J-S57040-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
ERIC MONROE DAVIS,                       :
                                         :
                 Appellant               :     No. 3212 EDA 2017

            Appeal from the Judgment of Sentence June 14, 2017
                in the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0002980-2016

BEFORE:     PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:          FILED DECEMBER 14, 2018

      Eric Monroe Davis (Appellant) appeals from the June 14, 2017

judgment of sentence imposed after a jury convicted him of, inter alia,

second-degree murder. Upon review, we affirm.

      The trial court provided a succinct summary of the underlying facts in

its Pa.R.A.P. 1925(a) opinion.

      [A]ppellant and his confederate, who was identified as “Animal”
      throughout the trial, surreptitiously entered the [Allentown]
      residence of the victim, Jose Carrero, and in the presence of the
      victim’s [five-year-old] daughter, “Animal” shot and killed the
      victim. Mr. Carrero died of a “rapidly fatal” gunshot wound of
      the “torso and neck.” A visitor in the Carrero household, Jose
      Morales, was also assaulted and shot in the leg during the home
      invasion.

Trial Court Opinion, 12/15/2017, at 1-2 (footnote with record citations

omitted).



*Retired Senior Judge assigned to the Superior Court.
J-S57040-18


      Following a four-day jury trial, Appellant was found guilty of second-

degree murder, conspiracy to commit third-degree murder, robbery,

conspiracy to commit robbery, burglary, conspiracy to commit burglary,

aggravated assault, and conspiracy to commit aggravated assault. Appellant

was sentenced to life imprisonment without the possibility of parole for

second-degree murder, as well as an aggregate consecutive term of 13 to 40

years of imprisonment for conspiracy to commit robbery and aggravated

assault. Appellant timely filed a post-sentence motion, which the trial court

denied on September 11, 2017.

      This timely-filed appeal follows.   Both Appellant and the trial court

complied with Pa.R.A.P. 1925. On appeal, Appellant presents three issues

for our consideration.

      [1.] Whether the trial court committed error when it denied
      [Appellant’s] request to allow the usage of grand jury testimony
      from an unavailable witness to be used in the cross-examination
      of a Commonwealth witness?

      [2.] Whether the trial court prejudiced the jury by giving
      questionable or biased examples during the jury instructions in
      an attempt to clarify the concept of circumstantial evidence?

      [3.] Whether or not the evidence as presented was sufficient as
      a matter of law to support the conviction for all charges and
      whether the involvement of [Appellant] in the criminal enterprise
      was proven?

Appellant’s Brief at 9-10 (unnecessary capitalization and trial court answers

omitted).




                                    -2-
J-S57040-18


      Appellant’s first claim challenges the trial court’s decision to deny

Appellant’s motion to introduce the grand jury testimony of Nikita Cespedes.

Appellant’s Brief at 18. Our standard of review for the admission of evidence

is well-settled.

      The admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion
      that overrides or misapplies the law, or where the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias or ill-will.

Commonwealth v. Manivannan, 186 A.3d 472, 479–80 (Pa. Super. 2018

(citation omitted).

      On the second day of trial, April 19, 2017, Appellant’s counsel sought

to admit the grand jury testimony of Nikita Cespedes.1 N.T., 4/19/2017, at

5-6, 130-31, 138. On appeal, Appellant acknowledges that the grand jury

testimony of Cespedes constituted hearsay, but argues it was admissible

pursuant to Pa.R.E. 804(b)(1), the former testimony exception. Appellant’s

Brief at 12.

      Hearsay is an out of court statement offered to prove the truth
      of the matter asserted. Generally, it is not admissible, as it lacks
      guarantees of trustworthiness fundamental to [our] system of
      jurisprudence. In order to guarantee trustworthiness, the


1 Appellant initially sought to introduce the grand jury testimony in order to
impeach Commonwealth witness Tai-Mare Mercado, but later amended the
offer of proof to admit this testimony as substantive evidence instead of
impeachment. N.T., 4/19/2017, at 5-6, 9, 130-31.


