J-A30032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
I. DEAN FULTON                              :
                                            :
                            Appellant       :
                                            :     No. 1729 EDA 2014

            Appeal from the Judgment of Sentence January 17, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division No(s): CP-51-CR-0012441-2010

BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED April 27, 2016

        Appellant, I. Dean Fulton, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas after a jury found

him guilty of third-degree murder1 and possessing an instrument of crime.2

He seeks relief based on the denial of his suppression motion, the failure of

the Commonwealth to disclose material evidence, the sufficiency of the

evidence, the trial court’s jury instruction on justification/self-defense, and

the trial court’s in limine ruling to admit evidence he previously carried a

firearm if he presented evidence of his good character. We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 907.
J-A30032-15


      In the early morning hours of June 15, 2010, Michael Toll (“Decedent”)

called 911 and reported he had been shot at 54th Street and Florence

Avenue in the City of Philadelphia. Decedent managed to drive two blocks to

56th Street before his vehicle came to a rest on the sidewalk. Police Officer

Steven Mitchell responded to the 911 dispatch and located Decedent inside

his vehicle. Decedent was still conscious and told the officer that “Jeff” had

reached through the passenger window of his vehicle and shot him.

      Decedent was shot three times: once in his right armpit, once in his

right abdomen, and once in the lower right abdomen.                Decedent was

transported to the Hospital of the University of Pennsylvania. He died two

days later on June 17, 2010, at 11:46 a.m.            An autopsy revealed that

Decedent was shot with a 9-millimeter pistol. The shot to Decedent’s lower

right abdomen was a contact wound.           The remaining two shots were fired

from between six inches to two-and-one-half feet away.             Police officers

recovered Decedent’s cell phone, a 9-millimeter Cor-Bon shell casing, and a

9-millimeter   Winchester   shell   casing    from   inside   Decedent’s   vehicle.

Decedent’s phone revealed that he made six calls to 267-206-7343 shortly

before he was shot.   The 267-206-7343 number was stored in Decedent’s

phone under the name “Jeff.”

      On June 17, 2010, at 11:48 a.m., Philadelphia Police Officers John

Krewer and Toren Saunders went to 6032 Lindberg Avenue to investigate a

report of a person with a gun. They detained several individuals in or near a



                                      -2-
J-A30032-15


Mercury Marquis vehicle, including Appellant, Randolph Bell, 3 Anthony Byrd,

and Eric Adams. When asked for his name and birth date, Appellant stated

his name was “Faheem Miller” and gave two different birth dates.        Officer

Krewer recognized Appellant from a photograph previously shown to him by

homicide detectives. Appellant, Bell, and Byrd were taken to the Southwest

Detectives Division for a suspected firearms violation. Officer Krewer seized

an iPhone from Appellant while Appellant was in the backseat of the officer’s

vehicle.

         While at the scene, officers observed a firearm inside the Mercury

Marquis.     That same afternoon, at 3:40 p.m., Detective William Farrell

prepared an affidavit of probable cause to search the vehicle.         Officers

executed the warrant at 4:50 p.m. and seized a firearm,4 a holster, and

three cellphones from the vehicle.        The individuals and property were

transported from the Southwest Detectives Division to the Homicide Unit.

        Homicide Detective John Harkins testified he received the phones and

they were “opened, powered up and the menu [was] searched for a phone

number corresponding to each phone.” N.T. Suppression Hr’g, 8/21/13, at

47. The detective discovered one of the phones, a Samsung flip phone, had

the number 267-206-7343, the same number stored in Decedent’s phone


3
  The Mercury Marquis was registered to Randolph Bell, who was referred to
at trial as “Randy” or “J.R.”
4
    The firearm in the Mercury Marquis was not related to the instant homicide.



                                      -3-
J-A30032-15


under the name “Jeff.” The detective retained possession of the phones, but

did not prepare property receipts for them.

        The following day, June 18, 2010, at 5:30 p.m., Anthony Byrd gave

the following transcribed and signed statement to homicide detectives:

           This was yesterday about 11:00—something in the
           morning. Me and Eric were just hanging out. Basically the
           boy Randy and his girl was there, too, but they was in her
           car. We was in a drive behind Mark’s house.[5] Eric had
           already mentioned something to me about Red Fox having
           shot somebody a day or two earlier but didn’t really get
           into any details about it. While we was hanging out, Red
           Fox walked up to us and started hanging out.

              We was just kicking back. Eric started asking Red Fox
           what happened the other night. He (Red Fox) said he
           went to meet some fiend at 54th and Beaumont. He said
           he was going to serve the guy. Got in the guy’s car. He
           said the guy then wouldn’t let him out of the car. He
           thought the guy was getting ready to rob him. So he shot
           the guy. . . .

N.T. Trial, 8/26/13, at 219-20. Byrd identified a photograph of Appellant as

“Red Fox” and initialed the photograph. Id. at 224. Byrd also indicated that

he previously saw Appellant in possession of a .32 revolver.

        On June 19, 2010, at 7:05 a.m., Eric Adams gave the following written

and signed statement to homicide detectives when asked about a recent

shooting:

             The young boy Red was telling me and my friend Byrd
           about it. This was right before the cops grabbed us up in


5
    Byrd identified a photograph of Clifford Jordan as “Mark.”




                                       -4-
J-A30032-15


           the back of Lindbergh outside Mark’s houses.[6] . . . He
           said he met up with this white guy to sell to him and got in
           the boy’s car. He said he got in the passenger’s side of the
           car. He said the guy kept reaching down next to the
           driver’s seat and was making him nervous. He said the
           boy looked like he was about to pull something out. So he
           shot him. He said he was then trying to get out of the car
           but the inside door wouldn’t open for him. So he climbed
           out of the car window.

