J-S69045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STANLEY LEE MOSLEY                         :
                                               :
                       Appellant               :   No. 1630 MDA 2017

            Appeal from the Judgment of Sentence February 28, 2017
    In the Court of Common Pleas of Cumberland County Criminal Division at
                        No(s): CP-21-CR-0002452-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 07, 2018

       Stanley Lee Mosley (Appellant) appeals pro se from the judgment of

sentence imposed after a jury convicted him of four counts each of burglary,

criminal trespass, criminal mischief, and theft by unlawful taking.1 We affirm.

       The trial court summarized the factual background as follows:

          On Saturday, August 1st, 2015, at 9:30 in the morning, the
       Hampden Township[, Cumberland County] Police Department was
       dispatched to the Evergreen Chinese Buffet for a report of a
       burglary. The perpetrator had shattered the glass door and
       entered the restaurant where he pried open the cash register and
       stole the money inside. Less than an hour later, the Hampden
       Township Police Department received a report of another burglary
       at a Chinese restaurant, Chef Wong’s Chinese Restaurant, where
       [the] burglar employed the same means of entry and theft. Video
       surveillance at the Evergreen was reviewed and depicted a white
       male with short, dark hair, a beard or goatee, and glasses
       breaking into the restaurant at 1:24 [a.m.] Ultimately, he would

____________________________________________


1   18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(1)(ii), 3304(a)(5), 3921(a).
J-S69045-18


      be identified as [Appellant].

         Three days later, on August 4th, the East Pennsboro Township
      Police Department was dispatched to another burglary at the
      China Taste restaurant in Enola. As with the other break-ins, the
      burglar broke a glass door, entered the restaurant, and pried open
      a cash register to steal the contents. Here, video surveillance
      depicted a man who would later be identified as [Appellant]. On
      that same day, West Shore Regional Police Department
      investigated a burglary discovered at the Ho Wah Chinese
      Restaurant in Lemoyne that had also been perpetrated in the
      same manner as the previously discussed restaurants.

         Less than two weeks later, on August 16th, [Appellant] was
      arrested in Dauphin County being caught in the act of burglarizing
      the Hibachi Grill Chinese Restaurant. He was in possession of a
      pry bar that he used to commit the burglary. [Appellant] was
      developed as a suspect for the Cumberland County Chinese
      restaurant burglaries.      A search warrant was obtained for
      [Appellant’s] cellphone records that placed him in the vicinity of
      the burglaries. Based on the similarities of the crimes, the visual
      identification of [Appellant] in the video surveillance footage, and
      the cellphone records, [Appellant] was charged with the instant
      crimes.

Trial Court Opinion, 2/15/18, at 3-4.

      Prior to trial, Appellant requested to proceed pro se. After determining

that Appellant knowingly, voluntarily and intelligently waived his right to

counsel, the trial court granted Appellant permission to proceed pro se. Order,

10/24/16. A four-day jury trial commenced on December 12, 2016, at which

Appellant represented himself with the benefit of stand-by counsel.

      On December 15, 2016, the jury returned their verdicts finding

Appellant guilty of all charges – four counts each of burglary, criminal

trespass, criminal mischief, and theft by unlawful taking. On February 28,

2017, the trial court imposed consecutive sentences of three to six years of


                                      -2-
J-S69045-18


incarceration on each count of burglary; the remaining convictions merged for

sentencing purposes. Appellant’s aggregate sentence was 12 to 24 years of

incarceration.    Appellant filed a post-sentence motion.2         The court held a

hearing on September 29, 2017 and thereafter denied Appellant’s motion.

Order, 10/2/17. The court, inter alia, stated:

       In sum, contrary to [Appellant’s] quixotic assertions, his rights
       under the United States and Pennsylvania Constitution were not
       violated and he was properly convicted on all counts. Anything
       less than that would have been shocking.

Order, 10/2/17.

