J-S31021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

TYRELL BOYD

                            Appellant                           No. 441 MDA 2015


          Appeal from the Judgment of Sentence December 18, 2014
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0001467-2013


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                           FILED JULY 08, 2016

        Tyrell Boyd appeals from the judgment of sentence imposed December

18, 2014, in the Lycoming County Court of Common Pleas. The trial court

sentenced Boyd to an aggregate term of life imprisonment following his jury

conviction of first-degree murder, aggravated assault, persons not to

possess firearms, firearms not to be carried without a license, and flight to

avoid apprehension, trial or punishment.1              On appeal, Boyd, contends the

trial court erred by:        (1) permitting the Commonwealth to enter into

evidence     a   timeline   of   events,       (2)   refusing   Boyd’s   requested   jury

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S. §§ 2501, 2702(a), 6105(c)(2), 6106(a)(1), and 5126(a),
respectively.
J-S31021-16



instructions, and (3) determining which exhibits would be given to the jury

during deliberations.2 For the reasons below, we affirm.

       The facts and procedural history underlying this appeal are aptly

summarized by the trial court as follows:

              On July 20, 2013, [Boyd] shot Ansari Wilson inside a
       residence at 1510 Scott Street in Williamsport, Pennsylvania. In
       the day or hours prior to the shooting, [Boyd] and Mr. Wilson
       had disagreements over money, and [Boyd] told Reginald
       Morton that he might have to “down Mook” (shoot Mr. Wilson).
       Just prior to the shooting, witnesses saw [Boyd] walking towards
       1510 Scott Street together with another young African American
       male who was riding a bike. [Boyd] had a black handgun tucked
       inside the waist of his pants and he was talking on a cell phone.
       Witnesses heard [Boyd] tell the person on the other end of the
       conversation that he was on the block, and then [Boyd] angrily
       said “now what” and “I don’t play” several times. [Boyd] hung
       up the phone and entered the residence at 1510 Scott Street.
       Shortly thereafter, the witnesses heard gunshots and [Boyd]
       yelling “I don’t play” and/or “I told you I don’t play.” [Boyd]
       quickly came out of the residence, took the bike from the other
       individual, got on the bike, and left.

            [Boyd] fled to Reginald Morton’s residence where he
       changed his shirt before ultimately fleeing to Philadelphia.

             A witness who heard the shots called 911. Police and
       emergency medical personnel responded to 1510 Scott Street.
       The police kicked in the door and found Mr. Wilson near the door
       lying on his back, covered in blood and gasping for air. Shortly
       thereafter, Mr. Wilson died from a gunshot wound to the torso.

              The police apprehended [Boyd] in Philadelphia.

              [Boyd] was charged with [the above stated offenses.]
____________________________________________


2
   We have reordered and consolidated Boyd’s claims for purposes of
disposition.




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             A trial was held November 3-7, 2014.            [Boyd] was
       convicted of all the charges, including first degree murder.

              On December 18, 2014, the court sentenced [Boyd] to life
       without parole for first degree murder. [On the remaining
       counts, the court imposed a sentence of three and one-half to
       seven years’ incarceration for carrying a firearm without a
       license, five to 10 years’ incarceration for person not to possess
       firearms, and one and one-half to seven years’ incarceration for
       flight to avoid apprehension. These sentences ran consecutively
       to each other but concurrently to the sentence for first-degree
       murder.      Boyd’s aggravated assault conviction merged for
       sentencing purposes.]

             On December 29, 2014, [Boyd] filed a post-sentence
       motion, in which he challenged the sufficiency and weight of the
       evidence for his first degree murder conviction.      The court
       denied this motion in an opinion and order entered on March 5,
       2015.

              [Boyd] filed his notice of appeal on March 10, 2015.[3]

Trial Court Opinion, 5/9/2015, at 1-2 (footnote omitted).