Id. at 238-39.      Adams identified a photograph of Appellant as “Red” and

stated he stored “Red’s” phone number, 267-206-7343, in the contact list of

his phone under name “Redman.” Id. at 241, 243-44.

        That same day, June 19, 2010, Detective Harkins, who had kept the

cell phones on his desk in the Homicide Unit, answered a phone call from

Heather Warrington to the Samsung flip phone with the number 267-206-

7343.     N.T. Suppression Hr’g at 48-49.     At that time, Warrington was a

heroin user, who used the 267-206-7343 number to purchase the drug. The

detective informed her he was a police officer and was investigating a

homicide. Warrington subsequently met the detective at a Seven-Eleven, at

which time she identified a picture of Appellant as “Jeff.”            N.T. Trial,

8/21/13, at 85-86.      The 267-206-7343 number was stored in her phone

under “Lil Jeff.”   Id. at 51, 57-58. She stated that she mostly purchased

heroin from “Lil Jeff” and/or “J.R.” and that she previously purchased drugs

at 5513 Beaumont Street.



6
    Adams also identified a photograph of Clifford Jordan as “Mark.”



                                      -5-
J-A30032-15


         On June 20, 2010, officers executed a search warrant for a residence

at 5513 Beaumont Street and recovered, in relevant part, boxes for Cor-Bon

and Remington nine-millimeter ammunition. The officers also encountered

Sidi Camaras, who was renting a room at 5513 Beaumont Street. Camaras

was interviewed by detectives the following day, June 21, 2010, and stated

that (1) he lived at that residence for five months, (2) “Randy” lived at the

house, and (3) “Fox” lived there for two months while Camaras was there.

Camaras identified a picture of Appellant as “Fox.” The ammunition was in

the room in which “Randy” was residing.

         Appellant, who was fifteen years old at the time, was charged with

homicide and related offenses on June 21, 2010.                   His biographical

information taken at the time of charging indicated Appellant’s cell phone

number was 267-253-1684. That number was attributed to the iPhone that

Officer Krewer took from Appellant on June 17, 2010—the day of his arrest

in the firearms investigation. See N.T. Trial, 8/27/13, at 118.

         Prior to trial, Appellant filed motions seeking decertification to juvenile

court and suppression of all evidence obtained from the 267-206-7343 cell

phone. The trial court denied both motions and the case proceeded to a jury

trial.

         During trial, Appellant orally moved to preclude Byrd’s statement that

Appellant previously possessed, or “showed off,” a .38 or .32 caliber firearm.

N.T. Trial, 8/22/13, at 6, 9. The trial court ruled that Byrd would not be able



                                         -6-
J-A30032-15


to testify regarding Appellant’s possession of that weapon, but that the

Commonwealth could reference Appellant’s prior possession of the unrelated

firearm if Appellant presented character evidence of his peacefulness.    Id.

at 12.

         During the Commonwealth’s case-in-chief, Byrd and Adams recanted

their prior statements to police. Their prior statements were subsequently

introduced as substantive evidence. As noted by the trial court:

              In the instant case, the prior inconsistent statements of
           Eric Adams . . . and Anthony Byrd . . . were relevant to
           prove that the Appellant had indeed shot [Decedent], a
           material fact in the case. Both Adams and Byrd had made
           statements to Philadelphia Police regarding a conversation
           they had with Appellant, wherein Appellant described the
           events that lead to [Decedent’s] death and admitted his
           role therein. The statements of both Byrd and Adams
           described a conversation between Appellant, Adams, and
           Byrd, where Appellant said . . . he was going to sell heroin
           to someone and got into the buyer’s car. He continued by
           saying that the buyer kept reaching down into the driver’s
           side door, and this action made the Appellant nervous so
           the Appellant shot the buyer. The testimony of both
           witnesses at trial, varied from the written statements they
           had previously made to police.        The statements were
           introduced as rebuttal testimony proof of both Adams and
           Byrd’s prior inconsistent statements. The statement of
           each witness corroborated the story of [Decedent] prior to
           his death.

              After having the opportunity to review his statement to
           police, Byrd signed the bottom of each page and wrote the
           names under pictures of Bell, Adams, and Appellant.
           Indeed, Byrd made corrections to the written statement,
           even correcting the spelling of his last name and initialing
           next to the correction. Adams was afforded the same
           opportunity to review. Adams signed each page of the
           statement and also wrote the names of Bell, Byrd and
           Appellant under their pictures.


                                      -7-
J-A30032-15



Trial Ct. Op. at 13-14.

      Subsequently, Appellant’s trial counsel emphasized that he would not

call character witnesses due to the court’s decision to allow evidence of his

alleged past possession of a firearm as impeachment or rebuttal evidence.

N.T. Trial, 8/27/13, at 81-82. In response, the Commonwealth noted for the

record that substantial other impeachment evidence was available, stating:

           I do want to note with respect to rebuttal character, there
           is also a tremendous amount of information contained
           within the J file [referring to Appellant’s juvenile record] as
           well as other documents that were proffered by both the
           Commonwealth and defense at the [de]certification
           motion.    The Commonwealth would certainly contend,
           would implicate rebuttal character.

Id. at 83-84.     The defense subsequently called its only witness, Detective

Hawkins, to testify that the 267-253-1684 phone was taken from Appellant’s

person on June 17, 2010. The defense’s questioning emphasized that there

were calls between the 267-253-1684 phone, which was taken from

Appellant, and the 267-206-7343 phone, which was saved in Adams’s phone

as “Redman,” the Decedent’s phone as “Jeff,” and in Warrington’s phone as

“Lil Jeff.” The defense’s questioning also elicited evidence that Decedent’s

contact list contained the name “Red” for a different telephone number

belonging to a third-party. Id. at 109-10.

