J-S86007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
ANTONIO KELLY                           :
                                        :
                  Appellant             :   No. 1821 WDA 2015

          Appeal from the Judgment of Sentence October 21, 2015
             In the Court of Common Pleas of Lawrence County
            Criminal Division at No(s): CP-37-CR-0000819-2014


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED JANUARY 03, 2017

     Appellant Antonio Kelly appeals from the judgment of sentence

entered by the Court of Common Pleas of Lawrence County after a jury

convicted Appellant of first-degree murder and tampering with evidence.

Appellant asserts his murder conviction is against the weight of the evidence

and argues that the trial court abused its discretion in various evidentiary

matters. After careful review, we affirm.

     On June 20, 2014, at approximately 7:00 p.m., officers of the New

Castle Police Department responded to a report of a possible homicide at the

Crestview Gardens housing projects (“Crestview Gardens”).       The officers

discovered the body of Andrew Edwards, Jr. (“the victim”), lying in the first

floor hallway located at 1110 Pin Oak Drive. The victim’s body had seven

gunshot wounds: two bullet wounds above his eye, one bullet hole in his

nose, three bullet wounds to the right front shoulder, and one bullet wound

*Former Justice specially assigned to the Superior Court.
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in the left thigh. After securing the scene and conducting their investigation,

the officers took the victim’s body to the Beaver Valley Medical Center for an

autopsy.   Dr. Todd Luckasevic, a forensic pathologist, determined that the

victim died as a result of the bullet wounds to his head.

      Detectives Brian Cuscino and Aaron Vitale reviewed the Crestview

Garden surveillance video, which recorded the shooting.          The footage

showed the victim walk past 1110 Pin Oak Drive, where he had contact with

three males. When the victim tried to enter the home at this address, the

three men followed him and shot him.          After receiving tips about the

murder, the officers were able to identify the three men in the video as

Appellant, Samjuan Allen, and Keshawn Johnson.        Several witnesses were

able to identify Appellant, who was dressed in a white t-shirt and gray

shorts. While the video does not show the actual shots being fired, it depicts

Appellant to the right of the doorway facing the victim, Appellant stepping

towards the victim, and the victim falling to the ground. However, the video

does show Appellant turning to leave and making a motion consistent with

tucking an object into his waistband.

      Appellant was charged with criminal homicide and related offenses in

connection with the victim’s murder.     Appellant proceeded to a jury trial

which commenced on September 22, 2015. Detective Cuscino testified early

in the trial to provide a roadmap of the police investigation which ultimately

led the officers to conclude that Appellant was the individual responsible for

the victim’s death. The trial court allowed Detective Cuscino to testify as to

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statements made by several of the witnesses that the prosecution intended

to present at trial and submit to cross-examination.

      Appellant’s girlfriend, Jalisa Allen, was one of the witnesses that

identified Appellant in the surveillance video from Crestview Gardens. Ms.

Allen testified that on the day of the murder, she saw Appellant in the

morning wearing a white shirt and gray shorts.     When she picked him up

later from Neshannock Village, she noticed Appellant had changed into black

sweatpants.    She remembered this fact as she and Appellant had an

argument after she accused Appellant of being with another woman because

he changed his clothes.   This statement was corroborated by surveillance

video the officers then acquired from Neshannock Village, showing Appellant

in a white shirt and black sweatpants. The officers also were able to obtain

the shoes they believe Appellant wore at the time of the murder, which had

the laces removed and had been bleached.

     In addition, Ms. Allen discovered that her firearm, a black .22 caliber

revolver with a brown handle, may have been used to commit the victim’s

murder. Ms. Allen indicated that several days after the murder, Appellant

came to her residence and inquired as to whether Ms. Allen removed the

shells from her firearm. When she responded “no,” Appellant immediately

went upstairs and emptied the shells from the firearm, and left the home

with the shells in his hand.   Appellant did not have a license to carry a

concealed weapon. A week later, Appellant offered to buy Ms. Allen a new

firearm and told her to get rid of her .22 caliber revolver. While Ms. Allen

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initially refused, she eventually sold the firearm. After the officers contacted

her in an attempt to retrieve the murder weapon, Ms. Allen was able to

obtain the firearm and turn it over to the police.

