J-S12030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RASHAD ALI IBRAHIM,

                            Appellant                 No. 450 MDA 2017


      Appeal from the Judgment of Sentence entered January 30, 2017,
                in the Court of Common Pleas of York County,
            Criminal Division at No(s): CP-67-CR-0008008-2015.


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                          FILED APRIL 18, 2018

       Rashad Ali Ibrahim appeals pro se from the judgment of sentence

entered against him on arson and related charges.1 After careful review, we

affirm.

       The trial court summarized the facts of this case as follows:

       On March 27, 2015, at approximately 12:09 a.m., the West York
       Police and Fire Department responded to the rear of 1110 West
       Market Street for a report of a garage and car on fire. This was
       the residence of Delba Laguer, who is [Ibrahim’s] ex-girlfriend.
       Harry S. Heilman owns the residence and he had leased the top
       floor apartment to Ms. Laguer and another tenant occupied the
       bottom floor.


____________________________________________


1Ibrahim was charged with arson under 18 Pa. C.S.A. § 3301(c)(2); arson
under 18 Pa. C.S.A. § 3301(c)(1); risking catastrophe under 18 Pa. C.S.A. §
3302(b); two counts of criminal mischief under 18 Pa. C.S.A. § 3304(a)(1);
and arson under 18 Pa. C.S.A. § 3301(d)(2).
J-S12030-18


           Ms. Laguer stated that she had an argument two hours
     prior to the fire with [Ibrahim]. After the argument, the two
     parted ways and Ms. Laguer returned home. A short time later,
     Ms. Laguer heard the garage door shut and when she looked
     outside she observed a subject leaving the garage. She did not
     see the subject’s face, but stated the subject’s build and height
     was consistent with that of [Ibrahim].     Also, the subject was
     wearing clothing identical to what [Ibrahim] was wearing two
     hours prior when he and Ms. Laguer had last made contact.
     Subsequently, Ms. Laguer heard her car alarm and went to the
     detached garage behind her residence to determine why the
     alarm had started.     Ms. Laguer then observed her vehicle, a
     1999 Mazda sedan, fully engulfed in flames and fire spreading
     throughout the garage. At that point she called the police.

            Detectives later obtained evidence that linked [Ibrahim] to
     the fire. Surveillance photos were obtained from the Giant Food
     Store of [Ibrahim] purchasing one can of Giant brand lighter
     fluid and a pack of lighters. This particular store is located
     approximately one block from the location of the fire. [Ibrahim]
     purchased the lighter fluid and the lighters twenty (20) minutes
     prior to the fire occurring that evening.         Additionally, the
     individual in the surveillance photos was wearing the same gray
     sweatshirt that Ms. Laguer identified the man she observed
     leaving the garage wearing on the night of the alleged incident.
     [Ibrahim] was subsequently charged with the [arson related]
     offenses.

           On November 9, 2016, at the conclusion of the trial, a jury
     unanimously found [Ibrahim] guilty on all counts. Sentencing
     was deferred in order for [Ibrahim] to obtain a pre-sentence
     investigation. On January 30, 2017, [Ibrahim] was sentenced to
     [an aggregate term of 2-4 years’ incarceration in a State
     Correctional Institution]. Additionally, [Ibrahim] was ordered to
     pay restitution to Harry S. Heilman, the landlord of 1110 West
     Market Street, in the amount of five-hundred dollars ($500.00).

           On February 8, 2017, [Ibrahim] filed a Post-Sentence
     Motion moving for a Judgment of Acquittal. On February 13,
     2017, [the trial court] denied [Ibrahim’s] Post-Sentence motion.
     A timely notice of appeal was filed on March 9, 2017.

Trial Court Opinion, 10/24/17, at 2-4.



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J-S12030-18



       After filing the notice of appeal, Ibrahim was not satisfied with his

counsel’s 1925(b) Statement of Matters Complained of on Appeal and

requested to proceed with his appeal pro se. Following a Grazier hearing,2

the trial court entered an order allowing Ibrahim to proceed in his appeal pro

se. Both Ibrahim and the court complied with Pa.R.A.P. 1925.

