J. S53039/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                     v.                     :
                                            :
SAMMIE CAMPBELL,                            :          No. 996 EDA 2016
                                            :
                          Appellant         :


           Appeal from the Judgment of Sentence, February 24, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0013197-2008


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED OCTOBER 25, 2017

        Sammie Campbell appeals from the February 24, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County after

a jury convicted him of attempted murder, conspiracy, and possessing

instruments of crime.1      The trial court imposed an aggregate sentence of

42½ to 85 years of imprisonment. We affirm.

        The trial court summarized the relevant factual and procedural history

as follows:

                    The underlying case, which is the subject
              matter of the instant appeal, stems from the arrest
              of [appellant] for his active participation with at least
              two other men in two related shooting battles on
              September 12, 2007 between rivaling “5th Street and
              7th” Street” gangs in South Philadelphia, which
              resulted in multiple gunshot wounds being inflicted

1   18 Pa.C.S.A. §§ 901, 903(a)(1), and 907, respectively.
J. S53039/17


          upon complainant Anthony Alonzo Reid.          Under
          docketed case number CP-51-CR0013196-2008,
          [appellant] was charged with First Degree Felony
          offenses,    including   Aggravated    Assault   and
          Conspiracy, based upon the report of off duty officer
          Christine Valentine that she observed [appellant] fire
          a handgun multiple times at a group of unknown
          males who were also shooting handguns in his
          direction. The shootings occurred on the street and
          sidewalk near where she and another innocent
          bystander had been standing, within the 400 and
          500 residential blocks of Mifflin Street in South
          Philadelphia.

                 The charges docketed under CP-51-CR-
          0013197, which is currently the subject of the
          instant appeal, included Criminal Attempted Murder
          (H1),     Conspiracy-Engaging-Murder         (F1)   and
          Possession of Criminal Instrument (M1).           These
          charges were based upon information that
          [appellant], and at least two co-conspirators
          Marklem Vicks (“Markeem”), and Maurice Wilkerson
          (“Reese”), fired in excess of thirty rounds of
          ammunition from multiple firearms, including an
          AK-47 type assault rifle carried by [appellant], aimed
          at a group of people standing at or near the corner
          of the 500 block of Moore Street at approximately
          9:57 p.m.       This shooting incident occurred in
          retaliation for a shooting battle on Mifflin Street that
          occurred a few hours earlier that day as part of an
          ongoing feud between rival gangs. The onslaught of
          assault rifle and semi-automatic weaponry upon the
          500 block of Moore Street resulted in multiple near
          fatal    gunshot    wounds    being    inflicted   upon
          complainant Anthony Alonzo Reid, also known as
          “Trome.”      Mr. Reid was later killed in another
          shooting incident committed by unknown persons.
          No charges were ever filed against [appellant] for
          the homicide of Anthony Reid.

                All pending related offenses from both
          captioned matters filed against [appellant] initially
          proceeded to trial before the Honorable Rosalyn
          Robinson, Judge of the Court of Common Pleas First


                                   -2-
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             Judicial District of Pennsylvania Criminal Division,
             sitting as fact finder without a jury on March 5,
             2010. [Appellant] was found guilty of all charged
             offenses, and subsequently sentenced by the trial
             court on April 23, 2010. A direct appeal was filed by
             [appellant’s] trial counsel, James Marsh, Esquire and
             discontinued on October 7, 2010. On July 11, 2011,
             [appellant],    by    and    through  trial  counsel,
             James Marsh, Esquire, filed a timely Petition
             pursuant to the Post Conviction Relief Act
             [(“PCRA”)2] on all related docket numbers.

                   After several delays, following video and
             recorded evidentiary hearings on February 10, 2012,
             the    Honorable     Rosalyn     Robinson     granted
             [appellant’s] PCRA Petition in part, as to both cases
             docketed under CP-51-CR-0013196-2008 and CP-51-
             CR-0013197-2008, finding that trial counsel James
             Marsh, Esquire was ineffective for failing to
             investigate a potential witness Erlene Muirhead, who
             surfaced a few years after the arrest of [appellant]
             for the instant charges. The Commonwealth filed a
             Motion for Reconsideration Of the Order, entered on
             February 10, 2012, which was denied by the trial
             court on February 15, 2012. The Commonwealth
             then filed an Appeal to the Superior Court. On
             July 16, 2013, the Superior Court affirmed the trial
             court’s Order entered February 10, 2012, and both
             matters were remanded for new trial.

