J. A19036/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
SHAWN JONES,                              :         No. 1679 MDA 2017
                                          :
                         Appellant        :


        Appeal from the Judgment of Sentence Entered August 2, 2017,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0005871-2016


BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 01, 2018

        Shawn Jones appeals from the August 2, 2017 judgment of sentence

imposed after a jury found him guilty of first-degree murder and firearms not

to be carried without a license.1 After careful review, we affirm.

        The trial court summarized the relevant facts of this case, as gleaned

from the trial testimony, as follows:

              Sergeant Dave DeLellis of the Pennsylvania State
              Capitol Police Department was driving patrol on
              December 15, 2015. As he drove in the area of Third
              and Calder Streets in Harrisburg, he heard gunshots.
              He observed two men shooting directly in front of him;
              the    officers   gave     chase    and     ultimately
              Sergeant DeLellis did identify one of the shooters;
              however none were taken into custody. DeLellis was
              never able to identify the other shooter. The officers
              did apprehend Glenn Walker, Jr.


1   18 Pa.C.S.A. §§ 2501(a) and 6106(a)(1), respectively.
J. A19036/18


          Glenn Walker, Jr., was friend[s] with the victim in this
          case, John Carter. His son, Glenn Walker, III, is
          friends with [appellant]. Mr. Walker, Jr. was the
          victim of an assault in a nearby bar known by various
          names (1400 Club or Wanda’s most prominently). As
          some background to this incident, Glenn Walker, Jr.
          was in an altercation with a woman who believed he
          had not paid her the right amount for incense. By
          happenstance,      [a]ppellant    showed       up     at
          1400 Club/Wanda’s with Glenn Walker, III. Video
          evidence showed [a]ppellant and Glenn Walker, III
          approaching and entering the bar. Glenn Walker, Jr.,
          identified the young men. The three men then exited
          the building. The woman called a friend to help her
          with Glenn Walker, Jr. When the woman’s friend
          attacked him, Glenn Walker, III, shot at the attacker
          and shots were fired f[ro]m the area where
          [a]ppellant disappeared.

          Several items of evidence were collected from the
          scene, the most important being three spent
          .45 cartridges, two different .45 cartridges, and a
          projectile.

          Moving to March of 2016, Kristian Cammack and her
          fiancé, John Carter III, were taking two of their four
          children on a walk down memory lane in the uptown
          section of Harrisburg. They stopped by the house that
          Mr. Carter grew up in and as they left, the older child
          asked for a drink. As Ms. Cammack drove down the
          2200 block [of] Green Street, they passed a group of
          men who glanced over at them and Mr. Carter glanced
          back. Neither of them recognized the men.

          The family pulled up to the store, Ms. Cammack got
          out to buy some water and Mr. Carter got out to
          smoke a blunt. He told her to drive around the block
          while he finished his blunt. Ms. Cammack got the
          water, returned to her car and circled the block, but
          could not find him. Ms. Cammack tried calling his cell
          phone and he answered it but was unable to talk. She
          reversed up the street and saw people looking on
          Woodbine so she turned onto Woodbine and saw
          Mr. Carter laying on the ground. She immediately


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          rushed to him and saw that he was shot. She asked
          him who shot him and he said he did not know.

          Ms. Cammack acknowledged removing a half of a
          blunt from Mr. Carter’s pocket, but denied that he
          carried weapons and that she removed any weapons
          from his body.

          Taji Abdullah testified for the Commonwealth.
          Mr. Abdullah is friends with [a]ppellant and
          Glenn Walker.      He lived at 2233 Green Street.
          Mr. Abdullah testified that on the day in question, he
          was outside hi[s] home when John Carter drove down
          the street in his truck. They looked at each other and
          a few minutes later, Mr. Carter came walking up the
          street and grabbed the handle of a gun and asked
          Mr. Abdullah if he “wanted some problem” so
          Mr. Abdullah hit him. Mr. Abdullah had been staring
          at the truck because he was wary of strangers on his
          block after being shot a few weeks earlier.

