J-A32012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JOSEPH THOMAS GAINER,

                        Appellant                 No. 1673 WDA 2014


        Appeal from the Judgment of Sentence September 4, 2014
           In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0017534-2009


BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED JANUARY 25, 2016

      Appellant, Joseph Thomas Gainer, appeals from the judgment of

sentence entered following his conviction of criminal homicide, robbery and

criminal conspiracy. We affirm.

      The trial court summarized the procedural and factual history of this

case as follows:

            [Appellant] was charged with Criminal Homicide,1
      Robbery,2 Carrying a Firearm Without a License3 and Criminal
      Conspiracy4 in relations [sic] to events that occurred when he
      was 17 years old.      Prior to trial, the firearms charge was
      dismissed. Following a jury trial held before [the trial court]
      from April 11-14, 2011, [Appellant] was convicted of Second-
      Degree Murder and all remaining charges. On April 20, 2011,
      [Appellant] appeared before [the trial court] and was sentenced
      to a mandatory term of life imprisonment. Timely Post-Sentence
      Motions were filed and were denied by operation of law on
      September 26, 2011. [Appellant] appealed, raising a Miller
      claim, among other issues. [The trial court] conceded that the
      sentence was illegal and the Superior Court remanded the case
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       for re-sentencing. [Appellant] was re-sentenced on September
       4, 2014 to a term of imprisonment of 35 years to life. Timely
       Post-Sentence Motions were filed and were denied on September
       [18], 2014. This appeal followed.[1]
              1
                18 Pa.C.S.A. §2501(a)
              2
                18 Pa.C.S.A. §3701(a)(1)-4 counts
              3
                18 Pa.C.S.A. §6106(a)(1)
              4
                18 Pa.C.S.A. §903(a)(1)

              Briefly, the evidence presented that on the evening of
       October 16, 2009, Albert Bock was working as a bartender at the
       K & M Pub in Mt. Oliver. His girlfriend, Samantha Snelsire and
       his friends Paul Malloy and Michael Plish were hanging out at the
       bar while Bock worked. After closing the bar in the early
       morning hours of October 17, 2009, Bock and his friends left the
       bar and went to Bock’s house at 310 Beltzhoover Avenue in the
       Beltzhoover section of the City of Pittsburgh, where they sat on
       the porch and talked. Inside the house were Bock’s brother,
       Tony and Tony’s son, DJ.

             Bock and his friends were on the porch for a few minutes
       when [Appellant] and two other men came onto [the] porch and
       pointed guns at Bock and his friends. [Appellant] and the other
       two men went to each of the victims and forcibly took money,
       keys and cell phones out of their pockets. When [Appellant]
       determined that was not enough, he demanded that Bock bring
       him into the house so he could take more things. When Bock
       refused, saying that his young nephew was in the house,
       [Appellant] tried to enter the house on his own. He was stopped
       by Bock’s dog who ran at him. [Appellant] put the gun to Bock’s
       head and demanded that he tie up the dog and let him in the
       house. When Bock again refused, saying that his young nephew
       was inside the house, [Appellant] shot Bock in the head, killing
       him instantly.

            [Appellant] and his friends fled the scene.      However,
       [Appellant] returned to Bock’s house at approximately 5:00 a.m.
       By that time, the police and crime scene technicians were
____________________________________________


1
 Appellant and the trial court complied with the requirements of Pa.R.A.P.
1925.



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        processing the crime scene. [Appellant] spoke briefly to the
        homicide detectives and told them he was going to his
        grandfather’s house to get some stereo equipment.              The
        Detectives took his contact information and also some pictures
        because they thought his behavior was odd.             Later, they
        included [Appellant’s] picture in a photo array, where he was
        identified by Snelsire, Malloy and Plish. [Appellant] was arrested
        and confessed to the crime.

Trial Court Opinion, 1/13/15, at 1-3.