                    In the interim of this lengthy litigation
             involving [appellant], the complainant in the instant
             matter, Anthony Alonzo Reid, was shot and killed by
             unknown persons. Gihad Topping, an acknowledged
             5th Street gang member and eyewitness to the
             shooting of Mr. Reid in the instant matter, was
             incarcerated for unrelated crimes and experienced
             intimidating interactions with at least one of
             [appellant’s] associates while being transported from
             different prison locations.        [Appellant’s] co-
             conspirators, Marklem Vicks, also known as
             Markheem Vicks, and Maurice Wilkerson, entered

2   42 Pa.C.S.A. §§ 9541-9546.


                                     -3-
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          respective pleas of guilt admitting their participation
          as co-conspirators with [appellant] in the subject
          shooting incident at issue on the 500 block of
          Moore Street that seriously injured Anthony Reid.
          Notably, each co-conspirator has filed various
          appeals of their respective convictions or pursued
          claims under the [PCRA] for various reasons.

                 On October 31, 2014, Mark Keenheel, Esquire
          entered his appearance as trial counsel on behalf of
          [appellant] in the cases docketed under CP-51-CR-
          0013196-2008 and CP-51-CR-0013197-2008, and
          filed a Motion to Exclude Prior Testimony and a
          Motion for Separate Trials. The Motions in Limine
          was [sic] heard and appropriately denied by the
          Honorable Robert Coleman, after full and fair
          hearings on December 15, 2014 and January 9, 2015
          respectively. Following several defense delays, the
          cases docketed under CP-51-CR-0013196-2008 and
          CP-51-CR-0013197-2008 proceeded again to trial
          before a sworn jury as fact finders and this presiding
          jurist the Honorable Ann Marie B. Coyle Judge of the
          Court of Common Pleas for the First Judicial District
          Criminal Division on December 8, 2015.

                 On December 15, 2015, the jury entered
          verdicts     of guilty to the charges of Attempted
          Murder (H1), Conspiracy (F1), and Possession of
          Instrument of Crime (M1) docketed under CP-51-CR-
          0013197-2008, related to the second shooting
          incident at 5th and Moore Streets and acquitted
          [appellant] of the charges related to the earlier
          shooting incident within the 400 block of Mifflin
          Street      docketed    at   CP-51-CR-0013196-2008.
          Presentence Investigative Reports and Mental Health
          Assessments were ordered. On February 18, 2016,
          [appellant] filed a Pro Se Motion For New Trial
          And/Or Arrest of Judgment. On February 24, 2016,
          this trial court denied the [appellant’s] Pro Se Motion
          For New Trial And/Or Arrest of Judgment and
          formally sentenced [appellant] accordingly.

               [Appellant’s] Pro Se Notice of Appeal to the
          Superior Court was filed on March 23, 2016. Carson


                                   -4-
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            Blythe Morris, Esquire entered his appearance as
            [appellant’s] appellate counsel on March 24, 2016.
            This trial Court issued the Order Pursuant to
            [Pa.R.A.P.] 1925(b) on April 4, 2016, and the Order
            Granting [appellant’s] Motion for Extension Of Time
            on June 16, 2016.        [Appellant’s] Statement of
            Matters Complained [of] on Appeal was filed on
            June 30, 2016.

Trial court opinion, 3/17/17 at 1-5.

      In its Rule 1925(a) opinion filed on March 17, 2017, the trial court

incorporated the October 19, 2016 opinion filed by The Honorable Robert

Coleman who entered pre-trial orders that denied appellant’s motion to

exclude prior testimony and motion to sever the two related cases.