      Samjuan Allen, one of the individuals identified on the surveillance

video at Crestview Gardens, also cooperated with the police investigation.

Mr. Allen testified that on the night of the murder, he intended to go to his

cousin’s residence at 1108 Pin Oak Drive. Before he arrived there, he met

up with Keshawn Johnson and Appellant.         Mr. Allen indicated that he had

only known Appellant for about a week prior to this meeting.                    At

approximately 7:30 p.m., Mr. Allen observed the victim walk past them

while visibly intoxicated.   The victim began staring at the men and said,

“what the “F’ you all looking at?” Notes of Testimony (N.T.) Trial, 9/25/15,

at 11. Thereafter, the victim continued walking towards the home at 1110

Pin Oak Drive.

      Mr. Allen indicated that they followed the victim, who kept pulling up

his pants and saying “crazy” things to the men.             N.T. at 12.   Mr. Allen

claimed that he attempted to calm the victim down.             Mr. Allen suddenly

heard gunshots, which startled him and caused him to get out of the way.

Thereafter Mr. Allen noticed Appellant step forward toward the victim, but

testified that he did not see Appellant shoot the victim. At that point, Mr.

Allen ran from the scene to his mother’s home in Crestview Gardens. Mr.

Allen specifically identified Appellant in a photo array.




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      Lionel Edwards testified that, on the day of the murder, he was

standing in front of 1112 Pin Oak Drive with his children when he saw the

victim walking down the street, visibly intoxicated.      When the three men

approached the victim and commotion ensued, Mr. Edwards gathered his

children quickly and attempted to leave the area. Mr. Edwards testified that

he heard gunshots, but did not see the shooter as he was trying to protect

his children. When Mr. Edwards looked back after the shooting stopped, he

saw Appellant holding a gun.     He did not see any other individual in the

possession of a weapon.

      Further, the Commonwealth presented the testimony of Raymond

Bailey, who testified that he was present at Crestview Gardens on the day of

the shooting. Specifically, Mr. Bailey witnessed Appellant shoot the victim in

the head as Mr. Bailey hid between two cars. Surveillance photos confirmed

that Mr. Bailey was at the crime scene when the shooting occurred. While

Mr. Bailey admitted that he was incarcerated at the time of trial for pending

drug charges, Mr. Bailey claimed he had not made any deal with the

prosecution in exchange for his testimony in this case.

      After the conclusion of the trial, the jury convicted Appellant of first-

degree murder and tampering or concealing physical evidence. On October

21, 2015, the trial court sentenced Appellant to life imprisonment for the

murder conviction. Appellant did not file a post-sentence motion, but filed

this timely appeal as well as a timely concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).

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

       I.     Whether the verdict was against the weight of the
              evidence?

       II.    Whether the trial court erred in allowing Detective Brian
              Cuscino to testify to hearsay evidence?

       III.   Whether the trial court erred in allowing [the admission of]
              tape recording of [Appellant’s] conversations while
              [Appellant] was incarcerated on other non-related
              charges?


Appellant’s Brief, at 5 (renumbered for ease of review).1


____________________________________________


1
  We note that Appellant’s counsel included two additional issues in his
statement of questions involved in his brief that he expressly abandoned on
appeal.

First, Appellant included a challenge to the sufficiency of the evidence
supporting his murder conviction in his statement of questions presented in
his brief. However, in the argument section of the brief, Appellant’s counsel
concedes that the Commonwealth presented sufficient evidence to sustain
the murder conviction, but focuses his advocacy on criticizing the credibility
of the prosecution witnesses in his challenge to the weight of the evidence.

Second, Appellant raises a claim that the trial court erred in allowing
prosecution witness Raymond Bailey to testify. However, in the argument
section of the brief, Appellant’s counsel asserts that this issue is not ripe for
review and should be brought as an ineffectiveness claim under the Post
Conviction Relief Act.

As Appellant does not include any advocacy supporting either issue, we need
not review these claims on appeal. See Commonwealth v. Johnson, 604
Pa. 176, 191, 985 A.2d 915, 924 (2009) (reiterating that “where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived”).



