J-S45033-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                   Appellee                 :
          v.                                :
                                            :
FAHEEM DAVIS,                               :
                                            :
                   Appellant                :   No. 143 EDA 2016

               Appeal from the Judgment of Sentence July 31, 2015,
               in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, at No: CP-51-CR-0004776-2013

BEFORE:        GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED SEPTEMBER 13, 2017

     Faheem Davis (Appellant) appeals from the judgment of sentence

imposed following his convictions for second-degree murder, robbery,

conspiracy, carrying firearms on public streets or public property in

Philadelphia, and possession of an instrument of a crime. We affirm.

     The trial court summarized the evidence as follows.

           On September 11, 2011, Christopher Lee (“Lee”) was
     playing dice with Dontay Chestnut (“Chestnut”) and Kenneth
     Perry (“Perry”) on the sidewalk on the corner of Lindenwood
     Street and Jefferson Street. Later that night, at approximately
     7:30 p.m., Appellant [] and Curtis Kingwood (“Kingwood”)
     approached the men playing dice, where money was visibly out
     on the ground. [Appellant] took out a gun and said “You know
     what time it is,” which the men understood to mean that they
     were going to be robbed. A struggle ensued between Lee and
     [Appellant] during which [Appellant] fired a single shot. Lee
     sustained one gunshot to the chest and was pronounced dead at
     the University of Pennsylvania Hospital at approximately 8:10
     p.m.




*Retired Senior Judge assigned to the Superior Court.
J-S45033-17


            [The case remained open until August 6, 2012, when]
     police were notified of a ballistics match between a gun
     recovered from a domestic assault and the ballistics evidence
     recovered in the September 11, 2011 shooting. After further
     investigation, detectives created photo arrays which were shown
     to both Chestnut and Perry, wherein Chestnut and Perry each
     identified [Appellant] as the shooter and co-defendant Kingwood
     as the other man who was with him. The police obtained arrest
     warrants and co-defendants Appellant and Kingwood were
     arrested in February 2013.

Trial Court Opinion (TCO), 7/8/2016, at 3-8 (footnote omitted).

           On January 8, 2014, [Appellant] filed a motion to sever to
     which the Commonwealth filed its opposition on June 5, 2014.
     On June 5, 2014, [the trial] court heard and denied [co-
     defendant] Kingwood’s motion to suppress a statement and
     accepted the parties’ written submissions on [Appellant’s]
     motion to sever and held the matter under advisement. On July
     1, 2014, [the trial court] denied [Appellant’s] motion to sever.

           On July 28, 2014, [Appellant] elected to exercise his right
     to a jury trial and pled not guilty[.] On August 4, 2014 the jury
     found [Appellant] guilty of [the aforementioned crimes] and
     sentencing was deferred for the completion of a pre–sentence
     investigation report and a mental health evaluation and
     continued several times due to the [trial court’s] new civil
     calendar and counsel availability. On July 31, 2015, [the trial]
     court sentenced [Appellant] to the mandatory term of life
     imprisonment on the murder charge. He received no further
     penalty on the remaining charges.         On August 10, 2015,
     [Appellant] filed a post-sentence motion, which [the trial court]
     denied on December 4, 2015.

           On December 29, 2015, [the trial court] received a notice
     of appeal and on January 7, 2016, [Appellant] was served an
     order directing him to file a concise statement of the matters
     complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
     January 26, 2016, [the trial court] received [Appellant’s]
     1925(b) response[.]

Id. at 1-2 (unnecessary capitalization omitted).

     Appellant states the following issues for this Court’s consideration:

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      I.     Is [Appellant] entitled to a new trial where the verdict, on
             all charges, is against the weight of the evidence as the
             greater weight of the evidence did not establish that
             [Appellant] was a principal, conspirator[,] or an accomplice
             to the crimes charged?

      II.    Is [Appellant] entitled to a new trial where the prosecutor
             engaged in misconduct during closing arguments and said
             “rather than work and make an honest living I’d rather rob
             people” and attributed the same to [Appellant]?

      III.   Is [Appellant] entitled to a new trial where the [trial court]
             erred when it failed to grant a severance and the result of
             same was [Appellant] being identified as a perpetrator
             through the reading of co-defendant’s statement which
             could not be properly redacted?