    We summarize the four issues raised by Ibrahim for consideration on

appeal as follows:

          1. Was the evidence at trial insufficient for a jury to
             convict Ibrahim beyond a reasonable doubt of arson
             and related charges because the prosecution never
             established that a crime was committed;

          2. Did the court err in allowing the Commonwealth to
             request a jury instruction on “flight” and “consciousness
             of guilt” after closing arguments which resulted in
             Ibrahim being denied the opportunity to rebut the
             evidence during trial;

          3. Did the court err in allowing inadmissible hearsay; and

          4. Did the court abuse its discretion in admitting certain
             opinion testimony of Charles Zienkiewicz.

See Ibrahim’s Brief at 3.

       In reviewing sufficiency of evidence claims, “we determine whether the

evidence admitted at trial, and all the reasonable inferences derived

therefrom viewed in favor of the Commonwealth as verdict winner, supports

____________________________________________


2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requiring the trial
court to hold an on-the-record determination of whether a defendant’s
waiver of counsel is knowing, intelligent and voluntary, before allowing that
defendant to conduct a pro se appeal).



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the jury's findings of all the elements of the offense beyond a reasonable

doubt.” Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017)

(citation omitted). A sufficiency challenge is a pure question of law. Thus,

our standard of review is de novo and our scope of review is plenary. Id.

      Ibrahim was convicted of 6 separate charges. Although Ibrahim first

challenges the sufficiency of evidence on the arson and related charges, he

only sets forth an argument with respect to the charge of arson at 18

Pa.C.S.A. § 3301(c)(2). We conclude that Ibrahim’s challenge to the

remaining charges is waived. Commonwealth v. Hardy, 918 A.2d 766, 771

(Pa. Super. 2007) (explaining this Court “will not act as counsel and will not

develop arguments on behalf of an appellant. Moreover, when defects in a

brief impede our ability to conduct meaningful appellate review, we may

dismiss the appeal entirely or find certain issues to be waived.”).

      On the charge of arson, the relevant statute provides:

         3301(c)(2), Arson Endangering Property

         (c) A person commits a felony of the second degree if he
         intentionally starts a fire or causes an explosion, whether
         on his own property or that of another, or if he aids,
         counsels, pays of agrees to pay another to cause a fire or
         explosion, and if:

            (2) he thereby recklessly places an inhabited building or
            occupied structure of another in danger of damage or
            destruction.

18 Pa.C.S.A. § 3301(c)(2).

      Ibrahim argues on appeal that the evidence presented to the jury did

not establish the fire was intentionally set.        This argument was not


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specifically raised in his 1925(b) statement.        Thus, the trial court only

addressed the second part of this charge as it relates to recklessly

endangering an occupied building.      The court concluded Ibrahim’s conduct

“evidenced the legal malice needed to establish that [Ibrahim] consciously

disregarded a substantial and unjustifiable risk that the residence located at

1110 West Market Street could have been damaged or destroyed by the fire

set to the vehicle located in the detached garage.”         Trial Court Opinion,

10/24/17 at 12. We agree with the court’s analysis of this issue.

      Regarding the intentional aspect of the crime, Ibrahim did not raise

this issue prior to filing his appellate brief.   He did not specify to the trial

court which of the criminal charge(s) lacked sufficient evidence, what

elements of those charge(s) lacked proof, and why the evidence was

insufficient to support the verdict. As we have previously held, “a Concise

Statement which is too vague to allow the court to identify the issues raised

on appeal is the functional equivalent to no Concise Statement at all.”

Commonwealth v. Heggins, 809 A.2d. 908, 911 (Pa. Super. 2002)

(citation omitted).    Because the challenge to lack of intent was not

previously raised, we find that it is waived. See Hardy, supra.

      If the issue was preserved and properly raised, we would still find it

lacks merit.   First, Ibrahim relies on our decision in Commonwealth v.

Scott, 597 A.2d 1220 (Pa. Super. 1991) to suggest that his guilt was not

proven by a reasonable doubt.       Ibrahim’s Brief at 11. In Scott, however,

the court concluded there was an equally sufficient possibility that a third

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J-S12030-18



party committed the offense, and that the Commonwealth did not

sufficiently cast doubt on that person.     Id. at 1224.   Linda Scott told the

police that she was fighting with her boyfriend, Nate Williams, about his

excessive drinking and smoking crack, on the night of the incident. She

threatened to take their two-year old baby and leave.               He became

aggressive with her so she took the baby and went downstairs. She realized

that she left her pocketbook and shoes in the room with Williams, but was

afraid to go back upstairs unarmed, so she grabbed the charcoal fluid

because it was the first thing she saw. She planned to use it to defend

herself if necessary.     When she went back upstairs, Williams swung his

crutches at her, so she sprayed a little bit of kerosene, charcoal fluid, at him,

but then she left.      Scott did not know how the fire started; she denied

putting a match to the lighter fluid or in any way starting the fire herself.