       First, Boyd challenges the ruling of the trial court permitting the

Commonwealth to introduce into evidence a timeline of events leading up to

and immediately following the shooting.          The exhibit, prepared by the

Commonwealth, includes information gathered from “six different sources,” 4
____________________________________________


3
 On April 1, 2015, the trial court ordered Boyd to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).            Boyd
complied with the court’s directive, and filed a concise statement on April 14,
2015.
4
  Boyd’s Brief at 21. The timeline was assembled based on the phone
records of Boyd, his girlfriend, and the Lycoming County Communications
Center, as well as video surveillance footage from three separate cameras.
See id. at 21-22.



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and tracks both the victim’s and Boyd’s movements prior to the shooting,

and Boyd’s actions after leaving the crime scene. Boyd argues the timeline

conveyed “a false sense of accuracy and legitimacy” because the times on

the various devices were not synchronized. Boyd’s Brief at 20. Accordingly,

Boyd asserts, “given the relative importance of that particular exhibit … the

timeline’s probative value was outweighed by the danger of unfair

prejudice.” Id. at 23.

     Our review of a trial court’s ruling on the admissibility of evidence is

well-established:

     The admissibility of evidence is a matter for the discretion of the
     trial court and a ruling thereon will be reversed on appeal only
     upon a showing that the trial court committed an abuse of
     discretion. “An abuse of discretion may not be found merely
     because an appellate court might have reached a different
     conclusion, but requires a result of manifest unreasonableness,
     or partiality, prejudice, bias, or ill-will, or such lack of support so
     as to be clearly erroneous.”

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (citations

omitted).

     Specifically, when considering the admissibility of demonstrative

evidence, our Supreme Court has explained:

     [A] trial court may admit demonstrative evidence whose
     relevance     outweighs     any    potential   prejudicial   effect.
     Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 552 (2002),
     cert. denied, 540 U.S. 850, 124 S.Ct. 131, 157 L.Ed.2d 92
     (2003). The offering party must authenticate such evidence.
     “The requirement of authentication or identification as a
     condition precedent to admissibility is satisfied by evidence
     sufficient to support a finding that the matter in question is what
     its proponent claims.” Pa.R.E. 901(a). Demonstrative evidence


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J-S31021-16


     may be authenticated by testimony from a witness who has
     knowledge “that a matter is what it is claimed to be.” Pa.R.E.
     901(b)(1).    Demonstrative evidence such as photographs,
     motion pictures, diagrams, and models have long been
     permitted to be entered into evidence provided that the
     demonstrative evidence fairly and accurately represents that
     which it purports to depict. See Nyce v. Muffley, 384 Pa. 107,
     119 A.2d 530, 532 (1956).

     The overriding principle in determining if any evidence, including
     demonstrative, should be admitted involves a weighing of the
     probative value versus prejudicial effect. We have held that the
     trial court must decide first if the evidence is relevant and, if so,
     whether its probative value outweighs its prejudicial effect.
     Commonwealth v. Hawk, 551 Pa. 71, 709 A.2d 373, 376
     (1998).     This Commonwealth defines relevant evidence as
     “having any tendency to make the existence of any fact that is of
     consequence to the determination of the action more probable or
     less probable than it would be without the evidence.” Pa.R.E.
     401. Relevant evidence may nevertheless be excluded “if its
     probative value is outweighed by the danger of unfair prejudice,
     confusion of the issues, or misleading the jury, or by
     considerations of undue delay, waste of time, or needless
     presentation of cumulative evidence.” Pa.R.E. 403.

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006), cert. denied,

549 U.S. 920 (2006).

     In the present case, the trial court overruled Boyd’s objection to the

timeline, finding that his argument regarding the synchronization of the

devices “went to the weight of the evidence, not its admissibility.”         Trial

Court Opinion, 11/9/2015, at 5. The court opined:

            The timeline was based on and supported by the
     surveillance videos, the phone records and the testimony that
     [were] admitted into evidence. [Boyd’s] insistence that the
     Commonwealth was required to show that the cell phones and
     surveillance cameras were “in sync” was patently unreasonable.
     Prior to committing a crime, a perpetrator does not synchronize
     his or her electronic devices with the devices of the victim, the
     potential witnesses or the neighborhood surveillance cameras.

