J.A02026/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
MICHAEL S. GELSINGER,                       :
                                            :
                            Appellant       :
                                            :     No. 627 MDA 2015

            Appeal from the Judgment of Sentence December 5, 2014
       in the Court of Common Pleas of Dauphin County Criminal Division
                       at No(s): CP-22-CR-0000926-2014

BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 29, 2016

        Appellant, Michael S. Gelsinger, appeals from the judgment of

sentence entered in the Dauphin County Court of Common Pleas after a jury

found him guilty of first-degree murder,1 attempted homicide,2 possession of

firearm prohibited,3 and carrying a firearm without a license.4      Appellant

argues (1) the Commonwealth failed to prove he had the specific intent to

kill and disprove his self-defense claim, (2) the trial court erred in denying




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 901.
3
    18 Pa.C.S. § 6105(a)(1).
4
    18 Pa.C.S. § 6106(a).
J.A02026/16


his pretrial motion to sever Appellant’s trial from his co-defendant, and (3)

the verdict was against the weight of the evidence. We affirm.

      We   glean      the   factual   history   from   the    trial   testimony.    At

approximately 1:00 a.m. on December 6, 2013, Officer Michael Rudy of the

Harrisburg City Police received a report of shots fired around the 1600 Block

of Thompson Street in Harrisburg. N.T, 12/1/14-12/2/14, at 40 (“Vol. I”).

He arrived at 1619 Thompson Street and encountered Shawn Fox, who

resided there, standing on the front porch. Id. at 43-44, 56; N.T., 12/3/14,

at 10 (“Vol. III”).     Officer Rudy observed a non-responsive female, later

identified as Fox’s girlfriend, Tiana Dockens (“Victim”), lying on the porch.

N.T. Vol. I at 44-58.        As Officer Rudy attempted to treat Victim, Fox’s

roommate and cousin, Justin Baxter, approached the porch “cursing,

yelling,” and acting “belligerent.” Id. at 48-49, 57. Officer Rudy discovered

“a very small hole” on Victim’s abdomen. Id. at 47. Other police officers

arrived, and Officer Rudy rode in the ambulance with Victim to Hershey

Medical Center where she was pronounced dead.                Id. at 49-50, 73.     The

Dauphin County Coroner’s Office performed an autopsy that morning and

concluded, “[t]he cause of death [was] a gunshot wound to the abdomen”

and the manner of death was homicide. Id. at 91-92.

      At the scene, police recovered three .380 cartridge casings that were

discharged from the same firearm and five .40 casings discharged from a

single Glock pistol.    N.T. Vol. I at 138; N.T., 12/3/15-12/5/15, at 44-45



                                         -2-
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(“Vol. IV”). Police determined the Glock belonged to Baxter. N.T. Vol. IV at

31.   They believed Appellant, while a passenger in a car driven by his

brother, Joseph Payne-Casiano, exchanged gunfire with Baxter resulting in

Victim’s death. See id. at 39. Moreover, a bullet recovered from Victim was

determined to be “of the .380, 9-millimeter class.[5]” N.T. Vol. I at 151; N.T.

Vol. IV at 45.     The Glock was ultimately discovered outside of 1617

Thompson Street, and the other firearm was never recovered. N.T. Vol. IV

at 5, 16, 31.

      On December 11, 2013, the Commonwealth filed a criminal complaint

charging Appellant with the above crimes.6        The Commonwealth joined

Payne-Casiano as a co-defendant, and charged him with murder and

attempted murder.

      On November 18, 2014, Appellant filed a motion for severance based

on the Commonwealth’s intention to introduce at trial a hand-written note by

Payne-Casiano to another inmate. Appellant’s Mot. to Sever, 11/18/14, at

2-4 (unpaginated). The contested portion of the note read, “1. Get at Moe

see what she gone [sic] say at my bro trial, try convince her to say bull shot

first.” Id. at Ex. A. Appellant argued that under the United States Supreme


5
  The parties stipulated to the conclusions of the ballistics expert at trial.
N.T. Vol. IV at 44-45.
6
 The Commonwealth also charged Appellant with possession with intent to
deliver a controlled substance and possession of drug paraphernalia, which
were subsequently withdrawn.



