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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    JUAN ABEL SANTIAGO                           :
                                                 :
                       Appellant                 :   No. 907 MDA 2019

      Appeal from the Judgment of Sentence Entered September 15, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0002180-2016


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED: MAY 18, 2020

       Appellant Juan Abel Santiago appeals from the judgment of sentence of

life imprisonment entered on September 15, 2017, in the Court of Common

Pleas of York County following a jury trial resulting in his murder and robbery

convictions. After careful review, we affirm.

       In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court detailed

the underlying facts and procedural history herein. See Trial Court Opinion,

filed 8/22/19, at 1-8.1      Briefly, following a jury trial which commenced on

September 11, 2017, and concluded on September 15, 2017, Appellant was

convicted of First Degree Murder, Second Degree Murder and Robbery.2 The


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* Former Justice specially assigned to the Superior Court.
1 Appellant adopts the trial court’s statement of the factual and procedural
history in his appellate brief. See Brief for Appellant at 13-17.
2 18 Pa.C.S.A. §§ 2502(a); 2502(b); and 3701(a)(1)(i), respectively.
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convictions arose from an incident that occurred on January 28, 2016,

involving Appellant, another male, and Dontay Lowrie (“the Victim”).

       At the conclusion of trial, the trial court immediately sentenced

Appellant to two life sentences without the possibility of parole to be served

concurrently on the murder convictions, and it indicated that the Robbery

conviction merged for sentencing purposes with the Second Degree Murder

conviction. On September 22, 2017, Appellant filed a post-sentence motion.

Following a hearing on October 13, 2017, the trial court denied the motion

and permitted trial counsel to withdraw after perfecting Appellant’s appeal.

However, counsel filed an untimely appeal, and this Court quashed the same.

       Subsequently, Appellant filed a pro se petition pursuant to the Post

Conviction Relief Act3 wherein he sought the restoration of his direct appeal

rights. Appellant’s direct appeal rights were reinstated nunc pro tunc. New

counsel was appointed and filed the instant appeal on June 3, 2019.

       In the Statement of Questions Involved section of his appellate brief,

Appellant raises thirteen (13) claims for this Court’s review that essentially

mirror those he listed in his Statement of Matters Complained of Pursuant to

Pa.R.A.P. 1925(b) filed on July 22, 2019.4 Those issues are as follows:

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3 42 Pa.C.S.A. §§ 9541-9545.
4 The only claim omitted in Appellant’s brief is sub-issue 1(f) from his concise
statement which challenged the sufficiency of the evidence to sustain the
robbery conviction. As such, he has waived this sub-claim for lack of
development. Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa.Super.



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       I. Whether the Commonwealth presented sufficient evidence at
       trial to sustain the verdicts of guilty on the charges of murder of
       the first-degree, robbery, and murder of the second-degree as
       follows:

       a. On the charge of first-degree murder, the evidence failed to
       establish that Defendant himself shot and killed the victim (or was
       the direct cause of death) where the evidence established only
       one shooter but two people present;

       b. On the charge of first-degree murder, the evidence failed to
       establish that Defendant had a specific intent to kill or that it was
       willful, deliberate, and premeditated;

       c. On the charge of second-degree murder, the evidence failed to
       establish that Defendant inflicted serious bodily injury upon the
       victim or killed him as the injuries sustained were a result of four
       gunshots from one gun and the Commonwealth did not establish
       beyond a reasonable doubt which of the two individuals shot the
       victim;

       d. On the charge of second-degree murder, the evidence failed to
       establish that Defendant killed the victim while committing a
       robbery in that the Commonwealth failed to produce sufficient
       evidence that a theft occurred or that Defendant committed the
       theft; and

       e. On the charge of second-degree murder, the Commonwealth
       failed to prove that there was a theft and, therefore, did not
       establish that the killing was in furtherance of a theft/robbery.