      IV.    Is [Appellant] entitled to a new trial as the result of [the
             trial court error,] where the [the trial court] permitted
             evidence to establish that [Appellant] had prior contact
             with the police and where that contact was remote in time
             to the homicide and where the interaction with the police
             would have tarnished [Appellant’s] good name, image[,]
             and character?

Appellant’s Brief at 3 (trial court answers omitted).

      We begin our review of Appellant’s weight-of-the-evidence argument

by setting forth our standard of review.

    The decision of whether to grant a new trial on the basis of a
    challenge to the weight of the evidence is necessarily committed
    to the sound discretion of the trial court due to the court’s
    observation of the witnesses and the evidence. A trial court
    should award a new trial on this ground only when the verdict is
    so contrary to the evidence as to shock one’s sense of justice. …
    Our review on appeal is limited to determining whether the trial
    court abused its discretion in denying the motion for a new trial
    on this ground.
Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations

omitted). “Not merely an error in judgment, an abuse of discretion occurs


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when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence on record.” Commonwealth v. Handfield, 34

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29

A.3d 3, 6 (Pa. Super. 2011)).

      In support of his claim, Appellant avers that

              [t]he weight of the evidence was truly contrary to the
      verdict.     This case was an identification case. The two
      eyewitnesses made photo identifications more than a year after
      the homicide. Moreover, the witnesses and [Appellant] did not
      know one another. There is no testimony which would have
      indicated that the witnesses had ever, even, seen [Appellant]
      prior to the day in question. The identifications made were
      extremely weak and did not match the description of [Appellant
      initially given to the police] in terms of weight, height and
      complexion.

Appellant’s Brief at 9-10.

      It its 1925(a) opinion, the trial court offered the following analysis.

            On appeal, [Appellant] asserts that the verdict was against
      the weight of the evidence, based upon the nature and
      substance of the eyewitness identifications. [The trial court]
      disagrees. At trial, the jury heard testimony from Linda Smith
      Lee, [Chestnut, Perry,] Samuel Hutson, Theodore Coles,
      numerous police officers and detectives, as well as the medical
      examiner, Dr. Collins, and was able to assess each of their
      credibility as a witness. Eyewitnesses Chestnut and Perry both
      gave statements to police describing the shooter and they were
      later able to identify [Appellant] through photos shown to them
      by police as well as make in-court identifications at trial. Their
      testimony further indicated that, at the time of the shooting,
      [Appellant] was only a couple of feet away from them and they
      had a clear view of his face. While [Appellant] challenges the
      accuracy of the identifications based upon the gap in time
      between the shooting and the generation of the photo arrays,
      the jury clearly found that the delay was sufficiently explained

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J-S45033-17


      via the testimony of the officers and detectives involved in the
      investigation. The collective testimony of Detective Jenkins,
      Detective Golphin, Officer Hilbert, and Officer Stott detailed the
      development of the ongoing investigation which was jumpstarted
      by a ballistics match nearly one year after the shooting.
      Following the match, the police conducted a series of interviews,
      including Samuel Hutson, Teddy Coles, and [co-defendant]
      Kingwood, which provided them with sufficient information to
      generate photo arrays to present to the eyewitnesses. In
      consideration of the initially sparse descriptions of [Appellant]
      and co-defendant Kingwood given by eyewitnesses at the scene
      and the subsequent lull in the investigation, [the trial court]
      provided the jury with a comprehensive instruction on assessing
      the eyewitness testimony and permitted the jury, as the fact
      finder, to determine whether such testimony should be received
      with caution. Th[e trial court’s] charge to the jury enumerated
      many detailed factors to be considered when assessing
      eyewitness testimony, thus providing the jury with a means of
      critical assessment. The jury verdict, reflecting the assessment
      of all of the identification evidence presented at trial, was not so
      contrary to the evidence presented at trial as to “shock one’s
      sense of justice.” Therefore, [the trial] court finds no merit in
      [Appellant’s] challenge to the weight of the evidence presented
      at trial.

TCO, 7/8/2016, at 14-15 (footnotes omitted).

