J-A25001-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
BRYANT YOUNG,                            :
                                         :
                  Appellant              : No. 3027 EDA 2014

           Appeal from the Judgment of Sentence October 2, 2014,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0006568-2013

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED OCTOBER 20, 2015

       Appellant, Bryant Young (“Young”), appeals from the judgment of

sentence entered on October 2, 2014 by the Court of Common Pleas of

Philadelphia County, Criminal Division, following his convictions of first-

degree murder, carrying firearms on public streets or public property in

Philadelphia, attempted murder, and aggravated assault.1        After careful

review, we affirm.

       On July 11, 2011, around 2:00 a.m., Young approached, and

subsequently shot and killed, Raheem Cropper (“Cropper”) near the

intersection of Clearfield and Carlisle Streets in Philadelphia, Pennsylvania.

While in the act of killing Cropper, Young also shot Harriet Banks (“Banks”)

and attempted to shoot Theodore Williams (“Williams”).      On May 2, 2012,



1
    18 Pa.C.S.A. §§ 2502(a), 6108, 901(a), 2702(a).


*Former Justice specially assigned to the Superior Court.
J-A25001-15


Young was arrested and charged with first-degree murder and several other

related offenses. On September 30, 2014, Young elected a trial by jury. At

trial the Commonwealth presented the testimony of four witnesses who were

present at the scene of the shooting – Williams, Banks, Jerry Logan

(“Logan”), and Lorenzo Evans (“Evans”). Each of these witnesses provided

statements to police about Cropper’s murder shortly following his death. In

these statements, Williams and Evans each identified Young as the shooter.

During their testimony at trial, however, each recanted their identification of

Young. The trial court accurately summarized the evidence provided by the

four witnesses at trial and in their police statements as follows:

               On July 11, 2011, shortly after [2:00 a.m.],
            [Williams testified that he] was at Clearfield and
            Carlisle Streets in Philadelphia, where his friend,
            [Cropper], had just been shot. He moved Cropper
            into a white car belonging to [Evans, who] he knew
            as Spank, and they took Cropper to the hospital.
            Prior to the shooting, he had been sitting near
            Cropper and [Evans], who were socializing near the
            curb at the intersection of Clearfield and Carlisle
            Streets. Williams was looking at his phone when he
            heard the shots, and he ran in response to them.

               After he took Cropper to the hospital, Williams
            was taken to the Homicide Division of the
            Philadelphia Police Department to make a statement.
            In his statement, he said that he saw a young man
            named Munch approach Cropper prior to his death,
            and that some women who were hanging out nearby
            called out the name “Munch” as he approached. He
            heard the initial shots and ran from the porch, saw
            Cropper on the ground and heard him ask to be
            taken to the hospital. He then saw Munch shoot
            Cropper with a revolver while Cropper was prone.



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          Munch then aimed the gun at Williams and pulled the
          trigger, and the gun made a clicking sound,
          indicating that it was no longer loaded. Then Munch
          ran away and Williams and [Evans] started moving
          Cropper into the car to take him to the hospital. In
          his statement, Williams identified a photograph of
          [Young] as being the person he knew as Munch. At
          trial, [Williams] refused to acknowledge the veracity
          of his statement, and testified that he was there
          under duress and did not want to testify, that his
          family lives in Philadelphia, and that he did not want
          to have a “beef” with anybody.

             [Banks testified that she] lives on 15th and
          Clearfield Streets, near the site of the shooting. She
          knew [Cropper] for the entirety of his life and
          considered him to be a family member, though they
          were not related. She and her cousin Bernadette
          were sitting outside of a deli three doors down from
          where [Cropper] was sitting on the night of the
          shooting.     When she heard shots, she initially
          thought them to be firecrackers, as someone in the
          neighborhood had been lighting firecrackers earlier in
          the day. Then she felt the sensation of heat hitting
          her calf, and she ran east down Carlisle Street. She
          heard approximately five gunshots. In a statement
          to Homicide detectives, she gave a description of a
          young man she spoke with briefly just prior to the
          shooting, who then returned and shot [Cropper].
          She described him as tall, slim, and brown-skinned,
          and wearing a long-sleeved dark shirt. She then
          identified [Young] as the young man she had spoken
          with … from a set of eight photographs.

