J-S43013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    BRANDON JALON MAZE                         :
                                               :
                       Appellant               :       No. 183 MDA 2019

        Appeal from the Judgment of Sentence Entered October 24, 2018
                In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0000342-2017


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED NOVEMBER 07, 2019

        Appellant, Brandon Jalon Maze, appeals from the judgment of sentence

entered in the Franklin County Court of Common Pleas, following his jury trial

convictions for aggravated assault and conspiracy to commit first-degree

murder.1 We affirm.

        In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

        Appellant raises the following issues for our review:

           DID THE COMMONWEALTH INTRODUCE SUFFICIENT
           EVIDENCE TO CONVICT [APPELLANT] OF AGGRAVATED
           ASSAULT AND CRIMINAL CONSPIRACY TO COMMIT FIRST
           DEGREE MURDER?

           WERE THE JURY VERDICTS OF GUILTY TO COUNT 1
           AGGRAVATED ASSAULT AND COUNT 3 CRIMINAL
____________________________________________


1   18 Pa.C.S.A. §§ 2702(a)(1); 903 (2502(a) related), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43013-19


         CONSPIRACY TO COMMIT FIRST DEGREE MURDER AGAINST
         THE WEIGHT OF THE EVIDENCE SUCH THAT IT SHOCKS
         THE CONSCIENCE?

         DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING
         TO SUFFICIENTLY COLLOQUY THE JUROR WHO IS
         BELIEVED TO HAVE FALLEN ASLEEP DURING THE
         PROCEEDINGS OUTSIDE THE PRESENCE OF OTHER JURORS
         OR [QUESTION] THE OTHER JURORS REGARDING THE
         “SLEEPING JUROR” TO DETERMINE WHETHER A MISTRIAL
         SHOULD BE DECLARED?

         DID THE TRIAL COURT ABUSE ITS DISCRETION BY
         ADMITTING HEARSAY OF THE ALLEGED VICTIM…UNDER
         THE EXCITED UTTERANCE STANDARD WHEN HE HAD
         SUFFICIENT TIME AND AFORETHOUGHT TO LIE TO THE
         POLICE REGARDING HIS OWN IDENTITY?

         WAS    [APPELLANT’S] RIGHT  TO   CONFRONT    HIS
         ACCUSER…VIOLATED BY THE ADMISSION OF THE ALLEGED
         VICTIM’S STATEMENTS TO POLICE WITHOUT [VICTIM’S]
         TESTIMONY AT TRIAL?

(Appellant’s Brief at 10-11).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jeremiah D.

Zook, we conclude Appellant’s issues merit no relief. The trial court opinion

accurately discusses and properly disposes of the questions presented. (See

Trial Court Opinion, filed March 15, 2019, at 12-20; 22-36) (finding: (1) (at

24-32) Joseph King testified that Appellant’s co-defendant, Anthony Cobb,

directed him and others to search for “Black,” who was responsible for

stabbing Mr. Cobb; after locating person he believed to be Black, Mr. King

notified Mr. Cobb and met up with Mr. Cobb, Ryan Troskoski, and Appellant;

Appellant and Mr. King began to look for Black and stopped a hooded male

                                    -2-
J-S43013-19


(Victim); Appellant aggressively went after Victim, who Appellant thought was

Black, and Victim ran; Appellant raised his right arm and fired shots at Victim;

this evidence was sufficient to sustain Appellant’s aggravated assault

conviction; further, both Mr. King and Mr. Troskoski testified they met up with

Appellant and Mr. Cobb under mutual understanding that they were going to

search for and kill person responsible for stabbing Mr. Cobb; Commonwealth

presented sufficient evidence to sustain Appellant’s conspiracy conviction; (2)

(at 32-35) Appellant’s focus on height of bullet holes in surrounding buildings

as alleged evidence of Appellant’s lack of intent would require jury (and this

court on weight claim) to ignore significant evidence of contrary intent;

evidence showed goal shared by Appellant, Mr. King, Mr. Troskoski, and Mr.

Cobb, was to hunt down person responsible for stabbing Mr. Cobb; evidence

presented significantly outweighed any argument concerning height of bullet

holes or fact that Victim was not actually injured; verdicts did not shock court’s

conscience; (3) (at 22-24) on first day of trial, court observed Juror #4 having

trouble paying attention; court asked juror if he was having trouble staying

awake and juror responded “no”; court asked if juror wanted to take break to

get cup of coffee or stretch legs; court stressed importance of paying attention

and asked if juror was sure he was awake; juror said he did not need coffee

or break and was sure he was awake; to extent Appellant complains court did

not colloquy juror, record belies that contention; to extent Appellant claims

colloquy was insufficient, Appellant did not object at that time and did not ask


                                      -3-
J-S43013-19


court to remove juror or move for mistrial, so issue is waived; moreover, juror

responded convincingly that he was okay to proceed; (4) (at 12-20) Victim

did not testify, so Commonwealth called Officer Sanders to testify concerning

statements Victim made to him; Officer Sanders had responded to scene of

shooting, where officer noted Victim was very emotional, upset, and was

breathing heavily; Officer Sanders had trouble getting information from Victim

due to Victim’s emotional state; Officer Sanders’ discussion with Victim

occurred within minutes of shooting; Appellant objected on hearsay grounds

to Officer Sanders’ testimony about his discussion with Victim; court permitted

Officer Sanders’ testimony under excited utterance hearsay exception;

circumstantial evidence established shooting had occurred; two of Appellant’s

cohorts also testified for Commonwealth and detailed Appellant’s involvement

in shooting; record contains no evidence that Victim spoke to others about

shooting before Victim discussed shooting with Officer Sanders; (5) (at 35-

36) Appellant objected to Officer Sanders’ testimony regarding Victim’s

statements solely on hearsay grounds, so alleged Confrontation Clause

violation claim is waived).   Accordingly, we affirm on the basis of the trial

court’s opinion.

      Judgment of sentence affirmed.




