         The [c]ourt is unclear of [Appellant’s] argument here
         because there is no testimony presented in front of the
         jury on the CI. An “in camera” proceeding was held with
         Chief Jason Cox and Detective Gmitter. The [c]ourt did
         not require the Commonwealth to reveal the identity of the
         CI due to credible threats to [the CI’s] personal safety. …

                                 *     *      *

         Here, [Appellant] did not meet the threshold which
         required disclosure of the CI. Chief Cox had conveyed the
         CI’s statements to Detective Gmitter in the very early
         stages of the investigation. That information led police to
         [Appellant], but based on what additional evidence
         revealed, the investigation would have led police to
         [Appellant] regardless of whether a CI was involved.

         The [c]ourt found that the threats against the CI were
         credible since Pershing Court is one of the highest crime
         areas in the county, and the [c]ourt has presided over
         innumerable violent criminal cases [which] have occurred
         there. The [c]ourt is also aware that police experience
         great difficulty obtaining information from witnesses to
         these crimes due to fear of and/or actual threats of bodily
         harm or death.      The Defense did not demonstrate a
         genuine need for the CI’s identity, and there was a

                                     - 26 -
J-S58045-14


         legitimate reason to continue to withhold that information.

(Trial Court Opinion at 13-14) (most internal citations omitted). We see no

reason to disturb the trial court’s decision to deny disclosure of the identity

of the CI.

      Regarding Chief Cox’s trial testimony, nothing in the record indicates

Chief Cox was permitted to identify Appellant as the shooter based on

information obtained from the CI.     At trial, the following took place away

from the jury:

         SIDE-BAR CONFERENCE

         DEFENSE COUNSEL: Much of Chief Cox’s testimony could
         be hearsay, and I am going to ask the [c]ourt to−well, I
         want to make a note that I will be objecting to hearsay
         and I want to do it before the jury hears it.

         COMMONWEALTH: I don’t believe that there is any
         hearsay, Judge. The substance of Chief Cox’s testimony is
         that once receiving information of the white Jeep, he
         received information from a confidential informant that the
         Jeep could be at 20 Millview Street, and he responded to
         that location and in fact found the Jeep, so I think that
         that is just a part of the res gestae. It is not being
         offer[ed] for the truth. It is just why he went to 20
         Millview.

         DEFENSE COUNSEL: Your Honor, in additional to that, in
         Chief Cox’s statement, he said that there was other
         information that is incriminating, which…includes the fact
         that the defendant was in the white Jeep, and that it was
         at the scene.

         COMMONWEALTH: The specific information received from
         the confidential informant was that Tay and K-Dub were
         involved and they left in a white Jeep and they were at 20
         Millview Street.


                                    - 27 -
J-S58045-14


         DEFENSE COUNSEL: And that is hearsay.

         COMMONWEALTH: And it was based on that information
         that he went to 20 Millview Street and found both the
         white Jeep and the occupants.

         THE COURT:            Well,    in   the    absence    of   an
         identification of [the] confidential informant, you can’t use
         that information at all other than to say that [the police]
         learned of the location of the white Jeep and they went to
         20 Millview, and anything that led up to that at this point is
         hearsay unless you come up with another way to get it in.

         COMMONWEALTH:        Okay.

         DEFENSE COUNSEL: Thank you, Your Honor.

         (AT THIS TIME, THE SIDE-BAR CONFERENCE WAS
         CONCLUDED)

(N.T. Trial, 2/3/14, at 63-64).        The substance of Chief Cox’s testimony

before the jury was limited to his course of investigation and is, in relevant

part, as follows:

         COMMONWEALTH:        Chief, back on May 13, 2012, were
         you on duty?

         WITNESS:             I was not.

         COMMONWEALTH: Did you have the occasion                      to
         investigate the matter before the [c]ourt on that date?

         WITNESS:             I did.

         COMMONWEALTH: Can you              tell   us   how   you   came
         involved in that investigation?