      We discern no abuse of discretion in the trial court’s conclusion.       As

the trial court correctly observed, it is within the province of the jury, sitting

as fact-finder, to review the evidence and assess the credibility of the

testifying witnesses. See Commonwealth v. Williams, 854 A.2d 440, 445

(Pa. 2004) (“In criminal proceedings, the credibility of witnesses and weight

of evidence are determinations that lie solely with the trier of fact.”). See

also Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa.2004) (“The

weight of the evidence is exclusively for the finder of fact, which is free to



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J-S45033-17


believe all, part, or none of the evidence, and to assess the credibility of the

witnesses.”).    Accordingly, Appellant’s weight challenge fails.

      Next,     we   consider   Appellant’s   claims   related   to   the   alleged

prosecutorial misconduct during opening statements,1 and the trial court’s

error in failing to grant a mistrial. In so doing, we note the following

standard which governs our review of such claims:

         In criminal trials, declaration of a mistrial serves to
         eliminate the negative effect wrought upon a defendant
         when prejudicial elements are injected into the case or
         otherwise discovered at trial. By nullifying the tainted
         process of the former trial and allowing a new trial to
         convene, declaration of a mistrial serves not only the
         defendant’s interest but, equally important, the public’s
         interest in fair trials designed to end in just judgments.
         Accordingly, the trial court is vested with discretion to
         grant a mistrial whenever the alleged prejudicial event
         may reasonably be said to deprive the defendant of a fair
         and impartial trial. In making its determination, the court
         must discern whether misconduct or prejudicial error
         actually occurred, and if so, … assess the degree of any
         resulting prejudice. Our review of the resulting order is
         constrained to determining whether the court abused its
         discretion. Judicial discretion requires action in conformity
         with [the] law on facts and circumstances before the trial
         court after hearing and consideration. Consequently, the


1
  Specifically, Appellant takes issue with the following: “The prosecutor
engaged in prosecutorial misconduct by stating in her closing argument that
[Appellant] ‘rather [than] work and make [an] honesty living[,] I’d rather
rob people.’ NT July 28 at p.32.”           Appellant’s 1925(b) Statement,
1/26/2016; Appellant’s Brief at 12. However, our review of the record
reveals this statement occurred during the Commonwealth’s opening, not
closing.    Although Appellant, on appeal, now argues that a second
statement, during the Commonwealth’s closing also constituted misconduct,
we find the latter claim waived for failure to preserve it in his concise
statement. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).

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J-S45033-17


         court abuses its discretion if, in resolving the issue for
         decision, it misapplies the law or exercises its discretion in
         a manner lacking reason.

      The remedy of a mistrial is an extreme remedy required only
      when an incident is of such a nature that its unavoidable effect is
      to deprive the appellant of a fair and impartial tribunal.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (internal

quotation marks and citation omitted).         An opening statement is not

evidence.   Commonwealth v. Parker, 919 A.2d 943 (Pa. 2007).                “The

prosecution, as well as the defense, is afforded reasonable latitude in

presenting opening arguments to the jury.”       Id. at 950.    “A prosecutor’s

statements must be based on evidence that he plans to introduce at trial,

and must not include mere assertions designed to inflame the jury’s

emotions.” (citation omitted).

      Appellant’s issue revolves around the following statement made by the

Commonwealth:

            Ladies and gentlemen, these defendants, rather than work
      and make an honest living, armed themselves with a gun and
      went around looking for targets to take from other people and
      take from other people with a loaded gun at whatever the cost.
      And, in this case, it cost 22-year-old [Lee] his life.

N.T., 7/28/2014, at 32-33.       On appeal, Appellant avers this statement

referenced Appellant’s lack of employment, which, in light of case law cited

by Appellant, the Commonwealth is prohibited from doing “unless there is

some very specific reason[], that is evidentiary, for doing so.” Appellant’s

Brief at 13. Appellant contends that there was no reason for the prosecutor


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J-S45033-17


to make such comments “but for the fact that the [p]rosecutor was

attempting to raise passion and emotion[,]” and that because the statement

tainted “the fairness of the deliberations of the jury[,]” the trial court erred

by failing to grant Appellant a mistrial. Id. at 14.

      With respect to its decision to deny Appellant’s motion, the trial court

set forth the following.