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Court decision in Bruton v. United States, 391 U.S. 123 (1968), if his co-

defendant declined to testify, the admission of Payne-Casiano’s note would

violate the Confrontation Clause of the Sixth Amendment.      Id.   The trial

court held oral argument and denied the motion on November 25, 2014.

      On December 1, 2014, the case proceeded to a jury trial.       Victim’s

father, Dion Dockens, testified that at the time of the murder, he lived at

1611 Thompson Street with his wife and children; Baxter was friends with

Victim and his other daughter, Monique; and Fox was Victim’s boyfriend.

N.T., 12/2/14, at 5-9 (“Vol II”). He testified that he did not know Appellant

prior to the shooting, but he knew Payne-Casiano as a friend of Monique.

Id. at 11-12. He explained that on the night of the shooting, he was home

and heard voices outside arguing. Id. at 13-14. He described the shooting,

in relevant part, as follows:

               When I come outside on the porch, I see a car
            parked . . . half in front of my house and the house
            next door to mines [sic]. I see . . . [Payne-Casiano]
            on the driver’s side and [Appellant] on the
            passenger’s side.

            [The Commonwealth]:     Were they in or out of the
            car?

            A. They were out of the car.

            Q. Both of them?

            A. Both of them standing with the doors open.
            [Baxter] was behind the vehicle.      My daughter
            Monique was standing almost by [Payne-Casiano]
            where he was on the driver’s side. And [Victim] was
            standing on—by [Baxter], right beside him, almost


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          towards where [Appellant] was on the passenger’s
          side.

          Q. Go on.

          A. I came down and I’m asking them what’s goin’
          on. And [Baxter] is saying somethin’ to [Payne-
          Casiano] and [Payne-Casiano’s] saying somethin’
          back to him. I’m like, you all got to take this off my
          street, and after that they kept goin’ on.

             Next thing I know, [Baxter] walks back behind his
          car, his vehicle, and you can hear the cocking of the
          gun.    He comes back around, and that’s when
          [Appellant] says to him: We can light the streets up.

              I said: We’re not having this here. You’re not
          lighting the street up here. You all can take that
          somewhere else.

          Q. The initial back and forth that you started to
          describe with [Payne-Casiano] and [Baxter], could
          you make out what was going back and forth? Could
          you get a sense of what that was about?

          A. . . . I couldn’t understand what is was about,
          because first of all, you know, [Baxter] was . . .
          drunk.     And then [Payne-Casiano] was sayin’
          something’; [Appellant] was sayin’ something’; my
          daughter was sayin’ somethin’. So you have, like,
          five different voices, everybody sayin’ different
          things. My main concern to get my daughters, you
          know, these guys, you know, just get off my street.

                               *    *    *

          Q. Were you able to get [your daughters] away?

          A. Yes. . . . [M]e and my daughter Monique was
          going up to the steps into my house. [Victim] said:
          Dad, I’m going to [Fox’s]. Which she do[es] every
          night. And that’s when she proceeded to walk down
          towards [Fox’s].



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                                *    *    *

             She walked down and she was on [Fox’s] steps on
          his house, knocking on his door so that he can come
          and open the door for her. And me and my daughter
          was up on our porch. And I’m looking at her right
          away, because I want to make sure that she gets
          into the house.

          Q. What’s going on below with [Payne-Casiano],
          [Appellant], and [Baxter]?

          A. [Payne-Casiano] and [Appellant] proceed to get
          into the car. And [Baxter’s] walking around onto the
          curb and starts walking down towards the house,
          too.

                                *    *    *

          Q. When [Baxter] started walking up the street, . . .
          you previously described him as having a gun tucked
          in the front waistband?

          A. Yes.

          Q: Did you see him remove it and have it out in his
          hands as he’s walking away?

          A: No, I didn’t. He still had his hands in his pants.