         WITNESS:             At approximately five a.m., I had
         received a phone call at home that there had been a
         shooting in the area of Pershing Court and that a male had
         a gunshot, an apparent gunshot to the head and he was in
         grave condition.

                                       - 28 -
J-S58045-14



       COMMONWEALTH: Upon receiving that call, did you
       respond to the crime scene?

       WITNESS:            I did.

       COMMONWEALTH:       What time did you arrive?

       WITNESS:            At approximately 5:20.

       COMMONWEALTH: And, can you tell              me   what     you
       encountered upon your arrival there?

       WITNESS:            Um, when I arrived, [Victim] had
       already been taken from the scene, and I began to speak
       with the officers to gather as much intel as possible to
       determine a potential suspect.

       COMMONWEALTH: In your speaking to any officers
       and/or other sources, did you get any information that you
       used to investigate?

       WITNESS:            I did. I received information that the
       shooter had…

       DEFENSE COUNSEL: Objection.

       THE COURT:          Sustained.        At   this   point,   we
       discussed…

       COMMONWEALTH:       Let me ask…

       WITNESS:            Yes, sir.

       COMMONWEALTH: After speaking to other officers and
       other sources, you were aware that there was a white Jeep
       seen at the scene, correct?

       WITNESS:            Yes, sir.

       COMMONWEALTH:       Did you go about investigating the
       white Jeep?

       WITNESS:            I did.

                                    - 29 -
J-S58045-14



       COMMONWEALTH: And, after the investigation, did you
       receive any information as to where the…

       DEFENSE COUNSEL: Objection.

       THE COURT:           Did you locate the white Jeep?

       WITNESS:             Yes, sir.

       COMMONWEALTH:        Where did you locate the white Jeep?

       WITNESS:             In an unnamed alley north of Millview
       Street.

       COMMONWEALTH:        Upon locating the Jeep, what did you
       do?

       WITNESS:             I requested the assistance of other
       officers.

       COMMONWEALTH: Did other officers arrive at the scene
       in the unnamed alley by Millview Street?

       WITNESS:             Yes, sir.

       COMMONWEALTH:        What other officers were there?

       WITNESS:              I believe Officer Painter, Officer
       Fidazzo, Officer Miller at some point, and I don’t remember
       [in] which order they arrived.

       COMMONWEALTH: Did you check to see—did you check
       the hood or anything to see if it had been running
       recently?

       WITNESS:             I did. I felt the hood and it appeared
       to be warm. It felt warm.

       COMMONWEALTH: Once the other officers arrived on the
       scene, what steps did you take?

       WITNESS:              The Jeep was parked at the rear of
       basically like a garage apartment, so the first step we took

                                  - 30 -
J-S58045-14


       was to knock on the door of that garage apartment. I
       knocked on that door, encountered a male, I asked if that
       was his Jeep and he advised it was not. I then asked if he
       knew whose Jeep it was and he said that he did not, but
       that a short time prior to our arrival, he observed the Jeep
       pull up and two individuals exited and walked…

       DEFENSE COUNSEL: Objection to hearsay.

       THE COURT:           Yeah.      There     is   no    hearsay
       [exception] that I have heard to justify the chief repeating
       what he was told by a witness that is not testifying.

       COMMONWEALTH:        Understood, Your Honor.

       COMMONWEALTH: After speaking to the guy in the
       garage, what did you do at that point, Chief?

       WITNESS:              At that point I—myself       and   the
       officers went to the area of 20 Millview Street.

       COMMONWEALTH: What did you do—strike that. First
       off, where is that in relation to the unnamed alley where
       you observed the Jeep at?

       WITNESS:             South.

       COMMONWEALTH:        Not that far away?

       WITNESS:             Less than a block.

       COMMONWEALTH:        And, upon going to 20 Millview, what
       did you do?

       WITNESS:             We arrived at 20 Millview and
       stationed officers on the compass points of 20 Millview
       Street. At that point, I utilized a bullhorn to order any
       individuals that were inside of 20 Millview Street in the
       third floor apartment out.