       Appellant filed this timely appeal. Both Appellant and the trial court

have complied with Pennsylvania Rule of Appellate Procedure 1925. At this

juncture, we note that Appellant has been pro se through trial, post-trial

proceedings, and the appeal process.             “This Court ‘is willing to liberally

____________________________________________


2   At the sentencing hearing, Appellant was advised that any post-sentence
motion must be filed within 10 days. N.T. Sentencing, 2/28/17, at 11; see
also Pa.R.Crim.P. 720(A)(1) (“Except as provided in paragraphs (C) [(after-
discovered evidence)] and (D) [(summary case appeals)], a written post-
sentence motion shall be filed no later than 10 days after imposition of
sentence.”).    The trial court, however, granted Appellant’s request for
additional time so that he may first obtain the trial transcript, and the court
accordingly directed that any post-sentence motion be filed within 10 days of
Appellant’s receipt of the transcript. Id. at 12. On June 12, 2017, Appellant
filed a request for all transcripts, and on June 26th, filed a post-sentence
motion. Given the trial court’s express permission for Appellant to file a post-
sentence motion within 10 days of the date he received the trial transcripts,
we do not conclude that his June 26, 2017 post-sentence motion was
untimely. See Pa.R.Crim.P. 720, comment (when a defendant has been
granted leave to file a post-sentence motion under the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-9546, “the filing of the post-sentence motion . . .
must comply with the timing requirements contained in paragraph (A) of this
rule.”).

                                           -3-
J-S69045-18



construe materials filed by a pro se appellant’; however, [an appellant] is not

entitled to special treatment by virtue of the fact that he ‘lacks legal training.’”

Commonwealth v. Maris, 629 A.2d 1014, 1017 n.1 (Pa. Super. 1993),

quoting O'Neill v. Checker Motors Corp., 567 A.2d 680, 682 (Pa. Super.

1989).

      On appeal, Appellant presents five issues:

      1. Did the trial court err and/or abuse its discretion in allowing the
      Commonwealth to withhold exculpatory physical evidence which
      was essential and material to [A]ppellant’s defense, thus violating
      [A]ppellant’s rights pursuant to the 5th and 14th Amendments of
      the United States Constitution?

      2.) Did the trial court err and/or abuse its discretion in allowing
      the Commonwealth to withhold both the names and statements
      of witnesses who misidentified [A]ppellant as the perpetrator who
      was responsible for the reported burglaries and should this Court
      remand this matter back to the Court of Common Pleas for further
      proceedings where the statements were revealed through after-
      discovered evidence?

      3.) Did the trial court err and/or abuse its discretion by denying
      [A]ppellant the opportunity to introduce relevant evidence which
      would have shown that someone else committed the crimes for
      which [A]ppellant was being tried for and that [A]ppellant was also
      previously misidentified as the perpetrator in another string of
      burglaries which shared highly detailed similarities to the crimes
      for which [A]ppellant was being tried for?

      4.) Did the trial court err and/or abuse its discretion in allowing
      the Commonwealth to admit evidence of [A]ppellant’s other
      pending criminal charges which were not part of and/or included
      in the charges for which [A]ppellant was being tried for?

      5.) Did the trial court err and/or abuse its discretion in allowing
      the Commonwealth to introduce evidence of cell phone ping data,
      where the evidence presented was incomplete and unreliable?

Appellant’s Brief at 6-7.

                                       -4-
J-S69045-18


       In his first issue, Appellant raises a Brady3 claim, and asserts that he

was denied a fair trial because the court denied his pre-trial request for the

production of fingerprint evidence.            Appellant claims “the Commonwealth

withheld actual physical evidence recovered from one of the crime scenes.”

Appellant’s Brief at 12.       Appellant specifically assails the Commonwealth’s

“failure to produce the requested fingerprint evidence and/or fingerprint

analysis report.” Id. at 14-15. Appellant maintains that the evidence would

be exculpatory because “there was no fingerprint evidence linking [Appellant]

to any of the reported burglaries.” Id. at 18.

       “Brady provides that ‘the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment[.]’”             Commonwealth v.

Ferguson, 866 A.2d 403, 406 (Pa. Super. 2004) (citation omitted).

Pennsylvania Rule of Criminal Procedure 573(B) requires the Commonwealth

to disclose “[a]ny evidence favorable to the accused that is material either to

guilt or to punishment, and is within the possession or control of the attorney

for the Commonwealth[.]” Pa.R.Crim.P. 573(B)(1)(a). Rule 573(E) states:

       If at any time during the course of the proceedings it is brought
       to the attention of the court that a party has failed to comply with
       this rule, the court may order such party to permit discovery or
       inspection, may grant a continuance, or may prohibit such party
       from introducing evidence not disclosed, other than testimony of

____________________________________________


3Brady v. Maryland, 373 U.S. 83 (1963) (due process is offended when the
prosecution withholds evidence favorable to the accused).


                                           -5-
J-S69045-18


      the defendant, or it may enter such other order as it deems just
      under the circumstances.