Ten minutes later, the house was in flames. The trial court found that Scott

was not believable and that she deliberately, willfully and maliciously set the

fire.

        On appeal, we recognized that the Commonwealth may establish the

entirety of its case through circumstantial evidence.      Id. at 1223 (citing

Commonwealth v. Colon, 399 A.2d 1068, 1073 (Pa. Super. 1979)).

However, we concluded that the reasonable inferences from the record, in

that case, were equally consistent with the possibility that the fire was set by

Williams instead of Scott. Id. at 1224. The Commonwealth offered no proof




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J-S12030-18



to cast doubt on those inferences. As such, we found no evidence to support

the conclusion, beyond a reasonable doubt, that Scott had set the fire. Id.

         The facts of Ibrahim’s case differ significantly from Scott, in that

Ibrahim was the only one with a motive (he fought with his ex-girlfriend

shortly before the fire), he was seen on video surveillance buying both

lighter fluid and a lighter (indicating he intended to light a fire), and he was

the only person seen leaving the garage, minutes before it was engulfed in

flames. Additionally, Ibrahim told someone on his cell phone, in front of the

cashier, that he had a feeling he was going to jail or getting arrested that

night.     N.T., 11/9/16, at 155, 161-62.      Unlike in Scott, there was not

another equally likely perpetrator at the scene who could also have caused

the fire, and Ibrahim had lighters with him to start the fire.

         Ibrahim also contends the Commonwealth did not establish that a

crime actually occurred because the cause of the fire was undetermined, as

classified by Fire Captain Zienkiewicz. Brief at 12.

         Captain Zienkiewicz testified that he contacted the state police fire

marshal, but the marshal was unwilling to investigate this fire because it was

solely a vehicle and there were no civilian casualties and no residential

damage.       N.T., 11/9/16, at 215.    The Captain could not determine the

location the fire started, but did not believe the fire was accidental. Id. at

220.

         The Commonwealth’s expert, Albert Lattanzi, testified that the fire was

started by an ignitable liquid, but could not narrow the cause to a specific

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J-S12030-18



product, because the isoparaffinic compound is found in many household

products, including charcoal fluid, paint thinners, and degreasers.                Id. at

206-09.

      Detective David Kahley found a red cap from a can of lighter fluid in

the garage next to the car. Id. at 170. The cap was identical to those on

the Giant brand lighter fluid.         Id. at 176.      Ibrahim checked out at 11:47

p.m. with a can of lighter fluid and a lighter, and the 9-1-1 call for the fire

came at 12:07 a.m.       Id. at 184.

      As we previously stated, the Commonwealth may sustain its burden of

proof beyond a reasonable doubt by means of wholly circumstantial

evidence.   Commonwealth v. Lewis, 911 A.2d 558                       (Pa. Super. 2006).

Although no one actually saw Ibrahim start the fire, the jury heard ample

circumstantial evidence, which we view in the light most favorable to the

Commonwealth as the verdict winner. Looking at all the evidence, the jury

inferred that Ibrahim intended to start the fire.                  The jury found this

evidence sufficient, and we will not substitute our judgment for theirs. See,

e.g., Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super.

2003).      Thus,   we    find    no    merit   to     Ibrahim’s   argument     that   the

Commonwealth failed to present evidence of a crime.

      Ibrahim’s second issue on appeal is whether the court erred in allowing

the   Commonwealth        to     request    a   jury    instruction    on   “flight”   and

“consciousness of guilt” after closing arguments, which resulted in Ibrahim

being denied the opportunity to rebut the evidence during trial.

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J-S12030-18



       Following   closing   arguments,   the   trial   judge    called   a   sidebar

conference and asked the Commonwealth if it wanted the charge regarding

consciousness of flight. N.T., 11/9/16, at 276. Ibrahim objected to adding

this instruction to the closing charge because the charging conference was

already concluded.     Id. The trial judge overruled the objection and stated

that “this is a charge that would be appropriate” and that the timing of the

submission was not an issue. Id. at 277.