       II. Whether the weight of the evidence is insufficient to sustain
       the verdicts of guilty on the charges of murder of the first-degree,
       robbery, and murder of the second-degree as the testimony that
       there were two shooters is contradicted by the Commonwealth’s
       firearms expert who testified that all four shell casings found at
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2011) (issues raised in Pa.R.A.P. 1925 concise statement not developed in
appellate brief are abandoned); see also Commonwealth v. Woodward,
129 A.3d 480, 509 (Pa. 2015) (holding that “where an appellate brief fails to
... develop an issue in any [ ] meaningful fashion capable of review, that claim
is waived[ ]”).



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     the crime scene came from the same firearm and the victim was
     shot four times.

     III. Whether the trial court erred in admitting conversations
     allegedly between Defendant and an inmate at the York County
     Prison where the probative value was outweighed by the danger
     of unfair prejudice, confusion of the issues, or misleading the jury?

     IV. Whether the trial court erred in admitting conversations
     allegedly between Defendant and an inmate at the York County
     Prison where there was no authentication as to Defendant (or his
     voice) being one of the participants in the conversation?

     V. Whether the trial court erred in admitting conversations
     between Defendant and an inmate at the York County Prison
     where such recordings are in violation of the Wire Tap Act (and its
     exceptions) and inapposite to the holding in Commonwealth vs.
     Fant, 146 A.2d 1254 (Pa. 2016)?

     VI. Whether the trial court erred in admitting a letter that was not
     properly authenticated and where the probative value was
     outweighed by the danger of unfair prejudice, confusion of the
     issues, or misleading the jury?

     VII. Whether the trial court erred in admitting evidence that text
     messages were sent or received where such records were not
     properly authenticated and where the probative value was
     outweighed by the danger of unfair prejudice, confusion of the
     issues, or misleading the jury?

     VIII. Whether the trial court erred in admitting SMS Maps and
     voice usage maps when the maker of the maps testified that she
     could not positively identify where the telephone device was
     located and that the cell towers produced conflicting locations?

     IX. Whether the trial court erred in admitting still photographs
     from the video surveillance which did not fairly and accurately
     depict the subject in the still photographs?

     X. Whether the trial court erred in not allowing the Defendant to
     testify about his whereabouts on the day of the incident, where
     such testimony could have raised a reasonable doubt as to the
     Defendant’s location at the time of the incident?


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      XI. Whether the trial court erred in permitting the testimony of
      Angelica Lowrie regarding the letter purportedly written by
      Defendant without proper foundation or authentication and where
      she had no first-hand knowledge regarding the letter?

      XII. Whether the trial court erred in permitting Ms. Greene to
      identify Defendant as a shooter when she was previously indicated
      that she did not see the shooter’s face and was previously unable
      to identify Defendant, including through a photographic line-up?

      XIII. Whether the trial court erred in instructing the jury on flight
      and consciousness of guilt as there was insufficient evidence of
      flight and no instruction was requested?

Brief for Appellant at 8-13.

      Appellant’s initial arguments challenge the sufficiency of the evidence to

sustain his convictions. According to Appellant, the Commonwealth failed to

establish that he: actually shot and killed the Victim; had a specific intent to

kill the Victim; inflicted serious bodily injury upon the Victim or; killed the

Victim in furtherance of a theft/robbery. Brief for Appellant at 22-30.

      We review these challenges to the sufficiency of the evidence mindful of

our well-established standard of review:

              When reviewing a challenge to the sufficiency of the
      evidence, we must determine whether the evidence admitted at
      trial, and all reasonable inferences drawn therefrom, when viewed
      in a light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there is
      sufficient evidence to enable the trier of fact to find every element
      of the crime has been established beyond a reasonable doubt, the
      sufficiency of the evidence claim must fail. This standard applies
      equally where the Commonwealth’s evidence is circumstantial.
              In conducting this analysis, we do not weigh the evidence
      and substitute our judgment for that of the fact-finder.
      Additionally, the Commonwealth’s evidence need not preclude
      every possibility of innocence in order to prove guilt beyond a


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       reasonable doubt. The fact-finder is free to believe all, part, or
       none of the evidence.