                                *    *    *

          Q. What could you see?

          A. I could just see the sparks coming out of the
          side—passenger’s side window. You could see the
          sparks coming back towards.

          Q. Could you see an arm or a hand extended out of
          the window?

          A. I could see an arm. You couldn’t see, like, the
          physical—you couldn’t see like, you know, the whole
          arm. You could see the firing and wherever the gun


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J.A02026/16


          was in, you could just see the firing coming out. It
          was like that.

                                *    *    *

          Q. How many shots did you hear?

          A. Four to five.

          Q. And then what?

          A. And then, once they started firing, [Baxter] start
          firing his gun back.     In the process I see my
          daughter [Victim], which I’m thinkin’ that she fell to
          duck or something like that.

          Q. Where did the car go?

          A. . . . I really didn’t see . . . which way it turned or
          whatever like that. I just seen the car go up there.
          And once I seen my daughter fall, then I didn’t worry
          about the car anymore.

          Q. Did you see Baxter shoot back?

          A. Yes.

          Q. What happened first? The shots from the car? Or
          Baxter fired?

          A. The shots from the car.

          Q. How certain are you of that?

          A. I’m a hundred and fifty percent it was the car.

                                *    *    *

          Q.   And just to be fair, you described an arm
          extending and you saw sparks from the passenger
          window?

          A. Yes.



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J.A02026/16


            Q. When—and you might have said this, but I just
            want to make sure it’s completely clear. When the
            two got back in the car, who went to what side?

                                  *    *    *

            A. They got back – [Payne-Casiano] got back in the
            driver’s side. [Appellant] got back in the passenger’s
            side. And they sat there. And then as [Baxter]
            walked past them, and that’s when the car starts
            slowly moving up.

            Q. Okay. Shots are fired from the car.          Baxter
            returns [fire]. Car leaves Thompson Street.

            A. Yes.

Id. at 14-35. On cross-examination, Dockens clarified that shots were fired

from the car and Victim fell before Baxter discharged his firearm. Id. at 55,

59.

      Monique Dockens testified that she met Payne-Casiano and Appellant

approximately eight years before when she was in ninth grade and that she

began dating Payne-Casiano in September 2013.            Id. at 97-99.     She

testified Payne-Casiano had called right after midnight on December 6,

2013, and told her he was going to stop by to see her. Id. at 100, 116-17.

In the meantime, Victim had asked her to call Baxter, and Baxter arrived at

their home “very drunk.”      Id. at 101-02.      Her testimony was largely

consistent with her father’s account: “Once the car started driving off, I seen

[Appellant’s] hand come out of the passenger’s side and started shooting

first.” Id. at 108.   She reiterated on cross-examination: “I remember it as

[Appellant and Payne-Casiano] were slowly driving down.        As they w[ere]


                                      -8-
J.A02026/16


driving down, they got a little bit past [Baxter]. And once they got a little bit

past [Baxter], they started shooting. And [Baxter] shot back.” Id. at 154.

At the time Appellant began shooting, she testified Baxter was “at the top of

his steps.” Id. at 109.

      James Moffitt, an inmate at Dauphin County Prison, testified that

Payne-Casiano sent him a note in prison because Payne-Casiano “wanted me

to do some things for him.”     N.T. Vol. III at 44, 50.   The Commonwealth

admitted the original note into evidence and requested to publish it to the

jury. Id. at 52-53. Prior to publishing the note, the trial court instructed

the jury that it may only consider the note as evidence against Payne-

Casiano and not Appellant.7     Id. at 53.    The Commonwealth then asked

Moffitt to read the note:

            Get at Moe, see what she gone say at my bro trial.
            Try convincer her – try convince—I don’t know what
            that say – try something, bull shot first.

            [The Commonwealth]: I’m sorry. You say you don’t
            know what that word is?