Pa.R.Crim.P. 573(E). However:

      If there is no reasonable doubt about guilt whether or not the
      additional evidence is considered, there is no justification for a
      new trial. The mere possibility that an item of undisclosed
      information might have helped the defense, or might have
      affected the outcome of the trial, does not establish materiality in
      the constitutional sense. Rather, material evidence must be
      favorable to the accused so that, if disclosed and used effectively,
      it may make the difference between conviction and acquittal.

Ferguson, 866 A.2d at 407 (citations omitted).

      There is no support for Appellant’s Brady claim. The record reveals an

absence of any fingerprint evidence – let alone material fingerprint evidence

– that would have been favorable to Appellant. The trial court explained:

         At the pretrial hearing, [Appellant] sought the results of crime
      scene fingerprint analysis. The District Attorney stated that no
      fingerprint analysis was ever performed. However, at one of the
      restaurants, fingerprints were taken but deemed unusable. It is
      impossible for the Commonwealth to withhold fingerprint analysis
      that does not exist. Further, no fingerprint evidence was ever
      used at trial. Evidence of a single usable fingerprint would not
      have been likely to change the outcome of the trial in light of the
      overwhelming evidence of [Appellant’s] guilt presented by the
      Commonwealth.

Trial Court Opinion, 2/15/18, at 4-5.

      The trial court is correct. In his pre-trial request for fingerprint evidence,

Appellant persisted, “So if they were unidentifiable, unable to be processed,

how [was law enforcement] able to say that they produced no match or hit?”

N.T., 12/12/16, at 19. The Commonwealth responded unequivocally: “The

fact of the matter is there is no fingerprint analysis. I feel like we’re going


                                       -6-
J-S69045-18



down this road of delay tactics at this point. I’m not sure what [Appellant]

wants to get out of this, but there are no fingerprint analyses.” Id. There is

no merit to Appellant’s first issue.4

       In his second issue, Appellant seeks a new evidentiary hearing based on

“after-discovered evidence of his innocence.”          Appellant’s Brief at 30.

Appellant asserts that the following three items represent after-discovered

evidence that entitle him to a new trial:        (1) a video copy of Appellant’s

interrogation during which he alleges that detectives told him that a number

of unidentified individuals had identified him as the person who committed the

burglaries; (2) an August 4, 2015 Channel ABC-27 news article soliciting

information on behalf of the police relating to the burglaries; and (3)

photographs of the perpetrator from surveillance footage published along with

the newspaper article.

       With respect to after-discovered evidence claims, Rule 720 of the

Pennsylvania Rules of Criminal Procedure provides as follows:

       (C) After-Discovered Evidence. A post-sentence motion for a
       new trial on the ground of after-discovered evidence must be filed
       in writing promptly after such discovery.



____________________________________________


4  Moreover, there was no reasonable doubt about Appellant’s guilt. As the
trial court indicated, the Commonwealth’s case was based largely on
surveillance footage showing the perpetrator of the crime in action. “Whether
that person was [Appellant] was a question for the jury which they answered
in the affirmative. Had jury found otherwise, we would have scheduled an
immediate eye exam.” Trial Court Opinion, 2/15/18, at 9.

                                           -7-
J-S69045-18


Pa.R.Crim.P. 720(C); see also Commonwealth v. Castro, 93 A.3d 818, 828

(Pa. 2014) (stating that Rule 720(C) requires a motion for after-discovered

evidence to be filed promptly upon the discovery of such evidence).

      The Comment to Rule 720 further provides:

      [A]fter-discovered evidence discovered during the post-sentence
      stage must be raised promptly with the trial judge at the post-
      sentence stage; after-discovered evidence discovered during the
      direct appeal process must be raised promptly during the direct
      appeal process, and should include a request for a remand to the
      trial judge.

Pa.R.Crim.P. 720, Comment.

      Instantly, on April 18, 2018, Appellant filed an application for remand in

which he first raised his after-discovered evidence claim. He asserted that the

three items referenced above entitled him to an evidentiary hearing to

determine whether he was entitled to a new trial based on after-discovered

evidence.     Appellant maintains that he did not discover the three

aforementioned items of purported evidence until November 9, 2017. On April

20, 2018, this Court denied Appellant’s application without prejudice to his

right to raise the issue in his appellate brief for decision by this Court.