             Upon review of the evidence presented at trial, [the trial]
      court has determined that the prosecutor’s remarks did not
      constitute misconduct. The remarks were within the permissible
      limits of oratorical flair afforded to counsel in apprising the jury
      of how the facts of the case will develop through the evidence
      presented at trial. The remarks referenced the evidence to be
      presented at trial through the testimony of eyewitnesses
      [Chestnut and Perry,] as well as the police testimony, indicating
      that upon being approached by [Appellant, Appellant] took out a
      gun and said “You know what time it is,” which Chestnut and
      Perry understood to mean that they were going to be robbed.
      Th[e trial] court further found that the remarks were not a
      deliberate attempt to destroy the jury’s objectivity and preclude
      the jury from rendering a true verdict.

TCO, 7/8/2016, at 10-11 (footnote omitted).

      We note at the outset that Appellant has failed to develop any

meaningful argument regarding the prejudice he proclaims to have suffered,

and instead only asserts baldly that the prosecutor’s comments were made

to      “taint       the      fairness       of        deliberations”        which

“could not be undone by any [jury] instruction[.]” Appellant’s Brief at 14.

      In light of our standard of review, we are unable to find that the trial

court abused its discretion in denying Appellant’s request for a mistrial. See



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Commonwealth v. Laird, 988 A.3d 618, 638 (Pa. 2010) (“A mistrial is an

‘extreme remedy’ that is only required where the challenged event deprived

the accused of a fair and impartial trial.”). In finding as such, we agree with

the trial court that the prosecutor’s statement concerning Appellant’s not

making a “honest living” in conjunction with setting up the facts to be

presented, namely that Appellant and his co-defendant committed a robbery

that resulted in Lee’s death, constituted permissible oratorical flair.   See

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008)

(“[P]rosecutorial misconduct does not take place unless the unavoidable

effect of the comments at issue was to prejudice the jurors by forming in

their minds a fixed bias and hostility toward the defendant, thus impeding

their ability to weigh the evidence objectively and render a true verdict.”)

(quotation marks and citation omitted). Appellant has failed to convince us

otherwise.2




2
  We note that Commonwealth v. Barkelbaugh and Commonwealth v.
Chambers, cited by Appellant in support of his contention that the
prosecutor engaged in misconduct are easily distinguishable. Unlike in this
case, where the prosecutor remarked that instead of making an “honest
living” Appellant and his co-defendant engaged in robberies, in
Barkelbaugh, our Supreme Court found that trial counsel was ineffective
for failing to object to a prosecutor’s closing remarks, wherein the
prosecutor stated that the defendant’s motive to commit the robbery was
that he was unemployed. In Chambers the only claim of prosecutorial
misconduct raised was found to be waived because counsel failed to raise
the issue during trial or on direct appeal. Thus, these cases provide no
support to Appellant.

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J-S45033-17


      Additionally, it is worthy to note that following opening remarks, the

trial court had the statement in question read back from the court reporter

and ultimately concluded that it did not “believe that [the statement] rises

to the level of [a] mistrial[.]” N.T., 7/28/2014, at 64. The trial court was

willing to provide a cautionary instruction to the jury, but stated that it was

the court’s belief that such an instruction “might highlight something.” Id.

Trial counsel did not request any instruction be given.

      In his third issue, Appellant argues the trial court erred in denying his

motion for severance of his trial from that of his co-defendant. Appellant’s

Brief at 14.

      Criminal defendants may be joined where they allegedly
      participated in the same act or transaction.         Pa.R.Crim.P.
      1127(A)(2). Where conspiracy is charged, co-defendants should
      be tried together. Further, “it is well established that a motion
      for severance is addressed to the sound discretion of the trial
      court, and that its decision will not be disturbed absent a
      manifest abuse of discretion.” Commonwealth v. Jones, [610
      A.2d 931, 936 (Pa. 1992)]. In determining whether to sever
      certain defendants, the court must balance the need to minimize
      the prejudice that may be caused by consolidation against the
      general policy of encouraging judicial economy. A better chance
      of acquittal from a separate trial is not sufficient cause to
      warrant severance.      Rather, the defenses presented by the
      various defendants must be “irreconcilable and exclusive” and
      “conflict at the core” before the substantial prejudice burden is
      met. Commonwealth v. Bennie, 508 A.2d 1211, 1215 (Pa.
      Super. 1986).