                                     -4-
J-S43013-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2019




                          -5-
                                                             Circulated 10/15/2019 12:39 PM




 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
    DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY

COMMONWEALTH OF PENNSYLVANIA                    CRIMINAL ACTION

                                                CP-28-CR-0000342-2017
           v.
                                                JUDGE JEREMIAH D. ZOOK


BRANDON JALON MAZE,

                         DEFENDANT

                 OPINION SUR. PA.R.A.P. 1925(a)
                     I. FACTUALBACKGROUND

     On April 20, 2016, a melee occurred near the Waynesboro

Police Department, in the Borough of Waynesboro, Franklin

County. A number of individuals were involved, and the incident

was chaotic.    The Defendant's co-defendant, Anthony Cobb (AKA:

Ant), was present and involved in the melee.

     During the melee, an individual known as "Black" approached

Cobb and stabbed/ slashed him with a knife. Cobb responded by

pulling out a firearm, chasing Black, and firing a shot at him.

     Corporal    Stewart    Hannah         of   the   Waynesboro      Police

Department was at the time of this incident transporting a juvenile

in an unrelated matter.    While he was walking with the juvenile,

                 Filed   MAR 1_5 __ 2019
Cpl. Hannah heard an emergency dispatch regarding the fight near

the police department.    Cpl. Hannah returned the juvenile to the

department, and then proceeded towards the location of the melee.

     An African-American male approached Cpl. Hannah and

advised he had been shot.      The man was identified as Jermain

Jenkins.   Cpl. Hannah quickly checked Jenkins for injury, and

finding none, directed him to remain at the rear of the police

station. Cpl. Hannah proceeded on to the location of the melee a

few doors down from the station.

     Cpl. Hannah began to question individuals at the scene, and

also located a spent shell casing in the area. The shell was from a

9mm gun.    Police subsequently located a bullet hole in a nearby

residence. They also located a sheath for a knife in a nearby alley.

     That same evening, Joseph King, an associate of Cobb and the

Defendant, heard that Cobb had been the victim of an attempted

robbery.   King knew Cobb to have the street name "Ant."         King

made contact with Cobb. Cobb relayed that somebody had tried to

rob him and stabbed him. Cobb advised King that Cobb pulled a

gun and fired a shot after being stabbed.



                                   2
     Cobb directed King to look for the people responsible for his

stabbing.   Cobb was angry and upset about the situation, and if

King located the individual known as "Black," he was to notify

Cobb. King then began to search for the "Black."

     That same evening, King spotted a couple of individuals in the

area of the Rotary parking lot, off of Potomac Street in the Borough.

He approached them and had some minimal contact with them. At

that point, King believed these were the individuals responsible for

stabbing/robbing Cobb. He notified Cobb by phone.

     A few minutes later, Cobb arrived at the Rotary parking lot in

a vehicle driven by Ryan Troskoski.         Cobb was in the front

passenger seat and the Defendant was in the rear seat.          King

entered the vehicle and Cobb handed him a 9mm gun.              King

understood at that time to use the gun to go after the people

responsible for Cobb's stabbing.

     Troskoski drove them to another location nearby; King and the

Defendant exited the vehicle.      They entered an alley near the

Rutter's gas station and observed an individual, later identified as

Corey Ballard, wearing a hood. The Defendant aggresively called for

Ballard to come over to him; Ballard immediately fled the area. The
                                   3
Defendant gave chase. Ballard hopped over a fence and King saw

the Defendant raise his right arm and saw a fl.ash from the muzzle

of a firing gun. King turned to run away and heard several more

gun shots. King fled the area; the Defendant caught up with King

shortly. They did not exchange many words, parting ways shortly

thereafter.

     King made contact with Cobb at a later time; at that point he

learned that the Defendant had shot at the wrong person, i.e.,

mistaken identity.   King returned the firearm to Cobb. King also

had subsequent contact with the Defendant. The Defendant was

angry with King that he had not fired his gun at Ballard.

     Troskoski, for his part, lived with Cobb on April 20, 2016. On

that date, he spoke with Cobb and observed Cobb's injury from the

stabbing. Cobb related to him that he had fired his gun at the man

who stabbed him. When Cobb learned from King that "Black" was

near Rutter's that evening, he directed Troskoski to go to the

storage unit and retrieve a duffel bag containing handguns.

     Troskoski took the handguns to the Rotary parking lot. King,

Cobb, and the Defendant all met Troskoski at the parking lot. Cobb

gave a gun to King and a gun to the Defendant.              Everyone

                                  4
understood this to mean they were going to shoot the person

responsible for stabbing Cobb. They drove to an alley near Rutter's

and King and the Defendant exited the vehicle.       Cobb directed

Troskoski to drive back past Rutters and pull off. As he was doing

this, Troskisi heard five gunshots.

     Cobb directed Troskoski back to the area where King and the

Defendant had exited the vehicle.     They made contact with the

Defendant in that area; the Defendant was upset that King had not

fired his gun.   The Defendant confirmed to Troskoski that the

gunshots he heard were from the Defendant.

     At some point later in the investigation, Cobb was interviewed

by the Waynesboro Police. Cobb admitted to being involved in the

melee near the police station, and to being stabbed. However, he

denied possessing or firing a gun. Cobb did admit that, if hehad a

gun when he was stabbed, he would have ran down the person

responsible and killed them.

     Shortly after the Defendant shot at Ballard, the police made

contact with Ballard at the Rutter's store. Ballard was emotional

and upset to the point he could hardly explain to the police what

had just occurred. Officer Steven Sanders spoke with Ballard and

                                  5
then began an investigation of the scene. During his investigation

the following morning,1 several bullet holes/impacts were observed

in the surrounding buildings/ infrastructure.

       On April 25, 2016, Officer Sanders was flagged-down while on

patrol by Diane Hamilton, a resident in the area of the shooting

involving the Defendant and Ballard. She had heard the gunshots

on the night in question.                   She showed Officer Sanders some

clothing that she had discovered in her trashcan. This clothing was

taken into evidence.               Subsequent DNA testing of the clothing

revealed a match to a known sample of DNA taken from the

Defendant.