      At the close of the evidence, the trial court issued a jury charge, which

included    instructions   on   first-   and   third-degree   murder,    voluntary

manslaughter, and possessing an instrument of crime.              The court also


                                         -8-
J-A30032-15


instructed the jury on self-defense and “imperfect” self-defense.   N.T. Trial,

8/28/13, at 21-26.   During its discussion of self-defense, the court stated

that the jurors could “find malice and murder only if you are satisfied beyond

a reasonable doubt that the circumstances were such that if they existed,

would have justified the killing.” Id. at 24. Appellant did not object to the

court’s charge.

      On August 29, 2013, the jury found Appellant guilty of third-degree

murder and possessing an instrument of crime. On January 17, 2014, the

trial court sentenced him to fifteen to thirty years’ imprisonment for third-

degree murder, with no further penalty imposed for possessing an

instrument of crime. Appellant’s timely post-sentence motions were denied

by operation of law on May 28, 2014.       Appellant filed a timely notice of

appeal and a court-ordered statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).              On

December 30, 2014, the court filed a responsive Rule 1925(a) opinion.

      While this appeal was pending, Appellant filed two motions with this

Court claiming after-discovered evidence. See Pa.R.Crim.P. 720(C) & cmt.

As part of his motions, Appellant noted he was charged for the shooting

death of Dominque Jenkins (“Jenkins case”) based, in part, on Adams’s

statement that Appellant confessed to him over the telephone in January

2010. In October 2014, Appellant proceeded to trial in that matter, but was

acquitted of murder. During the Jenkins trial, the defense cross-examined



                                    -9-
J-A30032-15


Adams with respect to his statements that another defendant, Ricardo

Harrison, confessed to shooting another person in an unrelated case

(“Harrison case”). In all three cases—the instant trial, the Jenkins case, and

the Harrison case—Adams gave statements that the defendants told him

they shot another person when the other person reached for something.

      Appellant also averred that he recently discovered a search warrant in

the Jenkins case to search a “cell phone number 267-206-7343.”          In the

affidavit of probable cause, dated June 24, 2010, the affiant indicated that

“the cell phone [Appellant] was in possession of was secured by Detectives

and revealed the number to be 267-206-7343.” Appellant thus sought an

evidentiary hearing to determine whether his phone had been “cloned,” i.e.,

whether more than one cell phone bore the same number.

      This Court, in an order dated March 3, 2015, denied both motions

without prejudice to Appellant’s ability to raise those issues on appeal before

this Panel.

      On appeal, Appellant raises the following issues for our consideration.

         I. Whether the suppression court erred and denied rights
         guaranteed by the fourth amendment to the Constitution
         of the United States and Article I, Section 8 of the
         Pennsylvania Constitution when it denied a motion to
         suppress Appellant’s cell phone #267-206-7343 and all
         evidence and information derived directly or indirectly from
         the warrantless search of cell phone #267-206-7343?

         II. Whether the Commonwealth suppressed evidence that
         could have been used to impeach the testimony of Eric
         Adams when it failed to disclose that Eric Adams had
         engaged in a pattern or practice of claiming he heard


                                    - 10 -
J-A30032-15


         confessions to     homicides   to   curry   favor   with   law
         enforcement?

         III. Whether [this C]ourt should have remanded the case
         to the [trial] court for an evidentiary hearing to determine
         whether cell phone #267-206-7343 was discovered during
         the search of J.R.’s vehicle or during the search of
         Appellant incident to arrest, or whether the two cell phones
         had the same number and were evidence of cloned
         phones?

         IV. Whether the evidence was insufficient to support the
         verdicts where the evidence of identity of the perpetrator
         was so contradictory that as a matter of law no rational
         jury could find guilt beyond a reasonable doubt?

         V. Whether the [trial] court erred and denied due process
         guaranteed by the due process clause of the Fourteenth
         amendment when it failed to grant a judgment of acquittal
         on the grounds that the only evidence against Appellant
         was his own alleged admissions to third parties?

         VI. Whether the [trial] court erred and denied due process
         guaranteed by the due process clause of the Fourteenth
         amendment when it gave an erroneous instruction on
         justification/self defense?

         VII. Whether the [trial] court erred and denied due process
         guaranteed by the due process clause of the Fourteenth
         amendment when it ruled that if the Appellant produced
         character witnesses attesting to his reputation for
         peacefulness, then the prosecution could introduce
         evidence that the Appellant had been accused of
         possession of a[n unrelated] firearm?

Appellant’s Brief at 4-5.

      In his first issue, Appellant argues that the trial court erred by denying

his motion to suppress all information derived from the discovery of the 267-

206-7343 cell phone number. Appellant relies on the United States Supreme

Court decision in Riley v. California, 134 S. Ct. 2473 (2014), the


                                    - 11 -
J-A30032-15


companion case to Riley, United States v. Wurie, and this Court’s

subsequent decision in Commonwealth v. Stem, 96 A.3d 407 (Pa. Super.

2014) to assert that “the police may not open a . . . cell phone without first

obtaining a search warrant for the cell phone.” Appellant’s Brief at 34. He

argues:

             In this case, Detective Harkins testified that he opened
          cell phone #267-206-7343 without a search warrant, and
          that he powered up the phone and examined the internal
          and external displays. He went a step further and left the
          cell phone powered on so he could monitor text messages
          and phone calls displayed on the cell phone. Finally, he
          exploited the warrantless search by using the cell phone to
          communicate with Heather Warrington.

          . . . The police left the phone powered on and used
          information on the internal and external screen to
          determine the existence of and communicate with Heather
          Warrington.

Id. at 34.     Thus, Appellant asserts that Detective Harkins improperly

searched the phone and that all evidence obtained from Heather Warrington

should have been suppressed.7 Id. at 35. We find Appellant’s reliance on

Riley/Wurie misplaced and conclude no relief is due.