        Appellant presents the following issues for our review:

        1.    Whether the Trial Court erred making the determination
        not to suppress Appellant’s statement and found that Appellant
        knowingly waived his Miranda[2] rights and made a voluntary
        confession where the police knew at the time of arrest for
        criminal homicide that Appellant was 17 years old when he
        asked for his parent and a lawyer?

        2.    Whether the Trial Court erred in finding that Appellant
        “opened the door” regarding the inventory list from the search
        that was conducted of Appellant’s parents[’] home such as to
        allow the Commonwealth to present rebuttal witness testimony
        indicating the presence of a gun when Appellant’s mother on
        cross-examination by the prosecutor stated that she did not see
        a warrant and only “got a piece of paper that said what they
        were removing from my house”?

        3.     Whether the Appellant, as an indigent defendant, was
        prejudiced by the denial of the Trial Court to allow him to use
        the same sophisticated audio system consisting of Bluetooth
        headsets for each juror to play the Commonwealth’s eyewitness
        taped statements when that equipment was used for the playing
        of his taped statement?

Appellant’s Brief at 5.




____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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      Appellant first argues that the trial court erred as a matter of law by

failing to   suppress Appellant’s statement confessing       to   the   murder.

Appellant’s Brief at 17. Appellant maintains that “[t]he evidence presented

at the suppression hearing viewed in the light most favorable to the

Commonwealth did not establish by a preponderance of the evidence that

Appellant knowingly and intelligently waived his right to a parent/counsel

and knowingly and intelligently confessed to the crime.” Id.

      The standard of review an appellate court applies when considering an

order denying a suppression motion is well established. An appellate court

may consider only the Commonwealth’s evidence and so much of the

evidence for the defense as remains uncontradicted when read in the

context of the record as a whole.     Commonwealth v. Russo, 934 A.2d

1199, 1203 (Pa. 2007). Where the record supports the factual findings of

the trial court, the appellate court is bound by those facts and may reverse

only if the legal conclusions drawn therefrom are in error. Id. However, it

is also well settled that the appellate court is not bound by the suppression

court’s conclusions of law. Id.

            With respect to factual findings, we are mindful that it is
      the sole province of the suppression court to weigh the credibility
      of the witnesses. Further, the suppression court judge is entitled
      to believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this [C]ourt.



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Commonwealth v. Caple, 121 A.3d 511, 517 (Pa. Super. 2015).                 In

addition, we are aware that questions of the admission and exclusion of

evidence are within the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion.         Commonwealth v.

Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).3

       Miranda warnings are required where a suspect is subjected to

custodial interrogation.      Commonwealth v. Ingram, 814 A.2d 264, 271

(Pa. Super. 2002).          Custodial interrogation is defined as “questioning

initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant

way” and is confined to interactions in which the “police should know that

their words or actions are reasonably likely to elicit an incriminating

response.” Miranda, 384 U.S. at 444; Ingram, 814 A.2d at 271.

       With regard to waiver of Miranda rights, this Court has explained:

       Miranda holds that “[t]he defendant may waive effectuation” of
       the rights conveyed in the warnings “provided the waiver is
       made voluntarily, knowingly and intelligently.” The inquiry has
       two distinct dimensions. First the relinquishment of the right
       must have been voluntary in the sense that it was the product of
____________________________________________


3
  On October 30, 2013, our Supreme Court held that the scope of review of
a suppression court’s decision is limited to the evidence produced at the
suppression hearing, and not the whole record. In the Interest of L.J., 79
A.3d 1073, 1076 (Pa. 2013). That case does not apply here, however,
because the ruling is prospective and was decided after this case had
commenced. Id. at 1089 (stating that the ruling applies to “all litigation
commenced Commonwealth-wide after the filing of this decision.”).