             Jerry Logan [testified that he] also lived in the
          area of the shooting and knew the decedent from his
          youth. He was talking with [Cropper] at the time of
          the shooting. He saw [Cropper] begin to run, and he
          ran toward him. Then [Cropper] fell, and he saw the
          shooter fire at him while he was lying down. He
          heard approximately five shots and thought the gun
          was a revolver. Logan then helped load [Cropper]
          into a car to be taken to the hospital. He never saw



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            the shooter’s face, as his back was to the shooter
            when the first shot was fired, and the shooter had
            his back to Logan when he shot [Cropper] on the
            ground.

               When Logan was taken to the Homicide division to
            give a statement, he gave the following description
            of the shooter: “He was tall, low haircut, about six-
            two. I’m five-ten and he was taller than me. He
            was dark skinned. I think he had a light brown pair
            of pants. I didn’t pay too much attention to his
            clothes. He was in his early 20s.”

                Lorenzo Evans is [Cropper]’s older cousin. Evans
            was sitting with [Cropper] on the night of the
            shooting. Evans began to run when he heard the
            first shot. He testified that he did not see the
            shooter or the gun, but he heard approximately six
            shots.

               Previously, in a statement given to Homicide
            detectives hours after the shooting, he said that
            someone named “Munch” had spoken with the
            decedent an hour or two before the shooting, and
            that there had been tension when he was there.
            Evans said that Munch came back later and shot the
            decedent. He identified [Young] as “Munch” from an
            array of eight photographs.

Trial Court Opinion, 12/24/14, at 2-4 (footnotes and record citations

omitted).

     On October 2, 2014, the jury found Young guilty of the above-

referenced crimes.2   Young waived a presentence investigation and the



2
   Young had also been charged with persons not to possess firearms (18
Pa.C.S.A. § 6105(a)(1)), firearms not to be carried without a license (18
Pa.C.S.A. § 6106(a)(1)), simple assault (18 Pa.C.S.A. § 2701(a)), and
recklessly endangering another person (18 Pa.C.S.A. § 2705).        These
charges were nolle prossed.


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parties proceeded to directly to sentencing.        The trial court imposed a

sentence of life imprisonment without the possibility of parole on the first-

degree murder charge, with concurrent terms of ten to twenty years of

incarceration on the attempted murder charge and one to two years of

incarceration on the carrying firearms on public streets or public property in

Philadelphia charge.3    On October 7, 2014, Young filed a post-sentence

motion, which the trial court denied on October 15, 2014. On October 26,

2014, Young filed a timely notice of appeal. On November 6, 2014, the trial

court ordered Young to file a concise statement of the errors complained of

on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate

Procedure.    On December 15, 2014, after receiving an extension of time,

Young filed a timely Rule 1925(b) statement.

      On appeal, Young raises the following issues for our review:

             1.     Whether the evidence was insufficient to
             establish [Young]’s guilt beyond a reasonable doubt
             on all charges, in the absence of any direct or
             sufficient circumstantial link connecting [Young] to
             the shooting, where: [Young] was observed at the
             scene [forty] minutes prior to the shooting driving a
             burgundy-colored truck, as opposed to the shooter’s
             gold-colored car; he was observed shaking hands
             with the decedent, showed no animosity toward him,
             and there was no evidence of motive whatsoever;
             where each of the Commonwealth’s four (4) fact
             witnesses unequivocally testified at trial that they did
             not see the shooter; where the two (2) witnesses
             who identified [Young] as “Munch” in their pretrial


3
   The aggravated assault charge merged with the attempted murder charge
for purposes of sentencing.


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          police statements (Messrs. Williams and Evans) did
          so expressly based on: (a) information provided by
          others as opposed to personal knowledge; (b)
          information provided by detectives; (c) coercion by
          detectives to provide information in their statements
          that they did not witness; and (d) explicitly based on
          the “assumption” that [Young] was the shooter
          merely because he was observed at the scene [forty]
          minutes earlier; and further, in circumstances where
          the factors pertinent to accuracy/reliability of
          identification overwhelmingly demonstrate that the
          identification at bar is utterly unreliable and
          insufficient as a matter of law?

