J. S26030/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
MILES COOKE,                                :
                                            :
                          Appellant         :
                                            :     No. 516 MDA 2016

            Appeal from the Judgment of Sentence October 15, 2015
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0000932-2015

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                            FILED AUGUST 15, 2017

        Appellant, Miles Cooke, appeals from the Judgment of Sentence

entered by the Dauphin County Court of Common Pleas following his

conviction by a jury of First-Degree Murder and Criminal Conspiracy.1 After

careful review, we affirm.

        The relevant facts, as gleaned from the certified record and the trial

court’s Pa.R.A.P. 1925(a) Opinion, are as follows.         On May 30, 2014,

Appellant and his brother, Justin Asaad Cooke, shot and killed the victim,

Ronald McGruder, near the corner of Hanover and Cameron Streets in




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 903, respectively.
J. S26030/17


Harrisburg, Pennsylvania. The following events leading up to the murder are

relevant to our review.

      Two nights before the murder, Appellant’s brother Justin and McGruder

had gotten into a heated argument when McGruder blamed Appellant for

killing McGruder’s friend Warren Beasley in 2013. McGruder told Justin that,

“if you want to kill me, if you feel some type of way and you want to do

something to me, my heart is on my sleeve. So if you got to take a shot,

take a shot.” Trial Court Opinion, dated 7/19/16, at 3 n.6.

      On the night of May 29, 2014, McGruder went out drinking with his

friend James Moffitt and visited Double D’s bar. Surveillance video showed

that both Appellant and his brother Justin were at Double D’s at the same

time. The video also showed Appellant, Justin, and McGruder leave Double

D’s together and enter a tan Audi. Justin entered the front passenger seat,

Appellant entered the driver’s seat, and McGruder entered the back seat.

The three men left Double D’s parking lot at 1:46 A.M. on May 30, 2014.

      Jasmine Bullock, an eyewitness to the murder who resided on Hanover

Street, awoke to screaming from the street and looked out her window to

see Appellant, Justin, and McGruder. She witnessed one of the men stand

over McGruder on the ground and shoot him twice in the head.        Bullock

called 911 at 1:58 A.M.   Although she could not see the faces of the two

standing men, Bullock provided clothing descriptions matching Justin as the

shooter and Appellant nearby. After the shooting, Appellant and Justin ran



                                    -2-
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toward their running car, entered the vehicle in the same positions as when

they left the bar, and drove away.

      Appellant and Justin provided identical voluntary statements to police

shortly after the murder.     They confirmed the clothing that they were

wearing, the precise route they took after leaving the bar with McGruder,

and that they were driving a tan 2000 Audi owned by Appellant’s girlfriend.

      Police arrested Appellant on October 2, 2014, the day police obtained

arrest warrants for both Appellant and Justin. Police were unable to arrest

Justin that same day after media coverage widely publicized Appellant’s

arrest and the fact that they were looking for Justin. Police in North Carolina

arrested Justin on October 22, 2014.

      Appellant filed a Motion in Limine seeking to preclude evidence of

Appellant’s cell phone records at trial.         Appellant argued that the

Commonwealth provided these records to Appellant “too late.”         Appellant

also objected to: (1) Detective Glucksman’s testimony about cell phone

tower data and “ping analysis” as inappropriate expert testimony, and (2) a

demonstrative map displaying information contained in Appellant’s cell

phone records. N.T. Motion, 10/7/15, at 22-26. The trial court admitted the

cell phone records, Detective Glucksman’s testimony, and the map. Id. at

26.

      Appellant also filed a Motion in Limine to preclude Courtney Williams’

testimony about McGruder’s statements to Justin two days before the



                                     -3-
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murder, arguing that the statements were irrelevant and constituted

inadmissible hearsay.       On October 7, 2015, the trial court conducted a

hearing prior to trial.     The Commonwealth argued that this testimony was

evidence of Appellant’s motive to kill McGruder.                  The trial court denied

Appellant’s Motion on October 8, 2015.