      Appellant raises the following issues for our review:

            [1.]   Did the trial court violate its duty to remain
                   impartial during appellant’s trial when it
                   expressed disbelief and disdain towards
                   witness   Markeem      Vicks    who    provided
                   testimony exonerating appellant?[ ]
                                                     3



            [2.]   Did the Commonwealth engage in prosecutorial
                   misconduct by knowingly misrepresenting to
                   the jury a critical fact in appellant’s case – that
                   Erlene Muirhead, an alibi witness who testified
                   on appellant’s behalf, only came forward as a
                   witness after appellant’s first trial – when the
                   assigned prosecutor knew this representation
                   to be false?

            [3.]   Did the trial court abuse its discretion by
                   admitting two recorded prison conversations
                   allegedly involving Maurice Wilkerson when
                   one of these calls was not authenticated and

3Appellant fails to identify and explain the testimony that he claims that
Commonwealth witness Marklem Vicks a/k/a Markeem Vicks provided that
was “exonerating” to appellant.


                                       -5-
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                  both were irrelevant and highly prejudicial to
                  appellant’s case?

Appellant’s brief at 3 (capitalization omitted; emphasis in original).

      Appellant first complains that “during Markeem Vicks’ testimony, the

Trial Court engaged in precisely the sort of ‘expression[s] indicative of favor

or condemnation’ and ‘doubt as to [] witnesses’ credibility’ forbidden in the

Commonwealth’s courts.”      (Appellant’s brief at 29 (brackets and internal

punctuation in original).)   In support of this claim, appellant sets forth a

select and limited portion of a colloquy that took place during Mr. Vicks’s

direct examination by the Commonwealth. A review of that portion of the

colloquy reveals that it took place outside of the jury’s presence.

Additionally, a review of the transcript demonstrates that prior to excusing

the jury, the trial court attempted to control the Commonwealth’s direct

examination of Mr. Vicks because Mr. Vicks was not answering the questions

posed by the prosecutor and because the prosecutor and Mr. Vicks often

spoke at the same time, as follows:

            THE COURT: Excuse me. Here’s how this is going to
            go, sir --

            [MR. VICKS]: Yes, ma’am.

            THE COURT: Listen to the question. Answer the
            question. Wait till he finishes the answer to the
            question.

            I’m not going to have run-on speaking to the things
            that are not on the table.

Notes of testimony, 12/9/15 at 205.


                                      -6-
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     The Commonwealth’s direct examination resumed, as follows:

          Q.    Mr. Vicks, are you now telling us that you
                didn’t have time to think about your decision to
                plead guilty?

          A.    At the time when they offered and told me that
                it was an open plea or whatever the case may
                be, I came in the court and made an issue that
                I need time to consult with my family.

                The girl I was dealing with at the time was
                pregnant. This is things [sic] I wasn’t running
                over with my family; this is a decision you [sic]
                trying to ask me to make (indicating) like this,
                like, let’s go to the store; let’s go to the
                movies. You are trying to give a life-changing
                decision right then and there.

                So this is not something we talked about for
                months, and it was just lingering in the air.

                They called me from the basement and said,
                this is what’s going on. And I’m like whoa,
                whoa, you know what I’m saying; I need some
                time to think on this. Let me call my dad or let
                me talk to somebody to see if this is the right
                thing to do or you know, whatever the case
                may be. So I go back there and I think, you
                know, for my action. I think about the time, I
                can go ahead and get this time. So I might as
                well go try and get this time --

          THE COURT: Excuse me --

          [MR. VICKS]: And that’s what was going on.

          THE COURT: Excuse me. Hello.

          [MR. VICKS]: Yes, ma’am.

          THE COURT: Next question.

          [THE COMMONWEALTH]: Thank you, Your Honor.


                                   -7-
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Id. at 205-207.

     At this point, the Commonwealth attempted to resume Mr. Vicks’s

direct examination when defense counsel objected as follows:

           [DEFENSE COUNSEL]:      Your Honor, may I have an
           objection, please?

           THE COURT: To what?

           [DEFENSE COUNSEL]: Can we have a sidebar?

           THE COURT: To what?

           [DEFENSE COUNSEL]:        Can we have a sidebar
           hearing?