      When considering the trial court’s denial of a motion to suppress, this

Court employs the following standard of review:


7
  We note that Appellant later argues that the phone did not belong to him
or that others had equal access to the phone. To the extent Appellant would
rely on such arguments with respect to the suppression ruling, we would
conclude that Appellant failed to establish a reasonable expectation of
privacy and affirm on that basis. See Commonwealth v. Benson, 10 A.3d
1268, 1274 (Pa. Super. 2010).



                                    - 12 -
J-A30032-15


            [An appellate court’s] standard of review in
            addressing a challenge to the denial of a suppression
            motion is limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.           Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole.          Where the
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous. Where . . . the appeal of
            the determination of the suppression court turns on
            allegations of legal error, the suppression court’s
            legal conclusions are not binding on an appellate
            court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of the courts below are
            subject to [ ] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)

(citation omitted).

         The test for determining excludability is not whether the
         evidence would have come to light but for the illegal
         actions of the police, but rather, whether the evidence
         “has been come at by exploitation of that illegality or
         instead by means sufficiently distinguishable to be purged
         of the primary taint.”

Commonwealth v. Butler, 729 A.2d 1134, 1138 (Pa. Super. 1999)

(citation omitted).

      Further, even if evidence is wrongfully admitted at trial,

         [h]armless error exists where: (1) the error did not
         prejudice the defendant or the prejudice was de minimis;
         (2) the erroneously admitted evidence was merely
         cumulative of other untainted evidence which was


                                     - 13 -
J-A30032-15


         substantially similar to the erroneously admitted evidence;
         or (3) the properly admitted and uncontradicted evidence
         of guilt was so overwhelming and the prejudicial effect of
         the error was so insignificant by comparison that the error
         could not have contributed to the verdict.

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (citations

omitted); see also Commonwealth v. Hoffman, 589 A.2d 737, 745 (Pa.

Super.   1991)    (applying   harmless       error   standard   to   admission   of

“suppressible” statement by defendant to police officer).

      Instantly, Appellant muddles several constitutional principles, but

relies upon a single theory for relief, namely, that the detective improperly

searched his phone to obtain evidence. This Court, in Stem, summarized

the principles relevant to this claim.

         The Court[, in Riley/Wurie,] began its analysis with a
         discussion of the well-settled history and parameters of the
         search incident to an arrest exception to the warrant
         requirement.     The Court explained that the exception
         permits an arresting officer without a warrant to search an
         arrestee’s person and the area within his immediate
         control only for personal property immediately associated
         with the arrestee.       The Court reiterated the well-
         established dual bases that justify the exception: ensuring
         police safety and preventing the destruction of evidence.

         The Court proceeded to consider “how the search incident
         to arrest doctrine applies to modern cell phones, which are
         now such a pervasive and insistent part of daily life that
         the proverbial visitor from Mars might conclude they were
         an important feature of human anatomy.” The Court held
         that the doctrine cannot be extended to such devices, and
         held “instead that officers must generally secure a warrant
         before conducting such a search.”

                                   *     *      *



                                       - 14 -
J-A30032-15


       Having determined that searching cellular telephones after
       an arrest does not satisfy the traditional dual bases
       underlying the search incident to arrest exception, the
       Court turned its attention to the governments’ argument
       that searching a cellphone is materially indistinguishable
       from seizing and searching items incident to arrest that
       contain the same information as the data stored on a
       cellular telephone, but in physical form. For instance, a
       police officer may search a woman’s purse incident to
       arrest and, for example, review the contents of a date
       book that includes phone numbers and addresses. The
       United States argued that, in this type of scenario, the
       phone number directory in a cellular device should not be
       considered different from the date book in the woman’s
       purse, and, therefore, should be susceptible to a search
       incident to arrest. In response, the Court stated that this
       argument is “like saying riding on horseback is materially
       indistinguishable from a flight to the moon. Both are ways
       of getting from point A to point B, but little else justifies
       lumping them together.”

       The Court, in large part, focused upon the interplay
       between modern day cellular devices and the privacy
       interests of the arrestee. The Court’s discussion on this
       essential point, in relevant part, follows:

          Modern cell phones, as a category, implicate privacy
          concerns far beyond those implicated by the search
          of a cigarette pack, a wallet, or a purse.           A
          conclusion that inspecting the contents of an
          arrestee’s pockets works no substantial additional
          intrusion on privacy beyond the arrest itself may
          make sense as applied to physical items, but any
          extension of that reasoning to digital data has to rest
          on its own bottom.

          Cell phones differ in both a quantitative and a
          qualitative sense from other objects that might be
          kept on an arrestee’s person. The term “cell phone”
          is itself misleading shorthand; many of these devices
          are in fact minicomputers that also happen to have
          the capacity to be used as a telephone. They could
          just as easily be called cameras, video players,



                                  - 15 -
J-A30032-15


          rolodexes, calendars, tape recorders, libraries,
          diaries, albums, televisions, maps, or newspapers.

          One of the most notable distinguishing features of
          modern cell phones is their immense storage
          capacity. . . . The storage capacity of cell phones
          has several interrelated consequences for privacy.
          First, a cell phone collects in one place many distinct
          types of information—an address, a note, a
          prescription, a bank statement, a video—that reveal
          much more in combination than any isolated record.
          Second, a cell phone’s capacity allows even just one
          type of information to convey far more than
          previously possible.     The sum of an individual’s
          private life can be reconstructed through a thousand
          photographs, labeled with dates, locations, and
          descriptions; the same cannot be said of a
          photograph or two of loved ones tucked into a wallet.
          Third, the data on a phone can date back to the
          purchase of the phone, or even earlier. A person
          might carry in his pocket a slip of paper reminding
          him to call Mr. Jones; he would not carry a record of
          all his communications with Mr. Jones for the past
          several months, as would routinely be kept on a
          phone.