        Appellant   and    Justin     proceeded      to   a     joint   jury   trial.       The

Commonwealth presented the testimony of the eyewitness Jasmine Bullock,

McGruder’s     friend    James      Moffitt,    investigating    detectives,     a      forensic

pathologist, emergency responders, a forensic investigator, and a North

Carolina detective.       The Commonwealth also presented video surveillance

evidence from a church near the crime scene, Appellant’s cell phone records,

and cell phone tower data.

        Appellant presented the testimony of his girlfriend Dorian Bradford, a

second resident, John Stoddart, who heard gunshots the night of the murder

and purportedly observed the fleeing car’s taillights, and an investigator

from the Dauphin County Public Defender’s Office.

        The jury convicted Appellant of First-Degree Murder and Criminal

Conspiracy. On October 15, 2015, the trial court sentenced Appellant to the

statutorily mandated term of life in prison.2             Appellant filed a timely Post-

Sentence Motion, which was denied by operation of law on February 23,

2016.

2
    42 Pa.C.S. § 9711.



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      Appellant filed a timely Notice of Appeal on March 23, 2016.3          Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents five issues for our review:

      [1.] Did the trial court err by denying Appellant’s pre-trial motion
      in limine to preclude cell phone records from being offered into
      evidence by Detective Glucksman [] by the Commonwealth since
      they were provided to the Appellant only after a jury was
      selected and seated?

      [2.] Did the trial court err by denying Appellant’s pre-trial motion
      in limine to disqualify Detective Glucksman from testifying to
      those records with respect to cell phone tower “pinging?”

      [3.] Did the trial court err by denying Appellant’s pre-trial motion
      in limine to preclude the testimony of Courtney Williams with
      respect to 404(b) evidence of defendant’s prior bad acts through
      hearsay testimony regarding the decedent’s statements to co-
      defendant Justin Cooke regarding decedent’s belief that
      Appellant was involved in another murder?

      [4.] Was the evidence presented at trial insufficient for a jury to
      return a verdict of guilty?

      [5.] Did the trial court err by denying Appellant’s post-sentence
      Motion for New Trial or Arrest of [Judgment] because the verdict
      was against the weight of the evidence and based on
      inconsistent    testimony     and    speculation    from    vague
      circumstantial evidence so as to shock one’s sense of justice?

Appellant’s Brief at 9 (reordered for convenience, underlining omitted).




3
  We note that the trial court docket incorrectly indicates that Appellant filed
his Notice of Appeal on March 31, 2016. This appears to be the date that
the Dauphin County Clerk of Courts forwarded Appellant’s Notice of Appeal
to this Court. Our review of the certified record shows that the Notice of
Appeal is clearly stamped, received, and filed by the Dauphin County Clerk
of Courts on March 23, 2016.



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      In his first three issues, Appellant challenges the trial court’s

evidentiary rulings.    The “[a]dmission 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.”    Commonwealth v. Tyson, 119

A.3d 353, 357 (Pa. Super. 2015) (citation and quotation omitted).             “[A]n

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 or the record.”         Commonwealth v.

Cameron, 780 A.2d 688, 692 (Pa. Super. 2001) (citation and quotation

omitted).

      Relevance    is   the   threshold       for   admissibility   of     evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).                      Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact is of consequence in

determining the action. Pa.R.E. 401; Commonwealth v. Drumheller, 808

A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.




                                     -6-
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      Issue 1: Timing of Cell Phone Records

      In his first claim on appeal, Appellant contends that the trial court

improperly   admitted   Appellant’s   cell   phone   records   in   violation   of

Pa.R.Crim.P. 573 where the Commonwealth provided the records to

Appellant “too late.” See Appellant’s Brief at 26-27; N.T. Motion, 10/7/15,

at 23. Appellant avers that “the Commonwealth presented the records after

a jury had already been selected in the case[,]” and argues that providing

the cell phone records “so close to the start of trial was prejudicial to the

defense.” Appellant’s Brief at 27.

      “Generally, on review of an order granting or denying a discovery

request, an appellate court applies an abuse of discretion standard.”

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation

omitted).