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      a free and deliberate choice rather than intimidation, coercion or
      deception. Second, the waiver must have been made with a full
      awareness both of the nature of the right being abandoned and
      the consequences of the decision to abandon it. Only if the
      “totality of the circumstances surrounding the interrogation”
      reveal both an uncoerced choice and the requisite level of
      comprehension may a court properly conclude that Miranda
      rights have been waived.

In Re: T.B., 11 A.3d 500, 505-506 (Pa. Super. 2010).

      Furthermore, this Court has stated the following in assessing whether

a juvenile knowingly waived his Miranda rights:

      A determination of whether a juvenile knowingly waived his
      Miranda rights and made a voluntary confession is to be based
      on a consideration of the totality of the circumstances, including
      a    consideration    of   the    juvenile’s   age,    experience,
      comprehension, and the presence or absence of an interested
      adult.   In examining the totality of circumstances, we also
      consider: (1) the duration and means of an interrogation; (2)
      the defendant’s physical and psychological state; (3) the
      conditions attendant to the detention; (4) the attitude of the
      interrogator; and (5) “any and all other factors that could drain a
      person’s ability to withstand suggestion and coercion.” “[W]e
      acknowledge that the per se requirement of the presence of an
      interested adult during a police interview of a juvenile is no
      longer required.     Nevertheless, it remains one factor in
      determining the voluntariness of a juvenile’s waiver of his
      Miranda rights.”

Commonwealth v. Knox, 50 A.3d 732, 746-747 (Pa. Super. 2012)

(internal citations omitted).

      A confession obtained during a custodial interrogation is
      admissible where the accused’s right to remain silent and right
      to counsel have been explained and the accused has knowingly
      and voluntarily waived those rights. The test for determining the
      voluntariness of a confession and whether an accused knowingly
      waived his or her rights looks to the totality of the circumstances
      surrounding the giving of the confession. The Commonwealth



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         bears the burden of establishing whether a defendant knowingly
         and voluntarily waived his Miranda rights.

Commonwealth v. Parker, 847 A.2d 745, 748 (Pa. Super. 2004)

         The trial court provided the following explanation for its ruling on this

issue:

                At the time of his arrest, [Appellant] was 17 years and 10
         months old. He had an extensive history with the juvenile
         justice system, including arrests for burglary, guns and auto
         theft. He was arrested in the presence of his mother and the
         arresting Detective, Detective James McGee, waited at
         [Appellant’s] home with his mother until his stepfather arrived
         and he could explain the situation.         Detective McGee told
         [Appellant’s] mother and stepfather what the charges were and
         asked them to come to the homicide office.            [Appellant’s]
         interrogation was delayed for two and a half hours while waiting
         for his parents to arrive. When they did not arrive, Detective
         McGee spoke to [Appellant’s] stepfather on the telephone and
         was advised that they were not coming. At that point, the
         Miranda rights waiver form was read and explained to
         [Appellant]. He signed the waiver form indicating he understood
         his rights and agreed to speak with the detectives. He did not
         request an attorney or his parents at any time.

               At the suppression hearing, [Appellant] stated that several
         detectives wearing suits stormed his porch with guns drawn,
         and, without speaking, threw him to the ground and took him
         away while his mother screamed. He claimed that the detectives
         told him he “wouldn’t never come home” unless he said what
         they wanted, in which case he would get “juvenile life”.

               At the conclusion of the suppression hearing, [the trial
         court] made findings of fact before ruling on the Motion. It
         stated:

               THE COURT: As to the issue of the statement given
               by [Appellant], the issue of credibility will be
               resolved in favor of the Commonwealth.

               [Appellant] wishes for me to believe that he stated
               that he shot someone for juvenile life. I’m not sure

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J-A32012-15


             what that’s about. But I found the statement of the
             officer to be consistent and clear, and therefore I will
             deny the motion to suppress.          Your objection,
             [counsel], is noted for the record.