       After charges were filed against Cobb, King, Troskoski, and the

Defendant, Cobb wrote several letters to individuals associated with

his co-defendants.            These letters revealed incriminating evidence

against Cobb

                           II. PROCEDURAL HISTORY

       On August 1, 2016, the Waynesboro Police Department filed a

Police Criminal Complaint charging the Defendant with Attempted



1 At the time of the shooting, it was dark. The police returned to the area the following morning
to conduct a more extensive investigation of the scene.
                                                6
Murder of the Third Degree.? Persons Not to Possess Firearms,3

Solicitation to Commit Murder of the Third Degree, 4 and Conspiracy

to Commit Murder of the Third Degree."                An arrest warrant was

issued for the Defendant's apprehension.

         On October 28, 2016, the Defendant was brought before the

Magisterial District Judge; the MDJ denied bail and committed the

Defendant to the Franklin County Jail to await further proceedings.

After a number of continuances, a preliminary hearing was held on

February 14, 2017; all charges were bound over to this court for

trial. Prior to the preliminary hearing, the Commonwealth filed a

Notice of Joinder, joining this matter with the charges against the

co-defendants Anthony Michael Cobb and Joseph Lee King for one

trial.

         On March 22, 201 7, the Commonwealth filed a three-count

Information. charging the Defendant with: 1) Criminal Attempt -

Murder of the First Degree6; 2) Possession of Firearm Prohibited";




2 18   Pa.C.S.   § 901(a); 18 Pa.C.S. § 2502(c)
3 18   Pa.C.S.   § 6105(a)(l)
4 18   Pa.C.S.   § 902(a); 18 Pa.C.S. § 2502(c)
s 18   Pa.C.S.   903; 18 Pa.C.S. § 2502(c)
6 18   Pa.C.S.   § 901(a); 18 Pa.C.S. § 2502(a)
7 18   Pa.C.S.   § 6105(a)(l)

                                                  7
and 3) Conspiracy - Murder of the First Degree.8 That same date,

the Defendant entered pleas of not guilty.

      After a number of pre-trial hearings not relevant to this

appeal, this matter came before the court for a pretrial conference

on September 29, 2017. At that time, the Defendant was granted

leave to file a motion seeking severance of this case from the co-

defendants. See Order of Court, September 29, 2017. On October

1 7, 2017, the Defendant requested an extension of time to file the

severance motion; the Court granted an additional thirty days. See

Order of Court, October 19, 2017. The Defendant filed his Motion for

Severance on November 20, 201 7. A hearing was ultimately held on

the Defendant's severance motion on February 23, 2018.                           At the

conclusion of the hearing and argument, the Court denied the

Defendant's Motion for Severance. See Order of Court, February 23,

2018.9 At that time, the Defendant also elected to proceed without

counsel. See Waiver of Counsel, February 23, 2018; see also Order

of Court, February 23, 2018.




B18 Pa.C.S. § 903; 18 Pa.C.S. § 2502(a)
9The Court granted the Defendant's oral request to sever Count 2 - Possession of a Firearm
Prohibited for a separate trial. That count remains pending in this Court.

                                            8
       On April 16, 2018, the Defendant filed a second Motion for

Severance, re-raising his request to be tried separately from his co-

defendants. This court denied the motion on April 26, 2018. See

Order, April 26, 2018.

       The joint jury trial commenced against Cobb and the

Defendant-? on June 19, 2018, and concluded on June 22, 2018.

The jury returned verdicts of guilt as to Count 1 - Aggravated

Assault-! (lesser included of Attempted Murder) and Count 3 -

Conspiracy- First Degree Murder. See Verdict Slip, June 22, 2018.

The court set sentencing for July 25, 2018.                        See Order of Court,

June 22, 2018.

       On July 2, 2018, the Defendant filed a Motion to Request

Counsel. The court granted the Defendant's request and appointed

counsel. See Order, July 9, 2018.

       After a number of continuances,                         sentencing ultimately

occurred on October 24, 2018.                   The court imposed an aggregate

sentence of not less than 210 months ( 17 % years) to not more than

480 months (40 years). The Defendant filed a timely post-sentence


10 Co-defendant Joseph King was not tried with Cobb and the Defendant; he had, by this. point,
elected to testify for the Commonwealth.
11 18 Pa.C.S. 2702(a)(l)


                                               9
motion on November 5, 2018.          On January 2, 2019, the court

denied the Defendant post-sentence relief.       See Order, January 2,

2019.

     The instant Notice of Appeal was filed January 31, 2019. The

same day, this court directed the Defendant to file a concise

statement of errors claimed on appeal within twenty-one days. See

Order, January 31, 2019.        The Defendant timely complied.    See

Concise Statement of Matters Complained of on Appeal (Concise

Statement), February 21, 2019.

                        III. ISSUES ON APPEAL

     The Defendant's first claim on appeal is:

             The Honorable Trial Court abused its
             discretion by denying [Defendant's] request for
             severance of his trial from co-defendant
             Anthony Cobb's non-related case at [CP-28-
             CR-0000950-2016].
Concise Statement, , 6 (a).

     We note that the Defendant made two separate requests for

severance.     The first was a counseled Motion for Severance, filed

November 20, 2017.       The court held a hearing on the counseled

motion on February 23, 2018. At the conclusion of the hearing, the

court denied the counseled Motion for Severance.         See Order of

                                   10
Court, February 23, 2018. This court did not explain our decision

in that order. Id.

      The Defendant filed a prose Motion for Severance on April 16,

2018. The court denied the prose Motion for Severance without a

hearing on April 26, 2018. See Order, April 26, 2018.

      We are unable to offer a statement as to our reasons for denial

of severance for several reasons. First, and foremost, the Defendant

has not caused the transcript of the hearing on February 23, 2018,

to be prepared, lodged, and filed. The Defendant's Notice of Appeal

does not contain a request for transcript or statement that the

required transcript has been prepared, as required by Pa.R.A.P.