           THE COURT: No. There’s no need. I specifically
           gave directions, okay?        I don’t need run-on
           continuing; I just need question and answer.

           Next question.

           [DEFENSE COUNSEL]: Well, my objection initially
           was, the DA was the one interrupting his answers, it
           wasn’t him. And I would still like to have a sidebar.

           THE COURT: No. Overruled.

           [MR. VICKS]: Can I ask for some water, please --

           THE COURT: Sir --

           [MR. VICKS]: -- my mouth dry [sic], Miss. Please.

           Thank you.

           THE COURT: We are going to take a break.

Id. at 207-208.




                                   -8-
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     At this point, the jury exited the courtroom, Mr. Vicks was excused,

and the following occurred:

           THE COURT: What is the nature of your objection?

           [DEFENSE COUNSEL]: My objection is you, Your
           Honor.    You show the utmost disgust with this
           witness testifying.

           THE COURT: Because he’s going on and on past the
           question --

           [DEFENSE COUNSEL]: May I finish?

           THE COURT: No, you may not. Look, I said three
           times how this is going to go. Nobody seems to be
           listening. She asks a question, you are supposed to
           answer the question.       If he doesn’t answer the
           question, somebody raise an objection and move on.
           We are not going to have on and on and on
           discussions, well past the nature of the question.

           [DEFENSE COUNSEL]: Your Honor, my objection
           was, counsel for the district attorney was
           interrupting his answers, that was my objection. But
           you are showing utmost disgust for this witness
           testifying, and it’s sending bad signals to the jury.

           You are doing all kinds of things up there, where the
           jury --

           THE COURT:     What kinds of things are you saying
           I’m doing?

           [DEFENSE COUNSEL]: You are doing like this, you
           are going like that (indicating). You are doing all
           kinds of stuff.

           [THE COMMONWEALTH]: Objection.

           THE COURT:     Oh, please.    Oh, stop it.   You know
           what? No.



                                   -9-
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            The only thing I’m doing, sir, is trying to move this
            case along and trying to move the testimony along
            to the point where it’s supposed to go along. I don’t
            need to have long dissertations about what he thinks
            in life, all right? That’s not why we are here; we’re
            here for relevant questions and answers.

            So your objection is noted and it is incorrect and
            overruled, and I take exception to it. I’m taking five.

Id. at 208-210.

      In the argument section of his brief on this issue, appellant complains

that “[b]ecause the [trial] [c]ourt’s conduct violated its duty to remain

impartial and not interject itself into [a]ppellant’s trial or express disbelief or

disfavor towards witnesses, the fairness of [a]ppellant’s trial was irreparably

compromised by the [c]ourt’s actions and [appellant] should be granted a

new trial.” (Appellant’s brief at 27.) Appellant then argues that because the

transcript indicates that the trial court did not deny defense counsel’s

accusation that the trial court was disgusted by Mr. Vicks, this serves as

some kind of proof that the trial court harbored bias against appellant. From

this baseless foundation, appellant makes the illogical and unsupported leap

that “[b]ecause the [trial] [c]ourt communicated to [a]ppellant’s jury,

through its expressions of disgust and exasperation, that it did not believe

the testimony of Mr. Vicks, whose testimony was critical to [a]ppellant’s

defense, it effectively discredited [a]ppellant’s entire defense and prejudiced

him at trial.” (Appellant’s brief at 35.)




                                      - 10 -
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      Appellant failed to preserve this claim for our review because

appellant's counsel failed to make a request for mistrial or a curative

instruction.   See Commonwealth v. Chimenti, 524 A.2d 913, 921

(Pa.Super. 1987) (citation omitted) (reiterating that where defense counsel

objects but fails to request a mistrial or a curative instruction when an

alleged prejudicial event occurs, the issue is not preserved for appellate

review). Even if preserved for our review, however, the claim entirely lacks

merit. There is not one scintilla of record support to demonstrate that the

trial court conveyed to the jury that it disbelieved Mr. Vicks or that it

violated its duty of impartiality so as to “effectively discredit[] [a]ppellant’s

entire defense and prejudice[] him at trial.” To the contrary, the transcript

reveals that Mr. Vicks continuously failed to answer the questions being

posed to him and that the trial court properly directed him to answer the

questions posed in an effort to move the proceedings along.