          Finally, there is an element of pervasiveness that
          characterizes cell phones but not physical records.
          Prior to the digital age, people did not typically carry
          a cache of sensitive personal information with them
          as they went about their day. Now it is the person
          who is not carrying a cell phone, with all that it
          contains, who is the exception. . . . [I]t is no
          exaggeration to say that many of the more than
          90% of American adults who own a cell phone keep
          on their person a digital record of nearly every
          aspect of their lives—from the mundane to the
          intimate. Allowing police to scrutinize such records
          on a routine basis is quite different from allowing
          them to search a personal item or two in the
          occasional case.

          Although the data stored on a cell phone is
          distinguished from physical records, by quantity


                                   - 16 -
J-A30032-15


           alone, certain types of data are also qualitatively
           different. An Internet search and browsing history,
           for example, can be found on an Internet-enabled
           phone and could reveal an individual’s private
           interests or concerns—perhaps a search for certain
           symptoms of disease, coupled with frequent visits to
           WebMD. Data on a cell phone can also reveal where
           a person has been.

                                *     *      *

           Modern cell phones are not just another
           technological convenience. With all they contain and
           all they may reveal, they hold for many Americans
           “the privacies of life.” The fact that technology now
           allows an individual to carry such information in his
           hand does not make the information any less worthy
           of the protection for which the Founders fought. Our
           answer to the question of what police must do before
           searching a cell phone seized incident to an arrest is
           accordingly simple—get a warrant.

Stem, 96 A.3d at 410-414 (citations omitted).

     In Riley, the search consisted of the following:

        The officer accessed information on the phone and noticed
        that some words (presumably in text messages or a
        contact list) were preceded by the letters “CK”—a label
        that, he believed, stood for “Crip Killers,” a slang term for
        members of the Bloods gang.

        At the police station about two hours after the arrest, a
        detective specializing in gangs further examined the
        contents of the phone. The detective testified that he
        “went through” Riley’s phone “looking for evidence,
        because . . . gang members will often video themselves
        with guns or take pictures of themselves with guns.”
        Although there was “a lot of stuff” on the phone, particular
        files that “caught [the detective's] eye” included videos of
        young men sparring while someone yelled encouragement
        using the moniker “Blood.”          The police also found
        photographs of Riley standing in front of a car they



                                    - 17 -
J-A30032-15


        suspected had been involved in a shooting a few weeks
        earlier.

Riley, 134 S. Ct. at 2480-81.

     In Wurie, as summarized in Stem,

        Wurie received repeated calls from “my house,” which was
        displayed on the phone’s external display screen.[8] The
        police opened the phone and observed a photograph of a
        woman and a baby on the phone’s “wallpaper.” The police
        then pressed a button to access the phone’s call log, and,
        from there, was able to push other buttons to determine
        the phone number associated with the moniker “my
        house.” The police then used an online phone directory to
        trace the number to an apartment building, for which
        police later obtained and executed a search warrant.
        During the search of Wurie’s apartment, the police
        recovered crack cocaine, marijuana, drug paraphernalia, a
        firearm with ammunition, and United States currency.

Stem, 96 A.3d at 410 (discussing Riley, 134 S. Ct. at 2481).

     Lastly, in Stem, the defendant was placed in custody for criminal

trespass after which,

           [the arresting officer] inspected [Stem’s] cell phone.
           [Stem] was under arrest prior to the [officer] turning
           on the phone and searching the cell phone data. The
           cell phone photos are not immediately displayed
           when the cell phone is turned on. To the contrary,
           the picture data must be accessed by proactively
           opening it. In order to do so, the picture icon must
           be touched.      In the instant case, [the officer]
           accessed the picture data by hitting the picture icon.

        When [the officer] accessed the picture data on Stem’s
        cellular telephone, the officer uncovered what appeared to
        be a photograph depicting child pornography. Based upon

8
  We note that Riley involved a search of a “smart” phone,” while Wurie
involved a search of a flip, or “simple” phone.



                                   - 18 -
J-A30032-15


         this discovery, [the officer] applied for, and received, a
         search warrant that, when executed, revealed a total of
         seventeen photographs depicting child pornography.

Id. at 408 (citation omitted).

      In the case sub judice, the extent of the specific intrusion complained

of was minimal compared to Riley, Wurie, and Stem.            The detective

powered up the phone and although he “searched” the phone’s data for the

number associated with it, he accessed no additional information or data on

the phone.    In contrast to Wurie, the discovery of Warrington’s existence

was not the product of a search of the call logs or other information

contained on the phone. Rather, the detective answered the phone, which

had been on his desk.

      Even if we did conclude that Detective Harkins engaged in an illegal

warrantless search of Appellant’s phone and the evidence thereby obtained,

including the testimony of Warrington who the detective encountered via the

cell phone at issue, should have been suppressed, we hold that the

admission of this evidence constituted harmless error.     Appellant did not

deny ownership of the phone identified as 267-206-7343, and that number

was listed in the Decedent’s phone under “Jeff.”     In a dying declaration,

Decedent identified “Jeff” as his assailant.    Additionally, two witnesses

submitted statements detailing Appellant’s confession to a shooting that was

substantially similar to that described by Decedent.         Both witnesses

identified Appellant by his picture.   Thus, in light of the other properly



                                   - 19 -
J-A30032-15


admitted evidence, we conclude that even if the trial court erred by failing to

suppress, the admission of Warrington’s testimony was harmless and not a

basis for reversal. Accordingly, Appellant’s first issue lacks merit.