             The totality of circumstances clearly supports [the trial
      court’s] finding that [Appellant] knowingly, voluntarily and
      intelligently waived his Miranda rights before confessing to the
      crime. [Appellant] was just months away from his 18th birthday
      and had an extensive history in the juvenile justice system. His
      parents were advised of the charges and chose not to attend the
      interrogation. [Appellant] did not ask for his parents or a lawyer
      at any time. His testimony that he only confessed to the crime
      because the detectives told him he would get “juvenile life” is
      both confounding and incredible.

Trial Court Opinion, 1/13/15, at 3-5 (internal citations omitted).

      Likewise, our review of the record indicates the totality of the facts

support the trial court’s decision to deny Appellant’s motion to suppress.

Appellant was seventeen years and ten months old at the time of his arrest

and interview by the police. N.T., 4/11/11, at 18. Appellant had previous

exposure to the legal system. As reflected by the “rap sheet” presented by

the Commonwealth at the suppression hearing, Appellant had a criminal

history consisting of seven previous arrests, for a variety of offenses, most

of which were felonies.    Id. at 38.    Appellant did not display any trouble

understanding the questions on the Miranda forms.                Id. at 20-21.

Appellant provided responses which Officer McGee wrote on the form. Id. at

20. Appellant placed his signature at the bottom of the form. Id. Appellant

did not appear to be under the influence of any drugs or alcohol at the time.

Id. at 21.




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      Regarding the lack of presence of Appellant’s parents at the police

station, the record reflects that Appellant’s mother was notified by the police

that Appellant was being arrested and would be interviewed. N.T., 4/11/11,

at 15. Appellant’s mother asked if she could call Appellant’s stepfather, to

advise him of the situation.   Id. at 15-16.    Officers permitted Appellant’s

mother to contact Appellant’s stepfather, and Officer James McGee waited at

Appellant’s house until Appellant’s stepfather arrived.   Id. at 16.    Officer

McGee provided the information regarding where Appellant would be taken

and advised Appellant’s parents to come to the station.            Id. at 16.

Appellant’s mother and stepfather indicated that they would be present at

the police station during questioning. Id. at 29-31, 35. When Officer McGee

arrived at the station and met with Appellant there, he indicated to Appellant

that he believed that Appellant’s parents were “on their way” and advised

Appellant that they would wait to proceed with questioning until Appellant’s

parents arrived. Id. at 17. The police delayed questioning of Appellant due

to their expectation that Appellant’s parents were on their way to the

station.    Id. at 31, 33.     After two-and-one-half hours had elapsed,

Appellant’s parents were contacted regarding their whereabouts and Officer

McGee was then informed that Appellant’s mother and stepfather would not

be coming to the station.      Id. at 17, 23, 33-34.      After Appellant was

informed that his mother and stepfather would not be coming, he responded

“okay.”    Id. at 18.   When asked if Appellant would speak to the police


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without his mother or stepfather being there, Appellant indicated that he

would.   Id. at 19.    During the course of the interview, Appellant never

requested that an attorney, a parent, or other adult be present during

questioning. Id. at 21-22. The interview of Appellant following issuance of

the Miranda warnings lasted approximately three hours. Id. at 34.

     In summary, Appellant was seventeen, had previous exposure to the

legal system, was only briefly questioned by police, and understood the

questioning and his rights.      Officers made significant effort to inform

Appellant’s parents of the procedure involving Appellant and to enable

Appellant’s parents to be present during questioning.           Despite being

informed of his right to such, Appellant did not request that an attorney or

his parents be present during questioning. Consequently, we conclude that

the trial court did not err in denying Appellant’s motion to suppress his

statement to police.

     Appellant next argues that the trial court erred in allowing the

Commonwealth to introduce impeachment testimony on a collateral matter.

