J-A18020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAEVON DONTA PLOWDEN                       :
                                               :
                       Appellant               :   No. 953 WDA 2018

        Appeal from the Judgment of Sentence Entered March 16, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0007477-2016


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 06, 2019

       Appellant Daevon Donta Plowden appeals from the judgment of

sentence entered following his jury trial convictions for two counts of

aggravated assault and one count each of first-degree murder, attempted

homicide, and firearms not to be carried without a license. 1         Appellant

challenges the trial court’s denials of his motion in limine, request for a jury

instruction regarding evidence of habit, and request for funds to hire an expert

witness. Appellant also challenges the sufficiency of the evidence supporting

the firearms conviction. We affirm.

       The relevant facts and procedural history of this appeal are as follows.

       The events leading up to the May 25, 2016 murder of Tamar
       Taylor, and the attempted murder of Daniel Jones, began several
       months prior, when [Appellant] began dating a woman named
____________________________________________


1  18 Pa.C.S. §§ 2702(a)(1), (4), 2502(a), 901(a), and 6106(a)(1),
respectively.
J-A18020-19


     Lashawna Holmes in October of 2015. Ms. Holmes previously had
     been in a long-term and tumultuous relationship with Daniel Jones
     for approximately nine and a half (9½) years, and they had a
     daughter together in 2008. After her relationship with Mr. Jones
     ended, Ms. Holmes started seeing [Appellant]. Mr. Jones did not
     like [Appellant], and he threatened and intimidated [Appellant]
     multiple times over the course of Ms. Holmes’ relationship with
     [Appellant]. Some of the threats were made through Ms. Holmes,
     such as when Mr. Jones told her that [Appellant’s] “clock was
     ticking.”

     There were two (2) specific incidents preceding the night of the
     murder where Mr. Jones allegedly pulled a gun on [Appellant].
     The first incident occurred in late October of 2015, when Mr. Jones
     followed [Appellant] and Ms. Holmes to the Marriott Hotel in the
     Waterfront area of Homestead, PA, where the couple was
     attempting to enjoy a weekend getaway.

                                 *    *    *

     The second incident occurred a few months later, towards the end
     of 2015 or the beginning of 2016.

                                 *    *    *

     On May 25, 2016, [Appellant] was at his Brentwood home, where
     he lived with Ms. Holmes, her daughter Skye, and Ms. Holmes’
     mother and father. The residence, located at 45 Bellanca Avenue,
     was three (3) stories high, had a small yard, brick porch, and a
     side door with a small porch on the right side of the house. At
     approximately 9:00 p.m. that evening, Skye texted her father, Mr.
     Jones, and asked if he could drop off a sleeping bag and bug spray
     that she needed for an upcoming camping trip. When Skye told
     her mother that she had texted her father, Ms. Holmes became
     upset. Ms. Holmes told Mr. Jones not to come over because he
     was not welcome at the house and that she would call the police
     if he came. Mr. Jones ignored her warnings and insisted that he
     was coming over. Ms. Holmes then told [Appellant] about Skye’s
     text and that Mr. Jones was coming to the house. At the time of
     this conversation, [Appellant] was dressed casually in a white t-
     shirt and grey basketball shorts.

     Ms. Holmes waited for Mr. Jones outside of the home on her front
     porch.  Mr. Jones arrived at the house around 9:30 p.m.,

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     approximately 15 to 30 minutes after Skye texted him. His friend
     and co-worker, Tamar Taylor, had driven Mr. Jones to the house.
     Mr. Taylor waited inside of his car while Mr. Jones dropped off the
     camping supplies. Mr. Taylor’s car was parked across the street
     from the home at 45 Bellanca Avenue, with the driver’s side door
     facing the house. Mr. Taylor had left the car running while he
     waited for Mr. Jones.