       COMMONWEALTH:        What specifically did you say?

       WITNESS:            At that point, I believed that my initial
       verbiage towards the apartment was any occupants on the

                                  - 31 -
J-S58045-14


       third floor of 20 Millview Street, please exit with your
       hands up.

       COMMONWEALTH:      And, did you receive any response to
       that command?

       WITNESS:           After some time, yes.

       COMMONWEALTH:      Approximately how long after?

       WITNESS:           Maybe between five and ten minutes

       COMMONWEALTH:      And what was the response that you
       got?

       WITNESS:           One individual exited the residence.

       COMMONWEALTH:      Were you able to identify that person?

       WITNESS:           Yes, sir.

       COMMONWEALTH:      Who was it?

       WITNESS:           His name is Jasson Miller.

       COMMONWEALTH: Was Mr. Miller secured when he came
       out of the residence?

       WITNESS:           Yes, he was.

       COMMONWEALTH:      Did anybody else come out of the
       residence?

       WITNESS:           A female and two males.

       COMMONWEALTH:      About how long after Mr. Miller came
       out?

       WITNESS:            I believe the female was the second
       to come out, and then probably within twenty minutes or
       so, the other two males exited.

       COMMONWEALTH:      So, four occupants in the apartment
       altogether?

                                - 32 -
J-S58045-14



       WITNESS:            Yes, sir.

       COMMONWEALTH: Were you able to identify the female
       when she came out?

       WITNESS:            We were.

       COMMONWEALTH:       And, who was she?

       WITNESS:            I don’t recall the name off the top of
       my head.

       COMMONWEALTH:       What about the two males.

       WITNESS:            They were identified as well.

       COMMONWEALTH:       Do you recall who they were?

       WITNESS:             Deaundrey Fielder and [Appellant],
       who is seated to the left of [defense counsel].

       COMMONWEALTH: Your Honor, I would ask the record to
       reflect that Chief Cox had identified [Appellant].

       THE COURT:          The record will so reflect.

       COMMONWEALTH: So, Chief, how long of a timespan is
       this just to give us an idea from the time that Mr. Miller
       comes out until the time Mr. Fielder and [Appellant] come
       out?

       WITNESS:            Approximately twenty minutes.

       COMMONWEALTH:       And, at what point did the female
       come out?

       WITNESS:              In between. You know, maybe five to
       ten minutes into an announcing and requesting that all of
       the parties [exit] the residence.

       COMMONWEALTH:       So, shortly after Mr. Miller?

       WITNESS:            Yes.

                                  - 33 -
J-S58045-14



       COMMONWEALTH: In the five to ten minute span after
       you gave that initial command, did you give additional
       commands?

       WITNESS:            Yes. I gave commands throughout
       the duration probably every minute to two minutes.

       COMMONWEALTH: And, that was similar to commands
       that you gave to all occupants before the four of them
       come out?

       WITNESS:           Yes, sir.

       COMMONWEALTH:      Hands up or something to that effect?

       WITNESS:           Yes, sir.

       COMMONWEALTH: Once Mr. Fielder and [Appellant] came
       out, were they secured and taken into custody?

       WITNESS:           They were.

       COMMONWEALTH: After the two males, that being Mr.
       Fielder and [Appellant], [came] out of the apartment and
       were secured, what did you observe on Millview Street?

       WITNESS:           If you could be a little more specific?

       COMMONWEALTH: Once they were taken into custody,
       were they placed into a patrol vehicle?

       WITNESS:           Yes, they were all placed into patrol
       vehicles and   transferred to the Uniontown Police
       Department.

       COMMONWEALTH: Thank you, Chief.
       COMMONWEALTH: That’s all of the questions that I have
       for Chief Cox, Judge.

                        CROSS EXAMINATION

       DEFENSE COUNSEL: Chief, you say that there were four
       occupants of the house when you told them to come out of

                                - 34 -
J-S58045-14


       the house; is that correct?

       WITNESS:             Yes.