            A. Yeah.

            Q. C-O-N-V-I-N-C-E?

7
  We note prior to Moffitt’s testimony, out of the jury’s presence, the trial
court overruled objections by Appellant’s counsel and Payne-Casiano’s
counsel to the admissibility of the note on hearsay and relevancy grounds.
N.T. Vol. IV at 46-48. The trial court found that the note was “not an
assertion for the truth.” Id. at 48. The trial court then advised it would
read the cautionary instruction before the note’s admission and during the
court’s charge to the jury.      Id. at 48-49. All parties agreed to the
instruction. Id. at 48.



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             A. Convince.

Id. at 54.

      After the Commonwealth rested, Appellant testified on his own behalf.

He explained the event as follows:

             We got back in the car and there was a guy that was
             standing on the side of the street. When we pulled
             off, he was walking towards – he was walking down
             toward 17th Street. As we . . . w[ere] going past
             him, [I] heard a shot, and I duck my head and I
             returned fire.

N.T. Vol. IV at 60. He acknowledged, on cross-examination, that the bullet

from his gun killed Victim, but testified it was an “accident” and his intention

was to “get away.” Id. at 87. He further testified on cross-examination by

the Commonwealth:

             Q. We can agree that you shot in the direction of
             Justin Baxter?

             A. I shot in the direction where I heard the shots
             coming from.

             Q. . . . [A]nd who was in that direction?

             A. When we were driving off, Justin Baxter was over
             there.

             Q. Okay. When you heard shots, though, you were
             beyond where Baxter was?

             A. Yes.




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Id. at 87-88. The essence of Appellant’s defense was that Baxter fired first,

and he was “in fear [for his] life, so [he] returned fire.” Id. at 89; see also

id. at 79, 87.

        On December 5, 2014, the jury found Appellant guilty 8 of the above

crimes, and the trial court sentenced him to life imprisonment.9 Appellant

timely filed a post-sentence motion, on December 15, 2014, challenging the

weight and sufficiency of the Commonwealth’s evidence.           Post-Trial Mot.,

12/15/14, at 1-2 (unpaginated). The trial court held oral argument on April

1, 2015 and denied the motion on April 3, 2015. Appellant timely appealed

and complied with Pa.R.A.P. 1925(b). The trial court authored a responsive

Rule 1925(a) opinion.

        Appellant seeks review of the following issues:

              I. Whether the evidence was insufficient at trial to
              prove beyond a reasonable doubt that Appellant
              committed the crime of first degree murder and
              criminal attempt [to commit] murder where the
              Commonwealth failed to prove beyond a reasonable
              doubt that [Appellant] acted willfully, deliberately, or
              with premeditation and where the Commonwealth
              failed to disprove beyond a reasonable doubt that
              [Appellant] acted in self-defense?

              II.   Whether the trial court erred in denying
              Appellant’s [m]otion for [s]everance where the

8
    The jury found Payne-Casiano not guilty of both charges.
9
   Specifically, the trial court sentenced Appellant to life imprisonment for
first-degree murder, seven to fifteen years’ imprisonment for attempted
murder, and five to ten years’ on each firearms charge.              Trial Ct.
Order,12/8/14; N.T. Sentencing Hr’g, 12/5/14, at 5-6.



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            denial of the motion to sever Appellant’s trial from
            the trial of his co-defendant violated Appellant’s right
            under the Confrontation Clause of the United States
            Constitution and Article 1, Section 9 of the
            Pennsylvania Constitution, and where the denial of
            Appellant’s motion resulted in a violation of Bruton
            v. U.S., 391 U.S. 123 (1968)?

            III. Whether the verdict was against the weight of
            the evidence where the testimony presented by the
            Commonwealth was inconsistent regarding the
            details surrounding the shooting and the events
            taking place in the early morning of December 6,
            2013, and where the Commonwealth failed to prove
            that Appellant was guilty of first degree murder and
            criminal attempt homicide where the evidence
            presented by the Commonwealth failed to establish
            that Appellant acted with malice and the specific
            intent to kill?

Appellant’s Brief at 7.