Commonwealth v. Knox, 219 A.3d 186, 195 (Pa.Super. 2019) (internal

citations and quotation marks omitted).

       After a review of the certified record, the trial transcripts, the briefs of

the parties, the applicable law, and the well-reasoned Opinion of the

Honorable Maria Musti Cook, we conclude that this issue along with its

corresponding sub-issues merits no relief. The trial court set forth the relevant

evidence and applicable law and concluded that the Commonwealth presented

sufficient evidence to support Appellant’s murder convictions. See Trial Court

Opinion, filed 8/22/19, at 12-17. We agree with the sound reasoning of the

trial court and adopt its analysis in resolving these claims. See id.

       In his second issue, Appellant challenges the weight of the evidence to

sustain the murder and robbery convictions highlighting what he terms the

“unreliable and tainted identification by Ms. Green and the suspect (and

potentially tainted) identification by Detective Ripley.” 5 Brief for Appellant at


____________________________________________


5 Appellant does not cite to specific portions of the notes of testimony in
support of this allegation. The record reveals, inter alia, that Detective George
Ripley testified he had filed charges against Appellant in connection with an
incident on April 3, 2014, at which time the Victim was shot. Appellant pled
guilty to the charges, was sentenced to a prison term, and was released on
December 29, 2015. Detective Ripley went on to testify regarding surveillance
and still photographic evidence from which he identified Appellant running
from the scene of the murder in the instant matter. N.T. Trial, Sept. 11-15,
2017, at 316-318-418. Ms. Windy Greene was the Victim’s girlfriend, and she
testified at length as to what she observed prior to, during, and following the
shooting. Id. at 121-250.

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32.   In addressing an appellant’s weight claim, we apply the following

principles:

            As a general rule, the weight of the evidence is exclusively
      for the fact finder who is free to believe all, part or none of the
      evidence and to determine the credibility of the witnesses. We
      cannot substitute our judgment for that of the finder of fact. We
      may only reverse the lower court's verdict if it is so contrary to
      the evidence as to shock one's sense of justice.
            Moreover, where the trial court has ruled on the weight
      claim below, our role is not to consider the underlying question of
      whether the verdict is against the weight of the evidence. Rather,
      appellate review is limited to whether the trial court palpably
      abused its discretion.

Commonwealth v. Castelhun, 889 A.2d 1228, 1234 (Pa.Super. 2005)

(internal quotation marks and citations omitted).

      In generally characterizing Ms. Greene’s testimony as contradictory and

Detective Riply’s as suspect, Appellant ignores the fact that it was within the

province of the jury, as the fact-finder, to make credibility determinations

upon hearing their statements and observing their demeanor on the witness

stand. Appellant essentially asks this Court to reweigh that testimony and

reach a different conclusion, which we cannot do. Castelhun, supra.         When

addressing this claim in its Rule 1925(a) Opinion, the trial court stated that its

sense of justice was not shocked by the jury’s verdict. Trial Court Opinion,

filed 8/22/19, at 18. Following our review of the record, we find no abuse of

discretion.




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       Appellant’s third, fourth, fifth,6 sixth, seventh, eighth, ninth, eleventh

and twelfth issues challenge the trial court’s decision to admit certain physical

and testimonial evidence at trial. Specifically, Appellant challenges the trial

court’s admitting: recorded conversations between Appellant and an inmate

at York County Prison two days after the murder; a letter Appellant wrote to

the Victim discovered after the latter’s death by Angela Lowrie; text messages

received by the Victim on the date of the shooting; short message service and

voice usage maps; still photographs from video surveillance and; Ms. Greene’s

identification of Appellant from the witness stand.