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J-S31021-16


      Nevertheless, the cell phones probably were “in sync” with each
      other since cell phones typically contain a radio-controlled clock.

Id. at 6.

      We find no reason to disturb the ruling of the trial court. First, Boyd

does not dispute that the information on the timeline, with respect to each

device, was properly authenticated by Williamsport Police Agent Kevin Stiles.

See Boyd’s Brief at 22.     Agent Stiles testified the timeline was prepared

using information he derived from phone records and surveillance video

cameras. See N.T., 11/5/2014, at 101-106. Because the video surveillance

cameras did not calculate seconds, the officer estimated the times for the

screenshots by “watch[ing] the clock” as the video played. Id. at 110. The

trial court specifically instructed the jury it was their responsibility to

determine the credibility of the time estimates listed on the timeline:

      [Agent Stiles] is estimating a time based upon what his
      testimony had indicated. Time may be a factor or may be an
      issue that you are going to have to decide. In evaluating the
      testimony and evaluating what time it may be, I think you’re
      going to have to rely on your view of the evidence and your
      calculation of what the time will be.

Id. at 111-112.     Therefore, we agree the information contained on the

timeline was properly authenticated by the testimony of Agent Stiles.

      Furthermore, we also conclude the evidence was relevant, and that its

probative value outweighed any danger of unfair prejudice.        The timeline

consolidated evidence from various sources to provide the jurors with a fair

representation of the events on the night in question. There is no dispute

the timeline accurately represented the times on each individual device, and


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J-S31021-16



the jury was well aware the clocks on the devices were not synchronized.

See N.T., 11/6/2014, at 32-35. However, we agree with the trial court that

fact related to the weight of the evidence, and not its admissibility.    See

Commonwealth v. Loughnane, 128 A.3d 806, 814 (Pa. Super. 2015)

(permitting security officer to authenticate screenshot of security video that

was subsequently destroyed; explaining “[a]ny issue as to the time

discrepancy of the photograph is a matter of weight to be tested at trial, not

of admissibility.”).

      Further, to the extent Boyd asserts the timeline was prejudicial

because it unfairly minimized the time he spent in 1510 Scott Street before

the shooting, we find this claim meritless.             According to Boyd, the

Commonwealth attempted to prove that he had already formulated an intent

to kill Wilson before entering the Scott Street residence with “guns blazing.”

Boyd’s Brief at 21. His defense, however, focused on his assertion that he

fired his weapon “only after Wilson made an aggressive gesture toward

[him].” Id. Therefore, he contends “[o]ne of the main findings of fact the

jury had to make to decide the issues of malice and intent was to determine

exactly how long Boyd was inside his residence at 1510 Scott Street with

Wilson prior to firing the shot that killed him.” Id.

      Considering only the phone records from Boyd’s cell phone, it appears

Boyd received a phone call from Wilson at 17:25:59, and made a phone call,

after the shooting, to Morton at 17:29:43. See Commonwealth’s Exhibit 54.

That evidence, in itself, demonstrates Boyd did the following in less than

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J-S31021-16



four minutes:       spoke with Wilson, approached and entered 1510 Scott

Street, shot Wilson, fled the scene, and called Morton.            Moreover, in any

event, “[t]he law does not require a lengthy period of premeditation; indeed,

the    design to    kill can     be   formulated in   a fraction    of a second.”

Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013), cert. denied, 134

S.Ct. 1275 (U.S. 2014). Accordingly, Boyd’s first argument fails.

        Next, Boyd challenges the trial court’s refusal to provide a jury

instruction identifying Morton as a corrupt source.            Specifically, Boyd

requested the trial court instruct the jury pursuant to Standard Suggested

Criminal Jury Instruction 4.01 (accomplice testimony) or 4.06 (certain

testimony subject to special scrutiny).5          See N.T., 11/7/2014, at 9.