      Appellant’s    first   issue   challenges   the    sufficiency      of    the

Commonwealth’s evidence supporting first-degree murder.                Specifically,

Appellant argues the Commonwealth failed to prove he had the specific

intent to commit murder. Id. at 13. He highlights his testimony that Baxter

fired shots first, and he fired in response; he also argues that the testimony

of Dion and Monique Dockens “does not disprove this assertion beyond a

reasonable doubt.” Id. at 13-14.       He further argues self-defense was not

disproved because “neither witness could say whether Baxter had his gun

pointed at Appellant and his brother prior to the shots being fired.” Id. We

disagree.

      The following principles guide our review over sufficiency claims:



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            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 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 finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      “To sustain a conviction for first-degree murder, the Commonwealth

must prove, beyond a reasonable doubt, that a human being was unlawfully

killed, that the accused was responsible for the killing, and that the accused

acted with a specific intent to kill.”   Commonwealth v. Pagan, 950 A.2d

270, 278-79 (Pa. 2008) (citations omitted).

            [A] specific intent to kill may be inferred from the
            use of a deadly weapon to inflict injury on a vital
            part of the body. A deadly weapon is defined as
            [a]ny firearm, whether loaded or unloaded, or any
            devise designed as a weapon and capable of


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           producing death or serious bodily injury, or any
           other device of instrumentality which, in the manner
           in which it is used or it is intended to be used, is
           calculated or likely to produce death or serious bodily
           injury.


Talbert, 129 A.3d at 543 (citing Pagan, 950 A.2d at 279).

     Furthermore,

              When the defendant introduces evidence of self-
           defense, the Commonwealth bears the burden of
           disproving such a defense beyond a reasonable
           doubt.    The Commonwealth cannot sustain its
           burden of proof solely on the factfinder’s disbelief of
           the defendant’s testimony. The disbelief of a denial
           does not, taken alone, afford affirmative proof that
           the denied fact existed so as to satisfy a proponent’s
           burden of proving that fact.

Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009) (citations and

punctuation marks omitted).

     The use of force in self-defense is justified under the following

circumstances:

           § 505. Use of force in self-protection

           (a) Use of force justifiable for protection of the
           person.—The use of force upon or toward another
           person is justifiable when the actor believes that
           such force is immediately necessary for the purpose
           of protecting himself against the use of unlawful
           force by such other person on the present occasion.

           (b) Limitations on justifying necessity for use
           of force.—

                                *     *      *




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           (2) The use of deadly force is not justifiable under
           this section unless the actor believes that such force
           is necessary to protect himself against death, serious
           bodily injury, kidnapping or sexual intercourse
           compelled by force or threat; nor is it justifiable if:

                (i) the actor, with the intent of causing death
                or serious bodily injury, provoked the use of
                force against himself in the same encounter; or

                (ii) the actor knows that he can avoid the
                necessity of using such force with complete
                safety by retreating, except the actor is not
                obliged to retreat from his dwelling or place of
                work, unless he was the initial aggressor or is
                assailed in his place of work by another person
                whose place of work the actor knows it to be.

18 Pa.C.S. § 505(a), (b)(1)-(2).

     Instantly, the Commonwealth presented, inter alia, the testimony of

Dion and Monique Dockens, eyewitnesses to the shooting. Both witnesses

testified that Baxter began slowly walking home after the argument outside

Dion Dockens’ residence appeared to end.           N.T. Vol. II at 30-31, 108.

Appellant and Payne-Casiano followed him in the car they were driving, and

Appellant stuck his arm out from the passenger-side window and began

firing a gun.   Id. at 31-33, 108-09.         Dion Dockens testified he was “a

hundred and fifty percent” certain that the first shots fired came from

Appellant. Id. at 34. Both witnesses indicated that Baxter did not point his

gun or make any aggressive movement toward the vehicle as he walked

home. See id. at 109-10; id. at 32 (testifying Baxter had his hands “in his

pants” and did not have his gun drawn as he walked home).