                                      -3-
J-S57040-18


      proponent of a hearsay statement must establish an exception to
      the rule of exclusion before it shall be admitted.

Manivannan, 186 A.3d at 80 (citations and quotation marks omitted). The

former testimony exception provides that prior testimony is not excluded by

the rule against hearsay if the proffered testimony “was given as a witness

at trial, hearing, or lawful deposition… and [] is now offered against a party

who had… an opportunity and similar motive to develop it by direct, cross-,

or redirect examination.”   Pa.R.E. 804(b)(1)(A)-(B).   To be entitled to the

application of this exception, the proponent must prove that the declarant

was unavailable at trial.

      A witness who cannot be found at the time of trial will be
      deemed unavailable only if a good-faith effort to locate the
      witness and compel his attendance at trial has failed. The
      burden of demonstrating such a good-faith effort is on the party
      seeking to introduce the prior testimony, and [t]he question of
      the sufficiency of the preliminary proof as to the absence of a
      witness is largely within the discretion of the trial judge. The
      extent to which [a party] must go in order to produce an absent
      witness is a question of reasonableness.

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 541 (Pa. Super. 1995)

(citations and quotation marks omitted).

      Appellant sought to introduce the grand jury testimony of Cespedes

against the Commonwealth because it “differed in significant ways from the

testimony of the Commonwealth’s next witness, Tai-Mare Mercado, including

contradicting his expected testimony that he, along with [Appellant] and

‘Animal’[] had driven to Allentown and gone to and stayed at [] Cespedes’s



                                    -4-
J-S57040-18


apartment on the night of [the robbery].” Appellant’s Brief at 19. Appellant

argued that it was admissible pursuant to the former testimony exception

because Cespedes was subject to full examination by the Commonwealth at

the grand jury testimony. N.T., 4/19/2017, at 7. In fact, because it was a

grand jury investigative hearing, Cespedes was only subject to examination

by the Commonwealth, and was not subject to any cross-examination. See

id. Additionally, Appellant’s counsel claimed that Cespedes was unavailable,

though she conceded that she first attempted to locate Cespedes only two

days earlier, on April 17, 2017. N.T., 4/19/2017, at 137.

     After hearing argument from both parties, the trial court denied

Appellant’s motion.   Id. at 143.   In its 1925(a) opinion, the trial court

explained that it denied Appellant’s motion because Appellant had failed to

establish that Cespedes was unavailable.

           The last minute decision to locate [] Cespedes about a
     peripheral issue regarding visitors to her household failed to
     establish her unavailability. Although she may have been in
     Florida according to her Facebook page, and bench warrants
     may have been outstanding, the effort[s] to locate her were
     negligible and not reasonable.

Trial Court Opinion, 12/15/2017, at 17. Moreover, the trial court found that

the Commonwealth did not have a similar motive to develop Cespedes’s

testimony at the grand jury hearing as it would on cross-examination at

Appellant’s trial, and thus Appellant could not avail himself of the former

testimony exception to the rule against hearsay. Id. at 18.



                                    -5-
J-S57040-18


      Even if we considered Appellant’s eleventh hour attempt to locate

Cespedes as a reasonable effort to compel her presence at trial, we agree

with the trial court’s conclusion that the Commonwealth’s motives in

questioning a Commonwealth witness during a grand jury investigative

hearing are not similar to its motives on cross-examination of a defense

witness at a jury trial. See Commonwealth v. Arter, 151 A.3d 149, 154

(Pa. 2016) (noting that grand jury proceedings “play a special role in the law

enforcement process” and are non-adversarial) (citing United States v.

Calandra, 414 U.S. 338 (1974)).         Because the motives are drastically

dissimilar between a grand jury investigation of a Commonwealth witness

and cross-examination of a defense witness at a jury trial, Appellant could

not avail himself of the former testimony exception to make this hearsay

admissible.   Accordingly, we find that the trial court did not abuse its

discretion in denying Appellant’s motion to admit the grand jury testimony

as it was hearsay that did not fit within an exception.