      It is well-settled that, to obtain relief, an after-discovered evidence claim

must meet a four-prong test:

      (1) the evidence could not have been obtained before the
      conclusion of the trial by reasonable diligence; (2) the evidence is
      not merely corroborative or cumulative; (3) the evidence will not
      be used solely for purposes of impeachment; and (4) the evidence
      is of such a nature and character that a different outcome is likely.
      At an evidentiary hearing, an appellant must show by a


                                       -8-
J-S69045-18


      preponderance of the evidence that each of these factors has been
      met in order for [new proceedings] to be warranted.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007).

      Additionally:

      [A]s our Supreme Court has explained, to warrant an evidentiary
      hearing on a claim of after-discovered evidence, the request must,
      at the very least, “describe the evidence that will be presented at
      the hearing. Simply relying on conclusory accusations . . . is
      insufficient to warrant a hearing.” Castro, 93 A.3d at 827
      (footnote omitted). “[T]he hearing is for the presentation of
      evidence, not the potential discovery of evidence. An evidentiary
      hearing . . . is not meant to function as a fishing expedition for
      any possible evidence that may support some speculative
      claim[.]” Id. at [] at 827-28 (quotation marks and quotation
      omitted).

Commonwealth v. Heaster, 171 A.3d 268, 273-74 (Pa. Super. 2017),

appeal denied, 181 A.3d 1078 (Pa. 2018).

      Based on our review of the record and Appellant’s allegations, we decline

to remand this matter for an evidentiary hearing on Appellant’s after-

discovered evidence claim.    First, to the extent the three items Appellant

presented in his application for remand could be considered evidence, they

are plainly not after-discovered evidence. Appellant was, obviously, present

for his interrogation on August 5, 2014, such that he would have known at

that time that detectives informed him there were individuals who identified

him as the perpetrator of the burglaries. The news articles and photographs

were likewise published on the same date. Additionally, in his application for

remand, Appellant admits that he sought access to this evidence in advance

of trial. Application for Remand, 4/18/18, at 11. Thus, the record reflects

                                     -9-
J-S69045-18


that Appellant clearly had knowledge of each of the three items long before

he filed his application for remand.

      Second, Appellant fails to coherently explain, either in his application for

remand or his appellate brief, how any of these items would be beneficial to

his defense and likely to change the outcome at trial. As we have explained,

mere conclusory accusations relating to after-discovered evidence are

insufficient to warrant a hearing and such a hearing is for the presentation,

“not the potential discovery of evidence.” See Heaster, 171 A.3d 268, 273-

74. Accordingly, Appellant’s after-discovered evidence claim is meritless.

      In his third issue, Appellant challenges the trial court’s decision to

exclude evidence he offered to show that similar burglaries were committed

while he was incarcerated. Appellant argues:

      it was erroneous for the trial court to conclude that evidence which
      showed that: (1) someone else committed other similar incidents
      which shared highly detailed similarities to the one(s) charged;
      (2) someone else committed the crimes for which he [i]s being
      tried for; and (3) [Appellant] was previously misidentified as the
      perpetrator of one or more crimes bearing substantial similarities
      to the crimes charged, was irrelevant.

Appellant’s Brief at 38.

      We have explained:

      [The] [a]dmission of evidence is within the sound discretion of the
      trial court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. An abuse of discretion is not
      merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will or
      partiality, as shown by the evidence of record.


                                       - 10 -
J-S69045-18


Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (en

banc) (citations omitted).

      Evidence must be competent and relevant before it is admitted in a

criminal proceeding. Commonwealth v. Freidl, 834 A.2d 638 (Pa. Super.

2003). Evidence is relevant if “it has any tendency to make a fact more or

less probable than it would be without the evidence[.]”        Pa.R.E. 401(a).

However, Rule 403 states that “[t]he court may exclude relevant evidence if

its probative values is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

      During his pro se cross-examination of Detective John Friel, Appellant

attempted to question the detective about a December 3, 2015 burglary of

the “Ho-Wah Restaurant.”      N.T., 12/13/16, at 250.      The Commonwealth

objected and the following sidebar ensued:

      [Trial Court]:   You’re asking what happened on December 3rd,
      2015?

      [Appellant]: Yes, Your Honor. This was the same day that the
      same restaurant I’m being accused of burglarizing --

      [Trial Court]: If you’re going to open it up to other burglaries,
      you run the risk of opening it up to other burglaries in 2008. If
      you’re going to start getting into other burglaries, then we can get
      into all the other things.