     When Mr. Jones exited the vehicle, Ms. Holmes was angry, and
     she asked why he had come over when she had told him that he
     was not welcome. She told him that he should not be there and
     that she would call the police. Mr. Jones did not verbally respond
     to her; rather, he made a peace sign and walked towards Sheila
     Taylor, Ms. Holmes’ mother, who was waiting for him to receive
     the supplies. Mr. Jones, walking across the street from the car
     toward the house, approached the curb, handed the camping
     supplies to Mrs. Taylor, said thank you, and turned, walking back
     to the car. The entire encounter lasted no more than one minute,
     and Mr. Jones never stepped foot on the curb, sidewalk, yard, or
     porch of the residence. Mrs. Taylor immediately returned to the
     home after receiving the supplies from Mr. Jones.

     Mr. Jones was entering the vehicle, and his body was halfway
     inside, when [Appellant] appeared from the side of the house with
     a gun in his hand. [Appellant] had changed clothes and was now
     dressed in a black t-shirt, black pants, and black hat. He asked
     Mr. Jones why he was outside of the house, and he told Mr. Jones
     that he should not be there. Mr. Jones replied, “You done? You
     done?” Ms. Holmes went into the house to call 911 because she
     feared that the confrontation would escalate.

     After appearing from the side of the house, dressed in all black,
     and telling Mr. Jones that he should not be there, [Appellant]
     began firing his weapon at Mr. Jones and the vehicle that he was
     partially occupying. When the shots began, Mr. Jones exited the
     car and took cover behind the rear passenger side door. He began
     running when he heard a pause in the gunfire. [Appellant] chased
     Mr. Jones down the middle of the street while firing his gun at
     him, and he shot Mr. Jones in the left buttocks as Mr. Jones was
     running away. Mr. Jones was able to escape without any fatal
     injuries despite the fact that [Appellant] had fired an entire clip of
     ammunition and had even reloaded his weapon.

                                  *    *    *

                                      -3-
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     Ms. Holmes and her mother heard gunshots from inside of the
     house. Mrs. Taylor recalled approximately two (2) minutes
     passing from the time that she took the sleeping bag from Mr.
     Jones to the time that she heard the gunshots. Ms. Holmes heard
     “a ton of gunshots” then heard a “slight pause,” followed by more
     gunshots. After the gunfire ceased, Ms. Holmes came outside and
     saw [Appellant] “in the distance down the street” on the far side
     of 55 Bellanca Avenue. She did not see Mr. Jones. Ms. Holmes
     did, however, see Tamar Taylor’s car collide with another vehicle
     in front of 53 Bellanca Avenue. The car crash was the result of
     Mr. Taylor being struck and killed by four (4) bullets that had been
     intended for [Mr.] Jones. Mr. Taylor’s car was still running when
     the police arrived on scene.

     [Appellant] fled from the scene of the shooting and was
     apprehended an hour later, at approximately 10:12 p.m.
     [Appellant] was discovered by Pittsburgh Police Officer Lucas
     Coyne and his K-9 partner, Dash. [Appellant] was found hiding
     near a tree in the backyard area between 69 and 63 Bellanca
     Avenue. The area was a “wooded hillside” with “waist high”
     shrubbery and grass. [Appellant’s] black “Carhartt winter tossle
     cap” was discovered approximately 20-30 feet away from where
     [Appellant] was hiding. [Appellant] did not have any injuries.

     [Appellant’s] first statement upon being located was “okay, okay,
     you got me.” Immediately following his capture, [Appellant] lied
     to [Brentwood Police] Officer [Carl] Rech twice about the presence
     and location of his firearm. [Appellant] first told Officer Rech that
     he did not have a firearm at all. [Appellant] later admitted that
     he had a firearm, but then lied about its whereabouts. He told
     Officer Rech that he had thrown it on a rooftop. “[T]here was [an]
     active search all night for guns up Bellanca Avenue and in between
     Farson Way and Bellanca.” . . . [Appellant’s] black Glock 9
     millimeter firearm was ultimately found approximately 15-30 feet
     away from where he had been apprehended. The firearm was
     found “on the ground [] under the [thick] shrubbery, brush.” The
     firearm was partially concealed by the foliage, which made it
     difficult to see.