Commonwealth v. Presbury, 665 A.2d 825, 827–28 (Pa. Super. 1995)

(some citations omitted).




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       Here, Appellant’s co-defendant, Kingwood, provided a statement to

police admitting to his participation in the robbery that led to Lee’s murder.

Appellant’s Brief at 15-16.       He also implicated another individual as the

shooter.       Id.   This statement, which was redacted, was admitted at their

joint trial.    Appellant contends that the mention of another person would

logically point to Appellant as the “other guy,” who was the shooter. Id. at

16. Because of this, Appellant avers he was denied a fair trial.

       The trial court offered the following in support of denying Appellant’s

motion to sever.

             In the instant matter, [Appellant] avers that this court
       abused its discretion in denying his request for severance,
       claiming that he was highly prejudiced by the presentation of co-
       defendant Kingwood’s redacted statement to the jury. Th[e trial]
       court disagrees. In Bruton v. United States, [391 U.S. 123
       (1968)] the United States Supreme Court held that a defendant
       is deprived of his rights under the Confrontation Clause of the
       Sixth Amendment when his non-testifying co-defendant’s
       confession naming him as a participant in the crime is introduced
       at their joint trial. The Court reasoned that the possibility of
       prejudice arising from the introduction of such a confession by a
       non-testifying co-defendant is so great that a new trial is
       required even where the court specifically instructs the jury that
       the co-defendant’s confession must be considered as evidence
       only against that co-defendant[]. The Court further clarified, in
       Gray v. Maryland, [523 U.S. 185 (1998)] that

                [r]edactions that simply replace a name with an
                obvious blank space or a word such as “deleted” or a
                symbol or other similarly obvious indications of
                alteration,  however,    leave   statements    that,
                considered as a class, so closely resemble Bruton’s
                unredacted statements that, in our view, the law
                must require the same result.



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           In interpreting Bruton and its progeny, [] Pennsylvania
     [C]ourts have proposed appropriate ways in which to redact a
     non-testifying co-defendant’s statement, such as by replacing
     the defendant’s name with “the other man.” Moreover, our
     [C]ourts have reasoned that “there is no Bruton violation when
     the accused is linked to the crime with other properly admitted
     evidence other than the redacted confession; it is ‘a permissible
     instance of contextual implication.’”     [Commonwealth v.
     James, 66 A.3d 771, 777 (Pa. Super. 2013) (citing
     Commonwealth v. Cannon, 22 A.3d 210, 219 (Pa. 2011).]

           The instant statement at issue by co-defendant Kingwood
     was presented to the jury through the testimony of Detective
     Jenkins.    The detective read in the statement, in relevant
     portion, as follows:

          Question: [Kingwood], can you tell us what
          information you have concerning the shooting death
          of Christopher Lee?

          Answer: I was chilling on the block on Camac Street
          like I always do with my friend when the third guy
          pulls up in a blue Jeep and asked me and the second
          guy to roll out. So me and the second guy got in the
          Jeep. I got in the backseat and the second guy got in
          the front with the third guy. At first, we were going
          to go holler at some girls, then the second guy
          started talking about going out West Philly to get
          some bread. The second guy asked me if I was
          down, and I said, yeah, I'm down for whatever. We
          get out West Philly and we see about five or six
          dudes gambling off the corner so we speed around
          the block. The second guy and I get out of the car to
          go do the sting. We walk up the street and the
          second guy pulls out and says, ‘You know what it is,’
          and everyone starts to run off. I see the second guy
          shoot at the dude like one and two times. I run back
          towards the car with the second guy following me.
          We take off and head back to North. We go to
          McDonalds at Broad and Allegheny. I'm like ‘What
          the fuck?’ I knew we was going to go do a sting to
          get some bread. I did not know anyone was going to
          get popped. Once we got back to the block, the


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J-S45033-17


          second guy gave me the gun and told me to hold on
          to it because it was hot. I took and put the gun in a
          bag and stashed it in the alleyway on the block.