       DEFENSE COUNSEL: Okay.           The first one was a person
       named Jasson Miller?

       WITNESS:             Yes.

       DEFENSE COUNSEL: The second person that came out was
       a female?

       WITNESS:             Yes.

       DEFENSE COUNSEL: You don’t remember [her] name?

       WITNESS:             No, sir.

       DEFENSE COUNSEL: Was it—would you remember if it was
       Ms. Fairfax?

       WITNESS:             Yes, it was.

       DEFENSE COUNSEL: And, her first name?

       WITNESS:             Jessica.

       DEFENSE COUNSEL: It was Ms. Fairfax?

       WITNESS:             Yes, sir.

       DEFENSE COUNSEL: Now, after that, Mr. Fielder          and
       [Appellant] come out. Did [they] come out together?

       WITNESS:             I don’t remember.

       DEFENSE COUNSEL: And, do you remember Mr. Fielder?

       WITNESS:             Um, I may or may not.

       DEFENSE COUNSEL: Was he taken into custody?

       DEFENSE COUNSEL: Do you know whether either of the
       males, or any of the three males were in a relationship

                                     - 35 -
J-S58045-14


         with the female?

         WITNESS:             I don’t.

         DEFENSE COUNSEL: Who owned the Jeep?

         WITNESS:             I am not sure.

         DEFENSE COUNSEL: Do you know who was driving the
         Jeep?

         WITNESS:             I didn’t observe anyone driving the
         Jeep.

         DEFENSE COUNSEL: Okay. In your information did you
         find out who had been driving?

         WITNESS:             I did not.

         DEFENSE COUNSEL: Did      you     find   out   who   had   been
         occupants in the car?

         WITNESS:             I did not.

         DEFENSE COUNSEL: Okay. That’s all I have. Thank you.

         COMMONWEALTH:        No redirect, Your Honor.

         THE COURT:           You can step down Chief Cox.

         WITNESS:             Thank you, Your Honor.

(N.T. Trial, 2/3/14, at 64-72). As the trial transcript makes clear, there was

no testimony presented in front of the jury on the CI’s information that

would constitute inadmissible hearsay. Additionally, at no time did Chief Cox

identify Appellant as the shooter, based on information obtained from the CI.

Therefore, nothing in the record indicates the jury verdict was compromised

by inadmissible hearsay as Appellant has alleged. Thus, this issue merits no


                                    - 36 -
J-S58045-14


relief.

          In his last issue, Appellant complains the court allowed evidence

concerning a bullet hole near the crime scene that did not relate to the

homicide at issue.        Appellant insists the evidence was irrelevant to the

charges against him. Appellant avers the bullet hole was placed more than a

day before the homicide at issue. Appellant submits the evidence admitted

was pure speculation in an attempt to bolster the Commonwealth’s case with

“outrageous information.” Appellant concludes the court erred in admitting

this evidence, which only clouded the matter and warrants relief. We cannot

agree.

          The general standard of review for admission of evidence is as follows:

               Admission of evidence is within the sound discretion
               of the trial court and will be reversed only upon a
               showing that the trial court clearly abused its
               discretion. Admissibility depends on relevance and
               probative value. Evidence is relevant if it logically
               tends to establish a material fact in the case, tends
               to make a fact at issue more or less probable or
               supports a reasonable inference or presumption
               regarding a material fact.

                                     *     *      *

               Judicial discretion requires action in conformity with
               law, upon facts and circumstances judicially before
               the court, after hearing and due consideration. An
               abuse of discretion is not merely an error of
               judgment, but if in reaching a conclusion 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, discretion is abused.


                                         - 37 -
J-S58045-14


Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa.Super. 2006) (en

banc), appeal denied, 591 Pa. 711, 919 A.2d 955 (2007) (internal citations

omitted).     Relevance is the threshold for admissibility of evidence.

Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).

The Pennsylvania Rules of Evidence provide:

        Rule 401. Definition of “relevant evidence”

        “Relevant evidence” means evidence having any tendency
        to make the existence of any fact that is of consequence to
        the determination of the action more probable or less
        probable than it would be without the evidence.