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      First, Appellant claims the jury’s decision to convict him of first-degree

murder is against the weight of the evidence.         However, we note that

Appellant did not raise this issue in the trial court before filing this appeal.

Our rules of criminal procedure provide that “[a] claim that the verdict was

against the weight of the evidence shall be raised with the trial judge in a

motion for a new trial: (1) orally, on the record, at any time before

sentencing; (2) by written motion at any time before sentencing; or (3) in a

post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this rule is to

make it clear that a challenge to the weight of the evidence must be raised

with the trial judge or it will be waived.” Pa.R.Crim.P. 607, Comment. See

Commonwealth v. Sherwood, 603 Pa. 92, 110, 982 A.2d 483, 494 (2009)

(noting that the appellant’s “failure to challenge the weight of the evidence

before the trial court deprived that court of an opportunity to exercise

discretion on the question of whether to grant a new trial”).

      While the trial court addressed Appellant’s challenge to the weight of

the evidence in its Rule 1925(a) opinion, this fact does not entitle Appellant

to appellate review of his unpreserved claim.           See id. (noting that

even though the appellant raised a weight of the evidence claim in his

1925(b) statement and the trial court addressed the weight claim in its

1925(a) opinion, appellant’s weight of the evidence claim was waived for

appellate review as the appellant failed to raise the claim at sentencing or in

a post-sentence motion). Accordingly, as Appellant waived his challenge to

the weight of the evidence, we decline to review this issue further.

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      Second, Appellant claims that the trial court abused its discretion in

allowing Sergeant Cuscino to testify to hearsay statements made by

prosecution witnesses Jalisa Allen, Samjuan Allen, and Lionel Edwards.

      The admission of evidence is a matter vested within the sound
      discretion of the trial court, and such a decision shall be reversed
      only upon a showing that the trial court abused its discretion. In
      determining whether evidence should be admitted, the trial court
      must weigh the relevant and probative value of the evidence
      against the prejudicial impact of the evidence. Evidence is
      relevant if it logically tends to establish a material fact in the
      case or tends to support a reasonable inference regarding a
      material fact. Although a court may find that evidence is
      relevant, the court may nevertheless conclude that such
      evidence is inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)

(citation omitted).

      Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super.

2003); Pa.R.E. 801(c). However, “certain out-of-court statements offered to

explain a course of police conduct are admissible[;] [s]uch statements do

not constitute hearsay since they are not offered for the truth of the matters

asserted; rather, they are offered merely to show the information upon

which police acted.” Commonwealth v. Palsa, 521 Pa. 113, 117, 555 A.2d

808, 810 (1989). Nevertheless, the Supreme Court placed a limitation on

the admission of these statements:

      it cannot be said that every out-of-court statement having
      bearing upon subsequent police conduct is to be admitted, for

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      there is great risk that, despite cautionary jury instructions,
      certain types of statements will be considered by the jury as
      substantive evidence of guilt. Further, the police conduct rule
      does not open the door to unbounded admission of testimony,
      for such would nullify an accused's right to cross-examine and
      confront the witnesses against him.

Id. at 118, 555 A.2d at 810.       In Palsa, the Supreme Court granted the

defendant a new trial when the arresting officer was permitted to explain his

course of conduct pertaining to his investigation and arrest of the defendant

by testifying to full and explicit statements made by an informant who did

not testify at the defendant’s trial.

      Specifically, in this case, Detective Cuscino testified that Jalisa Allen

identified Appellant in the Crestview Gardens surveillance video and told him

about her interactions with Appellant on the day of the victim’s murder.

From this information, Detective Cuscino was able to form a timeline of

Appellant’s whereabouts that day and obtained additional surveillance

footage of him that day at Crestview Gardens and Neshannock Village. In

addition, Detective Cuscino testified that Jalisa Allen shared that Appellant

borrowed her firearm and then tried to convince her to dispose of the

weapon after the victim’s murder. From this information, Detective Cuscino

was able to obtain the firearm after the crime.        In addition, Detective

Cuscino testified that Samjuan Allen also identified Appellant as the shooter

in a lineup. Both Jalisa Allen and Samjuan Allen testified later at Appellant’s

trial and were subject to cross-examination. At trial, Samjuan Allen testified

that he heard shots go off and saw Appellant step towards the victim, but



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did not see Appellant shoot the victim as he was running away. He admitted

identifying Appellant in a lineup.