Appellant’s Brief at 23.   Specifically, Appellant asserts that the trial court

erred in allowing the Commonwealth to present testimony in rebuttal to

Appellant’s mother’s testimony regarding items found in and removed from

Appellant’s home pursuant to the search warrant.      Id. at 23.   Appellant’s

mother testified that only letters and mail had been taken from Appellant’s

room, and such was indicated on an inventory sheet.          Id. at 24.    The


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Commonwealth presented testimony that a large caliber handgun was also

taken out of the house pursuant to the search and as such, was indicated on

the inventory sheet.    Id. at 25.    Additionally, Appellant argues that his

mother did not have personal knowledge of the inventory because

Appellant’s father, and not his mother, received the inventory receipt. Id. at

26. Appellant maintains that he was severely prejudiced by admission of the

rebuttal testimony regarding the handgun, and accordingly, should be

granted a new trial. Id. at 27-28.

      Our Supreme Court has provided the following guidance in addressing

admission of rebuttal testimony:

           It is clear that a defendant may present any admissible
     evidence relevant to any mitigating circumstance, including any
     evidence regarding the character and record of the defendant ...
     [but] the defendant is not entitled to present, without challenge
     or rebuttal by the Commonwealth, false or misleading evidence
     or to create a false impression of his character or record.
     Furthermore, “the admission of rebuttal testimony is within the
     sound discretion of the trial court,” and the appropriate scope of
     rebuttal evidence is defined by the evidence that it is intended to
     rebut. Where the evidence proposed goes to the impeachment
     of the testimony of his opponent’s witnesses, it is admissible as
     a matter of right. Rebuttal is proper where facts discrediting the
     proponent’s witnesses have been offered.

Commonwealth v. Ballard, 80 A.3d 380, 401-402 (Pa. 2013) (internal

citations and quotation marks omitted).

      Appellant’s mother, Starlet Lellock, testified at trial and during cross-

examination admitted to receiving an inventory of the items removed from

her home during the search. N.T., 4/14/11, at 389-390. On re-direct, she


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J-A32012-15


provided the following testimony regarding the items removed from her

home and listed on the inventory:

            [Appellant’s counsel]: And the form that you referred to,
      the inventory sheet, what was on there?

             [Ms. Lellock]:    The first thing that it had, they had taken
      letters from my son’s room, like mail, and I believe that’s all that
      was on there, the first-yeah.

Id. at 392-393.

      After the defense rested, the Commonwealth sought to introduce the

testimony of Detective Scott Evans in rebuttal to Ms. Lellock’s testimony.

The following exchange took place between the Commonwealth, Appellant’s

counsel and the trial court:

      [The trial court]: [Commonwealth], rebuttal?

      [Commonwealth]: Yes, Your Honor. May we approach?

      (Thereupon, the following discussion was held at sidebar.)

      [Commonwealth]:         Your Honor, I just didn’t know if this was
      going to be – you know, the issue about - when Mrs. Lellock
      testified about what was in the inventory, taken out of her
      house, she said that’s all.

      [Appellant’s Counsel]: She did not say that’s all.

      [Commonwealth]: She did.

      [The trial court]: She said letters, mail, that’s it.

      [Appellant’s counsel]: Then I asked her whether she read the
      whole thing. She said I didn’t pay any attention to that.

      [The trial court]: But it’s still opening the door.




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J-A32012-15


     [Commonwealth]: They took a large caliber handgun out of the
     house. And the detective who gave her a copy of the search
     warrant and gave the father a receipt is present to testify to all
     of that. Can he testify to that?

     [The trial court]: Yes.

N.T., 11/14/11, at 413-414.

     On the stand, Detective Scott Evans provided the following testimony:

     [Commonwealth]: Now, did you author a report regarding the
     execution of the search and arrest warrants?

     [Detective Evans]: Yes.

     [Commonwealth]: Did you give a copy of the search warrant
     application to [Appellant’s] mother, Starlet Lellock?

     [Detective Evans]: Yes, I did.

     [Commonwealth]:      Okay.       And is that documented in your
     report?

     [Detective Evans]: Yes, it is.