       It is axiomatic that the admissibility of evidence is within the sole

discretion of the trial court, and this Court will reverse an evidentiary ruling

only for a clear abuse of the court’s discretion. Commonwealth v. Allison,

703 A.2d 16, 18 (Pa. 1997). “An abuse of discretion is not merely an error of

judgment, but if in reaching a conclusion the law is overridden or misapplied

or the judgment exercised is manifestly unreasonable, or the result of



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6 In his fifth issue in his Statement of the Questions Invloved, Appellant states
the admission of conversations between Appellant and an inmate at York
County Prison violated the Wiretap Act; however, he briefly incorporates an
argument in this regard in connection with his third issue in the argument
section of his appellate brief which alleges the probative value of the
discussions was outweighed by their prejudicial effect. We remind Appellant
that the argument section of an appellant’s brief must be divided into sections
addressing each of the issues he lists in his statement of questions involved.
Pa.R.A.P. 2116(a), 2119(a). Notwithstanding, because Appellant did include
some argument concerning the Wiretap Act in his appellate brief, we will not
find this issue waived for lack of development.

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partiality, prejudice, bias, or ill will, as shown by the evidence or the record,

discretion is abused.” Commonwealth v. Holder, 815 A.2d 1115, 1118 (Pa.

Super. 2003) (citation omitted).

      Relevant evidence is generally admissible. Pa.R.E. 402. When called

upon to determine the relevance of proffered evidence, the trial court must

consider whether the evidence bears upon a material fact at issue in the case,

and whether it tends to prove or disprove that fact. See Commonwealth v.

Johnson, 638 A.2d 940, 942 (Pa. 1994).

      Importantly, it is well-established that claims which have not been

raised in the trial court cannot be raised for the first time on appeal.

      In order to preserve an issue for appellate review, a party must
      make a timely and specific objection at the appropriate stage of
      the proceedings before the trial court. Failure to timely object to
      a basic and fundamental error will result in waiver of that issue.
      On appeal the Superior Court will not consider a claim which was
      not called to the trial court's attention at a time when any error
      committed could have been corrected. In this jurisdiction ... one
      must object to errors, improprieties or irregularities at the earliest
      possible stage of the adjudicatory process to afford the jurist
      hearing the case the first occasion to remedy the wrong and
      possibly avoid an unnecessary appeal to complain of the matter.

Thompson v. Thompson, 963 A.2d 474, 475–476 (Pa.Super. 2008) (quoting

Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa.Super. 2000)); see also Pa.R.E.

103(a) (providing party may only claim error regarding admission or exclusion

of evidence if he or she makes timely objection on record).

      Mindful of the foregoing and upon our review of the certified record, we

find the trial court’s Rule 1925(a) Opinion thoroughly discusses and correctly


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disposes of these issues by finding them either to be waived or meritless;

therefore, we adopt the trial court’s reasoning in concluding Appellant is not

entitled to relief on the aforementioned claims.      Trial Court Opinion, filed

8/22/19, at 18-28; 31-32.

      Appellant’s tenth issue asserts that the trial court erred in denying

Appellant an opportunity to testify regarding his whereabouts on the day of

the shooting. The trial court properly analyzed and found this claim had been

waived in light of defense counsel’s abandoning the alibi defense, withdrawing

the question pertaining to Appellant’s location at the time of shooting, and

indicating a wish to “move on” during trial. Trial Court Opinion, filed 8/22/19,

at 28-30, citing N.T. Trial, Sept. 11-15, 2017, at 662.

      Moreover, Appellant admits in his brief that the trial court did not

prohibit Appellant from presenting alibi testimony:

      However, and unfortunately for [Appellant], it appears the real
      error here is not that the trial judge precluded his testimony, but
      that his defense counsel volunteered to withdraw the question and
      move on in addition to agreeing to strike [Appellant’s] response.
      (NT at 662-63). As a result, [Appellant] was precluded from
      offering his testimony regarding his alibi.