904(c).     This court also directed the Defendant to make any

necessary transcript request utilizing the appropriate transcript

request form with court administration.     See Order, January 31,

2019;     see also Pa.R.A.P.   1911(a).    It was the Defendant's

responsibility to ensure the necessary materials are in the record

for   the   appellate   court to   review this issue.     See,   e.g.,

Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa.Super. 2006)

("Our law is unequivocal that the responsibility rests upon the

appellant to ensure that the record certified on appeal is complete
                                   11
in the sense that it contains all of the materials necessary for the

reviewing court to perform its duty."), citing Commonwealth v.

Kleinicke, 895 A.2d 562 575 (Pa.Super. 2006) (en bane).

       Second, the court cannot discern from the Concise Statement

which denial of severance ( or both) is being challenged in this

appeal. Pa.R.A.P. 1925(b)(4) requires a concise statement "identify

each ruling or error that the appellant intends to challenge with

sufficient detail to identify all pertinent issues for the judge."

Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). This court cannot guess

whether the Defendant challenges the court's February 23, 2018,

denial of severance, the April 26, 2018, denial of severance, or both.

       The Defendant's second issue in this appeal is:

               The Honorable Trial Court abused its
               discretion by allowing hearsay statements of
               Corey Ballard to be introduced as an excited
               utterance.
Concise Statement, 1 6(b). The testimony at issue12 was introduced

by the Commonwealth during the second day of trial.                                          See

Transcript of Proceedings -Jury Trial, June 20, 2018 (Tr.2), p. 5 - 9.


12We note here that none of the Defendant's claims of trial error listed in his Concise Statement
include citation to the trial transcript, even though the trial transcripts were filed of record on
September 4, 2018. The court has attempted, with some difficulty, to comb the lengthy
transcripts of trial testimony to locate the places where the various alleged errors occurred. We
                                                12
      The Commonwealth called Officer Steven Sanders from the

Waynesboro Police Department to testify. See Tr.2, p. 3. Early in

Officer Sander's testimony, the Commonwealth attempted to

question Officer Sanders concerning statements made to him by

Corey Ballard, the alleged victim of the attempted murder.                         Mr.

Ballard did not testify during the trial.

      Prior to the objection at issue, Officer Sanders testified that he

was employed as a police officer in the Borough of Waynesboro

since 2004.       Tr.2, p. 4.    On the evening of April 20, 2016, Officer

Sanders was on duty. Id. He was dispatched to the area of 135

South Potomac Street in the Borough for a report of shots fired. Id.

Dispatch advised Officer Sanders that the victim of the shooting

was at the Rutter's store at 141 South Potomac Street. Tr.2, p. 5.

Upon making contact with the victim, Officer Sanders identified him

as Corey Ballard.         Tr.2, p. 5.    Officer Sanders described Ballard's

mental state as:

             He was very emotional. He was upset, heavy
             breathing. It was hard to get information out
             of him.



presume to have located the correct testimony, but cannot be sure because of the lack of
citation to the record by the Defendant.
                                           13
Tr.2, p. 5.      These statements were made within "a couple of

minutes" of the shooting. Tr.2, p. 6.

        At this point, the Commonwealth asked Officer Sanders to

relate to the jury Ballard's statements about what occurred, i.e.,

about the shooting. See Tr.2, pp. 5 - 6. The Defendant objected on

hearsay grounds. See Tr.2, p. 5, 6. The Commonwealth responded

that the statements were an exception to the prohibition against

hearsay as they constituted excited utterances under Pa.R.E.

803(2). The Court overruled the Defendant's objection. See Tr.2, p.

5, 6.

        Pa.R.E. 802 provides:

             Hearsay is not admissible except as provided
             by these rules, by other rules prescribed by the
             Pennsylvania Supreme Court, or by statute.
Pa.R.E. 803 sets forth a number of exceptions to this general

prohibition;    relevant here is Pa.R.E.      803(2),   which permits

admission of:

             A statement relating to a startling event or
             condition, made while the declarant was under
             the stress of excitement it caused.
The availability of the declarant to testify at trial is immaterial to

the admissibility of an excited utterance. See Pa.R.E. 803. Further:

                                    14
As is well-settled, excited utterances fall under
the common law concept of res gestae. Res
gestae statements, such as excited utterances,
present sense impressions, and expressions of
present bodily conditions are normally
excepted out of the hearsay rule, because the
reliability of such statements are established
by       the     statement       being      made
contemporaneous with a provoking event.
While the excited utterance exception has been
codified as part of our rules of evidence since
1998, see Pa.R.E. 803(2), the common law
definition of an excited utterance remains
applicable, and has been often cited by this
Court:

     [A] spontaneous declaration by a
     person whose mind has been
     suddenly made subject to an
     overpowering emotion caused by
     some unexpected and shocking
     occurrence, which that person has
     just participated in or closely
     witnessed, and made in reference to
     some phase of that occurrence both
     in time and place as to exclude the
     likelihood of its having emanated in
     whole or in part from his relflective
     faculties ... Thus it must be show
     first, that [the declarant] had
     witnessed an event sufficiently
     startling and so close in point of
     time as to render her reflective
     thought processes inoperable and,
     second, that her declarations were a
     spontaneous       reaction to that
     startling event.



                       15
           Commonwealth v. Sheruiood, 603 Pa. 92, 982
           A.2d      483,   495-96   (2009)   (quoting
           Commonwealth v. Stokes, 532 Pa. 242, 615
           A.2d 704, 712 (1992)). The circumstances
           surrounding the statements may be sufficient
           to establish the existence of a sufficiently
           startling event.
Commonwealth v. Murray, 83 A.3d 137, 157 - 58 (Pa. 2013) (some

internal citations omitted).

     In evaluating whether a statement falls within this well-

recognized exception to the hearsay rule, courts are to consider a

number of factors: 1) whether the declarant did, in fact, witness the

startling event; 2) the amount time that passed between the event

and the declaration; 3) whether the statement was in narrative form

(which is inadmissible); and 4) whether the declarant spoke to

others before making the statement, or had the opportunity to do

so. Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa.Super. 2003).

These factors are to be considered in the light of the totality of the

circumstances, with the critical question being whether, at the time

the statement is made, "the nervous excitement continues to

dominate while the reflective processes remain in abeyance."       Id.

(quoting Commonwealth v. Carmody, 799 A.2d 143, 147 (Pa.Super.