                                 *    *    *

     During his interview [with the police], and at trial, [Appellant]
     claimed that he was acting in self-defense. He said that Daniel

                                     -4-
J-A18020-19


       Jones had pointed a gun at him over the roof of the car that night.
       He stated that he did not give Mr. Jones a chance to shoot, instead
       pulling a Glock 9 firearm from his waistband and shooting.
       However, Ms. Holmes testified that she never saw Mr. Jones with
       a firearm that night, and Mr. Jones testified that he did not have
       a firearm on night of the incident. Law enforcement also did not
       find a weapon on Mr. Jones when they were clearing him for
       medical transport. Further, investigators did not find any other
       weapons after searching the crime scene that night.

Trial Ct. Op., 10/2/18, at 4-13 (record citations and emphasis omitted).

       On July 17, 2017, Appellant filed an omnibus pretrial motion that

included a request for funds to hire a “forensic psychologist who can explain

[Appellant’s] actions after the shooting. That is, were [Appellant’s] actions an

involuntary response following a traumatic event?”        Omnibus Pretrial Mot.,

7/17/17, at 8 (quotation marks omitted).         Appellant also filed a motion in

limine, arguing that “[t]he jury must be apprised of the numerous [protection

from abuse (PFA)] filings documenting [Mr.] Jones’s possession and use of a

firearm and his convictions for the same.” Id. at 11 (footnote omitted).

       The trial court conducted hearings on July 19, 2017, and September 14,

2017. On September 22, 2017, the trial court denied the motion in limine and

the request for funds to hire a forensic psychologist.2 Regarding the motion

in limine, the trial court noted that Appellant failed to establish his knowledge

of the PFA filings at the time of the shooting. Appellant’s “failure to lay a

proper foundation as to knowledge is fatal to [Appellant’s] motion, because

evidence of the . . . PFA filings only would be relevant to buttress [Appellant’s]

____________________________________________


2 Appellant’s omnibus pretrial motion included a separate request for funds to
retain a private investigator, which the trial court granted.

                                           -5-
J-A18020-19



self-defense claim that he reasonably believed his life was in danger . . . .”

Order, 9/22/17, at ¶ 6.

      Appellant subsequently filed a reconsideration motion, asserting that he

was aware of the PFA filings at the time of the shooting. Appellant cited the

transcript of his interview with the police, where he told a detective about a

PFA order Ms. Holmes had obtained against Mr. Jones.          For the first time,

Appellant also provided three PFA petitions that Ms. Holmes had filed against

Mr. Jones.   Two of the petitions described the incidents where Mr. Jones

confronted Appellant with a firearm. See Mot. for Recons., 11/9/17, at Exs.

C, G. Nevertheless, the trial court denied Appellant’s reconsideration motion

on November 15, 2017.

      On December 8, 2017, Appellant filed a supplemental motion for

reconsideration,   reiterating   that   he    had   “demonstrated   his   firsthand

knowledge of [the] PFA [filings], and these facts must be presented to the

jury so they have a complete and accurate picture of the context in which this

shooting occurred.” Mot., 12/8/17, at 2 (emphasis in original). The parties

appeared for trial on December 12, 2017.            Before the jury entered the

courtroom, the trial court heard additional arguments regarding the

admissibility of evidence about the PFA filings.

      Ultimately, the trial court continued to deny Appellant’s motion in limine.

The trial court explained:

      THE COURT: Given the PFAs are with [Ms. Holmes] and do not
      have mention of [Appellant], PFAs are out. If [Ms. Holmes] has


                                        -6-
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      knowledge of incidents where the guns were pulled on [Appellant]
      that’s fine, those incidents can come in.

      [Appellant’s Counsel]: With the issue of―I suspect it’s going to
      come up: [Mr. Jones], you weren't supposed to be here. Why are
      you here? I don't know what Ms. Holmes is going to say when
      she gets up there to testify, I think the jury is going to be
      scratching their head, well, what’s everybody talking about? My
      purpose―

      THE COURT: That kind of stuff is always in the courtroom, there
      is always stuff that is not mentioned, and we always get around it
      with witnesses. So we’re not adding the PFA to explain why he
      couldn’t be around her. It simply isn’t going to come in for that
      purpose, okay.

N.T. Trial, 12/12-15/17, at 14-15.

      Prior to the conclusion of trial, Appellant requested a special jury

instruction pursuant to Pa.R.E. 406. The instruction would inform the jury

that evidence of a person’s habit or routine may be considered to prove that

the person acted in accordance with the habit on a particular occasion.