       The court relied on Criminal Rule of Procedure 647(E), which provides,

in relevant part, that “[t]he trial judge may give any other instructions to the

jury before the taking of evidence or at any time during the trial as the

judge deems necessary and appropriate for the jury’s guidance in hearing

the case.” Pa. R. Crim. P. 647 (E).

       Although this rule gives a trial judge leniency before and during the

trial, it must be read in conjunction with Rule 647 (B), which provides in

part: “Before closing arguments, the trial judge shall inform the parties

on the record of the trial judge’s rulings on all written requests and which

instructions shall be submitted to the jury in writing. The trial judge shall

charge the jury after the arguments are completed.”             Pa. R. Crim. P. 647

(B).

       This Rule, formerly Rule 647(A), was amended in 1985 to change prior

practice, pursuant to which the trial court did not rule on proposed jury

instructions until after counsel for the parties had completed their closing

arguments to the jury. As this Court recognized in Commonwealth v.

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Hendricks, 546 A.2d 79 (Pa. Super. 1988), appeal denied, 522 Pa. 573,

559 A.2d 35 (1989), the difference in the procedure following the 1985

amendment is that the court now is required to rule on proposed written

jury instructions before closing arguments and charging the jury, whereas

under the old procedure, the court ruled on the requested jury instructions

after closing arguments and the charge to jury. Id. at 81 (emphasis in

original). Noting that Rule 647[B] effectively mirrors Rule 30 of the Federal

Rules of Criminal Procedure, this Court indicated that under both rules, the

trial court “is required to rule on all proposed jury instructions prior to

charging the jury and closing summations.” Id.

     We further recognized that “[t]he purpose of this rule is to require the

judge to inform [counsel] in a fair way what the charge is going to be, so

that they may intelligently argue the case to jury.” Id. (citing United

States v. Wander, 601 F.2d 1251, 1262 (3d Cir.1979)); see also

Commonwealth v. Alston, 748 A.2d 677, 679 (Pa. Super.) appeal denied,

795 A.2d 970 (Pa. 2000).    In essence, the rule requires the trial court to

provide the parties with adequate notice of the instruction before closing

argument, and the rule is plainly violated when the trial court presents a

new theory of liability, or otherwise materially modifies the original

instructions, after closing arguments have been completed. See generally

Commonwealth v. Melvin, 103 A.3d 1, 43–51 (Pa. Super. 2014; United

States v. Smith, 789 F.2d 196, 202 (3d Cir. 1986).




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       Thus, the trial court's decision to issue a supplemental instruction to

the jury on flight, in this case, after closing arguments violated Rule 647(B).

At no time prior to closing arguments did the trial court advise counsel that

it intended to instruct the jury on consciousness of flight. It was only after

closing arguments that the court suggested adding this charge, because it

thought the charge was appropriate.

       We have previously held that a violation of Rule 647[B], however,

does not ipso facto mandate a reversal for a new trial.   Melvin, 103 A.3d at

49. In Melvin, the trial court gave an additional instruction once the jury

had retired to deliberate; defendant Orie Melvin objected.     Fully analyzing

this issue, we relied on our decisions in Alston, and Hendricks, before

concluding that “prejudice is indeed a mandatory component” of a Rule

647[B] inquiry.3 Id.

____________________________________________


3 In Hendricks, we compared cases applying the federal rule on this issue,
and observed that “[f]ailure of the court to comply with Rule 30 requires the
granting of a new trial if ‘counsel's closing argument was prejudicially
affected thereby.’” Hendricks, 546 A.2d at 81 (quoting United States v.
McCown, 711 F.2d 1441, 1452 (9th Cir. 1983)). Further, in Hendricks we
analyzed in great detail the jury instruction requests made by counsel and
the closing argument made to the jury, drawing a nexus between the court's
error and counsel's specific statements. Finally, our holding in Hendricks is
quite clear: “Accordingly, we conclude that the court's failure to inform
counsel of its ruling on the requested points for charge prior to closing
arguments and the jury instruction, was prejudicial to appellant's defense
and warrants that a new trial be granted.” Id. at 83. In light of all of these
factors, we held that Rule [647] relief is not warranted unless prejudice has
been established. Alston, 748 A.2d at 679.