          Mr. Abdullah identified John Carter as the man he
          fought with on a neighbor’s video surveillance. In the
          statement given April 1, 2015, Mr. Abdullah told police
          that he did not know if the victim had any sort of a
          weapon on him. However, Mr. Abdullah was able to
          identify himself, Glenn Walker, III, and [a]ppellant on
          the video.

          The video showed Mr. Carter walking down
          Green Street and out of view. Then he came running
          back up Green Street with the three young men
          following him. Something caused [a]ppellant to stop
          chasing him and turn around. Thereafter, [a]ppellant
          and Mr. Walker, III, began chasing Mr. Carter again.
          Mr. Abdullah denied seeing anyone shoot Mr. Carter,
          but admitted to hearing gunshots and turning around
          to run away.         Mr. Abdullah also identified
          Norbell Lynch in the video as the fourth person
          running after Mr. Carter. He did not know whether
          Mr. Lynch had a gun on him at the time, though he
          did appear to be holding something. Mr. Abdullah
          never saw [a]ppellant shooting a gun.



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          Dr. Wayne Ross testified that John Carter died of a
          gunshot wound to the back.

          Norbell Lynch was in a romantic relationship with
          Abdullah’s mother at the time of the incident. He
          knew Mr. Abdullah because of that relationship and he
          knew Mr. Abdullah’s friends, [a]ppellant and
          Mr. Walker, III. Mr. Lynch was at the home the day
          that Mr. Carter was killed. Mr. Lynch arrived at the
          home about 1:00 p.m. and [a]ppellant[,] Mr. Abdallah
          and Mr. Mr. [sic] Walker, III, were all already there
          outside. Mr. Lynch saw that Mr. Walker, III, had a
          gun on him at that time.

          He did not know Mr. Carter, but that day he saw
          Mr. Carter drive down the street and he saw
          Mr. Abdullah and Mr. Carter make eye contact as a
          female drove John down the street. The next thing he
          knew, Mr. Carter was walking back up the street and
          the fight started[.] Per Mr. Lynch, while everyone is
          out of sight on the video, Mr. Abdullah and Mr. Carter
          had words and then Mr. Abdullah hit Mr. Carter. Then
          [a]ppellant and Mr. Walker, III, jumped in on the
          fight. Mr. Carter managed to escape and began to run
          away.

          As Mr. Carter was running away, Mr. Abdullah’s
          mother came outside and told the men to “get him” at
          which point they took off after Mr. Carter. Mr. Lynch
          testified that Mr. Walker, III and [a]ppellant then
          began shooting at Mr. Carter. He recalled six shots.

          Investigator Marc McNaughton of the Harrisburg
          Bureau of Police, processed the scene for evidence.
          Most relevant to the case at hand, he collected
          serval [sic] casings. Those casing[s] were identified
          as brass .45 Winchester, nickel .45 Hornady, and
          brass .45 Blazer.

          A neighbor testified that she was home on the day in
          question. She originally heard a ruckus and asked her
          daughter to check outside. Her daughter came back
          to say there was a fight. Then they heard shooting.
          She went outside almost immediately after she heard


                                  -4-
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          the shots and could not see anything but did hear
          someone screaming for help. A day or two later, the
          neighbor was gardening and found a gold grill in her
          garden. She gave it to police who happened to be
          canvassing the area.

          The neighbor also saw Mr. Abdullah’s mother in her
          garden picking up casings, just after the shooting.
          Through a stipulation, the jury learned that DNA on
          the grill matched that of [a]ppellant.

          Mr. Abdullah’s mother, Shariyka Muhammed testified.
          She indicated that Mr. Lynch was able to run and that
          on the day of the incident, he ran outside saying “I’m
          gonna go get him” when they found out her son was
          in a fight. She assumes it was in reference to the man
          Mr. Abdullah’s [sic] was fighting with. She identified
          that fourth man in the video as Mr. Lynch.