     [Commonwealth]: Okay. Did you give a copy of the receipt or
     the inventory to [Appellant’s] father, George Lellock?

     [Detective Evans]: Yes.

     [Commonwealth]:       And again, is that documented in your
     report?

     [Detective Evans]: Yes, it is.

     [Commonwealth]: The items that were authorized to search for,
     do they include any revolver type of firearm?

     [Detective Evans]: Yes.

                                      ***




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      [Commonwealth]: And during your search of the residence, can
      you tell me what you found and what you listed on the inventory
      when you gave that to Starlet Lellock?

      [Detective Evans]: Can I review it? I haven’t - I know we got a
      gun out of the house.

      [Commonwealth]: Okay. Specifically, there was a firearm that
      you took out of the house?

      [Detective Evans]: Dessert [sic] Eagle.        I believe it was a
      Dessert [sic] Eagle. I’m fairly certain.

      [Commonwealth]: Okay. Is that a handgun?

      [Detective Evans]: Yes, it is.

      [Commonwealth]: Okay. Also indicia and that kind of thing?

      [Detective Evans]: Yes.

      [Commonwealth]:     Okay. Would it be fair to say that the
      handgun that you took out of the house ultimately turned out
      not to be the weapon that was used to kill Albert Bock?

      [Detective Evans]: That’s correct.

N.T., 11/14/11, at 426-428.

      The trial court provided the following analysis on this issue:

            It is clear from the record . . . that Ms. Lellock opened the
      door to testimony about the gun removed from her home when
      she was asked on re-direct what was on the inventory sheet. By
      stating that the inventory sheet listed letters and mail and
      “that’s all that was on there”, Ms. Lellock clearly opened the door
      to testimony that a gun had been recovered from her residence,
      and so the Commonwealth was entitled to walk through it.

Trial Court Opinion, 1/13/15, at 9.

      We agree. Ms. Lellock testified as to the contents of the inventory list.

As a result, she opened the door to questioning regarding the contents of

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that inventory list. See Commonwealth v. Weiss, 81 A.3d 767, 800 (Pa.

2013) (where appellant testified that he was not capable of hitting someone

with a tire iron, appellant opened the door to rebuttal testimony of a witness

who observed appellant hit an individual with a tire iron in a separate

incident.).   The trial court did not abuse its discretion in permitting the

Commonwealth to offer testimony to rebut the false and misleading

testimony presented by Ms. Lellock.            Ballard, 80 A.3d at 401-402.

Accordingly, Appellant’s second claim fails.

      In his final claim, Appellant contends that he was prejudiced by the

means of presentation of evidence at trial.           Appellant’s Brief at 30.

Specifically, Appellant represents:

            The Commonwealth utilized a sophisticated audio system
      consisting of Bluetooth headsets for each juror to play the
      Appellant’s taped statement in court. This system allows each
      juror to have individual control over the volume of their
      respective ear pieces thus, creating an ideal individual
      experience for listening to audio evidence. In sharp contrast,
      Appellant’s counsel was forced to use a “boombox” to play the
      audio tape to the jury. The “boombox” had to be played very
      loudly so that all jurors could hear but in doing so the audio tape
      sounded garbled and lost its audibility.

Id. at 30-31.     Appellant argues that, as an indigent defendant, he was

unfairly prejudiced by presentment of the evidence in this manner, and as a

result, should be granted a new trial. Id. at 36.

      Our standard of review regarding evidentiary issues is well-settled:

      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. An abuse of discretion is

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     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. Glass, 50 A.3d 720, 724-725 (Pa. Super. 2012)

(internal citations and quotation marks omitted).