      Appellant next complains that his convictions should be vacated

because the Commonwealth engaged in prosecutorial misconduct by

“knowingly present[ing] a falsehood to the jury” during Erlene Muirhead’s

cross-examination and during the prosecution’s closing argument “that

Erlene Muirhead only came forward with an alibi defense on [a]ppellant’s

behalf after his first trial and after Anthony Reid was killed.”    (Appellant’s

brief at 41 (emphasis in original).) In the argument section of his brief on

this issue, appellant once again sets forth only a select and limited portion of



                                     - 11 -
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the colloquy that took place during Ms. Muirhead’s cross-examination in an

effort to support his claim, as follows:

            Q.    So 2011, you start talking to somebody from
                  Mr. Perri’s [appellant’s PCRA counsel’s] office?

            A.    I spoke to one person. I went in to an office
                  and gave an affidavit. I haven’t spoken to
                  anyone else pertaining to this case at all, after
                  that.

            Q.    And again, that was July 2011 that you went in
                  and gave an affidavit about being an alibi?

            A.    Yes.

            Q.    We never heard two words about it until then,
                  right?

            [DEFENSE COUNSEL]: Objection, Your Honor.

            [MS. MUIRHEAD]:        No, that’s not true.    His first
            lawyer --

            THE COURT: Rephrase it.

            [THE COMMONWEALTH]: I’ll move on.

Appellant’s brief at 40, citing notes of testimony, 12/14/15 at 57.

      The relevant colloquy, in its entirety, however, is as follows:

            Q.    And you certainly, throughout the years, kept
                  in contact with [appellant], right?

            A.    Yes.

            Q.    You’ve actually seen him quite a few times
                  since this incident, right?

            A.    Yes.

            Q.    And you’ve talked about what happened?


                                     - 12 -
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          A.   Yes, but not too much. It’s not too much of a
               focus, because he didn’t commit a crime.

          Q.   It’s not too much of a focus --

          A.   Yes.

          Q.   -- that he’s been charged with attempted
               murder?

          A.   Yes, because he wasn’t there.

          Q.   Because he was with you --

          A.   Yes.

          Q.   -- not smoking weed, watching the Godfather
               and having sex?

          A.   No. I said I wasn’t smoking weed.

          Q.   You visited him in August 2008?

          A.   Yes. I just turned 18. I was able to see him
               now.

          Q.   You visited him again later in August 2008?

          A.   Yes. He was still my boyfriend.

          Q.   You visited him in September 2008?

          A.   Yes.

          Q.   You were aware that he had court dates all
               during those times, right?

          A.   Yes.

          Q.   But you and him [sic] didn’t talk about the
               case, because it wasn’t a focus?




                                 - 13 -
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          A.   No, it wasn’t really a focus; our relationship
               was. We were going through ups and downs.

          Q.   You visited him in December of 2008?

          A.   Okay.

          Q.   February 2009. Is that a yes?

          A.   Yes.

          Q.   March 2009?

          A.   Yes.

          Q.   June 2009?

          A.   If I recall.

          Q.   You visited him in 2010?

          A.   Yes.

          Q.   I don’t want any details; I just want a yes or
               no answer. Were you aware that he had a
               four-day hearing in 2010, just yes or no? Just
               yes or no?

          A.   I don’t recall.

          Q.   Well, you never testified in 2010, did you?

          A.   No. Not that I recall.

          Q.   But you and [appellant] had been in good
               contact, good terms. You had been visiting
               him quite often, ’08, ’09, 2010?

          A.   Around the time --

          Q.   Ma’am, again, not trying to be rude. Just yes
               or no. You had good contact with Mr. --

          A.   Yes. We didn’t --


                                   - 14 -
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          Q.   -- [appellant]?

          A.   Actually, we did not have good contact.
               Sometimes my phone would be off. I may pop
               up at a visit, but he wouldn’t be able to reach
               me on certain occasions.