          2.     Whether the verdict on all charges was against
          the weight of the evidence where the identification of
          [Young] was patently weak and inconclusive given
          that the only evidence tying [Young] to the shooting
          was vacillating and unreliable pretrial identifications
          of [Young] as “Munch,” where the identification of
          [Young] explicitly was based on sheer speculation,
          i.e., the assumption that he was the shooter merely
          because he had been on the block forty minutes
          earlier, and where each of the Commonwealth’s four
          fact witnesses testified that detectives in this case
          altered their statements, put words in their mouth,
          physically exhausted them and or flat out forced
          them to sign off on things they simply did not see?

          3.    Whether the trial court abused its discretion by
          permitting, over defense objection, Detective Harkins
          to reread the entire police statement of Harriet
          Banks, as opposed to limiting it to its prior
          inconsistent portions, where the Commonwealth
          already had read into evidence large portions of Ms.
          Banks[’] police statement during her examination,
          and where the rereading of her statement comprised
          cumulative evidence to the prejudice of [Young],
          particularly in a case where the Commonwealth’s
          evidence was so weak?

          4.    Whether the trial court abused its discretion by
          providing the jury with Mr. Evans’ entire police



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               statement, over defense objection, in lieu of
               instructing the jury to rely on their own recollection
               and without any alternative evidence, where such
               one-sided presentation of evidence to the jury during
               its deliberation skewed the importance of evidence,
               resulting in an unfair trial?

Young’s Brief at 5.

      For his first issue on appeal, Young claims that the evidence was

insufficient to support his convictions.     Id. at 18-21.   Specifically, Young

argues that the Commonwealth failed to prove his identity as the shooter

beyond a reasonable doubt. Id. at 18. In support of this argument, Young

provides several reasons why the eyewitness testimony identifying Young as

the perpetrator of the crime was unreliable. See id. at 18-21. Young relies

heavily on Williams and Evans, who identified Young as the shooter in police

statements, recanting their prior identification of Young at trial and the

inability of any other witness to identify Young as the shooter. Id. at 19-20.

      These arguments challenge the weight of the evidence, not its

sufficiency.    See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.

2014) (“An argument regarding the credibility of a witness’[] testimony goes

to the weight of the evidence, not the sufficiency of the evidence.”);

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(“variances in testimony go to the credibility of the witnesses and not the

sufficiency of the evidence”).

                   The distinction between these two challenges is
               critical. A claim challenging the sufficiency of the



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             evidence, if granted, would preclude retrial under the
             double jeopardy provisions of the Fifth Amendment
             to the United States Constitution, and Article I,
             Section 10 of the Pennsylvania Constitution, Tibbs
             v. Florida, 457 U.S. 31 (1982); Commonwealth v.
             Vogel, 461 A.2d 604 (Pa. 1983), whereas a claim
             challenging the weight of the evidence if granted
             would permit a second trial. Id.

                 A claim challenging the sufficiency of the evidence
             is a question of law.       Evidence will be deemed
             sufficient to support the verdict when it establishes
             each material element of the crime charged and the
             commission thereof by the accused, beyond a
             reasonable doubt. Commonwealth v. Karkaria,
             625 A.2d 1167 (Pa. 1993). Where the evidence
             offered to support the verdict is in contradiction to
             the physical facts, in contravention to human
             experience and the laws of nature, then the evidence
             is insufficient as a matter of law. Commonwealth v.
             Santana, 333 A.2d 876 (Pa. 1975). When reviewing
             a sufficiency claim the court is required to view the
             evidence in the light most favorable to the verdict
             winner giving the prosecution the benefit of all
             reasonable inferences to be drawn from the
             evidence. Commonwealth v. Chambers, 599 A.2d
             630 (Pa. 1991).

                A motion for new trial on the grounds that the
             verdict is contrary to the weight of the evidence,
             concedes that there is sufficient evidence to sustain
             the verdict. Commonwealth v. Whiteman, 485
             A.2d 459 (Pa. Super. 1984). Thus, the trial court is
             under no obligation to view the evidence in the light
             most favorable to the verdict winner. Tibbs, 457
             U.S. at 38 n.11.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations

modified).