      Appellant next claims that the trial court erred in providing examples

during the circumstantial evidence jury instruction.      Specifically, Appellant

argues that the trial court’s examples from the Commonwealth’s case

“highlighted their importance and inferred that they proved [Appellant’s]

guilt through their application of the circumstantial evidence jury charge.”

Appellant’s Brief at 24.

      We begin with our standard of review.


                                     -6-
J-S57040-18


     Our trial courts are invested with broad discretion in
     crafting jury instructions, and such instructions will be upheld so
     long as they clearly and accurately present the law to the jury
     for its consideration. Where a defendant appeals a jury
     instruction, we consider the challenged instruction in its entirety,
     rather than isolated fragments.

Commonwealth v. Simpson, 66 A.3d 253, 274 (Pa. 2013) (citations

omitted). Furthermore, a “trial court may use its own form of expression to

explain difficult legal concepts to the jury, as long as the trial court’s

instruction accurately conveys the law.”            Commonwealth v Spotz, 759

A.2d 1280, 1287 (Pa. 2000).

     As part of its circumstantial evidence instruction, the trial court offered

several   examples.       First,    it   provided   examples   about   the   use   of

circumstantial evidence to establish that a child had eaten chocolate chip

cookies from a cookie jar.         N.T., 4/21/2017, at 61-62.    Next, it provided

examples of potential circumstantial evidence from the Commonwealth’s

case regarding a knit cap that could lead to the ultimate fact that it was

Appellant’s cap and that he was one of the intruders.             Specifically, the

proffered examples of circumstantial evidence were that (1) the cap was

found on top of a shell casing in the victim’s kitchen; (2) Appellant’s

girlfriend testified that Appellant wore the cap; and (3) Appellant’s DNA was

found in a DNA mixture collected from the inside of the cap. Id. at 63-64.

Finally, the   trial   court offered the        global positioning system     (GPS)

coordinates for the vehicle Appellant purportedly borrowed the night of the



                                          -7-
J-S57040-18


robbery as potential circumstantial evidence to prove that Appellant was in

Allentown that evening. Id. at 64. Appellant objected to these examples at

the conclusion of the jury instructions. Id. at 91. The trial court overruled

the objection, finding its examples “benign” and noting that the court “kept

telling the jury they have to be satisfied that what the witness said was

true[.]” Id. at 93.

      In Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004), our

Supreme Court considered whether a trial court, in crafting its circumstantial

evidence jury instruction, “improperly focused upon circumstances indicating

[Hughes’s] guilt[.]”

      [F]or example, the court referred to the letters that had been
      burned into the ceiling at the crime scene and those appearing
      on the ceiling of [Hughes’]s bedroom. Notably, the court also
      employed generic examples of circumstantial evidence as part of
      the explanation. In any event, the instruction was aimed at
      contrasting the Commonwealth’s indirect or circumstantial proof
      with direct evidence, and the fact that the court used as
      examples certain aspects of the circumstantial evidence in
      Appellant’s case did not improperly suggest his guilt.

Id. at 792–93.

      Instantly,   while   the   trial   court   unquestionably   focused   upon

circumstances implicating Appellant’s guilt in its circumstantial evidence jury

instruction, like the instruction in Hughes, it also included generic examples

and was aimed at contrasting the differences between direct and indirect

proof. Moreover, the trial court repeatedly reminded the jury that the jurors

must first determine whether the testimony of the witness offering the


                                         -8-
J-S57040-18


purported circumstantial evidence was truthful and accurate, and whether

the existence of the circumstantial facts leads to the conclusion that the

facts at issue also happened. N.T., 4/21/2017, at 62-65. Thus, upon review

of the circumstantial evidence instruction as a whole, we find that the trial

court provided a thorough and legally accurate instruction of circumstantial

evidence, with examples that it deemed appropriate to aid the jury in

understanding this difficult legal concept. See Hughes, 865 A.2d at 792-93

(finding examples in court’s circumstantial evidence jury instruction were

aimed at distinguishing direct and indirect proof, and did not improperly

suggest defendant’s guilt). Accordingly, we find no abuse of discretion.