Brief for Appellant at 48.

      To the extent Appellant suggests he had been precluded from offering

alibi testimony because of trial counsel’s actions, this Court generally will not

consider claims pertaining to trial counsel’s performance on direct appeal.

See Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) (holding




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that review of counsel ineffectiveness claims should be deferred until collateral

review). Therefore, this issue is waived.

      Finally, Appellant posits the trial court erred by giving a jury instruction

on flight as consciousness of guilt because the Commonwealth presented

insufficient evidence to justify such an instruction. The entirety of Appellant’s

argument on this point reads as follows:

             An instruction on flight/consciousness of guilt is appropriate
      where the evidence existed that defendant committed a crime,
      knew he was wanted, and fled or concealed himself.
      Commonwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa.Super.
      2005)(citations omitted).
             In the instant matter, the only evidence presented at trial
      was that immediately after the shooting the two individuals fled
      the area on foot. (N.T. at 174-75). [Appellant] asserts that
      running from the crime scene is insufficient to warrant a charge
      of flight as consciousness of guilt. In this instance, there was no
      evidence to establish that [Appellant] knew he was wanted
      (seconds after it [sic] shooting) or that he concealed himself after
      the shooting.
             As a result, it was error for the trial court to instruct the jury
      that running from the scene of a shooting, without more, was
      consciousness of guilt. As a result of the error, [Appellant] should
      be awarded a new trial.

Brief for Appellant at 57.

      In examining an appellant's challenge to a jury instruction on flight as

consciousness of guilt, our Supreme Court has stated:

      A jury instruction is proper if supported by the evidence of record.
      [...W]hen a person commits a crime, knows that he is wanted
      therefor, and flees or conceals himself, such conduct is evidence
      of consciousness of guilt, and may form the basis [of a conviction]
      in connection with other proof from which guilt may be inferred.




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Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (internal citations

omitted). Significantly, a reviewing court “need not determine whether or to

what extent a flight instruction must be supported by evidence other than an

accused's departure from the scene of the crime.” Id.

      Here, there is no dispute that Ms. Greene testified she observed from

the rearview window of her vehicle two individuals, one of whom she would

later identify as Appellant, who was on state parole at the time, “running down

the street” immediately after the Victim was shot. N.T. Trial, Sept. 11-15,

2017, at 174-75. Based upon this evidence, the trial court gave the following

instruction:

            There was evidence, including the video of the crime scene,
      as well as the still photos that showed two individuals—I’m sorry—
      that tended to show that [Appellant] fled from the scene. The
      credibility, weight and effect of this evidence is for you to decide.
            Generally speaking, when a crime has been committed, and
      a person thinks he or she is or may be accused of committing it,
      and he or she flees himself or herself, such flight is a circumstance
      tending to prove the person is conscious of guilt.
            Such flight does not necessarily show consciousness of guilt
      in every case. A person may flee or hide for some other motive
      and may do so even though they are innocent. Whether the
      evidence of flight in this case should be looked at as tending to
      prove guilt depends upon the facts and circumstances of this case
      and especially upon motives that may have prompted the flight.
            You may not find [Appellant] guilty solely on the basis of
      evidence of flight.

N.T. Trial, Sept. 11-15, 2017, at 879-80.

      During trial, Ms. Greene testified that Appellant had been one of the two

shooters whom she saw run from the scene immediately thereafter. Id. at

132-34. Accordingly, the evidence of record supported the instruction, and

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the trial court's charge gave an accurate statement of the law. The court

stressed that it was up to the jury to determine what weight, if any, the

evidence of flight should be given, and it would not find Appellant guilty based

solely on such evidence.     As there was no trial court error regarding jury

instructions, this issue lacks merit.

      In light of all the foregoing, we affirm the trial court judgment of

sentence entered on September 15, 2017. The parties are instructed to attach

a copy of the Trial Court’s August 22, 2019, Opinion to all future filings.

      Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/18/2020




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