      Pre-trial discovery in criminal cases is governed by Pennsylvania Rule

of Criminal Procedure 573. The rule lists certain items and information that

are subject to mandatory disclosure by the Commonwealth when they are:

(1) requested by the defendant, (2) material to the case, and (3) within the

possession or control of the prosecutor. Mandatory discovery includes:

      (a) Any evidence favorable to the accused that is material either
      to guilt or to punishment, and is within the possession or control
      of the attorney for the Commonwealth;

      (b) any written confession or inculpatory statement, or the
      substance of any oral confession or inculpatory statement, and
      the identity of the person to whom the confession or inculpatory



                                      -7-
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     statement was made that is in the possession or control of the
     attorney for the Commonwealth;

     (c) the defendant's prior criminal record;

     (d) the circumstances and results of any identification of the
     defendant by voice, photograph, or in-person identification;

     (e) any results or reports of scientific tests, expert opinions, and
     written or recorded reports of polygraph examinations or other
     physical or mental examinations of the defendant that are within
     the possession or control of the attorney for the Commonwealth;

     (f) any tangible objects, including documents, photographs,
     fingerprints, or other tangible evidence; and

     (g) the transcripts and recordings of any electronic surveillance,
     and the authority by which the said transcripts and recordings
     were obtained.

Pa.R.Crim.P. 573(1)(a)-(g).

     The Rule also contains a remedy provision, which provides:

     If at any time during the course of the proceedings it is brought
     to the attention of the court that a party has failed to comply
     with this rule, the court may order such party to permit
     discovery or inspection, may grant a continuance, or may
     prohibit such party from introducing evidence not disclosed,
     other than testimony of the defendant, or it may enter such
     other order as it deems just under the circumstances.

Pa.R.Crim.P. 573(E).

     “[W]here the evidence is equally accessible or inaccessible to both the

Commonwealth and the defense, the defense cannot use the discovery rules

against the Commonwealth for its failure to produce the evidence.”

Commonwealth v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003) (citation

omitted).



                                    -8-
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      The trial court addressed Appellant’s discovery challenge as follows:

      Appellant was notified prior to his trial that his cell phone records
      would be entered into evidence. This is not a case of a last[-
      ]minute tactic by the Commonwealth to surprise the Appellant.
      In our society today, nearly every adult has a cell phone that
      acts like a minicomputer that can track calls, locations, store
      pictures, etc. The cell phone records in the instant matter[]
      could have just as easily been obtained by the Appellant (as they
      were his own phone records). Attempting to bring in cell records
      did not surprise the Appellant to the extent that it should have
      been excluded from evidence. Finally, evidence is relevant if (a)
      it has any tendency to make a fact more or less probable than it
      would be without the evidence; and (b) the fact is of
      consequence in determining the action. P[a].R.E. 404. Here,
      the evidence was relevant.

Trial Court Opinion, dated 7/19/16, at 9-10. We agree with the trial court’s

analysis.

      Moreover, insofar as Appellant complains of the Commonwealth’s

failure to provide the cell phone records earlier, our precedents make clear

that Appellant may not use the discovery rules against the Commonwealth

where Appellant had equal access to his own cell phone records.4              See

Dent, supra at 585.

      Because we discern no violation of Rule 573 by the Commonwealth,

the trial court did not err or abuse its discretion by refusing to preclude

Appellant’s cell phone records at trial. Accordingly, Appellant’s first claim is

without merit.


4
  Appellant does not allege in his Brief, and Appellant did not allege during
the pre-trial hearing, that the Commonwealth had intentionally withheld the
cell phone records in any way.



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     Issue 2: Cell Phone Tower “Pinging” Testimony

     In his second claim on appeal, Appellant avers that the trial court

improperly permitted Detective Glucksman to testify essentially as an expert

witness regarding Appellant’s cell phone records and historical tower data.

Appellant’s Brief at 28-29.   Rather than “merely relaying the information

contained in Appellant’s records” as the Commonwealth claimed, Appellant

argues that Detective Glucksman’s “testimony required him to opine and

speculate, as would an expert, regarding the location of the cell phone

without the scientific and technical knowledge required.” Id. at 28.

     Ultimately, the admission of demonstrative evidence is a matter within

the discretion of the trial court and, absent an abuse of discretion, its

decision must stand. Commonwealth v. Thomas, 561 A.2d 699, 707 (Pa.