          Question: [Kingwood], what is a ‘sting’?

          Answer: A robbery.

          Question: Why did you go out to West Philly?

          Answer: We were driving and talking, then we
          started talking about getting some bread, so we
          went out West Philly.

          Question: [Kingwood], what do you mean by ‘bread’?

          Answer: Money.

          Question: [Kingwood], did you or anyone else get
          any proceeds from the robbery?

          Answer: No, I did not.

          Question: [Kingwood], can you tell us what made
          you guys pick or want to rob these particular guys?

          Answer: They were corner boys and we saw them
          counting money.
          []
          Question: [Kingwood], who had the gun?

          Answer: The second guy had the gun.

          Question: [Kingwood], did you know that the second
          guy had a gun?

          Answer: Yeah.

          [...]

          Question: [Kingwood], what kind of gun did the
          second guy have with him during this incident?



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J-S45033-17


           Answer: It was a .22 or .25 automatic.

           Question: What color was the gun?

           Answer: It was like a silverish color.

           Question: How did you know someone got popped?

           Answer: I saw one of the dudes fall on the ground.

           Question: [Kingwood], did you know the person that
           got shot died?

           Answer: No.

           Question: [Kingwood], can you tell us what you were
           wearing the day of the incident?

           Answer: I don't remember.
           []
           Question: [Kingwood], after you stashed the gun in
           the alleyway, do you know what happened to it
           afterwards?

           Answer: No.

           Question: [Kingwood], when was the last time that
           you saw or spoke with the second guy?

           Answer: It’s been a minute.

           The Commonwealth’s redactions to the statement included
     replacing [Appellant] and another individual with neutral terms,
     eliminating the portion of the statement wherein Kingwood
     refers to [Appellant] as hanging out on Camac Street, and
     eliminating the portion of the statement wherein Kingwood
     explains that he had not spoken with [Appellant] in some time
     because “he booked on a home invasion.”             As such, the
     introduction of the statement itself did not prejudice [Appellant]
     and any contextual implication that [Appellant] was linked to the
     crime, rendered through other evidence admitted at trial, was
     permissible.



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J-S45033-17


TCO, 7/8/2016, at 5-8 (footnotes omitted).

        The trial court’s reasoning is supported by the record and the relevant

case law. Appellant’s argument that his trial should have been severed from

his co-defendant revolves solely around Kingwood’s conversation with police

and its potential to implicate Appellant in the charged crimes. However, in

light of our case law, as cited supra, a redacted statement, coupled with a

limiting instruction,3 is allowed to be presented in a joint trial, and any

potential implications from that statement that linked Appellant to the crime

based upon the other evidence presented, including the identification by two

eyewitnesses, was permitted.4 See James, 66 A.3d at 777 (“Appellant fails

to recognize that our courts have distinguished a co[-]defendant’s confession

that ‘expressly implicates’ the accused from a confession that is not facially

incriminating, but becomes inculpatory only when linked with evidence


3
    See N.T., 8/1/2014, at 169-170.

        Now, a statement made before trial may be considered as
        evidence only against the defendant who made the statement.
        Thus, you may consider the statement of Mr. Kingwood as
        evidence against [Mr. Kingwood], again, if you believe he made
        the statement voluntarily. And you have to engage in what I
        told you about that. You must not consider the statement,
        however, as evidence against [Appellant]. You must not use the
        statement in anyway against [Appellant].

4
  Furthermore, we agree with the Commonwealth that Appellant failed to
show that “his and co-defendant’s defenses were incompatible. Indeed,
such a showing would be impossible, as both defendants relied on a theory
of misidentification. A joint trial was also advisable because both defendants
were charged with criminal conspiracy, and their crimes arose out of the
same facts and evidence.” Commonwealth’s Brief at 13 (citations omitted).

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J-S45033-17


properly introduced at trial.”). See also Commonwealth           v. Chmiel, 30

A.3d 1111, 1147 (Pa. 2011) (“The jury is presumed to have followed the

court’s instructions.”) (citation omitted). No relief is due.