       Appellant’s second and third issues concern alleged after-discovered

evidence, which was the subject of two separate Rule 720(C) motions filed

by Appellant during the pendency of this appeal.          In his second issue,

Appellant argues that he did not discover, until after his trial, that Adams,

whose prior inconsistent statements regarding Appellant’s confession was

admitted at trial, gave similar statements in the Jenkins case and the

Harrison case. Appellant’s Brief at 37-39. Appellant avers that he did not

discover this information until the Jenkins case went to trial in October 2014.

Appellant further claims that had he known about the third confession

Adams proffered in the Harrison case, he could have impeached Adams as a

“vending machine” of confession testimony. Id. at 6. Appellant emphasizes

that he used such impeachment evidence in the Jenkins case and was

acquitted of murder in that case. Id. at 41. Appellant thus contends that

the Commonwealth’s failure to reveal the information that Adams was a

“useful confession witness” constituted a Brady9 violation. Id. at 39-41.

       In his third issue, Appellant argues that the Commonwealth failed to

disclose that the phone seized from Appellant by Officer Krewer also had the

number 267-206-7343. Id. at 41. Appellant contends that this information

9
    See Brady v. Maryland, 373 U.S. 83 (1963).



                                     - 20 -
J-A30032-15


was material because that same number was attributed to the phone

recovered from the Mercury Marquis and used to identify him as the shooter.

Id.

      Preliminarily, we note that Appellant’s brief focuses on his right to a

new trial based on the suppression of evidence by the Commonwealth.

However, interrelated with this claim are his petitions for remand based on

after-discovered evidence for hearing to develop these claims. We address

Appellant’s Brady and after-discovered evidence claims seriatim, but

conclude neither warrants relief.

      It is well settled:

            Under Brady, the prosecution’s failure to divulge
         exculpatory evidence is a violation of a defendant’s
         Fourteenth Amendment due process rights. A Brady claim
         challenges the Commonwealth’s failure to produce material
         evidence. Specifically, [the defendant] must plead and
         prove that “(1) the prosecutor has suppressed evidence;
         (2) the evidence, whether exculpatory or impeaching, is
         helpful to the defendant; and (3) the suppression
         prejudiced the defendant.”    The defendant bears the
         burden of demonstrating that the Commonwealth withheld
         or suppressed evidence.

Commonwealth v. Smith, 17 A.3d 873, 887-88 (Pa. 2011) (citations

omitted).

            Pursuant to Brady and its progeny, the prosecutor has
         a duty to learn of all evidence that is favorable to the
         accused which is known by others acting on the
         government's behalf in the case, including the police.
         Pursuant to [Kyles v. Whitley, 514 U.S. 419 (1995)],
         “the prosecutor’s Brady obligation clearly extends to
         exculpatory evidence in the files of police agencies of the
         same government bringing the prosecution.” Moreover,


                                    - 21 -
J-A30032-15


         there is no Brady violation when the defense has equal
         access to the allegedly withheld evidence.

Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013) (citations

omitted). Moreover,

             “[t]o satisfy the prejudice inquiry, the evidence
         suppressed must have been material to guilt or
         punishment.”     . . . [M]ateriality extends to evidence
         affecting the credibility of witnesses, rather than merely to
         purely exculpatory evidence.           Moreover, . . . the
         protection of Brady extends to the defendant’s ability to
         investigate alternate defense theories and to formulate
         trial strategy.   “[F]avorable evidence is material, and
         constitutional error results from its suppression by the
         government, if there is a reasonable probability that, had
         the evidence been disclosed to the defense, the result of
         the proceeding would have been different.”

Commonwealth v. Ly, 980 A.2d 61, 76 (Pa. 2009) (citations omitted).

     As to after-discovered evidence, a claim for a new trial must be raised

promptly in a Pa.R.Crim.P. 720(C) motion, and if the evidence is obtained

during the direct appeal, the motion should include a request for a remand

to the trial court. Commonwealth v. Perrin, 108 A.3d 50, 51 (Pa. Super.

2015).   In order to obtain relief based on after-discovered evidence, the

defendant must demonstrate that the after-discovered evidence:

         (1) could not have been obtained prior to trial by
         exercising reasonable diligence; (2) is not merely
         corroborative or cumulative; (3) will not be used solely to
         impeach a witness's credibility; and (4) would likely result
         in a different verdict.

Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014).




                                    - 22 -
J-A30032-15


        Although a defendant need not produce an affidavit from a witness to

be entitled to a hearing on an after-discovered evidence claim, he must

establish the alleged after-discovered evidence is producible and admissible.

Id. at 825, 827. After-discovered evidence to be used solely to impeach the

credibility of a witness does not constitute grounds for a new trial.    See

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008).              Conclusory

accusations alone are insufficient to warrant an evidentiary hearing pursuant

to Rule 720(C).     Castro, 93 A.3d at 827.     Further, the purpose of an

evidentiary hearing is not a fishing expedition to discover evidence. Id. at

827-28.

        In the case sub judice, Appellant presents no meaningful argument

that the Commonwealth suppressed the alleged evidence, that is, Adams’s

status as a “useful confession witness,” or the phone numbers attributed to

the phones taken from Appellant by Krewer and from the Mercury Marquis.