1989).

     Demonstrative evidence is tendered for the purpose of rendering other

evidence more comprehensible to the trier of fact and may be admitted if its

relevance outweighs any potential prejudicial effect.    Commonwealth v.

Serge, 896 A.2d 1170, 1176 (Pa. 2006).          See also Daniel J. Anders,

Ohlbaum on the Pennsylvania Rules of Evidence § 901.08[1] et seq. (2017

ed. LexisNexis Matthew Bender).

     The offering party must authenticate such evidence, which may be

accomplished by the presentation of other evidence, such as witness




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testimony, sufficient to support a finding that the matter in question is what

its proponent claims. Serge, supra at 1176; see Pa.R.E. 901(a).

      The overriding principle in determining if any evidence, including

demonstrative, should be admitted involves a weighing of the probative

value versus prejudicial effect.   Serge, supra. The trial court must decide

first if the evidence is relevant and, if so, whether it is more probative than

prejudicial. Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998).

      The trial court addressed Appellant’s evidentiary challenge as follows:

      Appellant additionally alleges that the [c]ourt erred by denying
      [Appellant’s] related motion in limine to disqualify Detective
      James Glucksman from testifying to those [cell phone] records
      with respect to cell phone tower “pinging.” This is not the first
      time that we have discussed Detective Glucksman and his
      testimony in regards to cellular phone records.           Detective
      Glucksman testified to Appellant’s cell phone records on the
      night of the incident.     Based off these cell phone records,
      Detective Glucksman used software by Microsoft to create a
      map[,] which generally indicates a cell phone[’s] location at any
      given time. Here, Detective Glucksman explained what “pinging”
      is (real time location of a cell phone) versus historical data. In
      the instant matter, Detective Glucksman testified that he did not
      use “pinging” (real time tracking of a cell phone) but instead
      engaged in historical tower data. Detective Glucksman was
      given the Appellant’s cell phone records to analyze, [and]
      described the difference of “pinging” and historical [tower data].
      As such, this was properly submitted to the jury as evidence.

Trial Court Opinion, dated 7/19/16, at 10 (footnotes omitted).      We agree

with the trial court’s analysis.

      Appellant frames Detective Glucksman’s testimony as expert testimony

regarding scientific, technical, or other specialized knowledge beyond that




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possessed by the average layperson pursuant to Pa.R.E. 702. This assertion

is incorrect based on our review of the certified record.

      Rather than expert opinion, Detective Glucksman’s testimony about

Appellant’s cell phone records and historical tower data constituted an

explanation of the Commonwealth’s demonstrative evidence that he had

prepared for trial. Detective Glucksman constructed and created the maps

that included the locations of cell phone towers based on Appellant’s cell

phone records. His testimony authenticated the demonstrative evidence by

explaining how he created the maps using Appellant’s cell phone records and

how they were relevant.

      Further, the maps were highly relevant in this case given the timing of

the murder with respect to the video recordings and Appellant’s statement

about his particular route after leaving the bar.     The trial court was well

within its discretion in concluding that the evidence was more probative than

prejudicial. As such, the trial court did not abuse its discretion in admitting

Detective Glucksman’s authentication testimony.

      Issue 3: Admission of Victim’s Out-of-Court Statements

      In his third claim, Appellant avers that the trial court erred in denying

his Motion in Limine to preclude certain testimony from Courtney Williams

about McGruder’s statements to Justin before the murder.

      As described above, Williams overheard Justin arguing with McGruder

two nights before McGruder’s murder. McGruder blamed Appellant for killing



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McGruder’s friend Warren Beasley in 2013.      McGruder told Justin that, “if

you want to kill me, if you feel some type of way and you want to do

something to me, my heart is on my sleeve. So if you got to take a shot,

take a shot.” Trial Court Opinion, dated 7/19/16, at 3 n.6.

     Hearsay is an out-of-court statement offered for the truth of the

matter asserted. Pa.R.E. 801(c). It is generally inadmissible unless it falls

within one of the exceptions to the hearsay rule delineated in the Rules of

Evidence. Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012). “An

out-of-court statement is not hearsay when it has a purpose other than to

convince the fact finder of the truth of the statement[,]” such as motive or

the effect on the listener. Id. See also Daniel J. Anders, Ohlbaum on the

Pennsylvania Rules of Evidence § 801.11[1] et seq. (2017 ed. LexisNexis

Matthew Bender).