      Appellant finally claims that the evidence was insufficient to sustain all

of his convictions.   Appellant’s Brief at 25. Before we reach the merits of

this claim, we must determine whether Appellant has preserved it.

            As a preliminary matter, it should be noted that “when
      challenging the sufficiency of the evidence on appeal, the
      ‘[a]ppellant’s    [court   ordered    Pa.R.A.P.1925(b) concise]
      statement must specify the element or elements upon which the
      evidence was insufficient’ in order to preserve the issue for
      appeal.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
      Super. 2009) []. If the appellant fails to conform to the
      specificity requirement, the claim is waived. Id.

Commonwealth v. Smyser, ___ A.3d ___, 2018 WL 4326689, at *3 (Pa.

Super. filed Sept. 11, 2018).

      Instantly, in his Pa.R.A.P. 1925(b) statement, Appellant failed to

specify which elements of what crimes he claimed lacked sufficient evidence.



                                     -9-
J-S57040-18


Concise Statement of Errors Complained of on Appeal, 10/23/2017, at ¶ 2

(“The evidence presented at trial was insufficient to sustain the convictions

on all charges as it did not establish the quantum of evidence necessary to

establish that [Appellant] was present at the time these crimes were

committed[.]”).     The trial court found Appellant’s 1925(b) statement

insufficient in that regard, but nonetheless addressed it in its 1925(a)

opinion as a challenge to the sufficiency of Appellant’s identification.   See

Trial Court Opinion, 12/15/2017, at 9 n.50.

      We have held that a trial court’s decision to address an otherwise

unpreserved sufficiency-of-the-evidence claim “is of no moment to our

analysis because we apply Pa.R.A.P.1925(b) in a predictable, uniform

fashion[.]” Smyser, 2018 WL 4326689, at *3 (citation and quotation marks

omitted).   At the same time, we have declined to find waiver, though we

could, where the case is not complex and the trial court has addressed the

claim in substantial detail. Id. (citing Commonwealth v. Laboy, 936 A.2d

1058 (Pa. 2007)).

      This is not a case where we may excuse waiver.           Appellant was

convicted of eight crimes, including second-degree murder, conspiracy to

commit third-degree murder, and robbery, following a jury trial spanning

four days and sixteen Commonwealth witnesses.        Moreover, Appellant did

not cure the ambiguity and vagueness of his 1925(b) statement on appeal.

Rather, in the argument section of his brief, Appellant’s sufficiency claim


                                    - 10 -
J-S57040-18


spans a single page. See Appellant’s Brief at 25. Aside from setting forth

the standard of review, Appellant cites no legal authority to support his

argument. Moreover, he fails to outline the elements of the crimes for which

he claims the evidence was insufficient, develop a factual argument in any

meaningful way, or provide any record citations. In fact, Appellant presents

the entirety of his sufficiency argument in three sentences.

             [Appellant] believes that the testimony, as a whole, was
      uncertain as to proving his participation in the criminal act.
      [Appellant] believes that circumstantial proof of his involvement
      was not sufficient to conclusively identify him as being one of the
      participants.   There was no direct testimony from the one
      eyewitness that identified [Appellant] as the shorter of the two
      assailants.

Appellant’s Brief at 25.

      Even if Appellant had preserved his sufficiency claim in his Pa.R.A.P.

1925(b) statement, we find it waived for failing to develop the claim in any

meaningful fashion on appeal. See Commonwealth v. Delvalle, 74 A.3d

1081, 1086–87 (Pa. Super. 2013) (“Rule 2119(a) of the Pennsylvania Rules

of Appellate Procedure provides that ‘[t]he argument shall ... have ... the

particular point treated therein, followed by such discussion and citation of

authorities as are deemed pertinent.’ Pa.R.A.P. 2119(a). Failure by the

appellant to discuss pertinent facts or cite legal authority will result in

waiver. Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa.Super.2012).”).




                                    - 11 -
J-S57040-18


     Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal that would convince us to

disturb his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 12/14/18




                                    - 12 -