Appellant apparently had equal access to such information as he was able to

impeach Adams in the Jenkins case using information regarding the Harrison

case.    Furthermore, Appellant’s contention that the cell phone seized from

him by Officer Krewer bore the same number as the phone recovered from

the Mercury Marquis arose out of a June 24, 2010 affidavit of probable cause

for a search warrant in the Jenkins case.         Thus, Appellant has not

established that the Commonwealth suppressed the evidence. See Weiss,

81 A.3d at 783.



                                    - 23 -
J-A30032-15


      Furthermore, we discern no basis upon which to conclude that the

evidence was material or that the failure to disclose the information was

prejudicial. See Ly, 980 A.2d at 76. Instantly, Adams’s prior inconsistent

statement was wholly corroborated by Byrd. Appellant’s suggestion that the

two phones bore the number 267-206-7343 connected to the murder was

belied by the trial record in this case in which the 267-206-7343 number

was attributed to the Samsung “flip” phone recovered from the Mercury

Marquis, and the 267-253-1684 number was attributed to the iPhone

recovered from Appellant’s person.10

      Our review further reveals no basis for a remand in light of Appellant’s

Pa.R.Crim.P. 720(C) motions.     The sole purpose of the after-discovered

evidence based on Adams’s testimony in the Jenkins trial would be for

impeachment. Accordingly, Appellant has not met the second prong of the

after-discovered evidence test and we discern no basis to remand this

matter for further development of the record. See Pagan, 950 A.2d at 270.

Appellant’s contention that his phone might have been “cloned” fails to raise

a genuine issue of material fact that a new trial is required.      Appellant

ostensibly should have known the number of the phone seized from his

person and the phone number of the phone used as primary evidence during

his trial.   He also fails to assert how such evidence could not have been

10
   As noted above, Appellant attempted to sow doubt that he possessed the
267-206-7343 phone because phone records revealed there were several
calls between that number and his 267-253-1684 number.



                                    - 24 -
J-A30032-15


discovered before the trial.   Accordingly, Appellant’s second and third issues

do not warrant relief.

      In his fourth and fifth issues, Appellant challenges the sufficiency of

the evidence.    Specifically, in his fourth issue, Appellant claims that his

conviction was based upon speculation and inconsistent evidence regarding

his identity as the shooter.     Appellant’s Brief at 44-47.   He emphasizes

inconsistencies in the evidence, including Decedent’s statement that the

shooter reached through the window, Byrd’s and Adams’s prior statements

that Appellant stated he was inside the car when he fired, and that Appellant

was not known as “Jeff.” Id. He further contends that the Commonwealth

did not adduce evidence the 267-206-7343 phone “belonged” to him or that

he had sole access to the phone. Id. at 46. He insists that the “there was a

lot more evidence against J.R. than there was against [him].” Id. Appellant

highlights that the ammunition used to kill Decedent was consistent with

that found at Bell’s residence and Warrington testified Bell would also

answer the 267-206-7343 phone.

      In issue five, Appellant presents the generalized argument that

sufficient evidence did not support his out-of-court confessions to Adams

and Byrd. He cites only to Opper v. United States, 348 U.S. 84 (1954),

for the general proposition that out-of-court admissions must be supported

by sufficient evidence.




                                     - 25 -
J-A30032-15


      Our standard of review regarding a sufficiency of the evidence claim is

as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying the above test, we may not weigh the evidence
         and substitute our judgment for [that of] the fact-finder.
         In addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the trier of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)

(citations omitted), appeal denied, 121 A.3d 496 (Pa. 2015).

      Moreover, the Pennsylvania Supreme Court has summarized the

following view of the role of prior inconsistent statements for substantive

purposes:

            In sum, then, our review of authority from the United
         States Supreme Court and our Court, as well as our
         consideration of jurisprudence from other states which
         reject a per se rule, coupled with our over quarter-century
         of experience with the use of prior inconsistent statements
         as substantive evidence by the courts of this
         Commonwealth, convinces us that criminal convictions


                                     - 26 -
J-A30032-15


         which rest only on prior inconsistent        statements of
         witnesses who testify at trial do not constitute a
         deprivation of a defendant’s right to due process of law, as
         long as the prior inconsistent statements, taken as a
         whole, establish every element of the offense charged
         beyond a reasonable doubt, and the finder-of-fact could
         reasonably have relied upon them in arriving at its
         decision. Prior inconsistent statements, which meet the
         requirements for admissibility under Pennsylvania law,[ ]
         must, therefore, be considered by a reviewing court in the
         same manner as any other type of validly admitted
         evidence when determining if sufficient evidence exists to
         sustain a criminal conviction.

Commonwealth v. Brown, 52 A.3d 1139, 1170-71 (Pa. 2012).

      In this case, ample evidence was presented to establish that Appellant

was the individual known as “Jeff” who shot Decedent.         Two witnesses,

Adams and Byrd, gave contemporaneously recorded and signed statements

that Appellant had confessed to a shooting within the same time frame and

location as the Decedent’s shooting.   Decedent called Appellant’s admitted

phone number, 267-206-7343, six times shortly before being shot and listed

that number under the name “Jeff.”           In a dying declaration, Decedent

indicated that “Jeff” had shot him. Warrington testified that she frequently

bought heroin from Appellant, whom she knew as “Lil Jeff,” and identified

Appellant’s picture as “Jeff.” We emphasize that the evidence produced by

the Commonwealth need not preclude every possibility of innocence and the

fact finder is free to believe all, part, or none of the evidence. See Vargas,

108 A.3d at 867-68. Accordingly, viewing all the evidence admitted at trial

in the light most favorable to the Commonwealth, as the verdict winner, we



                                    - 27 -
J-A30032-15


conclude       that   sufficient   evidence   corroborated    Adam’s   and   Byrd’s

confessional evidence and supported Appellant’s conviction.               See id.;

Brown, 52 A.3d at 1170-71. Therefore, Appellant’s fourth and fifth issues

also fail.

       Turning to Appellant’s sixth issue, he contends that the trial court

erred by issuing an incorrect jury instruction. Appellant points to an isolated

passage in the transcript which indicates that the trial court omitted the

word “not” when describing malice/murder and justification.              Appellant’s

Brief at 50; see also N.T. Trial, 8/28/13, at 24.