     The trial court addressed Appellant’s hearsay challenge as follows:

     Appellant argues that the statements made by Courtney Williams
     constituted hearsay. As discussed below, Appellant’s argument
     lacks merit.

     Contrary to Appellant’s assertions, Ms. Williams’ statements
     were not hearsay. Hearsay is an out-of-court statement offered
     to prove the truth of the matter asserted. Commonwealth v.
     Griffin, [] 515 A.2d 865, 870 ([Pa.] 1986).              When an
     extrajudicial statement is offered for a purpose other than
     providing the truth of its contents, it is not hearsay and is not
     excludable under the hearsay rule. Id. Thus, statements are
     admissible to establish ill-will or motive where they are not being
     offered for the truth of the matter asserted.                  See
     Commonwealth v. Brown, [] 648 A.2d 1177, 1182 ([Pa.]
     1994) ([o]ut-of-court statement, which was not offered for its



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     truth, but only for the fact that it was made, was not
     inadmissible hearsay).25
        25
          For a complete discussion, see Commonwealth v.
        Puksar, [740 A.2d 219] ([Pa.] 1999).

     In the instant matter, the Commonwealth attempted to establish
     motive for killing Mr. McGruder by showing that there was ill-will
     between Mr. McGruder and Justin Cooke. The Commonwealth
     did not offer Ms. Williams’ testimony to prove that Justin Cooke
     actually committed the killing of Mr. McGruder [or that Appellant
     actually killed Beasley in 2013], but to supply a motive for killing
     Mr. McGruder. Accordingly, this statement (that Mr. McGruder
     and Justin Cooke got into a heated discussion over the killing of
     Warren Beasley) was admissible, since it was not offered to
     prove the truth of the matter asserted, but rather to establish a
     motive for the killing[].

     Additionally, we gave the following jury instructions in regards to
     motive:

        Motive is not a part of the definition of [M]urder or any
        other crime. The Commonwealth is not required to prove
        a motive for the commission of the crime charged.
        However, you should consider the evidence of motive or
        the lack of motive.... You should weigh and consider the
        evidence tending to show motive, along with all other
        evidence in deciding whether the defendant is guilty or not
        guilty of the crime charged. It is entirely up to you to
        determine what weight should be given to the evidence
        concerning motive.

        Now, of course there was the testimony, I believe it was
        the very first witness, Courtney Williams and that
        testimony was offered to show motive.          She had
        testified about a certain conversation she heard or
        overheard and so forth and that evidence was not
        offered to prove the truth or falsity of what
        happened with Mr. Beasle[y]’s killing. It was only
        offered to show a possible motive in the killing of Mr.
        McGruder. You are to accept that evidence only for
        that limited purpose.




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      Accordingly, Ms. Williams’ testimony was not hearsay and it was
      properly admitted as evidence.

Trial Court Opinion, dated 7/19/16, at 11-12 (footnote omitted; emphasis in

original). We agree with the trial court’s assessment.

      As    noted   by   the    Commonwealth        and      the   trial    court,   the

Commonwealth did not present McGruder’s statement to demonstrate that

Appellant   actually   shot    and   killed   Beasley   in   2013.         Rather,   the

Commonwealth presented the statement because it demonstrated that

McGruder told Justin this information, and such information served as the

motive for the McGruder’s murder.         See Commonwealth v. Fisher, 681

A.2d 130, 140 (Pa. 1996), superseded on other grounds by 42 Pa.C.S. §

9711(a) (holding that the victim’s statements about the defendant that were

communicated to the defendant were not hearsay when the statements were

offered to prove the defendant’s motive for killing the victim). We discern

no abuse of discretion or error of law.

      Issue 4: Sufficiency of the Evidence

      Appellant next challenges the sufficiency of the evidence supporting

his convictions for First-Degree Murder and Criminal Conspiracy. We review

claims challenging the sufficiency of the evidence by considering 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.” Commonwealth

v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014).