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      In Melvin, before we addressed Orie Melvin's contention that she

suffered actual prejudice resulting from the trial court's clear error, we noted

that she arguably waived this claim by failing to request the opportunity to

offer additional argument to the jury to address the supplemental charge

after being informed that it would be given.        Id.     We observed that

although this issue had not been discussed by any Pennsylvania appellate

court in connection with Rule 647[B], federal courts have held that prejudice

resulting from violations of Federal Rule of Criminal Procedure 30 may, in

some cases, be ameliorated or eliminated by permitting counsel the

opportunity for supplemental argument to the jury. Id; see, e.g., United

States v. Fontenot, 14 F.3d 1364, 1368 (9th Cir.1994) (holding when a

new theory is presented to the jury in a supplemental instruction, after

closing argument, the court generally should give counsel time for additional

argument); United States v. Civelli, 883 F.2d 191, 196 (2d Cir.1989)

(finding that the principles underlying Rule 30 may very well require that the

district court allow further argument after an additional instruction has been

given); United States v. Gaskins, 849 F.2d 454, 457 (9th Cir. 1988)

(granting a new trial for violation of Rule 30 after the district court denied

defense counsel's request to reopen closing argument); but see Cruz v.

State, 407 Md. 202, 963 A.2d 1184, 1192 (2009) (concluding that a

supplemental closing argument would not have cured the problem created

by the court's eleventh hour insertion of a new theory of culpability) (some

citations and quotations omitted).

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      In Melvin, because neither party raised or briefed the waiver issue,

and, because under Pennsylvania law, a violation of Rule 647[B] was still

novel, we addressed Orie Melvin's claim of actual prejudice on its merits.

Melvin, 103 A.3d at 49.     We note that because Ibrahim’s counsel did not

ask to readdress the jury in light of this additional charge, this arguably

constituted a waiver of the issue.      However, we will address the prejudice

claim.

      Here,   Ibrahim   argues   that    the   court   erred   in   allowing   the

Commonwealth to request a jury instruction on “flight” and “consciousness

of guilt” after closing arguments, which resulted in Ibrahim being denied the

opportunity to rebut the evidence during trial. The inclusion of an additional

instruction, after closing arguments, would not have resulted in additional

testimony or an opportunity to rebut evidence during the trial.      Thus, if this

is Ibrahim’s argument, we find he suffered no prejudice.

      Assuming Ibrahim means the additional instruction denied him the

opportunity to address the consciousness of guilt and flight issues in his

closing argument, we still find no prejudice.          In reviewing his closing

argument, we note that Ibrahim’s counsel anticipated an argument from the

Commonwealth about flight and consciousness of guilt, and he addressed it

as follows:

             Now let’s talk about [Ibrahim]. You heard no evidence
      that he ever confessed to these crimes, had burn marks, burn
      injuries from starting the fire, or that the police found any
      evidence on him indicating he was involved in the fire. As to
      that, the Commonwealth will most likely argue he was hiding

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J-S12030-18


      from them. However, you heard mention [Ibrahim] had a job at
      the time the police were looking for him, and Detective Kahley
      never asked relatives or anyone if they knew where he was.

            And ask yourself, if he didn’t commit a crime, why would
      you have any idea that the police were looking for you or try to
      hide?

             In conclusion, what do you have?               No direct evidence
      linking [Ibrahim] to the scene of the crime.

N.T., 11/9/16, at 263.

      Our review of the record shows Ibrahim argued against the flight

theory by addressing the issue of whether he was “hiding” when police were

allegedly looking for him after the fire.        Ibrahim did not state what other

arguments he would have made, or what other evidence he would have

referred to in his closing, if he had known the judge was going to give the

contested instruction.       Without so stating, he is essentially arguing

presumed prejudice.      This, we have held, is insufficient.        Melvin, at 50.

Ibrahim has not provided this Court with any basis to evaluate the degree, if

any, of any actual prejudice resulting from the trial court's error. As such,

we find no prejudice occurred by the judge’s decision to give this additional

instruction after closing arguments.

      Ibrahim’s third allegation of error is that the trial court allowed

inadmissible hearsay testimony from Detective David Kahley.                 Ibrahim

contests   the   following    exchange      on     direct     examination   by   the

Commonwealth:




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            Q. I’m showing you what I’ve marked as Commonwealth’s
               exhibit number 25, do you recognize that?