However, the court refused to do so, and provided only a general instruction

regarding witness credibility. See id. at 14, 81-83.

        Boyd argues S.S.J.I. (Crim) 4.01 was applicable under the facts of the

case because Morton was an accomplice to Boyd’s charge of flight to avoid

apprehension. Boyd’s Brief at 17. Indeed, Morton permitted Boyd to hide at

his home immediately after the shooting. He further asserts that “[a]t the

very least, the trial court should have issued [S.S.J.I. (Crim)] 4.06,” which

charges the jury to closely examine the testimony of “an informer with a

penal interest in the outcome” of the case. Id. at 19-20. Boyd emphasizes

____________________________________________


5
    Pa. S.S.J.I. (Crim) 4.01 and 4.06.




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Morton received a “very favorable plea agreement in exchange for his

testimony,” and the trial court “abused its discretion by refusing to call

special attention to the considerable benefit Morton received by agreeing to

testify for the Commonwealth.”6 Id. at 16, 20.

       Our review of a trial court’s refusal to provide requested jury

instructions is “one of deference-an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.

Commonwealth v. DeMarco, 809 A.2d 256, 260-261 (Pa. 2002).

          It is established that appellate review of a trial court
          charge must involve a consideration of the charge as a
          whole to determine whether it was fair and complete. The
          review does not focus upon whether certain “magic words”
          were included in the charge. Rather, it is the effect of the
          charge as a whole that is controlling.

       Commonwealth v. Saunders, 529 Pa. 140, 602 A.2d 816, 818
       (1992) (citing Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d
       61, 70 (1983)). See also Commonwealth v. Hawkins, 567
       Pa. 310, 787 A.2d 292, 301 (2001) (“When evaluating jury
       instructions, the charge must be read as a whole to determine
       whether it was fair or prejudicial. The trial court has broad
       discretion in phrasing its instructions, and may choose its own
       wording so long as the law is clearly, adequately, and accurately
       presented to the jury for its consideration.”).

____________________________________________


6
  Morton ultimately entered a guilty plea, in three separate cases, to charges
of (1) fleeing and eluding police, (2) possession with intent to deliver heroin,
and (3) hindering apprehension, for his actions in the present case. See 75
Pa.C.S. § 3733, 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. § 5105. In
exchange for his plea, the Commonwealth withdrew a number of charges,
and agreed to a sentence of 18 months to five years’ incarceration. See
N.T., 11/6/2014, at 84.




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Commonwealth v. Montalvo, 986 A.2d 84, 99 (Pa. 2009), cert. denied,

562 U.S. 857 (2010). Moreover,

     [a] corrupt-source instruction is warranted where sufficient
     evidence is presented as to whether the witness is an
     accomplice. Commonwealth v. Williams, 557 Pa. 207, 732
     A.2d 1167, 1181 (1999). An individual is an accomplice if, with
     intent to promote or facilitate the commission of the offense, he
     solicits, aids, agrees, or attempts to aid another person in
     planning or committing the offense. 18 Pa.C.S. § 306(c)(1).

Commonwelth v. Treiber, 121 A.3d 435, 459 (Pa. 2015).

     In the present case, the trial court concluded that neither requested

instruction was appropriate under the facts of this case.   With respect to

S.S.J.I. 4.01, the court found Morton was not an accomplice to the murder

or Boyd’s possession of a firearm.    Trial Court Opinion, 5/9/2015, at 4.

Morton’s only involvement in the crime occurred after Boyd fled the scene of

the shooting, and went to Morton’s house. He asked Morton for a shirt and

some rubbing alcohol, both of which Morton provided. It is well-settled that

“an accessory after the fact, that is, one who aids the principal after the

offense has been committed, is not an accomplice[.]” Commonwealth v.

Smith, 495 A.2d 543, 550 (Pa. Super. 1985).