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      Viewing      the   evidence   in    the     light    most   favorable   to    the

Commonwealth, we conclude there was sufficient evidence adduced to prove

Appellant had the specific intent to kill Baxter.10 See Talbert, 129 A.3d at

542; Pagan, 950 A.2d at 278-79.             The jury was free to weigh all the

evidence and credit the testimony of the Commonwealth’s witnesses. See

Talbert, 129 A.3d at 543.      Moreover, the jury was free to infer Appellant

had the specific intent to kill when he fired his weapon at Baxter, who did

not   have   his    weapon   drawn,      three    times.      See    id.;   see    also

Commonwealth v. Chine, 40 A.3d 1239, 1242 (finding the defendant had

specific intent to kill where he fired three shots at “an unsuspecting,

unarmed victim who had his back to [the defendant]”).

      Likewise, we conclude the Commonwealth disproved Appellant’s self-

defense argument beyond a reasonable doubt.                See Rivera, 983 A.2d at

1221. The testimony of Dion and Monique Dockens established that at the

time Appellant fired his gun, Baxter did not have his gun drawn or take any

aggressive actions toward the car.           See N.T. Vol. II at 32, 109-110.

Furthermore, even by Appellant’s own testimony, at the time he alleged to

have heard shots fired, he was in his vehicle “beyond where Baxter was.”

N.T. Vol. III at 87-88.      Therefore, Appellant’s use of deadly force was

10
   The fact that Appellant killed an unintended victim does not affect our
analysis. “Pursuant to the doctrine of transferred intent, the intent to
murder may be transferred where the person actually killed is not the
intended victim.” Commonwealth v. Jones, 912 A.2d 268, 279 (Pa. 2006)
(citing 18 Pa.C.S. § 303(b)(1)).



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unjustified because the evidence established such force was not immediately

necessary for the purpose of protecting himself, and Appellant could have

avoided the use of deadly force by retreating.        See 18 Pa.C.S. § 505(a),

(b)(1)-(2).

      Next, Appellant challenges the trial court’s denial of his pretrial motion

for severance. He argues the note’s admission in the joint-trial violated his

right to cross-examine Payne-Casiano under the Confrontation Clause, citing

the United States Supreme Court’s decision in Bruton. Appellant’s Brief at

15-19. We hold Appellant is not entitled to relief.

      We first note:

              The decision whether to sever trials of co-defendants
              is within the sound discretion of the trial court and
              will not be disturbed on appeal absent a manifest
              abuse of discretion.     The determinative factor is
              whether the defendant has been prejudiced by the
              trial court’s refusal to sever his trial, and it is the
              burden of the defendant to establish such prejudice.

Commonwealth v. Bond, 985 A.2d 810, 824 (Pa. 2009) (citations

omitted).

                 The Confrontation Clause guarantees a criminal
              defendant the right to cross-examine witnesses.
              Ordinarily, a witness whose testimony is introduced
              at a joint trial is not considered a witness against a
              defendant if the jury is instructed to consider the
              testimony only against a co-defendant.            This
              principle is in accord with the well-established
              presumption that jurors will abide by their
              instructions. In Bruton, however, the United States
              Supreme Court recognized that “there are some
              contexts in which the risk that the jury will not, or
              cannot, follow instructions is so great, and the


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          consequences of failure so vital to the defendant,
          that the practical and human limitations of the jury
          system cannot be ignored.” Bruton, 391 U.S. at
          135, []. Accordingly, the Bruton Court held that, if
          a non-testifying co-defendant’s confession directly
          and powerfully implicates the defendant in the
          crime, then an instruction to the jury to consider the
          evidence     only    against   the    co-defendant    is
          insufficient, essentially as a matter of law, to protect
          the defendant’s confrontation rights.

Commonwealth v. Cannon, 22 A.3d 210, 217-18 (Pa. 2011) (some

citations, quotation marks, and alterations omitted; emphasis added).

However, “[w]hen the nontestifying co-defendant’s statement does not

inculpate the other co-defendant, there is no violation of the right of

confrontation.” Commonwealth v. Gribble, 703 A.2d 426, 437 (Pa. 1997)

(citation omitted), abrogated on other grounds by Commonwealth v.

Burke, 781 A.2d 1136 (Pa. 2001).