      [Appellant]: Okay.

      [Trial Court]: Because what you’re trying to do is prove you
      couldn’t have done that, and the Commonwealth can then argue,
      I think successfully, let’s talk about the fact that there were no

                                     - 11 -
J-S69045-18


     burglaries for the five years you were in SCI, which I’m assuming
     you would do.

     [Commonwealth]: Yes.

     [Appellant]: Yeah, they’re opening the door. Okay. All right.

     [Trial Court]: Anything else, Mr. Jocken?

     [Commonwealth]: No, Your Honor. Your Honor, I’m sorry, the
     objection then would be relevance.

     [Trial Court]: Objection, relevance, sustained.

     [Commonwealth]: And you’re done with it?

     [Appellant]: We’re done with it.

Id. at 250-251.

     In declining to allow Appellant’s presentation of evidence concerning

other burglaries committed in Cumberland County, the trial court noted:

         [Appellant] contends that he was precluded from presenting
     evidence to show other people had committed similar burglaries
     while the [Appellant] was incarcerated as a means to show that
     he did not commit the burglaries for which he was tried. Perhaps,
     this would have been relevant had the court allowed the
     Commonwealth to introduce evidence of the 2008 crimes that
     resulted in his incarceration. At the hearing on [Appellant]’s post-
     sentence motion, the Commonwealth responded, “the evidence of
     other burglaries was irrelevant in this case as the facts were totally
     different than what we have here. These were committed in
     different ways, not in the same way that . . . [Appellant]
     committed these crimes.”

                                *      *     *

        The court allowed [Appellant] more than generous leeway in
     presenting his case to the jury. However, taking the jury down
     the rabbit hole of examining every vaguely similar burglary in the
     county was a journey we declined to permit.


                                    - 12 -
J-S69045-18


Trial Court Opinion, 2/15/18, at 7-8.

      We conclude that the trial court did not abuse its discretion in sustaining

the Commonwealth’s objection to Appellant’s cross-examination about

unrelated burglaries in Cumberland County. Appellant’s rambling, incoherent

argument makes no attempt to rebut the trial court’s conclusion that the

robberies committed in Cumberland County while he was incarcerated were

factually dissimilar to the robberies with which Appellant was charged, and

consequently, irrelevant. Therefore, the trial court, in finding the unrelated

burglaries to be irrelevant, committed no misapplication of law, nor did it

exercise its judgment in a manifestly unreasonable way. As such, Appellant’s

third issue is meritless.

      In his fourth issue, Appellant challenges the trial court’s admission of

evidence offered by the Commonwealth relating to his arrest for committing

the burglary of a restaurant in a neighboring jurisdiction. In challenging the

ruling, Appellant “argues that the prejudicial impact of the entire reference,

more specifically, the reference to his arrest on August 16, 2015, which

occurred fourteen days after the crimes for which he was being tried for and

the reference to a statement where he admitted to the burglary, outweighed

the probative value of the evidence.” Appellant’s Brief at 45.

      We again note that the admission of evidence is within the sound

discretion of the trial court and will only be reversed for an abuse of discretion.

Tyson, 119 A.3d at 357. Pennsylvania Rule of Evidence 404(b) provides:


                                      - 13 -
J-S69045-18


     Rule 404. Character Evidence; Crimes or Other Acts

     (b) Crimes, Wrongs or Other Acts.

     (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
     not admissible to prove a person’s character in order to show that
     on a particular occasion the person acted in accordance with the
     character.

     (2) Permitted Uses. This evidence may be admissible for another
     purpose, such as proving motive, opportunity, intent, preparation,
     plan, knowledge, identity, absence of mistake, or lack of accident.
     In a criminal case this evidence is admissible only if the probative
     value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1)-(2). We have stated:

     “Evidence of prior crimes is not admissible for the sole purpose of
     demonstrating a criminal defendant’s propensity to commit
     crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d
     1278, 1283 (Pa. Super. 2004). Nevertheless, “evidence may be
     admissible in certain circumstances where it is relevant for some
     other legitimate purpose and not utilized solely to blacken the
     defendant’s character.” Id. Specifically, other crimes evidence is
     admissible if offered for a non-propensity purpose, such as proof
     of an actor’s knowledge, plan, motive, identity, or absence of
     mistake or accident. Commonwealth v. Chmiel, 889 A.2d 501
     (Pa. 2005). When offered for a legitimate purpose, evidence of
     prior crimes is admissible if its probative value outweighs its
     potential for unfair prejudice. Commonwealth v. Hairston, 84
     A.3d 657 (Pa. 2014), cert. denied, 135 S. Ct. 164 (2014).