          Ms. Muhammed was questioned on cross examination
          as to whether she was a police informant and had an
          open drug case.     Defense counsel objected but
          Ms. Muhammed had already answered the question
          and this Court deemed it relevant.

          Todd Neumyer of the Pennsylvania State Police is a
          firearm and tool marking examiner. He performs
          microscopic analysis on the tool marks left behind on
          the surface of ammunition components when fired by
          a gun. He does these exams to determine if various
          bullets were discharged from the same firearm. He
          was admitted as an expert.

          Neumyer examined the cartridges recovered at both
          the December 2015 and the March 2016 incidents. He
          was able to conclude that the four non-Glock cartridge
          cases from the Green Street scene matched the
          non-Glock cartridge cases from the incident at Third
          and Calder in December of 2015. Further, the
          non-Glock cartridges were discharged from the same
          unknown Glock at both scenes.




                                  -5-
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Trial court opinion, 3/1/18 at 2-6 (citations to notes of testimony omitted;

footnotes omitted).

        Appellant was subsequently arrested and charged with first-degree

murder; firearms not to be carried without a license; and persons not to

possess, use, manufacture, control, sell, or transfer firearms.2 On March 30,

2017, appellant filed a motion in limine to exclude video of the December 15,

2015 shooting at the 1400 Club/Wanda’s.         (See Omnibus Pretrial Motion,

3/30/17 at ¶¶ 17-30.) Following a pre-trial hearing, the trial court denied

appellant’s motion on April 19, 2017. On May 22, 2017, appellant proceeded

to a jury trial and was found guilty of the aforementioned offenses on May 25,

2017.     On August 2, 2017, the trial court sentenced appellant to life

imprisonment without the possibility of parole for first-degree murder and a

concurrent term of seven years’ probation for firearms not to be carried

without a license. On August 10, 2017, appellant filed timely post-sentence

motions that were denied by the trial court on October 13, 2017. This timely

appeal followed on October 30, 2017. On November 1, 2017, the trial court

ordered appellant to file a concise statement of errors complained of on appeal

in accordance with Pa.R.A.P. 1925(b). Appellant complied with the trial court’s

order, and the trial court issued its Rule 1925(a) opinion on March 1, 2018.

        Appellant raises the following issues for our review:




2 18 Pa.C.S.A. § 6105(a)(1).         This charge was nolle prossed by the
Commonwealth prior to trial.


                                       -6-
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            1.     Did the trial court improperly allow the
                   admission of video evidence and testimony
                   about an unrelated and uncharged shooting in
                   violation of the Sixth Amendment and the Due
                   Process Clause of the Fourteenth Amendment to
                   the United States Constitution, Article I, §§ 6
                   and 9 of the Pennsylvania Constitution, and
                   Pa.R.E. 401, 403, and 404?

            2.     Did the trial court abuse its discretion and
                   commit legal error by failing to provide the jury
                   with a cautionary instruction that evidence of
                   [a]ppellant’s alleged bad act was admitted for a
                   limited purpose and must not be considered or
                   regarded as showing [a]ppellant’s guilt?

            3.     Did the trial court abuse its discretion and
                   commit legal error when it overruled an
                   objection to the prosecutor’s questioning of
                   Shariyka Muhammad, a witness who provided
                   helpful defense testimony, about her open drug
                   case and status as a police informant?

Appellant’s brief at 2.

      Appellant’s admissibility of evidence claim is three-fold. Appellant first

argues that      the   trial court abused   its discretion   in   permitting   the

Commonwealth to introduce surveillance video of the December 15, 2015

shooting at the 1400 Club/Wanda’s. (Id. at 20.) Appellant maintains that

this video had “no relevant value”; was “incredibly prejudicial”; and was

inadmissible as “prior bad act” evidence under Pennsylvania Rule of

Evidence 404(b)(1) because it was offered “only for the prohibited purpose of

showing that [he] had a propensity for violence.”      (Id. at 5, 21-23).      We

disagree.




                                      -7-
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      “[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013).