2002)(additional citation omitted)).

                                  16
     Turning to the statement at issue, this court remains

convinced that it was an excited utterance admissible under Pa.R.E.

803(2). First, and most potently, the statement was made while the

declarant was visibly excited and within minutes of the shooting in

question.    As Officer Sanders described, the victim had difficulty

relating what occurred to the officer due to his extreme emotional

and physical state.

     The circumstantial evidence subsequently produced by the

Commonwealth establishes that the event in question,             l. e.,   a

shooting, actually occurred.     The day after this incident, Officer

Sanders observed what appeared to be "bullet holes" in the side of a

church at or near where the victim said he was shot at. See Tr.2,

pp. 10 - 14. A live round of handgun ammunition was found in the

area and collected as evidence.        See Tr.2, pp. 25 - 26.    Several

empty shell casings were found and collected in the area of the

incident.   See Tr.2, p. 28, pp. 32 - 33.         Police observed and

photographed what appeared to be a bullet hole and bullet fragment

in a fence in the area of the shooting. See Tr.2, pp. 30 - 31.

     In addition, a cooperating co-defendant, Joseph King, testified

for the Commonwealth. See Tr.2, pp. 41 - 90. King testified that he

                                  17
was with the Defendant at the time of the shooting. See Tr.2, p. 49.

The Defendant exchanged words with the victim, who began to run

from the scene. Tr.2, p. 50. King testified:

           [The Defendant] chased after [the victim]. I
           remember seeing the kid hop a fence to get
           through to another alley that took him out on
           to Potomac, and then the next thing I knew I
           saw [the Defendant] raise his right arm and I
           saw like one muzzle flash and at that point I
           had turned around and started to try to run
           away and heard a couple more shots after I
           saw the initial muzzle flash from the end of his
           extended arm.
Tr.2, p. 50.

     Another cooperating co-defendant, Ryan Troskoski, testified

for the Commonwealth.       See Tr.2, pp. 91 - 129.     Mr. Troskoski

detailed his involvement with the Defendant and the other co-

defendants during the night of the shooting.          Specifically, he

testified to being in the area of the shooting at the time it happened.

See Tr.2, p. 100. After the Defendant and King had left the vehicle,

Troskoski heard "five gunshots go off." Tr.2, p. 100. Troskoski then

picked up the Defendant in the area of Rutters. Tr.2, p. 101. The

Defendant told Troskoski that the gunshots were from him

shooting. Tr.2, p. 102.


                                  18
       Diane Hamilton, the individual residing in the area of the

shooting and discovered the Defendant's clothing                              in   her trash,

testified that she heard the gunshots.                        See Tr.3, p. 4.       It is clear

that, although the proof was out of order, 13 the Commonwealth

established that the exciting event did, in fact, occur.

       The statements admitted into evidence were not in the form of

a narrative, such as given by a witness in a formal interrogation

setting. They were clearly given to Officer Sanders at or near the

scene of the shooting; indeed, Officer Sanders testified he had

trouble       getting       information          out     of     Ballard       due      to    his

mental/ emotional state.

       Finally, we acknowledge that the record is devoid of any

evidence regarding Ballard speaking with others about the shooting

prior to making his utterances to Officer Sanders. Even assuming

he did speak with others (for example, employees at the Rutter's),

he remained in a high emotional state at the time he spoke with

Officer Sanders.           Under the totality of these circumstances, · with


13 This Court was well aware from pretrial proceedings that the Commonwealth had significant
evidence that the shooting had, in fact, occurred. The order of proof to establish the elements
necessary to satisfy admission of evidence is within the discretion of the trial court. See, e.g.,
Commonwealth u. Jones, 651 A.2d 1101, 1106 (Pa. 1994) ("The order in which evidence is
presented is a matter committed to the trial court's discretion and its rulings will not be
interfered with absent an abuse of that discretion."), additional citations omitted.      ·

                                                19
particular emphasis on Officer Sanders' observations of Ballard's

emotional state, this court remains convinced that the statements

were properly admitted under Pa.R.E. 803(2) as excited utterances.

     The Defendant's third issue in this appeal is:

          The Honorable Trial Court abused its
          discretion by limiting [Defendant's] questioning
          of Officer Chappell about Commonwealth's
          Exhibits 25 - 30 written by co-defendant
          Anthony Cobb, as only select portions of those
          letters were provided to the jury.
Concise Statement,   ,r 6(c).
     This claim of error relates to a discussion held between

counsel, the Defendant, and the court during the third day of trial,

first at sidebar, then in open court after the jury had been excused.

See Tr.3, pp. 31 - 65. It is unclear to this court, at this time, what

the error is that the Defendant is claiming the court committed.

From our review of the transcript, the Defendant was granted

permission to introduce unread language from a letter written by

Cobb to the jury. See Tr.3, p. 62. After additional discussion, the

following exchange occurred:

THE COURT:            Isn't that what we're going to be getting from
                      the testimony that [Counsel for Cobb] is going
                      to elicit that Mr. Cobb was charged federally
                      and that it was a drug offense. Wouldn't that

                                 20
                           enable you then to make that argument m
                           your closing to the jury?

DEFENDANT MAZE: It does, Your Honor. It doesn't show the jury
                that Cobb had the intentions of setting me up
                though and we're just sitting here-

THE COURT:                 No, but I've indicated that you're permitted to
                           read that-or have that language read from
                           Exhibit 29 that we've already discussed here.
                           My father always told me sometimes you
                           rather walk a thousand miles with a friend
                           than around the corner with family member.v
                           Fuck B.Is That's the language you want-or
                           you've indicated that you want to make your
                           argument to the jury that the Defendant Cobb
                           was trying to set you up.

DEFENDANT MAZE: I'm fine, Your Honor.
Tr.3, pp. 63 - 64 (emphasis added).

      In considering this claim of error, this court cannot discern

precisely what limits were placed on the Defendant's cross-

examination of Officer Chappell that the Defendant disagreed with.