          Q.   Then in 2011 -- well, first of all, did you know
               Trome, Anthony Reid?

          A.   No.

          Q.   You didn’t find out that he got killed in 2011?
               July 2011?

          A.   No.

          Q.   You didn’t know that?

          A.   No. I don’t -- I’m not --

          Q.   But suddenly in July 2011, you come forward
               with an affidavit that says [appellant] was with
               you at the time of the shooting?

          A.   Is that the young man that supposedly got
               shot that night?

          Q.   Yes.

          A.   That’s what I said, I don’t know him. I don’t.
               I never [sic] heard of him.

          Q.   Is it fair to say, July 2011, you did not know
               that Anthony Reid had been killed, but that’s
               when your affidavit pops up, saying that you
               are actually an alibi witness?

          A.   Yes.

          Q.   And here we are, 2015.

          A.   Yes.


                                 - 15 -
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          Q.   Do you know Reese? Maurice Wilkerson?

          A.   I don’t know these people by their full names, I
               just know them by -- I think I know Reese.

               Is he from my neighborhood?          From down
               South Philadelphia?

          Q.   Right. Like from 7th Street?

          A.   Oh. Yes.

          Q.   If I showed you a picture of Reese, would you
               recognize it? And I’ll just show you a paper
               copy so you don’t have to lean too far forward.

          []   I’m showing you the third page of C-24.        Do
               you know this guy?

          A.   Yes. Yes, I do.

          Q.   This is Reese?

          A.   Yes.

          Q.   He hangs out with [appellant], doesn’t he?
               That’s  one   of his  friends   from   the
               neighborhood?

          A.   Well yes, but I wouldn’t -- I didn’t meet a lot of
               his guy friends, because I stayed to myself. I
               was at work a lot.

          Q.   Where were you working at the time?

          A.   Burger King.

          Q.   After school?

          A.   Yes.

          Q.   But you didn’t work on this day?



                                 - 16 -
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          A.   No.

          Q.   You had that date off?

          A.   Yes.

          Q.   Do you know this guy, Markeem?

          A.   Yes.

          Q.   Showing the 4th page of C-25 --

          A.   Yes, I do know Markeem.

          Q.   I’m sorry, that was C-24.

               You know Markeem too, right?

          A.   Yes.

          Q.   From the neighborhood?

          A.   Yes.

          Q.   From 7th Street?

          A.   Yes.

          Q.   Do you know -- did you ever talk to Maurice’s
               lawyer --

          A.   No.

          Q.   -- Mr. Perri?

          A.   No.

          Q.   But there did come a time when you spoke
               with, not [defense counsel] Mr. Keenheel, but
               a new lawyer from Mr. Perri’s office, right,
               about [appellant’s] case? Just yes and no?

          A.   Yes.



                                  - 17 -
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          Q.   So Reese had Mr. Perri, and then?

               [DEFENSE COUNSEL]: Objection, Your Honor.
               She’s testifying.

               THE COURT: What’s your question?           Ask a
               question, please?

          [BY THE COMMONWEALTH]:

          Q.   If, and maybe you don’t know, but if Reese
               had been represented by Mr. Perri --

               [DEFENSE COUNSEL]:         Again, objection, Your
               Honor --

               [THE COMMONWEALTH]:          --pertaining to this
               case --

               THE COURT: Can I hear the question, please?
               Thank you. What is the question?

          [BY THE COMMONWEALTH]:

          Q.   If Reese had been represented by Mr. Perri’s
               office and then you had contact with a lawyer
               from Mr. Perri’s office, that’s the same law
               firm, right?

          A.   I guess.

          Q.   So 2011, you start talking to somebody from
               Mr. Perri’s office?

          A.   I spoke to one person. I went in to an office
               and gave an affidavit. I haven’t spoken to
               anyone else pertaining to this case at all, after
               that.

          Q.   And again, that was July 2011 that you went in
               and gave an affidavit about being an alibi?

          A.   Yes.



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            Q.    We never heard two words about it until then,
                  right?

                  [DEFENSE COUNSEL]: Objection, Your Honor.