            A. I do. These are the two pictures that I was provided
               that I showed to Delba Laguer.

            Q. And after showing those pictures to Delba did she
               make any identifications?

            A. She did. She positively identified the person as the
               defendant.

            Q. And did she identify him as what? How did she identify
               him?

            A.   That she knew from being her former boyfriend.

N.T., 11/9/16, at 177-178.

      Ibrahim objected to this testimony on the grounds of hearsay.        The

trial court overruled the objection. This Court can affirm on any basis that is

supported by the record. See Commonwealth v. Clouser, 998 A.2d 656,

661 n.3. (Pa. Super. 2010).

      The trial court determined that this testimony was admissible because

it was not offered for the truth of the matter asserted, but to explain

Detective Kahley’s course of conduct regarding the steps he took in

investigating the fire.   Trial Court Opinion, 10/24/17, at 19.    An “out-of-

court statement offered not for its truth but to explain a witness’s course of

conduct is not hearsay.”     Commonwealth v. Rega, 933 A.2d 997, 1017

(Pa. 2007) (citing Commonwealth v. Sneed, 526 A.2d 749, 754 (Pa.

1987) (holding that where a police officer related the contents of a radio call

that prompted his trip to the crime scene, such testimony was not hearsay



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because it was introduced solely to explain how the officer came to be at the

scene)).   Course of conduct testimony is often applied to police, allowing

them to explain what information they were acting on when they pursued a

particular avenue of investigation. See, e.g., Commonwealth v. Johnson,

42 A.3d 1017, 1035 (Pa. 2012).

     We agree that this testimony was not hearsay as it was not offered for

the truth of the matter asserted.   Additionally, we conclude that admission

of the statements was harmless, because Ms. Lauger was present at trial,

testified, and was not only available for cross examination, but was in fact,

subjected to cross-examination.      We find no error in admitting this

testimony from Detective Kahley.

     Ibrahim’s final contention on appeal is whether the court abused its

discretion in admitting certain opinion testimony of Fire Captain Charles

Zienkiewicz of the West York Borough Fire Department.            Specifically,

Ibrahim raises five arguments regarding this testimony:
      1) It was based off of information learned from others;

     2) It called for conclusions based on specialized knowledge for
        which the witness was not qualified as an expert;

     3) No notice was provided to Ibrahim, regarding the opinion
        presented;

     4) No expert report was provided; and

     5) No basis existed under Pa. R.E 702 to admit the witness as an
        expert, nor under Pa. R.E. 701 as a lay opinion.

See Ibrahim’s Brief at 20.



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      Preliminarily, we note decisions concerning the admissibility            of

evidence are within the sound discretion of the trial court and will be

reversed only upon a showing that the trial court clearly abused its

discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.

2015) (citation and quotation omitted). “Accordingly, a ruling admitting

evidence will not be disturbed on appeal unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.” Commonwealth v. Huggins, 68 A.3d

962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).

      Here, the court found Captain Zienkiewicz did not testify as an expert

witness at trial, but rather gave permissible lay witness testimony. Trial

Court Opinion, 10/24/17, at 14-18. We agree.

      When a witness's testimony is based upon “scientific, technical, or

other specialized knowledge [ ] beyond that possessed by the average

layperson,” the witness must be qualified as an expert “by knowledge, skill,

experience,     training   or   education.”     Pa.R.E.   702(a).   Nevertheless,

Pennsylvania Rule of Evidence 701 permits a lay witness to offer opinion

testimony so long as the opinion is:

      (a)     rationally based on the witness's perception;

      (b)     helpful to clearly understanding the witness's testimony or to
              determining a fact in issue; and

      (c)     not based on scientific, technical, or other specialized knowledge
              within the scope of Rule 702.



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Pa.R.E. 701.    Further, this Court has noted that “lay opinion testimony

embracing an ultimate issue in a case is admissible as long as the witness

perceived the events upon which his opinion is based.” Commonwealth v.

Bowser, 624 A.2d 125, 133 (Pa. Super. 1993), appeal denied, 644 A.2d

161 (Pa. 1994), cert. denied, 513 U.S. 867 (1994).