      We find that Detective Cuscino’s testimony provided the jury with a

chronological account of the progression of the investigation, which was

based on information received from surveillance footage and multiple

individuals. Detective Cuscino did not offer the statements for their truth,

but to explain his course of conduct.         We also find that this case is

distinguishable from Palsa as the prosecution in this case was not

attempting to indirectly introduce inadmissible hearsay of a third party who

would not testify at trial and be subject to cross-examination.         See

Commonwealth v. Jones, 540 Pa. 442, 451, 658 A.2d 746, 751 (1995)

(noting that in cases where the third-party declarant does not testify, a

concern exists that by allowing the police to testify regarding a declarant's

statement, the jury might take the statement as substantive evidence of

guilt without allowing the accused to cross-examine the declarant).

      Even assuming arguendo that the trial court improperly allowed

Detective Cuscino to testify to these out-of-court statements, the prejudice

to Appellant was minimal as the declarants subsequently testified and were

subject to cross-examination by Appellant’s counsel.          Moreover, the

Commonwealth offered the testimony of eyewitnesses who specifically saw

Appellant shoot the victim in the head or testified that he was the only

individual at the scene with a weapon. This testimony along with the video

surveillance footage and physical evidence found by police constituted

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overwhelming evidence of Appellant’s guilt.           As a result, any error in

allowing Detective Cuscino to testify to the prosecution witnesses’ out-of-

court statements was harmless. Commonwealth v. Jones, 540 Pa. 442,

446–47, 658 A.2d 746, 749 (1995) (citation omitted) (“[a]n error may be

harmless where the properly admitted evidence of guilt is so overwhelming

and the prejudicial effect of the error is so insignificant by comparison that it

is clear beyond a reasonable doubt that the error could not have contributed

to the verdict”). Accordingly, we find this claim to be meritless.

      Third, Appellant contends the trial court erred in admitting into

evidence the tape recordings of Appellant’s conversations with Jalisa Allen

while Appellant was incarcerated on other charges. In those conversations,

Appellant told Ms. Allen to dispose of a firearm that she had at her home

shortly after the victim’s murder.          Specifically, Appellant argues that

Commonwealth only played portions of the telephone conversations and

mislead the jury by taking his statements out of context.             Essentially,

Appellant argues that the prejudicial effect of the admission of the evidence

outweighed its probative value.

      As noted above, we review a trial court’s decisions on evidentiary

matters under an abuse of discretion standard.          See Antidormi, supra.

The recorded conversations in which Appellant repeatedly ordered Ms. Allen

to   dispose   of   her   firearm   were   relevant   evidence   offered   by   the

Commonwealth to prove its allegations that Appellant had tampered or

attempted to conceal evidence. Moreover, the conversations were probative

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evidence of Appellant’s guilt and attempt to conceal his involvement in the

victim’s murder. As a result, the taped recordings have significant probative

value for the Commonwealth’s case.

      Moreover, Appellant has not shown how the admission of the

recordings resulted in unfair prejudice.       Appellant does not argue that the

recordings should have been excluded due to Appellant’s incarceration on

other charges as the jury was not informed that Appellant was in jail while

the conversations were recorded.      We also note that Appellant was aware

that all his conversations from prison were recorded.            Moreover, while

Appellant suggests he was prejudiced by the Commonwealth’s decision to

play limited portions of the taped discussions, he offers no specific

explanation to clarify how the Commonwealth allegedly took his statements

out of context or how those statements were misleading to the jury. After

the   Commonwealth      called   Jalisa   Allen   to   provide   context   to   the

conversations, the recordings were admitted into evidence and Appellant

was given the opportunity to cross-examine Ms. Allen.

      As a result, we conclude that the trial court did not err in admitting

these recorded conversations as they were highly relevant to the prosecution

and not unfairly prejudicial to Appellant.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017




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