Pa.R.E. 401. Rule 402 states:

        Rule 402.    General      Admissibility     of    Relevant
        Evidence

        All relevant evidence is admissible, except as otherwise
        provided by law. Evidence that is not relevant is not
        admissible.

            Comment: Pa.R.E. 402 differs from F.R.E. 402. The
            Federal Rule specifically enumerates the various sources
            of federal rule-making power. Pa.R.E. 402 substitutes
            the phrase “by law.”

            Pa.R.E. 402 states a fundamental concept of the law of
            evidence. Relevant evidence is admissible; evidence
            that is not relevant is not admissible. This concept is
            modified by the exceptions clause of the rule,
            which states another fundamental principle of
            evidentiary law—relevant evidence may be
            excluded by operation of constitutional law, by
            statute,     by   these     rules,   by   other   rules
            promulgated by the Supreme Court or by rules of
            evidence created by case law.

                                 *     *      *


                                     - 38 -
J-S58045-14


Pa.R.E. 402 (emphasis added). In other words, evidence that is relevant to

an issue in a particular case can still be incompetent and therefore

inadmissible because one or more established rules of evidence preclude its

admission. Id. See also Commonwealth v. Paddy, 569 Pa. 47, 70–71,

800 A.2d 294, 308 (2002) (stating: “Evidence that is relevant may

nevertheless be inadmissible if it violates a rule of competency…”).

         Trial judges generally enjoy broad discretion regarding the
         admission of potentially misleading or confusing evidence.
         Trial judges also have the authority to exclude relevant
         evidence if its probative value is substantially outweighed
         by the danger of unfair prejudice or confusion.
         Furthermore, the function of the trial court is to balance
         the alleged prejudicial effect of the evidence against its
         probative value, and it is not for an appellate court to
         usurp that function.

Commonwealth v. Parker, 882 A.2d 488, 492 (Pa.Super. 2005), affirmed

on other grounds, 591 Pa. 526, 919 A.2d 943 (2007) (internal citations

omitted).

      Instantly, the Commonwealth offered into evidence a picture of the

crime scene that showed a bullet hole near the crime scene from the day

before the shooting. Ms. Robinson, who was Victim’s girlfriend at the time of

the homicide, testified that on the night before the shooting, she heard

gunshots and she saw men running away from the scene. She said before

that incident, she had not heard gunshots fired for as long as she could

remember. Further, in his second written statement to the police, Appellant

admitted he had exchanged gunfire with Victim the night before the


                                    - 39 -
J-S58045-14


homicide and confronted him again on the night of the shooting. As a result,

the trial court reasoned:

         Ms. Robinson, [Victim’s] girlfriend, was shown photos of
         the crime scene that depicted two bullet entries into her
         home in Pershing Court. One of the bullet holes was from
         May 13, 2012, while the other was from May 12, 2012.
         Ms. Robinson testified that she heard a “loud commotion”
         on May 12 that included gunshots, but she was unable to
         identify any of the men involved. The [c]ourt permitted
         this testimony due to the close proximity of the shootings
         in this case and to demonstrate the amount of gunfire that
         occurs in Pershing Court on any given day.

         [Appellant] himself claimed in one of his statements that
         there was a shooting in this area on May 12.

(Trial Court Opinion at 16).   The evidence served to dispel any possible

argument that the bullet holes came from a firefight between Appellant and

Victim in which Appellant was acting in self-defense. Instead, the homicide

occurred during an ambush in which Appellant killed Victim. This bullet-hole

evidence was therefore relevant and met the threshold requirement of

admissibility. Moreover, the evidence was not so unduly prejudicial as to call

the jury’s verdict into question.   Thus, we see no reason to disturb the

court’s decision to admit the bullet-hole evidence at trial. Based upon the

foregoing, we affirm.

      Judgment of sentence affirmed.




                                    - 40 -
J-S58045-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




                          - 41 -