Tyson, 119 A.3d at 358. Further,

     Evidence of other crimes may be admissible to “establish the
     identity of the perpetrator when the crimes are so similar that
     logically the same person has committed both acts.”
     Commonwealth v. Rush, 646 A.2d 557, 561 (Pa. 1994). “Much
     more is demanded than the mere repeated commission of crimes
     of the same class, such as repeated burglaries or thefts.” Id.
     (quoting McCormick, Evidence, § 290 (2nd ed. 1972)). “The device
     used must be so unusual and distinctive as to be like a
     signature.” Id. (emphasis in original).


                                    - 14 -
J-S69045-18


Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc).

      At the December 12, 2016 pre-trial hearing on the Commonwealth’s

Rule 404(b) motion, the Commonwealth proffered evidence regarding

Appellant’s arrest for a suspected burglary in Dauphin County on August 16,

2015. N.T., 12/12/16, at 50-61. Specifically, Lower Paxton Township Police

Officer Benjamin Jones testified that he responded to a reported burglary at

the “Hibachi Grill and Buffet” in Dauphin County on August 16, 2015. Id. at

50. Upon arrival, Officer Jones immediately noticed that the front door of the

restaurant had been smashed.         Id. at 52.      Appellant was eventually

apprehended as he attempted to flee from the rear of the restaurant with a

backpack containing, among other things, a crow bar, cash and assorted

coinage, a mask, and gloves. Id. at 52-54.

      Upon entering the restaurant, Officer Jones noted that there was

damage done to the cash register that was consistent with “a crowbar being

wedged into the register as he was trying to open the register.” Id. at 60.

Officer Jones further testified that upon reviewing the restaurant’s surveillance

tapes, Appellant was observed walking up to the front door of the restaurant,

using the crowbar to shatter the glass, and then entering the restaurant. N.T.,

12/12/16, at 53.

      After being presented with this testimony about similarities between

Appellant’s actions and arrest in Dauphin County on August 16, 2015, and the

underlying crimes with which Appellant was charged in Cumberland County,


                                     - 15 -
J-S69045-18


the trial court granted the Commonwealth’s motion and allowed the evidence

to be used at trial.   Id. at 65-66; See N.T., 12/13/16, at 253-83 (Officer

Jones’ testimony about the August 16, 2015 burglary during Appellant’s jury

trial). The trial court stated:

      [T]he evidence of the break-in at the Hibachi Grill in Lower Paxton
      Township[, Dauphin County] will be admissible. There is a
      common plan, scheme, design, et cetera. It is also part of the
      history of this case and should come in naturally with respect to
      the other charges that will be before the Court.

Id. at 65.

      The trial court provided further analysis in its 1925(a) opinion:

         The Commonwealth sought to present evidence to the jury that
      [Appellant] pled guilty to a series of very similar burglaries of
      Chinese restaurants in 2008. The court denied the admission of
      that evidence as unduly prejudicial to [Appellant] and overly
      confusing for the jury. However, the court did permit the
      presentation of evidence regarding [Appellant’s] pending burglary
      charges stemming from the break-in of a Chinese restaurant in
      Lower Paxton Township in Dauphin County as it tended to
      demonstrate a common plan, scheme, or design. Part of the
      Commonwealth’s theory of the case was that through all the
      burglaries, [Appellant] exhibited a “signature move” of breaking
      the glass front door of a Chinese restaurant and proceeding to pry
      open the cash register to steal whatever money he could find. In
      the court’s estimation, the modus operandi and the choice of the
      establishments to burglarize were sufficiently unique as to permit
      the admission of evidence of the contemporaneous burglary
      committed by the [Appellant] in Dauphin County. The high
      probative value of this evidence far outweighed any undue
      prejudice.

Trial Court Opinion, 2/15/18, at 6-7.

      As noted above, during Appellant’s trial, the Commonwealth introduced

evidence that in Cumberland County during the first week of August 2015,


                                    - 16 -
J-S69045-18


Appellant committed burglaries of four different Chinese restaurants by

shattering the glass of the front door of each restaurant, entering the

restaurant, and prying open the cash register to steal the contents. Trial Court

Opinion, 2/15/18, at 3-4.