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      Our Supreme Court has held that an “appellant’s challenge to the

sufficiency of the evidence must fail” where an appellant phrases an issue as

a challenge to the sufficiency of the evidence, but the argument that

appellant provides goes to the weight of the evidence. Commonwealth v.

Small, 741 A.2d 666, 672 (Pa. 1999); see also Commonwealth v. Gibbs,

981 A.2d 274, 281-82 (Pa. Super. 2009) (finding that a sufficiency claim

raising weight of the evidence arguments would be dismissed). Therefore,

Young is not entitled to any relief for his challenge to the sufficiency of the

evidence to support his convictions.

      Moreover, the evidence, viewed in the light most favorable to the

Commonwealth, was clearly sufficient to identify Young as the shooter. In

the argument section of his appellate brief, Young concedes that Williams

and Evans identified him as the shooter.          See Young’s Brief at 19.

Additionally, the certified record reflects that Williams and Evans each told

police following the shooting that Young was the shooter in this case. See

N.T., 9/30/14, at 88-112, 243-56.        In evaluating the sufficiency of the

evidence, “the fact-finder is free to believe all, part, or none of the evidence

presented.”   Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014). Here, based on its

verdict, the jury clearly believed the statements Williams and Evans gave to

police that Young was the perpetrator of the murder in this case. Contrary

to Young’s assertion, the mere fact that Williams and Evans “recanted



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[statements they] had previously made to the police certainly does not

render the evidence insufficient to support [Young]’s conviction.”       See

Commonwealth v. Hanible, 836 A.2d 36, 39 (Pa. 2003).4            Accordingly,

Young’s sufficiency of the evidence claim fails.

      For his second issue on appeal, Young properly argues that the verdict

in this case was against the weight of the evidence.5      When reviewing a

weight of the evidence claim, we consider the following:

                A motion for a new trial based on a claim that the
            verdict is against the weight of the evidence is
            addressed to the discretion of the trial court.
            Widmer, 744 A.2d at 751-52; [Commonwealth v.
            Brown, 648 A.2d 1177, 1189 (Pa. 1994)]. A new
            trial should not be granted because of a mere conflict
            in the testimony or because the judge on the same
            facts would have arrived at a different conclusion.
            Widmer, 744 A.2d at 752. Rather, “the role of the
            trial judge is to determine that ‘notwithstanding all
            the facts, certain facts are so clearly of greater
            weight that to ignore them or to give them equal
            weight with all the facts is to deny justice.’” [Id.]
            (citation omitted). It has often been stated that “a


4
    Young relies on Commonwealth v. Brown, 711 A.2d 444 (Pa. 1998),
and Commonwealth v. Wiley, 432 A.2d 220 (Pa. Super. 1981), in
asserting that a conviction cannot rest on evidence that establishes only a
fifty percent probability of guilt. See Young’s Brief at 20. Brown and
Wiley are inapplicable here, where Williams’ and Evans’ police statements,
which the jury clearly credited, established a likelihood of guilt far greater
than fifty percent.
5
   An appellant must preserve a challenge to the weight of the evidence
before the trial court either at sentencing or in a post-sentence motion.
Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478, 490
(Pa. Super. 2014). Here, Young preserved his challenge to the weight of the
evidence in his motion for post-verdict/sentence relief. See Motion for Post-
Verdict/Sentence Relief, 10/7/14, ¶ 3.


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           new trial should be awarded when the jury’s verdict
           is so contrary to the evidence as to shock one’s
           sense of justice and the award of a new trial is
           imperative so that right may be given another
           opportunity to prevail.” Brown, 648 A.2d at 1189.

               An appellate court’s standard of review when
           presented with a weight of the evidence claim is
           distinct from the standard of review applied by the
           trial court:

                    Appellate review of a weight claim is a
                 review of the exercise of discretion, not
                 of the underlying question of whether the
                 verdict is against the weight of the
                 evidence. Brown, 648 A.2d at 1189.
                 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.
                 Commonwealth v. Farquharson, 354
                 A.2d 545 (Pa. 1976). 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.