Appellant sought this instruction in light of his theory that Mr. Jones had a

regular habit of carrying a firearm. The trial court denied Appellant’s request

for the instruction, noting that the two incidents where Mr. Jones pulled a gun

on Appellant prior to the shooting did not amount to a habit. See id. at 593.

      Following trial, the jury convicted Appellant of the aforementioned

offenses.   On March 16, 2018, the trial court sentenced Appellant to life

imprisonment for the first-degree murder conviction, plus a concurrent term

of twenty to forty years’ imprisonment for the attempted homicide conviction.

The trial court imposed a consecutive term of two to four years’ imprisonment




                                     -7-
J-A18020-19



for the firearms conviction and no further penalty for the aggravated assault

convictions.

      Appellant timely filed a post-sentence motion on March 26, 2018, which

included a request to file supplemental post-sentence motions after he

obtained all relevant transcripts. The trial court permitted Appellant to file

supplemental post-sentence motions no later than June 1, 2018. Appellant

timely filed his supplemental post-sentence motions on May 18, 2018.

Appellant raised challenges to the weight and sufficiency of the evidence, as

well as the trial court’s rulings on the motion in limine, the requested jury

instruction, and the hiring of an expert witness.      The trial court denied

Appellant’s post-sentence motions on June 21, 2018.

      Appellant timely filed a notice of appeal on July 2, 2018, and a court-

ordered Pa.R.A.P. 1925(b) statement on July 20, 2018. The trial court filed a

responsive opinion concluding that (1) evidence of the PFA filings did not make

it more likely that Appellant was justified in his use of deadly force; (2) Ms.

Holmes’ testimony did not support a jury instruction on habit; (3) whether

Appellant reasonably feared for his life immediately following the shooting was

not beyond the knowledge of the jury and did not require an expert

explanation; and (4) sufficient evidence supported Appellant’s firearms

conviction where police found the gun concealed under the tall grass where

Appellant had been hiding from the police.

      Appellant now raises four questions for our review:




                                     -8-
J-A18020-19


      I. Did the trial court err in denying [Appellant’s] motion in limine
      to introduce the PFAs filed by Ms. Holmes against Mr. Jones by
      finding that [Appellant] had failed to show knowledge of the PFAs
      when [Appellant] had presented evidence that he knew of the
      PFAs?

      II. Did the trial court err by denying [Appellant’s] proposed jury
      instruction regarding Pa.R.E. 406 (Habit; Routine Practice) where
      there was testimony presented that Mr. Jones always carried a
      gun with him?

      III. Did the trial court abuse its discretion when it denied
      [Appellant], an indigent client with court appointed counsel,
      additional funds for a forensic psychologist to examine [Appellant]
      and establish that he held an honest, bona fide belief that he was
      in danger?

      IV. Whether the evidence was insufficient to support [Appellant’s]
      conviction for Carrying a Firearm Without a License where the
      Commonwealth failed to prove the essential element of
      concealment?

Appellant’s Brief at 7.

      In his first issue, Appellant claims that the trial court erred in denying

his motion in limine to admit evidence the PFAs against Mr. Jones. Id. at 24.

Appellant argues that he attempted to advance a self-defense claim at trial.

Id. Appellant asserts that “[e]vidence of the PFAs would have informed the

jury that Mr. Jones always carried―and, importantly, always brandished―a

firearm when interacting with [Appellant] and Ms. Holmes.”             Id. at 25.

Appellant   contends      that   “[s]uch    evidence   would   have   corroborated

[Appellant’s] statement that Mr. Jones was pulling a firearm out to shoot

[Appellant] on the night of Mr. Taylor’s death, that [Appellant] was reasonable

in his belief of seeing Mr. Jones with a firearm, and that was why [Appellant]

responded by firing his own firearm.”            Id.   Regarding the trial court’s

                                           -9-
J-A18020-19



determination that Appellant failed to establish his knowledge of the PFAs at

the time of the shooting, Appellant insists “not only did he know about the

PFAs . . . against Mr. Jones, he was present for at least two of the incidents

that gave rise to the PFAs.” Id. at 27. Appellant concludes that the court

abused its discretion in denying his motion in limine. Id. at 31.