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       The trier of fact—while passing on the credibility of the witnesses and

the weight of the evidence—may choose to believe all, part, or none of the

evidence.    Id. at 40.    Moreover, a jury may base a conviction solely on

circumstantial evidence. Id. In conducting our review, the appellate court

may not weigh the evidence and substitute its judgment for that of the fact-

finder. Id. at 39-40.

       It is well-established that “[t]o sustain a conviction for [M]urder of the

first degree, the Commonwealth must prove that: (1) a human being was

unlawfully killed; (2) the person accused is responsible for the killing; and

(3)    the   accused    acted   with   malice   and   specific   intent   to   kill.”

Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015); 18 Pa.C.S. §

2502(a).     “Section 2502 of the Crimes Code defines murder of the first

degree as an ‘intentional killing,’” which, in turn, is defined as a “willful,

deliberate and premeditated killing.”       Commonwealth v. Diamond, 83

A.3d 119, 126 (Pa. 2013) (citing 18 Pa.C.S. § 2502(a), (d)). “[T]he period

of reflection required for premeditation to establish the specific intent to kill

may be very brief; in fact[,] the design to kill can be formulated in a fraction

of a second.    Premeditation and deliberation exist whenever the assailant

possesses the conscious purpose to bring about death.” Hitcho, supra at

746.

       Additionally, “[a] person is legally accountable for the conduct of

another person when … he is an accomplice of such other person in the



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commission of the offense.” 18 Pa.C.S. § 306(b)(3). The statute sets forth

that “[a] person is an accomplice of another person in the commission of an

offense if … with the intent of promoting or facilitating the commission of the

offense, he … aids or agrees or attempts to aid such other person in

planning or committing it.” 18 Pa.C.S. § 306(c)(1)(ii).

      “[M]ere presence at the scene is insufficient to support a conviction:

evidence indicating participation in the crime is required.” Commonwealth

v. Lambert, 795 A.2d 1010, 1024 (Pa. Super. 2002).            Such a conviction

“cannot be based upon mere assumption or speculation.” Id.

      Moreover, “[a]ccomplice     liability may be    established    wholly   by

circumstantial evidence. Only the least degree of concert or collusion in the

commission of the offense is sufficient to sustain a finding of responsibility

as an accomplice. No agreement is required, only aid.” Commonwealth v.

Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016) (internal citations and

quotations omitted).

      To sustain the conviction for Criminal Conspiracy, there must be proof

beyond a reasonable doubt that the defendant “(1) entered into an

agreement to commit or aid in an unlawful act with another person or

persons, (2) with a shared criminal intent and (3) an overt act was done in

furtherance of the conspiracy. This overt act need not be committed by the

defendant;     it   need   only   be     committed   by   a     co-conspirator.”




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Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation

and quotation omitted). See also 18 Pa.C.S. § 903.

     The trial court addressed Appellant’s sufficiency challenge as follows:

     Instantly, the evidence of the Commonwealth and all reasonable
     inferences deduced therefrom, when taken in a light most
     favorable to the Commonwealth as verdict winner, support the
     jury’s verdict of [F]irst-[D]egree [M]urder in the death of Ronald
     McGruder. As previously stated, the Commonwealth presented
     evidence that Ronald McGruder and Justin Cooke were in a
     heated argument a mere day[-]and[-]a[-]half before Mr.
     McGruder’s death. The Commonwealth also presented testimony
     that Mr. McGruder and the Cooke brothers were together on the
     night of the incident. There was video surveillance submitted
     that showed that the Cooke brothers and Mr. McGruder were at
     the same bar.        This video surveillance showed the Cooke
     brothers and Mr. McGruder getting into a vehicle (which said
     vehicle also being showed in the surveillance video footage from
     the church and the reenactment video).

     The Commonwealth presented evidence from an eye witness
     who testified that after the killing, two men got in a car and
     drove towards the city. The Commonwealth presented video
     surveillance from a local church that showed vehicles driving in
     close proximity to the route that was taken on the night of the
     incident. A forensic investigator, while the video was being
     played for the jury, described the vehicles. The Commonwealth
     presented testimony from Detective Goshert who created a
     reenactment video using the alleged vehicle in question. This
     reenactment video was taken at night and the same video
     surveillance system was used. A side-by-side was played to the
     jury. The jury was able to review these two videos and could
     reasonably infer that the car used on the night of the incident
     was the same car used in the reenactment video (same size,
     same color, same shape, and each car had a sunroof)[].