“An abuse of discretion is not merely an error of judgment; rather discretion

is abused when the law is overridden or misapplied, or the judgment exercised

is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill

will, as shown by the evidence or the record.”             Commonwealth v.

Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014) (citation omitted), appeal

denied, 95 A.3d 275 (Pa. 2014).

            The threshold inquiry with admission of evidence is
            whether the evidence is relevant. Evidence is relevant
            if it logically tends to establish a material fact in the
            case, tends to make a fact at issue more or less
            probable, or supports a reasonable inference or
            presumption regarding the existence of a material
            fact. In addition, evidence is only admissible where
            the probative value of the evidence outweighs its
            prejudicial impact.

Id. at 750 (citations and internal quotation marks omitted); see also

Pa.R.E. 401(a), (b).

      Generally, “evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity

therewith.” Pa.R.E. 404(b)(1); see also Commonwealth v. Weakley, 972

A.2d 1182, 1189 (Pa.Super. 2009) (stating, “[e]vidence of distinct crimes is

not admissible against a defendant being prosecuted for another crime solely



                                      -8-
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to show his bad character and his propensity for committing criminal acts.”

(citation omitted; emphasis in original)), appeal denied, 986 A.2d 150 (Pa.

2009). Evidence of prior bad acts may be admissible, however, “when offered

to prove some other relevant fact, such as motive, opportunity, intent,

preparation, plan, knowledge, identity, and absence of mistake or accident.”

Commonwealth v. Ross, 57 A.3d 85, 98 (Pa.Super. 2012) (citations

omitted), appeal denied, 72 A.3d 603 (Pa. 2013). “In determining whether

evidence of other prior bad acts is admissible, the trial court is obliged to

balance the probative value of such evidence against its prejudicial impact.”

Ross, 57 A.3d at 98 (citation omitted).

      Upon review, we conclude that the surveillance video was admissible

because it was relevant to establish the identity of the firearm used in the

instant case and the fact that appellant was present on a prior occasion, on

December 15, 2015, when this same firearm was utilized. Specifically, the

video depicts Glenn Walker, III, exit the 1400 Club/Wanda’s on December 15,

2015, approximately three months before Carter was murdered, with two

other individuals and discharge a firearm. (Notes of testimony, 5/22-25/17

at 50-52.) Ballistics testing matched the tool markings on the cartridge cases

recovered from the scenes of the December 15, 2015 and the March 26, 2016

shootings, indicating the same gun used in each instance. (Id. at 279, 286-

287, 346-347.) Additionally, Glenn Walker, Jr., positively identified appellant

as one of the men in the video. (Id. at 44-45.) Based on the foregoing, we



                                     -9-
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discern   no    abuse    of   the   trial    court’s   discretion   in   permitting   the

Commonwealth to introduce this video surveillance evidence at trial.                  See

Ross, 57 A.3d at 98.

     Appellant next argues that it was improper to admit the video and

testimonial evidence about the December 15, 2015 shooting because the

expert testimony of Pennsylvania State Trooper Todd Neumyer, upon which

the trial court relied, was “based on faulty science.”              (Appellant’s brief at

23-30.)

     Expert testimony is admissible if it concerns a subject beyond the

knowledge, information, or skill possessed by the average layperson, as

phenomena and situations that are matters of common knowledge may not

be the subject of expert testimony. Pa.R.E. 702.

               [I]n cases involving the admission of expert testimony
               . . . the admission of expert testimony is a matter left
               largely to the discretion of the trial court, and its
               rulings thereon will not be reversed absent an abuse
               of discretion. An expert’s testimony is admissible
               when it is based on facts of record and will not cause
               confusion or prejudice.

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa.Super. 2013) (citation

omitted), appeal denied, 80 A.3d 775 (2013).

     At trial, Trooper Neumyer, a firearm and toolmark examiner with the

Harrisburg Regional Crime Laboratory, testified that he could render an expert

opinion with respect to the cartridges recovered from both the December 2015

and the March 2016 shootings. (Notes of testimony, 5/22-25/17 at 326, 330.)