       This Court’s standard of review for issues regarding the admissibility of

evidence is well settled:

       Questions concerning the admissibility of evidence are within the
       sound discretion of the trial court . . . [and] we will not reverse a
       trial court’s decision concerning admissibility of evidence absent
       an abuse of the trial court’s discretion. An abuse of discretion is
       not merely an error of judgment, but is rather the overriding or
       misapplication of the law, or the exercise of judgment that is
       manifestly unreasonable, or the result of bias, prejudice, ill-will or
       partiality, as shown by the evidence of record. [I]f in reaching a
       conclusion the trial court over-rides [sic] or misapplies the law,
       discretion is then abused and it is the duty of the appellate court
       to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (alterations

in   original   and   citations   and   quotation      marks   omitted);    see   also

Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (explaining

that this Court applies an evidentiary abuse of discretion standard of review

when ruling on a trial court’s decision to grant or deny a motion in limine).

       “Relevance     is   the    threshold      for   admissibility   of   evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)

(citation omitted).

       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,

                                        - 10 -
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     or tends to support a reasonable inference or proposition
     regarding a material fact. Relevant evidence may nevertheless be
     excluded if its probative value is outweighed by the danger of
     unfair prejudice, confusion of the issues, or misleading the jury,
     or by considerations of undue delay, waste of time, or needless
     presentation of cumulative evidence.

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation

and quotation marks omitted).

     A claim of self-defense requires evidence establishing three elements:

     (a) that the defendant reasonably believed that he was in
     imminent danger of death or serious bodily injury and that it was
     necessary to use deadly force against the victim to prevent such
     harm; (b) that the defendant was free from fault in provoking the
     difficulty which culminated in the slaying; and (c) that the
     defendant did not violate any duty to retreat. Although the
     defendant has no burden to prove self-defense, . . . before the
     defense is properly in issue, there must be some evidence, from
     whatever source, to justify such a finding.

Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (citations,

quotation marks, footnote, and brackets omitted).

     [O]ur [S]upreme [C]ourt has held that in a homicide trial, where
     self-defense is asserted, the defendant may introduce evidence of
     the turbulent or dangerous character of the decedent. This type
     of character evidence is admissible on either of two grounds: 1)
     to corroborate the defendant’s alleged knowledge of the victim’s
     violent character in an effort to show that the defendant
     reasonably believed that [his] life was in danger; and/or 2) to
     prove the allegedly violent propensities of the victim to show that
     the victim was in fact the aggressor.

Commonwealth v. Carbone, 707 A.2d 1145, 1154 (Pa. Super. 1998)

(citations and emphasis omitted); see also Commonwealth v. Darby, 373

A.2d 1073, 1074-75 (Pa. 1977) (holding that a defendant claiming self-

defense should have been allowed to testify that he knew the victim had been


                                   - 11 -
J-A18020-19



arrested previously for violent crimes, and the victim’s arrest record should

have been admitted to corroborate the defendant’s testimony that he believed

his life was in danger, even if no convictions resulted from the victim’s

arrests).

      Additionally, not all evidentiary errors entitle an appellant to relief:

      Harmless error exists if the state proves either: (1) the error did
      not prejudice the defendant or the prejudice was de minimis; or
      (2) the erroneously admitted evidence was merely cumulative of
      other untainted evidence which was substantially similar to the
      erroneously admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.

Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa. 2018) (citations

omitted).

      Instantly, the trial court determined that Appellant is not entitled to

relief on his claim regarding the evidence of the PFA filings:

      Contrary to [Appellant’s] assertion, the fact that Daniel Jones was
      legally prohibited from coming into contact with Lashawna Holmes
      did not make it more likely that [Appellant] was justified in his use
      of deadly force on the night of the shooting. Even if [Appellant]
      was aware of the fact that a PFA Order was in place, he was not
      automatically entitled to use deadly force against a person who
      might violate a court order. The evidence did not show that Mr.
      Jones was acting in a violent manner towards Ms. Holmes and that
      [Appellant] was coming to her defense. While it is true that Ms.
      Holmes did not want Mr. Jones at her residence that evening, their
      interaction was incredibly brief, with no verbal response by Mr.
      Jones to Ms. Holmes’ questions―only the flashing of a peace sign.
      Mr. Jones provided the camping supplies to Ms. Holmes’ mother.
      Mr. Jones was attempting to leave when [Appellant] initiated the
      confrontation with a loaded gun, in fact, in his hand.