       As a prefatory matter, we consider whether Appellant has preserved

his challenge to the trial court’s jury instruction.         It is axiomatic that to

preserve such an issue for appellate review, a “[s]pecific exception shall be

taken to the language or omission complained of.”                 Pa.R.A.P. 302(b).

Similarly, our Rules of Criminal Procedure explicitly declare: “[n]o portions

of the charge nor omissions from the charge may be assigned as error,

unless specific objections are made thereto before the jury retires to

deliberate.” Pa.R.Crim.P. 647(B).

       Our Supreme Court has opined:

             The pertinent rules, therefore, require a specific objection
             to the charge or an exception to the trial court's ruling on
             a proposed point to preserve an issue involving a jury
             instruction. Although obligating counsel to take this
             additional step where a specific point for charge has been
             rejected may appear counterintuitive, as the requested
             instruction can be viewed as alerting the trial court to a
             defendant's substantive legal position, it serves the


                                         - 28 -
J-A30032-15


          salutary purpose of affording the court an opportunity to
          avoid or remediate potential error, thereby eliminating the
          need for appellate review of an otherwise correctable
          issue.

Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005) (citation and

footnotes omitted).

      In the instant case, at the conclusion of the charge to the jury, neither

counsel noted any objections and therefore the trial court had no

opportunity to remediate any potential error. N.T., 8/28/13, at 39.       Thus,

Appellant has waived this issue for failing to object before the jury retired to

deliberate. See Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(B); Pressley, 887 A.2d

at 224.

      In his final issue, Appellant argues that the trial court erred by ruling

that the Commonwealth could introduce evidence of Appellant’s alleged

previous possession of a firearm for purposes of impeachment if Appellant

produced character witnesses attesting to his “peacefulness” at trial.

Appellant asserts that this decision caused him to forgo any character

testimony regarding his peaceful nature.        He contends that the trial court

should have prohibited any mention of his alleged prior possession of a

firearm pursuant to Commonwealth v. Morgan, 739 A.2d 1033, 1038 (Pa.

1999) (holding that character witnesses may not be cross-examined with

prior bad acts not resulting in convictions).

      “It is well-settled that the scope of cross examination is a matter

within the trial court’s discretion and will not be disturbed by this Court


                                     - 29 -
J-A30032-15


absent an abuse of that discretion.” Commonwealth v. Kouma, 53 A.3d

760, 768 (Pa. Super. 2012) (citation and punctuation omitted).               When

examining the admission or exclusion of impeachment evidence in the

context of character witnesses we specifically note:

               In a criminal case, the defendant may offer character
           witnesses to testify as to that defendant’s reputation in the
           community regarding a relevant character trait.          See
           Pa.R.E. 404(a)(1); 405(a). Of course, the Commonwealth
           may      attempt      to    impeach     those     witnesses.
           Commonwealth v. Hoover, 16 A.3d 1148, 1149 (Pa.
           Super. 2011) (citing Commonwealth v. Morgan, 559 Pa.
           248, 739 A.2d 1033, 1035 (1999)). “For example, when
           cross-examining character witnesses offered by the
           accused, the Commonwealth may test the witnesses’
           knowledge about specific instances of conduct of the
           accused where those instances are probative of the traits
           in question.” Hoover, 16 A.3d at 1149-50 (citing Pa.R.E.
           405(a)). However, the Commonwealth’s right to cross-
           examine character witnesses is not unlimited:             the
           Commonwealth may not cross-examine a character
           witness    about    a    defendant’s   uncharged     criminal
           allegations, Morgan, 739 A.2d at 1035-36, or a
           defendant’s arrests that did not lead to convictions.
           Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607,
           611-12 (1981).

Commonwealth v. Kuder, 62 A.3d 1038, 1057-58 (Pa. Super. 2013).

      We acknowledge that “evidence of good character is to be regarded as

evidence of substantive fact just as any other evidence tending to establish

innocence and may be considered by the jury in connection with all of the

evidence     presented   in   the   case   on   the   general   issue   of   guilt.”

Commonwealth v. Luther, 463 A.2d 1073, 1077 (Pa. Super. 1983).

However, a trial court’s ruling, which results in the defendant’s decision to



                                      - 30 -
J-A30032-15


not call character witnesses to testify regarding the defendant’s reputation,

may constitute harmless error where the evidence of guilt is overwhelming.

Kouma, 53 A.3d at 770-71. In addition, “[w]hen discussing harmless error,

we have also stated that the Commonwealth can meet its burden of showing

harmlessness by persuading us the error did not prejudice the appellant or

did so to a de minimis extent[.]”       Hoover, 16 A.3d at 1150 (citation

omitted).

      In the case sub judice, Appellant narrowly focuses on the trial court’s

decision to allow evidence of Appellant’s alleged prior possession of a firearm

to impeach any hypothetical character witness which Appellant could have

presented.   However, as the Commonwealth noted for the record at trial,

significant other evidence was available for impeachment purposes, including

a certified juvenile adjudication for terroristic threats and simple assault.

N.T. Trial, 8/27/13, at 83-83. Accordingly, we hold that any error that the

trial court committed by allowing evidence of an alleged prior “bad act” to

impeach hypothetical character witnesses was de minimis, and therefore

harmless, in light of the other evidence available for impeachment purposes.

See Hoover, 16 A.3d at 1150. Further, given the overwhelming evidence

supporting Appellant’s conviction, as discussed supra, we conclude that any

error which caused Appellant to decline to call character witnesses was




                                    - 31 -
J-A30032-15


harmless.11 See Kouma, 53 A.3d at 771. Thus, Appellant’s seventh issue

merits no relief and does not require reversal.    Accordingly, we affirm

Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

     Mundy, J. joins this Memorandum. Jenkins, J. Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2016




11
   We also note that Appellant did not identify his possible character
witnesses at trial, and did not do so in his appellate brief.



                                    - 32 -