      Lastly, Appellant contends the trial court erred by permitting Officer

Harrison to testify about an interaction with Appellant near Camac Street,

which resulted in the preparation of a pedestrian report. Of significance, the

firearm used in the robbery was initially located on Camac Street by

Theodore Coles, who resold it to Sam Hutson.           The police recovered the

firearm from Hutson. For the reasons that follow, we find this claim waived.

      By way of further background, the Commonwealth sought to introduce

Officer Harrison’s testimony that he had “contact” with Appellant on Camac

Street approximately eight months prior to the murder. N.T., 7/31/2014, at

76.   The officer did not elaborate on why “contact” was made, but only

testified that he encountered Appellant near Camac Street. Additionally, the

Commonwealth also sought to introduce a portion of Kingwood’s statement

to police, as cited in more detail supra, wherein Kingwood stated that he did

not know the name of “the second guy,” but knew he “[hung] out on Camac

Street.” N.T., 7/28/2014, at 8-9.

      Prior to opening statements the trial court addressed Appellant’s

objection to the introduction of the officer’s testimony.        Id.   As aptly

summarized by the trial court in its 1925(a) opinion:




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            [Appellant] sought to have the officer[’s] testimony
     regarding his interactions with police near the 3600 block of
     Camac Street precluded from trial, based upon the inference that
     could be drawn by the jury that he was [the] other/second guy.
     T[he trial] court agreed with [Appellant] and indicated that the
     court’[s] ruling on the testimony would depend on how the
     Commonwealth presented the statement to the jury. As such,
     [the trial court] found that if the redacted statement were
     presented as referenced above, the officers would not be
     permitted to testify as to his presence near the 3600 block of
     Camac Street; however if the Commonwealth, instead, chose to
     further redact the statement and simply not present that portion
     [of Kingwood’s statement], the officers would be permitted to
     testify as to such interactions with [Appellant.             The
     Commonwealth chose to redact the above-referenced portion of
     Kingwood’s statement and Officer Harrison testified about his
     contact with Appellant on January 1, 2011].

TCO, 7/8/2016, at 12-13 (footnotes omitted; emphasis in original).

     Now, on appeal, Appellant argues that

     [t]he testimony served one purpose, and one purpose only, and
     that was to smear the character of [Appellant]. The contact was
     remote in time to the incident in question and, hence, was not
     relevant.   Moreover, limiting the testimony to “contact” did
     nothing to hide the fact that the police had looked into
     [Appellant] on a prior occasion. Surely the jury did not believe
     that the prior contact was the [o]fficer taking [Appellant] to a
     ball game or attend [Appellant’s] relatives’ wedding. It was
     police contact.

                                   ***

     The evidence as offered would not tend to prove anything about
     the shooting in question. The only way that it could have any
     impact on this case was in the improper way of smearing
     [Appellant’s] character.

                                   ***

     Here, the evidence which was really not relevant at all, but if
     marginally relevant should have been excluded as the probative


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      of such evidence is outweighed by the danger of unfair
      prejudice.

Appellant’s Brief at 17-18.

      Appellant has waived this claim because he failed to raise this

argument with the trial court. Indeed, Appellant’s objection raised prior to

trial was a concern regarding the effect the officer’s testimony would have

on Kingwood’s redacted statement which the Commonwealth sought to

introduce at trial. N.T., 7/28/2014, at 8-9. At that time, Appellant did not

argue that, in addition to this concern, Appellant also believed the statement

was prejudicial and did not serve any probative value. Furthermore, during

Officer Harrison’s testimony, Appellant did not make any objection on the

record, other than objecting to the officer testifying regarding what address

Appellant had given to him, to preserve his relevance argument. See N.T.,

7/31/2014, at 76.     Appellant cannot now craft a new legal theory upon

which he contends the trial court erred. See Commonwealth v. Phillips,

141 A.3d 512, 522 (Pa. Super. 2016) (“Our Pennsylvania Rules of Appellate

Procedure and our case law set forth the well-established requirements for

preserving a claim for appellate review. Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal. This

requirement bars an appellant from raising a new and different theory of

relief for the first time on appeal.”) (quotation marks and citations omitted).

As such, the claim is waived.



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J-S45033-17


     Thus, after a thorough review of the record and briefs in this case, we

are unconvinced that any of Appellant’s arguments entitles him to relief.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/13/2017




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