                                   *     *      *

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      In any event, even if this court abused its discretion in precluding
      reference to the PFA Order at trial, which it submits that it did not,
      any error in precluding the reference was harmless because the
      court permitted the jury to hear evidence of the underlying facts
      which gave rise to the PFA Order. Allowing the jury to hear
      evidence of that specific instance of conduct was more than
      sufficient to establish [Appellant’s] awareness that Daniel Jones
      carried a firearm. The jury also heard evidence that Daniel Jones
      had made threats against [Appellant], . . . and that Daniel Jones
      was not welcome at the residence. Accordingly, because the jury
      still heard the substantive facts which triggered the issuance of
      the PFA Order, the jury was able to assess whether [Appellant’s]
      fear of Daniel Jones was sincerely held and objectively reasonable
      under the circumstances.

Trial Ct. Op. at 26-27 (record citations omitted).

      Here, the Commonwealth presented evidence regarding the incidents

that served as the foundation for the two PFA petitions related to Mr. Jones.

See N.T. Trial at 148-56. Ms. Holmes’ trial testimony established that on two

occasions, Mr. Jones brandished a firearm during a confrontation with

Appellant. On this record, Appellant failed to establish that the exclusion of

additional evidence regarding the formalities of the PFA filings significantly

contributed to the verdict. See Fulton, 179 A.3d at 493.

      In his second issue, Appellant argues that his cross-examination of Ms.

Holmes established that “Mr. Jones had a habit of routinely and constantly

carrying a firearm.” Appellant’s Brief at 33. Appellant maintains that because

the jury received evidence regarding Mr. Jones’ habit of carrying a firearm,

the trial court needed to provide a jury instruction about habit evidence. Id.

at 44. Appellant concludes that the trial court abused its discretion by denying

his request for a jury instruction on habit evidence. Id.


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      “Our standard of review when considering the denial of jury instructions

is one of deference—an appellate court will reverse a court’s decision only

when it abused its discretion or committed an error of law.” Commonwealth

v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018) (citation and brackets

omitted).

      In reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this Court to
      determine whether the record supports the trial court’s decision.
      It has long been the rule in this Commonwealth that a trial court
      should not instruct the jury on legal principles which have no
      application to the facts presented at trial.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. 2014) (en

banc) (citations, quotation marks, and brackets omitted).

      “Evidence of a person’s habit . . . may be admitted to prove that on a

particular occasion the person . . . acted in accordance with the habit or

routine practice. The court may admit this evidence regardless of whether it

is corroborated or there was an eyewitness.” Pa.R.E. 406. “For evidence of

habit to be admissible, the habit must have occurred with sufficient regularity

to make it probable that it would be carried out in every instance or in most

instances.”   Commonwealth v. Harris, 852 A.2d 1168, 1178 (Pa. 2004)

(citation omitted); see also Commonwealth v. Sanchez, 848 A.2d 977, 984

(Pa. Super. 2004) (holding that two forged checks were not admissible as

habit evidence at a trial for insurance fraud; two instances of forgery did not

rise to a level of continuous and systematic conduct under Rule 406;

moreover, “habit evidence is frequently conduct involving mundane matters”).


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        Instantly, the trial court determined that the two instances when Mr.

Jones brandished a firearm in Appellant’s presence did not amount to

“‘nonvolitional activity’ that occurred with ‘invariable regularity.’” Trial Ct. Op.

at 34 (citing Sutch v. Roxborough Mem’l Hosp., 151 A.3d 241, 253 (Pa.