                  [MS. MUIRHEAD]:       No, that’s not true.    His
                  first lawyer --

                  THE COURT: Rephrase it.

                  [THE COMMONWEALTH]: I’ll move on.

Id. at 50-57.

      The record reflects that the Commonwealth elicited a fair amount of

testimony from Ms. Muirhead -- without objection by appellant -- that cast

doubt on Ms. Muirhead’s provision of an alibi for appellant. Moreover, when

defense counsel did object to a question posed by the Commonwealth, the

specific objection was that the Commonwealth was testifying for the witness.

The select and limited portion of the colloquy that appellant sets forth in his

brief occurred immediately after defense counsel’s objection that the

Commonwealth was testifying for Ms. Muirhead.        A review of the relevant

colloquy in its entirety supports the conclusion that the objection set forth in

the select and limited portion of the colloquy that appellant relies on was

another objection that the Commonwealth was testifying for Ms. Muirhead.

Nevertheless, at no time did appellant move for a mistrial or request a

curative instruction or any other relief at the time of the alleged prejudicial

prosecutorial misconduct during the Commonwealth’s cross-examination of




                                     - 19 -
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Ms. Muirhead or during its closing argument.      Therefore, appellant waives

this issue on appeal. See Chimenti, 524 A.2d at 921.

        Appellant finally complains that the trial court abused its discretion

when it admitted into evidence recordings of two prison conversations during

Maurice Wilkerson’s direct examination because the voice on one of the

recordings was not authenticated by Mr. Wilkerson as being his voice and

both recordings were irrelevant and prejudicial to appellant.

        The record reflects that the Commonwealth sought to play recordings

of a June 19, 2008 prison call, as well as an April 16, 2010 prison call,

during Maurice Wilkerson’s direct examination.         Defense counsel first

objected on the basis that the recordings were not on the Commonwealth’s

exhibit list. (Notes of testimony, 12/9/15 at 227-230.) Although appellant

abandons this claim on appeal,4 he seizes upon defense counsel’s statement

during the colloquy on that particular objection that “[it] has nothing to do

with [appellant]” in a seeming attempt to convince this court that he

preserved his claim that the recording was irrelevant. Additionally, although

appellant seizes upon another objection that he made that “[it] has nothing

to do with [appellant,]” a review of the record reveals that that objection

occurred prior to the recordings being played to the jury and as a direct

result of the Commonwealth asking Mr. Wilkerson how he felt about the

victim, Anthony Reid, making a statement to law enforcement. (Appellant’s


4   Appellant’s brief at 50 n.12.


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brief at 54-55; notes of testimony, 12/9/15 at 259.) We admonish counsel

for repeatedly misrepresenting the record in his brief to this court.

      That being said, we will now dispose of appellant’s final complaint.

The record reflects that following defense counsel’s objection regarding the

exhibit list, the following then took place:

            THE COURT: Aside from the objection previously
            noted, is there any other objection to the call[?]

            [DEFENSE COUNSEL]: Yes, Your Honor. I mean,
            there has to be some foundation or something to
            introduce that it was his call.

            I mean, normally someone from the prison would
            come in and say, this is his number, this is his call,
            whatever. There’s [sic] no voice experts here. We
            don’t know who he’s talking to. I haven’t heard it.
            We have hundreds of those calls. I haven’t even
            heard the call she’s talking about. If she had given
            us –

            THE COURT: Excuse me.

            Can I see you at sidebar, please.

                                      ---

                    (Discussion held at sidebar as follows:)

                                      ---

            THE COURT:      In terms of the objections as to not
            being on the witness list, I’ve already addressed that
            and overruled that, but in terms of the objection as
            to authenticity of the phone calls, my understanding
            is, Commonwealth is going to ask him, does he
            recognize his voice, right?

            [THE COMMONWEALTH]: Yes.



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             [DEFENSE COUNSEL]: I don’t know.

             [THE COMMONWEALTH]: Yes.

             THE COURT: Well, I can’t rule on that until he says
             yes or no, right?

             [DEFENSE COUNSEL]: Well, I think you should hear
             his voice outside the jury’s presence then.