           Widmer, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations

modified). Thus, our task in evaluating a weight challenge is as follows:

              To determine whether a trial court’s decision
           constituted a palpable abuse of discretion, an
           appellate court must examine the record and assess
           the weight of the evidence; not however, as the trial



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            judge, to determine whether the preponderance of
            the evidence opposes the verdict, but rather to
            determine whether the court below in so finding
            plainly exceeded the limits of judicial discretion and
            invaded the exclusive domain of the jury. Where the
            record adequately supports the trial court, the trial
            court has acted within the limits of its judicial
            discretion.

Brown, 648 A.2d at 1190 (citation omitted).

      Young argues that the jury’s verdict was against the weight of the

evidence because all four of the Commonwealth’s fact witnesses (Williams,

Banks, Evans, and Logan) testified at trial that they did not see the shooter,

which differed, in the case of Williams and Evans, from their identifications

of Young as the shooter immediately following the shooting.      See Young’s

Brief at 22-28. Additionally, Young asserts that each of the four witnesses’

trial testimony indicates that the police in some manner coerced them into

naming Young as the shooter or that the police otherwise “doctored” their

statements. Id. Therefore, Young contends that none of the four witnesses’

statements to police were reliable.

      The certified record reflects the following.   The jury heard testimony

from Williams that the police answered the questions they posed to Williams

for him and that they kept Williams for thirteen to fourteen hours, not letting

him leave until he signed a statement. N.T., 9/30/14, at 115-17. The jury

also heard testimony from Banks that the information the police included in

her statement differed from what she had told them. Id. at 165-66, 173-




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74. The jury further heard testimony from Logan that the police kept trying

to coach him while he was giving his statement. Id. at 194. The jury finally

heard testimony from Evans that he originally told the police that he could

not identify the shooter, but that the police told him “that shit wasn’t good

enough” and that the police then coerced him into naming Young as the

shooter. Id. at 229, 260-64.

      In response to these allegations, the Commonwealth presented the

testimony of Detective John Harkins (“Detective Harkins”) and Detective

Kenneth Rossiter (“Detective Rossister”), the homicide detectives assigned

to this case. N.T., 10/1/14, at 179. Detectives Harkins and Rossiter were

responsible for taking the witness statements in this case. See id. at 179-

208, 218-30. Both detectives testified that they did not threaten or coerce

any of the witnesses when taking their statements and that the statements

they took from the witnesses were the witnesses’ own words. Id. at 207-

08, 229-30. Ultimately, the jury determined that despite the allegations of

police misconduct, each of the four witnesses’ police statements were

credible.

      “It is well established that this Court is precluded from reweighing the

evidence and substituting our credibility determination for that of the fact-

finder.”    Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014). “The weight of the evidence is a matter exclusively for the finder of

fact, who is free to believe all, part, or none of the evidence and to



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determine the credibility of the witnesses.” Commonwealth v. Gonzalez,

109 A.3d 711, 723 (Pa. Super. 2015). As the factfinder, the jury had the

responsibility of determining whether these factors affected the credibility of

the police statements. By convicting Young, the jury demonstrated that it

believed all or some of each of Williams’, Banks’, Logan’s, and Evans’ police

statements and that it found credible the testimony of Detectives Harkins

and Rossiter. Moreover, our review of the record reveals that each of the

four eyewitnesses’ police statements of the events that transpired during the

shooting, cited hereinabove, were largely consistent with one another. See

N.T., 9/30/14, at 85-112, 144-78, 186-96, 244-58. Therefore, based on our

review of the record, the trial court did not abuse its discretion in finding

that the verdict was not against the weight of the evidence.

      For his third issue on appeal, Young argues that the trial court erred

by permitting Detective Harkins to reread Banks’ entire police statement into

evidence after the Commonwealth had already read into evidence large

portions of it during Banks’ direct examination. See Young’s Brief at 28-35.

Young asserts that, because the Commonwealth had already read Banks’

statement into evidence, there was no need to have Detective Harkins

reread it to the jury.   Id. at 28-29, 35. Young contends that by allowing

Detective Harkins to reread Banks’ entire statement, the trial court

permitted purely cumulative evidence that was prejudicial to him because, in

his view, the evidence in this case was tenuous. Id.