After significant discussion outside the presence of the jury, the

Defendant was permitted to introduce an unread portion of the

letter in question, and also agreed on the record that he was

satisfied with this court's resolution of the matter.         Id.   If the

Defendant is claiming error related to some other unread portion of

14 Quoting from Commonwealth's Exhibit 29.
is Quoting from Commonwealth's Exhibit 29.

                                             21
Commonwealth's Exhibits 25 - 29, we cannot speak to that because

of the lack of specificity in his claim of error.

     The Defendant's fourth claim of error is:

           The Honorable Trial Court abused its
           discretion by colloquy [sic] Juror Number 4 to
           determine whether there was good cause for
           removal based upon significant evidence that
           Juror Number 4 may be [sic] slept during
           portions of the trial.
Concise Statement, , 6(d).     This claim relates the first day of trial,

and occurred during the direct examination of Corporal Stewart

Hannah from the Waynesboro Police Department.               During Cpl.

Hannah's testimony related to photographs of bullet holes, the

court observed Juror Number 4 having trouble paying attention.

See Tr.l, p. 104. The following occurred on the record:

           THE COURT:             Juror No. 4, are you
                                  having trouble staying
                                  awake?

           JUROR NO. 4:           No, sir.

           THE COURT:             Your eyes are getting a
                                  little droopy there. I see
                                  your head start to go
                                  down. Would you like a
                                  cup of coffee?

           JUROR NO. 4:           No thank you.


                                    22
           THE COURT:          Are you       sure     you're
                               awake?

           JUROR NO. 4:        Yes.

           THE COURT:          The reason I say that is if
                               a juror falls asleep the
                               trial is over and we start
                               all over with a new jury. I
                               don't want to have to do
                               that, so if you're having
                               trouble staying awake
                               please let me know. We'll
                               get you a cup of coffee.
                               We'll stand up, stretch
                               your legs or whatever but
                               don't hesitate to let me
                               know if you're having
                               trouble.     I understand
                               what it is like after lunch.
                               I know exactly what it is
                               like after lunch, so please
                               don't hesitate to let us
                               know if you need to
                               stretch your legs.

                               Go ahead, Mr. Faust.
Tr.1, p. 104.

     From the Defendant's claim of error, it is not clear whether he

complains that the court did, or did not, colloquy Juror Number 4.

To the extent the Defendant claims this court did not colloquy Juror

Number 4, the record belies that assertion.         To the extent the

Defendant complains that the colloquy was insufficient m some

                                 23
manner, we cannot give further statement because the Defendant

did not object or otherwise make a request for further colloquy. The

record is devoid of any such request at the time of the court's

interaction with Juror Number 4. The Defendant did not make a

motion to remove the juror or for a mistrial. Finally, the Defendant

did not include this claim in his post-sentence motion.                         See Post-

Sentence Motion, filed November 5, 2018. We believe this issue is

waived 16 for purposes of appeal; however, it is for the Honorable

Superior Court to make that determination.

      To the extent this issue is properly preserved, we note that we

had no reason to doubt Juror Number 4 's assertion to the court

that he had been awake. While our initial observation caused us

some· concern, the juror responded convincingly; without objection

from the parties the trial continued and no party raised any

concern with this juror's continued service.

      The Defendant's next claim of error is:

              Did the Commonwealth present sufficient
              evidence to sustain the verdict on the

16 See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal."). See also, e.g., Commonwealth v. Melendez-Rodriguez, 856 A.2d
1278, 1287 (Pa.Super. 2004) ("Nevertheless, it is well established that absent a
contemporaneous objection the issue is not properly preserved on appeal."), additional ·
citations omitted.
                                             24
           Aggravated Assault and Conspiracy to Commit
           First Degree Murder charges?
Concise Statement,   ,r   7.   A challenge to the sufficiency of the

evidence in support of a conviction implicates well-settled and well-

trod principles:

           As a general matter, our standard of review of
           sufficiency claims requires that we evaluate
           the record in the light most favorable to the
           verdict winner giving the prosecution the
           benefit of all reasonable inferences to be drawn
           from the evidence. Evidence will be deemed
           sufficient to support the verdict when it
           establishes each material element of the crime
           charged and the commission thereof by the
           accused,     beyond a reasonable doubt.
           Nevertheless, the Commonwealth need not
           establish guilt to a mathematical certainty.
           Any doubt about the defendant's guilt is to be
           resolved by the fact finder unless the evidence
           is so weak and inconclusive that, as a matter
           of law, no probability of fact can be drawn from
           the combined circumstances.

          The Commonwealth may sustain its burden by
          means of wholly circumstantial evidence.
          Accordingly, the fact that the evidence
          establishing a defendant's participation in a
          crime is circumstantial does not preclude a
          conviction where the evidence coupled with the
          reasonable      inferences drawn therefrom
          overcomes the presumption of innocence.
           Significantly, we may not substitute our
          judgment for that of the fact finder; thus, so
          long as the evidence adduced, accepted in the
          light most favorable to the Commonwealth,

                                   25
                 demonstrates the respective elements of a
                 defendant's crimes beyond a reasonable doubt,
                 the appellant's convictions will be upheld.
Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 - 75 (Pa.Super.

2013) (quoting Commonwealth v. Pedota, 64 A.3d 634, 635 - 36

(Pa.Super. 2013), additional citations omitted).

          This court's recitation factual background of this case was

gleaned from the trial transcripts. See SECTION I, supra. It is clear,

without the need for extensive recitation of all the evidence

presented, that the Defendant's contention is without merit.

          To     sustain       a    conviction        for    Aggravated        Assault,   the

Commonwealth was required to prove beyond a reasonable doubt

that the Defendant attempted 11 to cause serious bodily injury to

another person.                See 18 Pa.C.S. § 2702(a)(l).                   Joseph King's

testimony alone, viewed in the light most favorable to the

Commonwealth, was sufficient to support the verdict.

          King testified that he was directed by Cobb to search for the

person ("Black") responsible for stabbing Cobb.                             See Tr.2, p. 45.

After locating the person he believed to be "Black," King notified

Cobb and met up with Cobb, Troskoski, and the Defendant in the


11   There is no dispute the Defendant did not cause serious bodily injury to Ballard.

                                                 26
parking lot of the Rotary Club. See Tr.2, p. 46. Cobb gave King a

gun, and they all drove to a nearby alley. See Tr.2, pp. 47 -49.