Super. 2016)). We agree with the trial court that Appellant failed to establish

that the two occasions described in Ms. Holmes’ testimony constituted a habit

that “occurred with sufficient regularity to make it probable that it would be

carried out in every instance or in most instances.” See Harris, 852 A.2d at

1178. Because Rule 406 did not apply to the facts presented at trial, the trial

court    properly   denied   Appellant’s   requested    jury   instruction.    See

Buterbaugh, 91 A.3d at 1257; Cannavo, 199 A.3d at 1286.

        In his third issue, Appellant contends “[t]he pivotal issue at [his] trial

was whether or not he reasonably believed that Mr. Jones had a gun, and

therefore, his life was in danger.” Appellant’s Brief at 47. Appellant insists

that an expert in the field of forensic psychology could have confirmed that

Appellant “held an honest, bona fide fear for his life” at the time of the

shooting.    Id.    Further, an expert could have explained to the jury that

Appellant’s flight after the shooting was caused by something other than

consciousness of guilt. Id. at 49. Appellant argues that he “was an indigent

defendant, and the trial court denied him even the mere opportunity to seek

out such an expert.” Id. at 50. Appellant concludes that the trial court abused

its discretion by denying his request for funds to secure an expert. Id. at 46.




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     The following standard applies to this Court’s review of the denial of an

indigent defendant’s request for funds to obtain an expert:

     It is well-established that indigent defendants have a right to
     access the same resources as non-indigent defendants in criminal
     proceedings. The state has an affirmative duty to furnish indigent
     defendants the same protections accorded those financially able
     to obtain them. Procedural due process guarantees that a
     defendant has the right to present competent evidence in his
     defense, and the state must ensure that an indigent defendant
     has fair opportunity to present his defense.

     However, [t]he provision of public funds to hire experts to assist
     in the defense against criminal charges is a decision vested in the
     sound discretion of the court and a denial thereof will not be
     reversed absent an abuse of that discretion.

Commonwealth v. Melvin, 172 A.3d 14, 22-23 (Pa. Super. 2017) (citation

omitted), appeal denied, 187 A.3d 207 (Pa. 2018).

     “One way in which fact finders may be assisted in making more accurate

and just determinations regarding guilt or innocence at trial is through the

admission of expert testimony.” Commonwealth v. Walker, 92 A.3d 766,

780 (Pa. 2014).

     Rule 702 of the Pennsylvania Rules of Evidence speaks to the
     general admissibility of expert testimony where scientific evidence
     is at issue, and provides that a witness who is qualified as an
     expert may testify in the form of an opinion or otherwise if: (a)
     the expert’s scientific, technical, or other specialized knowledge is
     beyond that possessed by a layperson; (b) the expert’s scientific,
     technical, or other specialized knowledge will help the trier of fact
     to understand the evidence or to determine a fact in issue; and
     (c) the expert’s methodology is generally accepted in the relevant
     field. Thus, to be admissible, the expert testimony must be
     beyond the knowledge possessed by a layperson and assist the
     trier of fact to understand the evidence or determine a fact in
     issue.


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Id. (quotation marks omitted). “[E]xpert testimony is not admissible where

the issue involves a matter of common knowledge.”           Commonwealth v.

Smith, 206 A.3d 551, 560 (Pa. Super. 2019) (citation omitted).

      Instantly, the trial court determined that the issue of whether Appellant

was in reasonable fear for his life at the time of the shootings was “not beyond

the knowledge and understanding of a lay person.” Trial Ct. Op. at 35. We

agree with the trial court that Appellant failed to establish a need for an expert

on a matter of common knowledge: the reasonableness of Appellant’s fear

under the circumstances at issue. See Smith, 206 A.3d at 560; see also

Commonwealth v. King, 721 A.2d 763, 781 (Pa. 1998) (explaining that

there “was no need for an expert to testify to the fear that [the victim] felt in

his confrontation with [the defendants]—the fact that a human being would

experience fear [during a violent episode] is so basic that expert opinion is

unnecessary to assist the jury”). Therefore, the trial court did not abuse its

discretion in denying Appellant’s request for funds to hire an expert.       See

Melvin, 172 A.3d at 22-23.