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     Our standard of review regarding evidentiary issues is as follows:

               “The admissibility of evidence is at the discretion
           of the trial court and only a showing of an abuse of
           that discretion, and resulting prejudice, constitutes
           reversible error.” Commonwealth v. Sanchez, 36
           A.3d 24, 48 (Pa. 2011) (citations omitted). “An
           abuse of discretion is not merely an error of
           judgment, but is rather the overriding or
           misapplication of the law, or the exercise of
           judgment that is manifestly unreasonable, or the
           result of bias, prejudice, ill-will or partiality, as
           shown by the evidence of record.” Commonwealth
           v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007)
           (citation omitted), appeal denied, [] 956 A.2d 432
           (Pa. 2008). Furthermore, “if in reaching a conclusion
           the trial court overrides or misapplies the law,
           discretion is then abused and it is the duty of the
           appellate     court     to    correct    the    error.”
           Commonwealth v. Weakley, 972 A.2d 1182, 1188
           (Pa. Super. 2009) (citation omitted), appeal denied,
           [] 986 A.2d 150 (Pa. 2009).

Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012).

     Regarding cumulative evidence, this Court has explained,

               Otherwise relevant evidence may be excluded if
           its probative value is outweighed by its potential for
           prejudice. “The probative value of the evidence
           might be outweighed by the danger of unfair
           prejudice, confusion of the issues, misleading the
           jury, undue delay, pointlessness of presentation, or
           unnecessary presentation of cumulative evidence.”

Antidormi, 84 A.3d at 750 (quoting Commonwealth v. Page, 965 A.2d

1212, 1220 (Pa. Super. 2009)); see also Pa.R.E. 403.                 “We define

cumulative evidence as ‘additional evidence of the same character as

existing evidence and that supports a fact established by the existing




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evidence.’”   Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa. 2012)

(quoting Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super.

2007)).

     We conclude that the trial court did not err in permitting Detective

Harkins to reread portions of Banks’ police statement during his testimony

because his rereading of portions of Banks’ police statement was not the

presentation of cumulative evidence.        Throughout her testimony, Banks

alleged that the police either inaccurately or falsely transcribed her

statement.    See N.T., 9/30/14, at 162-82.         Thus, Detective Harkins’

testimony, in which he reread portions of Banks’ statement, confirmed that

those portions of her statement reflected exactly what she had told him, and

stated that he in no way coerced or threatened Banks’ or otherwise doctored

any portion of her statement, was necessary to rebut Banks’ claims that her

police statement was inaccurate and did not reflect what she told police.

See N.T., 10/1/14, at 200-08.

     Additionally, the certified record reveals that Detective Harkins did not,

as Young claims, simply reread Banks’ police statement in its entirety. See

N.T., 9/30/14, at 162-82; N.T., 10/1/14, at 200-03.      To the contrary, the

only portions of Banks’ police statement that Detective Harkins reread were

those portions of her police statement that she, on direct examination,

alleged that the police transcribed inaccurately. See id. Because Detective

Harkins’ rereading of Banks’ police statement was necessary to combat



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Banks’ claims that her police statement was inaccurate, the purpose of his

testimony was not merely to repeat portions of Banks’ police statement to

the jury.   Rather, the Commonwealth used it to refute the allegations of

mistake or impropriety on the part of the police in taking her statement.

Therefore, the trial court did not err in permitting Detective Harkins to

reread portions of Banks’ police statement, as it was not cumulative

evidence. See Flamer, 53 A.3d at 88 n.6.

      For his final issue on appeal, Young argues that the trial court erred by

providing the jury with Evans’ police statement, instead of instructing the

jury to rely on its own recollection, during deliberations. See Young’s Brief

at 36-41.     Young asserts that allowing the jury to have Evans’ police

statement during deliberations, without any alternative evidence favorable to

Young, caused the jury to place undue emphasis on the statement because

the jury returned with a verdict only an hour after receiving the statement,

after having deliberated for several hours prior to asking for the statement.

See id. at 40.