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Neumyer opined, based on his research and 17 years’ experience in the

discipline, that he could state to a reasonable degree of scientific certainty

that the four non-Glock cartridge cases recovered in the March 26, 2016

shooting matched the non-Glock cartridge cases from the December 15, 2015

shooting. (Id. at 338-340, 346-347, 351, 358-360.) Additionally, Neumyer

testified that the non-Glock cartridges were discharged from the same

unknown Glock at both scenes. (Id.) The record reflects that appellant never

objected to Neumyer’s expert testimony regarding the degree of scientific

certainty of his findings.     Accordingly, appellant has waived this claim on

appeal. See Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014)

(stating, “the failure to make a timely and specific objection before the trial

court at the appropriate stage of the proceedings will result in waiver of the

issue.” (citation omitted)).

        In any event, even if appellant had properly preserved an objection to

Trooper Neumyer’s expert testimony, we would find his claim to be without

merit.    Appellant asks us to reassess the general admissibility of forensic

firearms evidence; we decline to do so. In Commonwealth v. Whitacre,

878 A.2d 96 (Pa.Super. 2005), appeal denied, 892 A.2d 823 (Pa. 2005), a

panel of this court held that expert ballistic matching evidence obtained by a

comparison microscope, like Neumyer used in this case,3 is “generally

accepted by the scientific community consisting of firearms experts.” (Id. at


3   See notes of testimony, 5/22-25/17 at 336-337.


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101.)      The Whitacre court notes that “[t]he comparison microscope

examination method has been in use since the 1930’s and is an accepted

methodology by the Association of Firearms and Toolmark Examiners.”

Accordingly, appellant’s claim would nonetheless fail. See Huggins, 68 A.3d

at 966.

        Appellant next contends that the trial court abused its discretion in

failing to undertake additional analysis as required by Pennsylvania Rule of

Evidence 404(b)(2) and “properly weigh whether the probative value [of the

video evidence] outweighed any danger of unfair prejudice.” (Appellant’s brief

at 31.) We disagree.

        Instantly, the trial court set forth the following rationale in support of its

decision to deny appellant’s motion in limine to exclude video of the

December 15, 2015 shooting at the 1400 Club/Wanda’s:

              THE COURT: And, in essence, there was no argument
              that either one of them were [sic] charged in the
              previous video. It was set up for the purpose of
              showing that they were there and that the caliber of
              gun and the shells that were found on the one scene
              were also found in the second scene. So it will be
              allowed.

Notes of testimony, 4/19/17 at 10.

        Although appellant is correct that “the trial court is obliged to balance

the probative value of such evidence against its prejudicial impact[,]” see

Ross, 57 A.3d at 98 (citation omitted), our supreme court has explicitly

recognized that a trial court is not required “to articulate its balancing test on



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the record.” Commonwealth v. Hairston, 84 A.3d 657, 667 (Pa. 2014),

cert. denied, 135 S.Ct. 164 (2014). Rather, “[w]e presume that trial courts

know the law . . . [and s]uch weighing and the general consideration of the

admissibility of evidence is a discretionary ruling which trial courts routinely

engage in mentally. There is no requirement that it record these mental

deliberations on the record.” Id. (emphasis added).

      Here, we are satisfied by the trial court’s discussion of why it considered

the aforementioned video admissible that it understood the applicable criteria

and mentally engaged in the appropriate balancing test. There is nothing in

this record to suggest that this trial court did not understand its duty to weigh

the evidence in accord with Rule 404(b)(2).

      Accordingly, for all the foregoing reasons, we discern no abuse of

discretion on the part of the trial court in allowing the video and testimonial

evidence of the December 15, 2015 shooting to be admitted into evidence.

      In his second issue, appellant argues that the trial court abused its

discretion “when it failed to provide the jury with a cautionary instruction that

evidence of [a]ppellant’s alleged prior bad act was admitted for a limited

purpose and must not be considered as evidence of guilt or bad character.”