     At that point, the Defendant and King exited the vehicle and

began looking for the "Black" on foot. See Tr.2, p. 49. They spotted

a hooded figure come out of the alley. Id. King testified:

           [The Defendant] addressed the figure - well, he
           aggressively went after this person, told him to
           come here I believe at that point. He scared
           the kid pretty bad because the kid started
           running immediately.
Tr.2, p. 50. The Defendant gave immediate chase. See Tr.2, p. 50.

King observed:

           [The Defendant] chased after him. I remember
           seeing the kid hop a fence to get through to
           another alley that took him out on to Potomac,
           and then the next thing I knew I saw [the
           Defendant] raise his right arm and I saw like
           one muzzle flash and at that point I had
           turned around and started to try to run away
           and heard a couple more shots after I saw the
           initial muzzle flash from the end of his
           extended arm.
Tr.2, p. 50.

     This evidence alone is sufficient to sustain a conviction for

attempting to cause serious bodily injury to the victim. Aggressively

confronting someone, chasing them, and firing a gun at them


                                  27
multiple times, is more than sufficient to sustain a finding by the

jury that the Defendant intended to cause serious bodily injury to

the victim, and took a substantial step to cause such a result.

     To be guilty of Conspiracy, the Commonwealth was required to

prove beyond a reasonable doubt that the Defendant, with the

intent of promoting or facilitating a crime, agreed with one or more

other persons that one or more of them "will engage in conduct

which constitutes such crime or an attempt or solicitation to

commit such crime."       18 Pa.C.S. § 903(a)(l).         Further, the

Commonwealth was required to prove that an "overt act in

pursuance of such conspiracy'' was committed by the Defendant or

another member of the conspiracy. 18 Pa.C.S. § 903(e)

     Taking these elements in reverse order, it is quite clear that

the Commonwealth established the overt act in furtherance of a

conspiracy to commit first degree murder. As we outlined above in

Joseph   King's   testimony,   and    in   SECTION   I,    supra, . the

Commonwealth established the Defendant shot a firearm at Ballard

multiple times after confronting him in the alley near Rutter's. In

addition, both King and Troskoski testified that they met up with

the Defendant and Cobb with the mutual understanding that they

                                 28
were going to search for and kill the person responsible for stabbing

Cobb. They were all provided with handguns and drove together in

the area of Rutters looking for the person responsible for stabbing

Cobb. This evidence, separately or taken together, is sufficient to

establish an overt act in furtherance of the conspiracy to commit

murder.

     In regards to an agreement to commit first degree murder, the

Commonwealth also presented sufficient evidence.        King testified

that Cobb was upset and angry about being robbed/stabbed. See

Tr.2, p. 45. Cobb told King that "if [he] could find these people that

did it to let him know." Id.

     After finding individuals King believed to be responsible, he

informed Cobb by telephone.     See Tr.2, p. 46. A short time later,

Cobb, Troskoski, and the Defendant met up with King. Id. When

King entered the vehicle, he described the mood of everyone as

"tense." Tr.2, pp. 46 - 47.

     Cobb asked King if he had "for sure" seen "these guys." See

Tr.2, p. 47.   After confirming what King had seen, Cobb handed

King a firearm. Id. King testified:



                                  29
             When he handed me that firearm I pretty
             much understood what the implication was. I
             figured at some point a weapon was going to
             be fired. The implication was to go - you
             know, go after these people by any means,
             whatever it takes.
Tr.2, pp. 4 7 - 48. King understood the implication was "to shoot at

the person or shoot the person." Tr.2, p. 48.

      All four involved then drove to another area nearby, and the

Defendant and King exited the vehicle.              Tr.2, p. 49.   The

Defendant's subsequent actions in shooting at Ballard were

previously set forth above. See SECTION I, supra.

      Troskoski testified that Cobb directed him to retrieve a duffle

bag containing guns; at that time, Troskoski understood this

directive to be in furtherance of killing the person responsible for

stabbing Cobb. See Tr.2, p. 99. When Troskoski, Cobb, King and

the Defendant met in the parking lot at the Rotary Club, Troskoski

testified:

             COMMONWEALTH: Now, at some point when
                           all four of you were in the
                           car, tell me what happens
                           next?

             TROSKOSKI:         After we entered the car?



                                  30
COMMONWEALTH: Yes, when all four of you
              were inside the car?

TROSKOSKI:       I was directed to drive
                 behind the alley that's
                 behind Rutter's.

COMMONWEALTH: Directed by whom?

TROSKOSKI:       Anthony.

COMMONWEALTH: Ant?

TROSKOSKI:       Yes.

COMMONWEALTH: And   tell         me         what
              happened          with       those
              guns?

TROSKOSKI:       He handed Brandon one
                 and then handed Joey
                 one.

COMMONWEALTH: What did he say when he
              handed over those guns?

TROSKOSKI:       I can't recall exactly.

COMMONWEALTH: Do you recall him saying
              something like take care
              of business?

TROSKOSKI:       Yes.

COMMONWEALTH: And, again, what was
              your understanding of
              when Ant said that as
              he handed out the


                  31
                                    guns? What was going
                                    to go down?

              TROSKOSKI:            To shoot the guy that
                                    stabbed him.
Tr.2, pp. 99 - 100 (emphasis added). Considering the totality of the

evidence presented, with particular consideration of the testimony

set forth above, this court has little trouble concluding the

Commonwealth presented sufficient evidence of a conspiracy, that

the goal of the conspiracy was to commit the crime of first degree

murder, and that an overt act was committed in pursuit thereof.

         The Defendant's next claim of error is:

              Was the verdict of guilty on the Aggravated
              Assault and Conspiracy to Commit First
              Degree Murder [against] the weight of the
              evidence?
Concise Statement, 1 8. A challenge to 'the weight of the evidence

must be raised in the trial court in the form of a motion for a new

trial.        See    Pa.R.Crim.P.    720(B)(l)(a)(iv);     see   also,   e.g.,

Commonwealth v. Washington, 825 A.2d 1264 (Pa.Super. 2003).