      Upon review, we conclude that the trial court did not abuse its discretion

in determining that the probative value of Appellant’s August 16, 2015 arrest

for burglary in Dauphin County outweighed its prejudicial effect. After being

presented with testimony at the hearing on the Commonwealth’s Rule 404(b)

motion, N.T., 12/12/16, at 50-61, the trial court properly exercised its

discretion in admitting the evidence under Rule 404(b)(2). Specifically, the

admitted evidence “tended to demonstrate a common plan, scheme, or

design.” Trial Court Opinion, 2/15/18, at 6-7.         The evidence of record

establishes distinctive similar attributes of the five burglaries so as to make it

logical that the same person committed each crime. Miles, 846 A.2d at 137.

See also Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017)

(“Sufficient commonality of factors between the other incidents and the

underlying crime dispels the notion that they are merely coincidental and

permits the contrary conclusion that they are so logically connected they share

a perpetrator.”) (citation omitted).     Appellant’s fourth issue is therefore

meritless.

      In his fifth and final issue, Appellant assails cell phone data and “ping”

information introduced into evidence by the Commonwealth.               Appellant


                                     - 17 -
J-S69045-18


argues:

      it was error for the trial court to permit Jonathan Steiner to enter
      testimony as an expert witness for the Commonwealth on the
      grounds that the witness’ name was never provided to the
      defense, no expert opinion or report was ever provided to the
      defense and the defense had no time to provide a rebuttal witness
      in time for trial.

Appellant’s Brief at 48-49. However, Appellant adds that he “is not challenging

the qualifications of Jonathan Steiner as an expert witness in the field of cell

phone ping data and cell tower data. Rather, he is challenging the results of

the cell phone ping data and the cell tower data, as the information that the

Commonwealth presented was incomplete and missing details.” Id. at 48.

      In response, the trial court observes that Appellant “did not object to

the testimony of AT&T’s investigator regarding the ping data. However, he

did thoroughly cross-examine the witness about the limitations in precision of

remote cell phone locations.      As such, it was a question for the jury to

determine the persuasive value of that evidence.”           Trial Court Opinion,

2/15/18, at 8.     Similarly, the Commonwealth asserts that Appellant is

“unknowingly presenting an argument concerning the weight of the cell phone

ping data evidence.” Commonwealth Brief at 19. We agree.

      It is well-settled that “a defendant must present his challenge to the

weight of the evidence to the trial court for a review in the first instance either

in a post-sentence motion, by written motion before sentencing, or orally prior

to sentencing. See Pa.R.Crim.P. 607(A).” Commonwealth v. Richard, 150

A.3d 504, 516 (Pa. Super. 2016). This Court has explained:

                                      - 18 -
J-S69045-18


      [A] challenge to the weight of the evidence is distinct from a
      challenge to the sufficiency of the evidence in that the former
      concedes that the Commonwealth has produced sufficient
      evidence of each element of the crime, “but questions which
      evidence is to be believed.”

Id.

      Here, although Appellant did not specifically use the word “weight” in

his post-sentence motion, he advanced his argument concerning “the

believability” of that evidence. Appellant’s Post-Sentence Motion, 6/26/17, at

17-18; see also Maris, 629 A.2d at 1017 n.1 (Court willing to liberally

construe materials filed by a pro se appellant). The trial court in response

stated that “the admission of testimony concerning cellphone tracking is

rejected.” Order, 10/2/17.

      We have explained:

      When the challenge to the weight of the evidence is predicated on
      the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is so
      unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not cognizable
      on appellate review. “Moreover, where the trial court has ruled
      on the weight claim below, an appellate court’s role is not to
      consider the underlying question of whether the verdict is against
      the weight of the evidence.” “Rather, appellate review is limited
      to whether the trial court palpably abused its discretion in ruling
      on the weight claim.”

Commonwealth v. Gibbs, 981 A.2d 281, 282 (Pa. Super. 2009) (citations

omitted). “[I]t is for the fact-finder to make credibility determinations, and

the finder of fact may believe all, part, or none of a witness’s testimony.” Id.

(citation omitted).


                                     - 19 -
J-S69045-18


      Consistent with the foregoing, we find no merit to Appellant’s argument

concerning the veracity of testimony regarding cellphone evidence and the

trial court’s rejection of that claim.

      For the above reasons, Appellant is not entitled to relief. We therefore

affirm the judgment of sentence.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/07/2018




                                         - 20 -