             THE COURT: No. That doesn’t need to happen. He
             can authenticate it.

             So your objection is noted and overruled.

Notes of testimony, 12/9/15 at 255-256.

      The record then reflects that Mr. Wilkerson confirmed his voice as

being a participant in the June 19, 2008 recorded telephone call.      (Id. at

257.) Mr. Wilkerson then denied that he participated in the April 16, 2010

call, as follows:

             Q.     . . . Do [you] recognize the voice on this call?

             A.     Not at all.

             Q.     Do you recognize your voice?

             A.     No.

             Q.     That’s not your voice? Let me continue and
                    see if you recognize that.

                                       ---

                            (Prison tape being played.)

                                       ---

             [BY THE COMMONWEALTH]:



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          Q.   Who’s there saying they are trying to get me
               to take a deal and all that?

          A.   I don’t recognize neither [sic] voice.    I know
               my voice when I hear it.

          Q.   Well I know it’s a little hard to hear.     Sorry
               about that.

                                    ---

                     (Prison call played to the jury.)

                                    ---

          [MR. WILKERSON]: That’s not me.

          [BY THE COMMONWEALTH]:

          Q.   Let’s just listen a little longer.

               [DEFENSE COUNSEL]: I’m going to object,
               Your Honor. He said it’s not him.

               [THE COMMONWEALTH]: May I forward it to
               another section and ask if he recognizes the
               voice, Your Honor?

               THE COURT: Is this a different day?

               [THE COMMONWEALTH]: It’s later in the call,
               Your Honor.

               [DEFENSE COUNSEL]:           I’m going to object,
               Your Honor.

               [THE COURT]: We’ll see.

                                    ---

                     (Prison call played to the jury.)

                                    ---



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           [BY THE COMMONWEALTH]:

           Q.    “They [sic] going to bury the rat and you are
                 all going to get off.”

                 Do you know who said that?

           A.    I don’t know who that is.

           Q.    You don’t?

           A.    No, I really don’t.

           Q.    You don’t know who that caller was on the
                 other end of the prison call?

           A.    That don’t [sic] even sound like me. I don’t
                 know it [sic] either voice. Either voice.

           Q.    So you don’t know who said they are going to
                 bury the rat and you all are going to get off?

           A.    No. Did he get buried?

                 [THE COMMONWEALTH]:               Does someone find
                 that funny in the gallery?

                 I have nothing further for Mr. Wilkinson [sic].

Notes of testimony, 12/9/15 at 261-262.

      A review of the relevant colloquy demonstrates that Mr. Wilkerson

authenticated his own voice with respect to the June 19, 2008 recording.

Although Mr. Wilkerson then denied being a participant in the April 16, 2010

recorded telephone call, Pennsylvania Rule of Evidence 901(b)(3) permits

the trier of fact to compare authenticated evidence with other evidence in

order to satisfy the authentication requirement with respect to the latter.

See   Pa.R.E.   901(a)   and   (b)(3)     (“[t]o    satisfy   the   requirement   of


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authenticating or identifying an item of evidence, the proponent must

produce evidence sufficient to support a finding that the item is what the

proponent claims[,]” an example of which includes a “comparison with an

authenticated specimen by . . . the trier of fact.”). Therefore, the jury, as

fact finder, was free to conclude that the voice on the April 16, 2010

recording was or was not that of Mr. Wilkerson by comparison to the June

19, 2008 authenticated recording.

      With respect to the objection that defense counsel made during Mr.

Wilkerson’s testimony that concerned the second recording, a review of the

record demonstrates that defense counsel made an asked and answered

objection. Moreover, at no time during Mr. Wilkerson’s testimony or during

the Commonwealth’s closing argument did appellant move for a mistrial or

request a curative instruction or any other relief based on the prejudicial

nature of the admission of the recorded evidence which appellant now claims

was “highly inflammatory and prejudicial” so as to entitle him to a new trial.

(Appellant’s brief at 57-58.)    Therefore, appellant waives this issue on

appeal. See Chimenti, 524 A.2d at 921.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/25/2017




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