      Pursuant to Pennsylvania Rule of Evidence 104(a), the trial court

exercises its discretion to determine whether such a lay opinion is helpful to

the factfinder, which is the touchstone of its admissibility. See Pa.R.E.

104(a); Lewis v. Mellor, 393 A.2d 941, 948–49 (Pa. Super. 1978) (en

banc) (describing this procedure under the Federal Rules and adopting this

approach in Pennsylvania).

      This Court's decision in Commonwealth v. Kennedy, 151 A.3d 1117

(Pa. Super. 2016), is instructive. In Kennedy, the trial court denied an oral

motion in limine to preclude a police crime scene investigator from testifying

regarding her observations of the trajectory of bullets fired through the

victim's door. Id. at 1121. The officer later testified that “she placed rods in

the bullet holes of the door” and that “the only logical conclusion based upon

the bullet trajectories, ... was that the door was slightly ajar when [the

defendant] shot [the victim].” Id. at 1122.        On appeal, the defendant

argued the court erred in permitting the officer to offer her lay opinion that

the door was “slightly open” at the time of the shooting. Id. However, we

disagreed, concluding the officer's testimony was a permissible lay opinion


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based on the officer's perception of the crime scene, and did not require the

specialized knowledge of an expert witness. Indeed, we explained “[a]ny

individual could place a rod in a bullet hole and discern which direction the

bullet traveled.” Id. at 1123.   See also Commonwealth v. Berry, 172

A.3d 1, 5 (Pa. Super. 2017) (holding that police could give lay opinion that

spots on floor appeared to be blood).

      Here, Captain Zienkiewicz testified that he personally observed the

fire-damaged car.    He stated that “[t]here was a lot of damage to the

vehicle. There was a lot of damage to the structure itself.” N.T., 11/9/16,

at 216. He also stated “I did notice there was a lot of heavy damage in the

interior of the vehicle, not typical of a fire that would say just start in the

engine compartment.” Id. at 219.     And further:

         then looking at the vehicle, seeing the damage did not
         start in the engine compartment, but in the interior of the
         vehicle, it was really hard for me to say it was per se
         accidental, but I could not – on my statement – I couldn’t
         have that determination that [] indeed,       in fact, was
         caused by anything else.          So I had it marked
         undetermined.     I could not prove that anybody lit it,
         started it or whatnot. And the car was so damaged that
         [] I don’t think we would have been able to find a pinpoint
         origin on where it started, so we did label it on the fire
         department’s side as undetermined.

Id. at 220.

      He explained that in an engine compartment fire, the majority of the

damage is in the engine compartment and the engine compartment solely.

Id. at 221. That was not the case here.


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       Additionally, Captain Zienkiewicz testified to the common, well-known

fact that “it’s not typical of a car to just spontaneously combust.”    Id. at

222.   Although he learned that the car had been sitting idle from other

sources, this information was irrelevant to his statement. He never opined

that this particular car did not spontaneously combust. Instead, he spoke in

general terms about his everyday practical knowledge of fires. It does not

take scientific or specialized knowledge to conclude that cars do not

spontaneously combust, or to conclude that if most of the damage was to

the interior of the car that the fire did not start in the engine.   Thus, his

opinions were merely lay opinions, permissible under Rule 701.

       Significantly, the Captain could not determine the cause of the fire. He

never stated that this fire was caused by arson or an accelerant, nor did he

determine the location of origin of the fire, which would have required expert

testimony. Thus, Captain Zienkiewicz did not proffer an expert opinion on

causation under Rule 702, but merely offered his general observations and

conclusions based on what he witnessed at the scene. We discern no abuse

of discretion in admitting this limited lay opinion testimony.

       In sum, we find no merit to any of Ibrahim’s four issues on appeal.

The evidence at trial was more than sufficient for a jury to convict Ibrahim

beyond a reasonable doubt of arson; his claims on the related charges are

waived.    Although the trial court erred in allowing the Commonwealth to

request a jury instruction on “flight” and “consciousness of guilt” after

closing arguments, this resulted in no prejudice to Ibrahim. The court did

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not err in allowing testimony of Detective Kahley about his conversation with

the victim. Finally, the court did not abuse its discretion in admitting certain

lay opinion testimony of Charles Zienkiewicz. Therefore, we affirm Ibrahim’s

judgment of sentence.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/18/18




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