The Defendant properly raised this claim in his post-sentence

motion. See Post-Sentence Motion,       11 3(b), 18, 20.



                                     32
     Because the Defendant is required to raise this issue in the

trial court,   and because this court denied the claim, the

Defendant's claim on appeal is in reality a challenge to this court's

ruling. See Order of Court, January 2, 2019.

     A challenge to a verdict as against the weight of the evidence is

committed to the sound discretion of the trial court.             See

Commonwealth v. Clay, 64 A.3d 1049, 1054 (Pa. 2013), additional

citations omitted. The standard for evaluating a challenge based on

the weight of the evidence is well-settled:

          A new trial should not be granted because of a
          mere conflict in the testimony or because the
          judge on the same facts would have arrived at
          a different conclusion. Rather, the role of the
          trial    judge     is    to    determine     that
          notwithstanding all the facts, certain facts are
          so clearly of greater weight that to ignore them
          or to give them equal weight with all the facts
          is to deny justice. It has often been stated that
          a new trial should be awarded when the jury's
          verdict is so contrary to the evidence as to
          shock one's sense of justice and the award of a
          new trial is imperative so that right may be
          given another opportunity to prevail.
Clay, 64 A.3d at 1055, internal quotations and citations omitted.

Further, "one of the least assailable reasons for granting or denying

a new trial is the lower court's conviction that the verdict was or


                                  33
was not against the weight of the evidence and that a new trial

should be granted in the interests of justice."     Commonwealth v.

Widmer, 744 A.2d 745, 753 (Pa. 2000), additional citations omitted.

     The Defendant argued to this court that the verdict was

against the weight of the evidence because there was no evidence

the Defendant actually fired his gun at the victim.          See Post-

Sentence Motion, ,r 1 7.   Because the bullet holes in surrounding

buildings were above the height of the victim, the Defendant argues

that it is clear the Defendant was not trying to shoot the victim. Id.

     These facts are not clearly entitled to greater weight than

accorded by the jury. To focus on the height of the bullet holes in

the surrounding buildings, as clear evidence of a lack of intent to

kill (murder) or lack of intent to cause serious bodily injury

(aggravated assault) would require the jury, and now this court, to

ignore the significant evidence of a contrary intent. We've outline

the significant evidence previously in this opinion detailing the goal

of King, Troskoski, Cobb, and the Defendant that night. They.were

hunting the person responsible for stabbing Cobb.        Cobb handed

everyone guns and told them to "take care of business."            The

Defendant was immediately aggressive when he made contact with

                                  34
the victim; he gave immediate chase when the victim ran. As the

victim was escaping over a fence into an adjacent alley, the

Defendant raised his gun and fired multiple shots towards the

victim.

       We denied the Defendant's request for a new trial because all

the evidence presented significantly outweighed any argument

concerning the height of the bullet holes, or the fact that the victim

as not actually injured. The evidence convincingly established the

intent of the four individuals involved with the shooting that night

and this court's opinion is firm that the verdicts of guilt do not

"shock" our conscience.      No manifest injustice has been visited

upon the Defendant by the jury's weighing of the evidence as they

did.

       The Defendant's final claim on appeal is:

            The Honorable Trial Court committed an error
            of law by allowing hearsay statements that
            were testimonial in nature of Corey Ballard to
            be introduced as evidence thereby violating
            Defendant's right to confront his accuser.
Concise Statement, , 9(a).     Again, we cannot discern the precise

nature of the Defendant's claim of error. Based upon his claim of a

right to confront his accuser, we presume the Defendant is

                                   35
asserting a violation of the United         States Constitution, VI

Amendment;     under    this   provrsion,   the   Defendant    had   a

constitutional right to be "confronted with the witnesses against

him." U.S. Const., VI Amendment (hereinafter "6th Amendment"). It

is difficult to examine this claim because, upon the court's review of

the record, this issue was never raised. The objections lodged by

the Defendant during trial were based upon hearsay; he made no

assertion of a violation of his constitutional right. See Tr.2, pp. 5 -

7.   This claim was not raised in the Defendant's Post-Sentence

Motion.

     Consequently, we cannot opine on a reason for our decision

when, in fact, this court was never presented with a claim under

the 6th Amendment. The objection we overruled was based upon

hearsay, as we discussed previously in this opinion. However, to

the extent this issue is properly preserved or subsumed within a

general hearsay objection, we conclude under the circumstances

outlined previously in this opinion, that the excited utterance at

issue does not fall within those prohibited by the 6th Amendment.

See, e.g., Commonwealth v. Gray, 867 A.2d 560, 572 - 77

(Pa.Super. 2005).
                                  36
 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
    DISTRICT OF PENNSYLVANIA- FRANKLIN COUNTY

 COMMONWEALTH OF PENNSYLVANIA                               CRIMINAL ACTION

                                                            CP-28-CR-0000342-2017
               v.
                                                            JUDGE JEREMIAH D. ZOOK

BRANDON JALON MAZE,

                                 DEFENDANT


                                          ORDER
       NOW, this 14th day of March, 2019, IT IS HEREBY ORDERED that the
Franklin County Clerk of Courts transmit the forgoing Opinion Sur. Pa.R.A.P.
1925(a) and the record of these proceedings to the Prothonotary of the Superior
Court of Pennsylvania pursuant to Pa.R.A.P. 193l(c).




The Clerk shall give notice to;
District Attorney's Office (J. Faust, Esq.) - Counsel for the Commonwealth
K. Taccino, Esq. - Counsel for the Defendant
BRANDON JALON MAZE                                             Case No.      342-2017



On March 15, 2019, I Barbara E. Black served a copy of the Opinion and Order signed on March
14, 2019 by the Honorable Jeremiah D. Zook and filed on March 15, 2019, on the following
persons by the following method:




Interoffice Mail:

Franklin County
District Attorney's Office

Kevin Taccino, Esquire



                                                             Bt1'lb 0,/la_ £'. �-&.-
                                                             Deputy Clerk of Courts