     Our Supreme Court has discussed how to asses Bruton challenges:

              In order to protect these rights, the Court has
          developed different analyses under the Confrontation
          Clause depending on how a statement is used at
          trial.  For example, where a hearsay statement,
          given by a non-testifying declarant is offered to
          establish the guilt of the non-declaring defendant,
          the court must consider whether it was admitted
          pursuant to either a firmly rooted hearsay exception
          or     contains    particularized   guarantees    of
          trustworthiness. Only if the hearsay statement was
          admitted under such circumstances will such a
          statement be deemed to respect the non-declaring
          defendant’s right of confrontation. On the other
          hand, where a hearsay statement is not admitted
          against the non-declaring co-defendant as evidence,
          then the court must consider whether sufficient
          precautions have been taken to insulate the non-


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           declaring co-defendant from spill-over prejudice due
           to the admission of the hearsay statement.

Commonwealth v. Overby, 809 A.2d 295, 300-01 (citations and quotation

marks omitted).

     A statement11 is hearsay if it is one that “the declarant does not make

while testifying” and “a party offers in evidence to prove the truth of the

matter asserted.” Pa.R.E. 801(c). Further, “[c]ommunications that are not

assertions are not hearsay.     These would include questions, greetings,

expressions of gratitude, exclamations, offers, instructions, warnings, etc.”

Id. at cmt. In Commonwealth v. Parker, 104 A.3d 17 (Pa. Super. 2014),

appeal denied, 117 A.3d 296 (Pa. 2015), this Court held “that when a

question includes an implied assertion, the question constitutes a statement

for the purpose of Rule 801(a). If that statement is offered for the truth of

the matter asserted, it is hearsay and is generally inadmissible.”   Parker,

104 A.3d at 24.12 “An out of court statement offered not for its truth but to



11
  A “‘statement’ means a person’s oral assertion, written assertion, or
nonverbal conduct if the person intended it as an assertion.” Pa.R.E. 801(a).
12
   In Parker, the relevant       testimony   came    from   the   defendant’s
grandmother, who testified:

           He said, Grandmom, he said, Grandmom, Can
           you tell Bey I didn’t take anything from
           anybody and I don’t have anything? He said,
           But can you tell him I didn’t take anything from
           him or the house. And I said, Put Bey on the
           phone and I will tell him you been in the house all



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J.A02026/16


explain the witness’s course of conduct is not hearsay.” Commonwealth v.

Rega, 933 A.2d 997, 1017 (Pa. 2007) (citation omitted).

               This Court has long recognized that any attempt
            by a defendant to interfere with a witness's
            testimony is admissible to show a defendant's
            consciousness of guilt. See, e.g., Commonwealth
            v. Johnson, 542 Pa. 384, 398–99, 668 A.2d 97, 104
            (1995) (concluding that a witness's testimony that a
            defendant offered him a bribe not to testify at trial
            was     admissible  to    show    the    defendant's
            consciousness    of  guilt);  Commonwealth         v.
            Goldblum, 498 Pa. 455, 472, 447 A.2d 234, 243
            (1982) (citing cases for the proposition that the
            Commonwealth may demonstrate consciousness of
            guilt through attempts by a defendant to intimidate
            or influence a witness).

Commonwealth. v. Johnson, 838 A.2d 663, 680 (Pa. 2003).

      Instantly, the statement was not admitted against Appellant, and the

jury was cautioned to only consider it as evidence against Payne-Casiano.

See Overby, 809 A.2d at 300-01.      The case sub judice does not present a

classic Burton issue in that the note is neither a confession by Payne-

Casiano offered for the truth of the matter asserted, nor does it directly and

powerfully implicate Appellant in the crime. See Cannon, 22 A.2d at 218.

The statement, itself, is not an assertion of truth; rather, it is a directive

from Payne-Casiano to another inmate to influence a witness’ testimony.

See Appellant’s Mot. to Sever at Ex. A; see also N.T. Vol. III at 54.

            day and you just went on the porch. And he said—I
            said, Where’s Bey? I said put Bey on the phone.