(Appellant’s brief at 41.) In support of this contention, appellant relies on

Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013), wherein our supreme

court stated:

            [W]hile evidence of prior bad acts may be relevant
            and admissible, there is the potential for


                                     - 13 -
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             misunderstanding on the part of the jury when this
             type of evidence is admitted. This evidence must,
             therefore, be accompanied by a cautionary
             instruction[,] which fully and carefully explains to the
             jury the limited purpose for which that evidence has
             been admitted.

Id. at 798 (citations and internal quotation marks omitted); see also

appellant’s brief at 43.

      Here, however, the record reveals that appellant did not specifically

request that a cautionary instruction be given to the jury after the

Commonwealth sought to introduce the video of the December 15, 2015

shooting, nor did he object to the trial court’s failure to provide said instruction

at the conclusion of trial. (See notes of testimony, 5/22/17 at 43-44.) The

“[f]ailure to request a cautionary instruction upon the introduction of evidence

constitutes a waiver of a claim of trial court error in failing to issue a cautionary

instruction.”   Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa. 2004).

Consequently, we agree with the trial court that appellant waived this claim.4

      In his final claim, appellant argues that the trial court abused its

discretion when it permitted the Commonwealth to cross-examine defense

witness Shariyka Muhammad “about whether she had an open drug case and

whether she was a police informant.” (Appellant’s brief at 49.) We disagree.




4 To the extent appellant argues that his trial counsel was ineffective for failing
to request a cautionary instruction, we note that, absent limited
circumstances, “claims of ineffective assistance of counsel are to be deferred
to PCRA review[.]” Commonwealth v. Reid, 117 A.3d 777, 787 (Pa.Super.
2015) (citation omitted); see also appellant’s brief at 46.


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      “The scope of cross-examination is a matter within the discretion of the

trial court and will not be reversed absent an abuse of that discretion.”

Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citation and

internal quotation marks omitted), cert. denied, 549 U.S. 848 (2006).

“[T]rial judges retain wide latitude as to the scope of cross-examination.”

Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa.Super. 2018) (citation

omitted).

      Instantly, the record reflects that appellant failed to specifically object

to the Commonwealth’s inquiry as to whether Muhammad had a pending drug

charge:

            Q       Ma’am, you have a pending felony drug delivery
                    charge?

            A.      Yep.

            Q.      I believe --

            A.      Trumped up charges that you all put on me, yes.

Notes of testimony, 5/24/17 at 389.

      Accordingly, appellant has waived his challenge to this specific inquiry.

See Houck, 102 A.3d at 451; see also Pa.R.A.P. 302(a) (stating an issue not

raised in the trial court is considered waived for purposes of appellate review).

      Thereafter,     the    following     exchange   occurred    between    the

Commonwealth and Muhammad during which appellant lodged an objection:

            Q.      You    had   an    opportunity    to   talk   to
                    Detective Iachini?



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           A.    While I was down there, of course, yes.

           Q.    You actually have          a   relationship   with
                 Detective Iachini?

           A.    I mean, yes. I got a relationship with a couple
                 officers, detectives.

           Q.    In fact, you’ve been an informant in the past for
                 Detective Iachini?

           [Appellant’s counsel]: Objection. It’s not relevant.

           [Commonwealth]: Of course it is.

           THE WITNESS: No.

Notes of testimony, 5/24/17 at 392.

     Upon review, we agree with the trial court that this line of inquiry was

relevant to establishing whether Muhammed had a prior relationship with

police and would not be apprehensive about speaking to them with regard to

what she witnessed on the day in question.       Moreover, we find that any

resulting prejudice was minimal and could not have outweighed the probative

value of this brief cross-examination. Accordingly, we discern no abuse of

discretion on the part of the trial court in permitting the Commonwealth to

cross-examine Muhammad as to whether she was a police informant.

     Based on the foregoing, we affirm the trial court’s August 2, 2017

judgment of sentence.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/1/2018




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