     The Commonwealth introduced the phone records on the night of
     the incident and were able to present testimony as to the
     location of [Appellant’s] cell phone on the night of the incident.29

     Finally, the Commonwealth introduced evidence that Justin
     Cooke was detained in North Carolina after it was discovered he


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     was selling narcotics in a hotel room and it was discovered that
     he had an outstanding warrant in Pennsylvania. As such, and
     upon review of the record, this Court finds that the evidence and
     testimony presented at trial was sufficient to allow the jury to
     conclude that Appellant (Miles Cooke) committed [F]irst-
     [D]egree [M]urder.
        29
          There was prior evidence submitted that [Appellant] and
        Justin Cooke were together on the night of the incident.

Trial Court Opinion, dated 7/19/16, at 13-14 (footnote omitted, paragraph

breaks inserted). We agree with the trial court’s assessment.

     In the instant case, there was sufficient evidence to support

Appellant’s convictions for First-Degree Murder and Criminal Conspiracy.

Appellant and his brother Justin left the bar with McGruder twelve minutes

before the murder, and Appellant was driving. An eyewitness identified the

three men by clothing descriptions and directly observed Justin shoot

McGruder twice in the head while Appellant was standing nearby. Appellant

drove the getaway vehicle.

     Appellant and Justin provided synchronized statements to police

following the murder, which police refuted through their investigations. The

video surveillance and Appellant’s cell phone records contradicted the story

they told police and strengthened the Commonwealth’s timeline and theory.

Moreover, the argument between McGruder and Justin before the murder

provided evidence of motive.   Since Appellant was an active participant in

the murder, he was criminally responsible for Justin’s crimes committed in

furtherance of their criminal endeavor as an accomplice. Thus, Appellant is



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legally responsible for First-Degree Murder even though he did not

personally pull the trigger of the gun that was used to kill McGruder.

         Viewing the totality of the evidence in the light most favorable to the

Commonwealth as the verdict winner, it is clear that the Commonwealth

proved each element of the offenses. Appellant’s sufficiency challenge, thus,

fails.

         Issue 5: Weight of the Evidence

         In his fifth issue, Appellant avers that the jury’s verdict was against

the weight of the evidence.         See Appellant’s Brief at 22-25.       When

considering challenges to the weight of the evidence, we apply the following

precepts:

           The weight of the evidence is exclusively for the finder of
           fact, who is free to believe all, none[,] or some of the
           evidence and to determine the credibility of witnesses.

           Appellate review of a weight claim is a review of the
           exercise of discretion, not the underlying question of
           whether the verdict is against the weight of the evidence.
           Because the trial judge has had the opportunity to hear
           and see the evidence presented, an appellate court will
           give the gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial court’s
           determination that the verdict is against the weight of the
           evidence. One of the least assailable reasons for granting
           or denying a new trial is the lower court’s conviction that
           the verdict was or was not against the weight of the
           evidence and that a new trial should be granted in the
           interest of justice.




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Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015),

appeal denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations

omitted).

      Resolving contradictory testimony and questions of credibility are

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a

challenge to the weight of the evidence, the evidence must be so tenuous,

vague[,] and uncertain that the verdict shocks the conscience of the court.”

Talbert, supra at 546 (quotation marks and citation omitted).      It is well

settled that we cannot substitute our judgment for that of the trier of fact.

Id.

      “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014).

      Appellant essentially asks us to reassess the credibility of the

eyewitnesses and reweigh the testimony and evidence presented at trial.

We cannot and will not do so.       Our review of the record shows that the

evidence is not tenuous, vague, or uncertain, and the verdict was not so

contrary to the evidence as to shock the court’s conscience.       We, thus,

conclude that Appellant is not entitled to relief on this claim.

      Judgment of Sentence affirmed.



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     Judge Bowes joins the memorandum.

     Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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