Parker, 104 A.3d at 21 (emphasis in original).



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Therefore, we conclude the statement is not hearsay.      See Pa.R.E. 801 at

cmt; Johnson, 838 A.2d at 680.         Further, the note does not imply an

assertion.   See Parker, 104 A.3d at 24.       It merely instructs Moffitt to

“convince” a witness to testify in a manner favorable to Appellant’s defense.

See Pa.R.E. 801 at cmt; Johnson, 838 A.2d at 680. Moreover, it did not

affirmatively inculpate Appellant at all because it did not assert that

Appellant was actually the one who shot his weapon first. See Gribble, 702

A.2d at 437.

      Under the circumstances of this case, no Bruton violation occurred.

The note, authored by Payne-Casiano and admitted as evidence against him

only, was not a confession that directly and powerfully implicated Appellant.

See Cannon, 22 A.3d at 218. Therefore, the trial court did not abuse its

discretion in declining to sever Appellant’s trial based on a Bruton violation.

See Bond, 985 A.2d at 824; see also Rega, 933 A.2d at 1017 (“Because

this case did not involve hearsay, it is clearly distinguishable from those

cases . . . regarding the reading of a co-defendant’s confession implicating

the defendant.”).

      Lastly, Appellant argues the verdict was against the weight of the

evidence.      Specifically, Appellant argues the testimony of Dion Dockens

conflicted with his prior statements and the testimony of Monique Dockens.

Appellant’s Brief at 20-21.    Appellant argues, “[b]ased on the evidence,




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Baxter arguably fired first and Appellant returned fire.”     Id. at 21.   We

conclude Appellant is not entitled to relief.

      We assess weight challenges mindful of the following:

               The weight of the evidence is exclusively for the
            finder of fact[,] who is free to believe all, none or
            some of the evidence and to determine the credibility
            of witnesses.

               Appellate review of a weight claim is a review
               of the exercise of discretion, not the underlying
               question of whether the verdict is against the
               weight of the evidence.        Because the trial
               judge has had the opportunity to hear and see
               the evidence presented, an appellate court will
               give the gravest consideration to the findings
               and reasons advanced by the trial judge when
               reviewing a trial court’s determination that the
               verdict is against the weight of the evidence.
               One of the least assailable reasons for granting
               or denying a new trial is the lower court’s
               conviction that the verdict was or was not
               against the weight of the evidence and that a
               new trial should be granted in the interest of
               justice.

Talbert, 129 A.3d at 545-46 (internal quotation marks and citations

omitted). Further, “[i]n order for a defendant to prevail on a challenge to

the weight of the evidence, the evidence must be so tenuous, vague and

uncertain that the verdict shocks the conscience of the court.” Id. at 546

(internal quotation marks and citation omitted)

      Instantly, Appellant’s arguments rest on a reassessment of the

credibility of witnesses. The jury heard the testimony and was free to credit

Dion and Monique Dockens’ trial testimony despite the inconsistencies. See



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id. at *8. In denying the post-sentence challenge based on the weight of

the evidence, the trial court concluded:

                After reviewing Dion and Monique’s testimony and
            the testimony provided by [Appellant] we are unable
            to find that [Appellant’s] testimony, given the facts
            provided in this case, should be given greater weight
            than Dion and Monique’s testimony.                  The
            inconsistencies between the testimony provided by
            Dion and Monique were not significant, both were
            consistent concerning the fact that [Appellant,] shot
            first. We therefore cannot find that the jury’s verdict
            and their rejection of [Appellant’s] testimony in favor
            of Dion and Monique’s testimony constitutes a denial
            of justice.

Trial Ct. Op., 4/13/15, at 5.

      We conclude the trial court properly exercised its discretion in denying

Appellant’s challenge to the weight of the evidence. The trial court did not

find the evidence so tenuous, vague, or uncertain as to afford Appellant a

new trial, and we give its determination the gravest consideration.       See

Talbert, 129 A.3d at 545-46. Accordingly, Appellant is not entitled to relief.

      Based on the foregoing discussion, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2016


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