      Rule 646 of the Pennsylvania Rules of Criminal Procedure, which

governs “Material Permitted in Possession of the Jury” provides, in pertinent

part, as follows:

            (A) Upon retiring, the jury may take with it such
            exhibits as the trial judge deems proper, except as
            provided in paragraph (C).

                                *     *      *



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           (C) During deliberations, the jury shall not be
           permitted to have:

           (1) a transcript of any trial testimony;

           (2) a copy of any written or otherwise recorded
           confession by the defendant;

           (3) a copy of the information or indictment; and

           (4) except as provided in paragraph (B), written jury
           instructions.

Pa.R.Crim.P. 646(A), (C).

     Regarding Rule 646, this Court has explained:

              “Whether an exhibit should be allowed to go out
           with the jury during its deliberation is within the
           sound     discretion   of    the     trial   judge.”
           Commonwealth v. Merbah, [] 411 A.2d 244, 247
           ([Pa. Super.] 1979) (citing Commonwealth v.
           Pitts, [] 301 A.2d 646 ([Pa.] 1973)); Pa.R.Crim.P.
           1114 (renumbered 646, effective April 1, 2001).

                 The underlying reason for excluding
                 certain    items     from    the     jury’s
                 deliberations is to prevent placing undue
                 emphasis or credibility on the material,
                 and de-emphasizing or discrediting other
                 items not in the room with the jury. If
                 there is a likelihood the importance of
                 the evidence will be skewed, prejudice
                 may be found; if not, there is no
                 prejudice per se and the error is
                 harmless.

           Commonwealth v. Dupre, 866 A.2d 1089, 1103
           (Pa. Super. 2005) (quoting Commonwealth v.
           Strong, [] 836 A.2d 884, 888 ([Pa.] 2003)).




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Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012). Where

the material in question is not specifically prohibited by Rule 646(C),

“publication to the jury falls squarely within the discretion of the trial court

and, thus, the decision cannot be overturned absent an abuse of discretion.”

Id.   “Our courts have rarely found that materials given to juries during

deliberations constitute reversible error.” Id.

      We conclude that the trial court did not err in permitting the jury to

have access to Evans’ police statement during deliberations.       First, Evans’

police statement is not material specifically prohibited by Rule 646(C). See

Pa.R.Crim.P. 646(C).     Second, here, the jury only asked to review the

content of Evans’ police statement. See N.T., 10/2/14, at 116-29. The jury

did not ask to review the content of any of Williams’, Banks’, or Logans’

police statements.6   See id.   The jury indicated, by asking specifically for

Evans’ police statement and no other statement, that it had already

determined Evans’ police statement was important and was going to afford it

substantial weight.    Allowing the jury access to Evans’ police statement,

therefore, did not cause the jury to place any greater emphasis on the

statement than it already had. Moreover, by asking specifically for Evans’

police statement and no other statement, the jury also indicated that further

review of the three other police statements was not necessary for its



6
    We note that the jury did ask “[h]ow many pages was [Williams’]
statement at the police station?” N.T., 10/2/14, at 116.


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deliberations.   Even though the jury only had access to Evans’ police

statement during deliberations, the jury’s evident recollection of the other

three police statements counters any likelihood that the jury placed more

emphasis on Evans’ statement and improperly skewed the importance of

that evidence.

      Finally, we find unavailing Young’s argument that allowing the jury

access to Evans’ police statement without any alternative evidence favorable

to him resulted in the jury placing undue evidence on Evans’ statement.

Young does not cite, nor could we find, any authority in support of this

assertion.7   Furthermore, here, the jury did not request access to any

evidence during deliberations that would have been favorable to Young.

Accordingly, we conclude that the trial court did not abuse its discretion in

allowing the jury access to Evans’ police statement.

      Judgment of sentence affirmed.




7
   We note that this Court has held that the risk of the jury placing undue
emphasis on an exhibit to which it has access during deliberations decreases
when the jury has other exhibits in its possession during deliberations.
Barnett, 50 A.3d at 195.        Barnett, however, does not set forth a
requirement that the jury must have the additional exhibits in order to
prevent the jury from placing undue influence on the contested exhibit. See
id.


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J-A25001-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015




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