     Moreover, although Morton was charged with hindering apprehension

for allowing Boyd in his home and providing Boyd with a new shirt, the trial

court found Morton’s actions did not make him an accomplice to Boyd’s

charge of flight to avoid apprehension because there was no evidence

Morton helped Boyd flee the area.     Trial Court Opinion, 5/9/2015, at 4.

Furthermore, the court opined:

                                   - 10 -
J-S31021-16


      [E]ven if Mr. Morton could be considered an accomplice to that
      offense, [Boyd] was not seeking the jury instruction to attack
      Mr. Morton’s credibility on that offense as [Boyd] readily
      admitted that he got scared and fled. Instead, [Boyd] was
      seeking the instruction solely to get the jury to disbelieve
      portions of Mr. Morton’s testimony that supported the elements
      of malice and specific intent to kill on the homicide offense, such
      as his testimony that [Boyd] said he might have to “down
      [Wilson].” Clearly, [Morton] was not an accomplice with respect
      to the homicide offense. … The general credibility instruction
      clearly and accurately explained to the jury that it could consider
      a witness’ bias or interest without confusing or misleading the
      jury into believing that Mr. Morton could be considered an
      accomplice with respect to the homicide or firearm offenses.

Id. at 4-5.

      We find no error or abuse of discretion in the trial court’s ruling.

Morton did not participate in the shooting, nor did he aid Boyd in doing so.

His only involvement was after the crime was committed. Accordingly, no

accomplice charge was warranted.      See Commonwealth v. Richey, 378

A.2d 338, 340 (Pa. Super. 1977) (finding no error in trial court’s refusal to

give corrupt source charge with regard to testimony of wife of defendant and

wife of an accomplice; although women shared in proceeds of robbery, and

attempted to dispose of weapon used in robbery after the fact, they “did not

have the requisite shared criminal intent to make them accomplices.”).

      We also find the trial court did not abuse its discretion in refusing

Boyd’s request to charge the jury with S.S.J.I. 4.06. That charge instructs

the jury to “examine closely and carefully and receive with caution” the

testimony of certain witnesses. Pa. S.S.J.I. 4.06. The Advisory Committee

Note explains that the charge “may be appropriate when the court wishes to



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caution the jury about testimony that falls into a category subject to special

scrutiny, e.g., previously hypnotized witness, admitter perjurer, paid

informer, and, possibly, child witness.”         Id., Advisory Committee Note.

Further, the Note states:

      When an informer testifies who has a penal or pecuniary interest
      in testifying favorably to the Commonwealth, it seems to be
      largely, if not entirely within the discretion of the trial judge
      whether to rely on a general charge that the jury should consider
      the potential bias or interest of witnesses or to single out the
      informer’s testimony for a special cautionary charge.

Id.

      In the present case, the trial court determined that a special

instruction was not necessary, and its general charge regarding the

credibility of witnesses, as well as defense counsel’s extensive cross-

examination regarding Morton’s plea agreement, was sufficient to put the

jury on notice of Morton’s potential bias.           We again find no abuse of

discretion on the part of the trial court, and, accordingly, deny relief on

Boyd’s second claim.

      Lastly, Boyd argues the trial court erred in determining which exhibits

would be given to the jury during deliberations. First, Boyd asserts the court

erred in denying his request that the jury be permitted to review Morton’s

redacted guilty plea colloquy, and Boyd and Morton’s cell phone records.

See Boyd’s Brief at 23. See also N.T., 11/7/2014, at 124-126. He states

the colloquy was necessary to emphasize “the dire consequences that

Morton   faced   prior   to   his   decision    to   provide   information   to   the


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Commonwealth.”      Boyd’s Brief at 25.      Further, he contends the phone

records were essential as the “only available neutral source of information

that could have potentially resolved” credibility disputes, such as whether,

as Morton claimed, “Boyd ever called Morton and said he might have to

shoot Wilson.” Id. at 24

      Second, Boyd asserts the court erred in permitting the jury to review

the Commonwealth’s timeline, and two autopsy photos.         Id. at 25.     See

also N.T., 11/7/2014, at 136-137, 139. He claims, once again, the timeline

was misleading because the devices depicted on the exhibit were not

synchronized. Moreover, with regard to the autopsy photos, Boyd contends

“the only purpose the autopsy photos could have served was to [i]nflame

the sympathies of the jury” because he admitted shooting Wilson, and the

cause of death was not contested. Boyd’s Brief at 26.