     The trial court provided the following explanation in support of its

denial of Appellant’s request to replay the two witnesses’ recorded

statements on the Commonwealth’s audio equipment:

           At trial, [Appellant] introduced the recorded statements of
     eyewitnesses Michael Plish and Samantha Snelsire during their
     cross-examinations.        The statements were played through
     defense counsel’s computer and the jury was given transcripts of
     the recording so they could follow along. [The trial court] was
     able to hear the statements and confirmed with the jury that
     they were also able to hear the statements. Later in the trial,
     the Commonwealth introduced [Appellant’s] confession and
     played the audio recording for the jury. The Commonwealth
     used audio equipment with headsets for the jurors. Immediately
     thereafter, [Appellant] began to argue [and asserted that it was
     not a fair trial if the witness’s statement were not played on the
     same audio equipment].

           [The trial court] does not own audio equipment used by
     the Commonwealth and cannot force the Commonwealth to allow
     [Appellant] to use its audio equipment. The audio recordings
     presented by defense counsel were audible to both [the trial
     court] and the jury and the jury was also given a transcript of
     the recordings so they were able to follow along with the audio.
     [Appellant] was not prejudiced in any way by the
     Commonwealth’s refusal to share its audio equipment and
     [Appellant] was not discriminated against in any way due to his
     indigent status. This claim is meritless.

Trial Court Opinion, 1/13/15, at 9-10.




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       The record reflects that the audio statements made by Mr. Plish and

Ms. Snelsire were played by the defense during cross-examination of each

witness.    N.T., 4/13/11, at 155, 211.            As noted by the trial court, these

statements were played by defense counsel through her laptop.                Id.   Of

particular relevance is the fact that nobody objected to the clearness or

audibility of these statements when they were played.4 Id. 157-168, 211-

227.    Additionally, a transcript of the recorded statement was provided

simultaneously with the audio statement for the jurors’ benefit. Id. at 156-

157, 326.

       Subsequently, during the testimony of Detective James McGee, the

Commonwealth played the audiotaped statement Appellant had given to

homicide detectives following his arrest. N.T., 4/13/11, at 328. Based on

the record, it appears that this audio equipment involved individual headsets

for the jurors.5 Id. at 325-328. At that point, defense counsel requested

that she be permitted to use this particular equipment to replay Mr. Plish’s

and Ms. Snelshire’s statements. Id. at 325-326. The trial judge denied this

____________________________________________


4
  We note that when Appellant’s counsel initially began to play Ms. Snelsire’s
statement, the court and jury indicated they were having difficulty hearing
the statement. The volume was adjusted and there was no subsequent
indication that the court or the jury was having difficulty hearing the audio
statement.
5
  The Commonwealth asserts that the equipment used to play Appellant’s
statement belonged to the Allegheny County Office of the District Attorney.
Commonwealth’s Brief at 34.



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request on the basis that the statements when originally played were audible

and that she did not want that evidence presented a second time. Id. at

325-326. The trial judge also noted that the jurors indicated that they could

hear the statements. Id. at 326-327.

      Accordingly, we cannot conclude that Appellant was prejudiced by the

trial court’s denial of his request to utilize the Commonwealth’s audio

equipment to replay the statements of witnesses Plish and Snelsire.       As

noted, there is no evidence that the jurors or court were unable to hear the

statements, nor was there an objection made that the statements were

inaudible.   Transcripts of the statements were provided along with the

statements, thus ensuring that the jurors understood the statements.

      Moreover, the trial court did not abuse its discretion in refusing to

allow Appellant to play the statements for the jury a second time. Replaying

those statements may have resulted in undue emphasis being placed on that

testimony and prejudice to the Commonwealth’s case. Commonwealth v.

Taylor, 596 A.2d 222, 223 (Pa. Super. 1991) (holding that the trial court

did not abuse its discretion in disallowing the replaying of an audio

statement based on its conclusion that replaying the statement would tend

to emphasize the recorded statements over the other evidence admitted at

trial and, therefore, would be improper.).     Accordingly, Appellant’s final

claim lacks merit.

      Judgment of sentence affirmed.


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J-A32012-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




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