      In his fourth issue, Appellant claims that the evidence was insufficient

to convict him of carrying a concealed firearm without a license. Appellant’s

Brief at 51. Appellant argues that concealment is an essential element of the

offense of carrying a firearm without a license, and “the Commonwealth

presented no evidence that [he] concealed the firearm on or about his

person.”   Id.   Appellant contends that “Mr. Jones and Ms. Holmes both

indicated that [Appellant] was open[ly] brandishing the firearm the entire

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time.” Id. at 53. Appellant emphasizes that he “came from the side of the

house with the unconcealed gun in hand; he did not suddenly pull the firearm

out of his waistband, pocket, or jacket.” Id. Following the shooting, Appellant

maintains that he informed the police where to find the firearm, “and the

police did, in fact, find the firearm plain[ly] resting on top of the grass in that

location.” Id. Absent some evidence of concealment, Appellant concludes

that the Commonwealth presented insufficient evidence to support the

conviction for carrying a firearm without a license. Id.

      Our standard of review for sufficiency claims is as follows:

      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 trier 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.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (citation

and brackets omitted).




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      Section 6106 of the Crimes Code provides, in pertinent part, that “any

person who carries a firearm in any vehicle or any person who carries a firearm

concealed on or about his person, except in his place of abode or fixed place

of business, without a valid and lawfully issued license under this chapter

commits a felony of the third degree.”       18 Pa.C.S. § 6106(a)(1).     “[T]o

establish a violation of section 6106, the Commonwealth must establish that

a defendant acted intentionally, knowingly or recklessly with respect to each

element[.]” Commonwealth v. Johnson, 192 A.3d 1149, 1155 (Pa. Super.

2018) (citation omitted), appeal denied, 200 A.3d 440 (Pa. 2019).

      “[T]he issue of concealment depends upon the particular circumstances

present in each case, and is a question for the trier of fact.” Commonwealth

v. Horshaw, 346 A.2d 340, 343 (Pa. Super. 1975) (citation omitted)

(analyzing prior version of Section 6106 that also contained the element of

carrying a firearm “concealed on or about his person”). “[A]ny concealment,

even partial, is sufficient to satisfy the concealment element of the crime.”

Commonwealth v. Montgomery, 192 A.3d 1198, 1201 (Pa. Super. 2018)

(citation and emphasis omitted).

      Instantly, the trial court analyzed the unambiguous language of Section

6106(a), concluding that the Commonwealth established the concealment of

Appellant’s firearm:

      Carrying a weapon “about” one’s person logically encompasses
      areas within one’s reach, where a concealed weapon may be
      procured and used against an unsuspecting individual. The
      evidence presented at trial demonstrated that [Appellant’s] black
      Glock 9mm pistol was found at least partially concealed “under

                                    - 19 -
J-A18020-19


      the shrubbery brush,” in the matted-down area of “thick,” “waist-
      high” grass, “right in the same general area” where [Appellant]
      had been hiding. The firearm was found approximately 15-30 feet
      away from [Appellant], well within his reach.

Trial Ct. Op. at 23-24 (record citations omitted).       Contrary to Appellant’s

argument that the police found the firearm resting on top of the grass, the

Commonwealth submitted photographs of the location where the police

recovered the firearm. The photographs confirm that the firearm was partially

concealed by tall grass and plants. See Commonwealth’s Trial Exs. 65-67.

      In addition to the circumstantial evidence demonstrating that Appellant

concealed the firearm in the thick grass where he was hiding, Appellant told

the police that he pulled the firearm from his waistband while Mr. Jones stood

near the vehicle. See Commonwealth’s Trial Ex. 75 at 15. This admission

alone was sufficient to demonstrate concealment. See Montgomery, 192

A.3d at 1201; Horshaw, 346 A.2d at 343; see also Commonwealth v.

Scott, 436 A.2d 607, 608-09 (Pa. 1981) (holding that sufficient evidence

supported the jury’s conclusion that the defendant concealed a weapon where

two witnesses testified that the defendant pulled something that looked like a

gun from his waistband). Viewing the evidence in the light most favorable to

the   Commonwealth     as   verdict   winner,   sufficient   evidence   supported

Appellant’s conviction for carrying a firearm without a license. See 18 Pa.C.S.

§ 6106(a)(1); Tucker, 143 A.3d at 964. Accordingly, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.



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J-A18020-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2019




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