      Pennsylvania Rule of Criminal Procedure 646, provides that “[u]pon

retiring, the jury may take with it such exhibits as the trial judge deems

proper,” with the exception of certain specified exhibits, not relevant here,

such as a trial transcript or a defendant’s confession. Pa.R.C.P. 646(A), (C).

In determining whether a trial court properly permitted or excluded certain

items to be viewed by the jury, we are guided by the following:

      “Whether an exhibit should be allowed to go out with the jury
      during its deliberation is within the sound discretion of the trial
      judge.” Commonwealth v. Merbah, 270 Pa.Super. 190, 411
      A.2d 244, 247 (1979) (citing Commonwealth v. Pitts, 450 Pa.
      359, 301 A.2d 646 (1973)); Pa.R.Crim.P. 1114 (renumbered
      646, effective April 1, 2001).


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         The underlying reason for excluding certain items from the
         jury’s deliberations is to prevent placing undue emphasis
         or credibility on the material, and de-emphasizing or
         discrediting other items not in the room with the jury. If
         there is a likelihood the importance of the evidence will be
         skewed, prejudice may be found; if not, there is no
         prejudice per se and the error is harmless.

      Commonwealth       v.   Dupre,  866 A.2d    1089,  1103
      (Pa.Super.2005) (quoting Commonwealth v. Strong, 575 Pa.
      433, 836 A.2d 884, 888 (2003)).

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012), appeal

denied, 63 A.3d 772 (Pa. 2013). Moreover, when the exhibit in question is

not specifically prohibited by subsection (C) of the Rule, “publication to the

jury falls squarely within the discretion of the trial court and, thus, the

decision cannot be overturned absent an abuse of discretion.” Id.

       First, with regard to the precluded exhibits, the trial court explained

that it denied Boyd’s request to allow the jury to review Morton’s plea

agreement because the document contained Morton’s prior record score,

which “would have informed the jury that Mr. Morton had prior criminal

convictions.”   Trial Court Opinion, 5/9/2015, at 8.         See also N.T.,

11/7/2014, at 125.    Although Boyd’s attorney suggested the information

could be redacted, the trial court disagreed, stating: “I’m not going to allow

a document to go out to the jury that was in a different form than how it

was introduced.”   N.T., 11/7/2014, at 125.    With regard to the requested

phone records, the court explained that “only specific phone calls were

referred to during the testimony” and other calls contained in the records

“were not discussed and did not appear to have any relevance to these


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proceedings.” Trial Court Opinion, 5/9/2015, at 9. Indeed, the court noted

it also did not permit the jury to review any Commonwealth exhibits that

were phone records. Id.

       With regard to the Commonwealth’s timeline, which the court did

permit to go to the jury, the court explained that Boyd “objected for the

same reasons that he objected to the admissibility of [the exhibit], and the

court made the same ruling.” Id. at 7. See N.T., 11/7/2014, at 136-137.

We note that Boyd offers no further argument herein. Further, with regard

to the autopsy photos, the court stated that it permitted the jury to review

them    because    it   found   “the   photgraphs    were    important    to   the

Commonwealth’s closing argument[,]” regarding the trajectory of the bullet.

Trial Court Opinion, 5/9/2015, at 9. See N.T., 11/7/2014, at 60-61.

       Upon our review of the record, including the aforementioned exhibits,

we detect no abuse of discretion on the part of the trial court in allowing

certain exhibits to be available to the jury during deliberations, but

precluding others. The trial court provided a well-reasoned explanation for

its rulings, and, accordingly, Boyd is entitled to no relief on this claim.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016


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