Com. v. Goins, D.

• Court: Superior Court of Pennsylvania
• Decided: June 20, 2023
• Docket: 513 EDA 2022
• Status: Unpublished

Opinion

J-A10036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DERRICK GOINS : : Appellant : No. 513 EDA 2022

Appeal from the Judgment of Sentence Entered January 13, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006411-2019

MEMORANDUM PER CURIAM: FILED JUNE 20, 2023

Derrick Goins appeals from the January 13, 2022 aggregate judgment

of sentence of life imprisonment imposed after a jury found him guilty of first-

degree murder and criminal conspiracy to commit murder.1 After careful

review, we affirm the judgment of sentence.

The factual history of this case was set forth at great length in the trial

court’s May 13, 2022 opinion and need not be reiterated in full here. See trial

court opinion, 5/13/22 at 3-36. The relevant facts and procedural history of

this case were summarized as follows:

[Appellant’s] convictions arose out of a conspiracy with co-defendants, Kyshan Brinkley and Jacquan Lee, to murder Keith Robinson, a rival drug dealer to the home-grown Pottstown gang, Bud Gang Bitch (“BGB”). On March 30, 2019, at about 10:53 p.m.,

____________________________________________

1 18 Pa.C.S.A. §§ 2502(a) and 903(a)(1), respectively. J-A10036-23

the victim’s vehicle was sprayed with bullets, while the victim was parked at the corner of York and Walnut Streets, Pottstown. Two of the ten bullets hit the victim and killed him. [Appellant] left the scene in a black van with co-defendants Brinkley and Lee, and a few minutes later arrived at the 206 [Manatawny] Street apartment complex.

Specifically[,] as to [Appellant], earlier in the evening of March 30, 2019, [Appellant] was with his co- defendants Brinkley and Lee at a gathering. Several witnesses identified [Appellant] as being present at the Chestnut and Evans Streets gathering location. Witnesses observed [Appellant] leave there with his co[-]defendants and Elijah Davis in a black van. A short time later, a black van was captured twice on surveillance in the vicinity of the victim’s car, actually circling the victim’s car. A witness who was in the area of the murder scene, just prior to the murder, observed [Appellant] pacing in an alleyway. After the murder, [Appellant] was observed at 206 Manatawny Street apartment complex, the BGB gang trap house, along with his co-defendants. Additionally, [Appellant’s] cell phone records from the night of the murder show that the movements of his cell phone were consistent with those of co-defendant Brinkley’s cell phone, that put both in the area of the murder at the relevant time, traveling back to 206 Manatawny Street, then a short time later their cell phones traveled to a gas station, and then to the Uncut club in Philadelphia. Surveillance footage corroborates that a black van was at the murder scene, at 206 Manatawny Street, and at a nearby gas station at times that match up to the cell phone records. The surveillance at the gas station depicted [Appellant] exiting the black van. Finally, the evidence showed that [Appellant] had rented a black dodge caravan minivan on March 29, 2019 and returned it April 2, 2019.

Id. at 1-2.

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Appellant was subsequently arrested in connection with this incident and

proceeded to a joint jury trial alongside his co-defendants on January 3, 2022.

At trial, Commonwealth presented testimony from 32 witnesses and the

defendants presented testimony from an additional 6 witnesses. Following an

eight-day jury trial, Appellant was found guilty of first-degree murder and

criminal conspiracy to commit murder. On January 13, 2022, the trial court

sentenced Appellant to an aggregate term of life imprisonment. Appellant

filed timely post-sentence motions that were ultimately denied by the trial

court on January 31, 2022.

Thereafter, on February 16, 2022, Appellant filed a timely notice of

appeal.2 On February 17, 2022, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b). Appellant filed a timely concise statement on March 2,

2022, and the trial court filed its comprehensive Rule 1925(a) opinion on May

13, 2022.

Appellant raises the following issues for our review:

1. [Whether the t]rial court made an error of law and abused its discretion in failing to grant Appellant’s motion to sever as the Appellant was prejudiced by having his co-defendants tried at the same time when there were several pieces of evidence admitted in front of the jury that would have been inadmissible against the Appellant if he had a separate trial, including but ____________________________________________

2Appellant’s co-defendants, Kyshan Brinkley and Jacquan Lee, filed related appeals at No. 549 EDA 2022 and No. 547 EDA 2022, respectively.

-3- J-A10036-23

not limited to: codefendant’s Instagram and social media posts, codefendants’ sworn grand jury testimony, codefendant’s confession, evidence of co-defendants’ prior drug activities, gang activities, and rap videos[?]

In addition, all the specific bad acts evidence only applied to the Appellant’s codefendants and resulted in an unfair trial, no matter how many cautionary instructions the court made.

2. [Whether the trial c]ourt made an error of law and abuse of discretion in allowing Lt. Erick Echev[a]rria to testify as a gang expert, when there was no testimony or evidence presented[:] 1) that [Appellant] was in the gang Bud Gang Bitch [(“BGB”);] 2) that [Appellant] was involved in any gang activity in the last 10 to 15 years[;] and 3) that [Appellant] was involved in any drug activity or had any connection to the “trap” house located at 206 Manatawny[?]

Furthermore, the [trial] court made an error of law and abuse of discretion in failing to give a cautionary instruction as it related to Lt. Erick Echevarria’s testimony, and in failing to advise the jury that none of the testimony of said witness could be used against [Appellant].

3. [Whether the trial c]ourt made an error of law and abuse of discretion in allowing Lt. Erick Echeverria to testify as a gang expert witness, as Lt. Erick Echev[a]rria was not able to give any specific information related to the Bud Gang Bitch (“BGB”) gang’s hierarchy organization structure, or specific acts of the gang or its affiliates, and provided only nonspecific information regarding characteristics of gangs in general[?]

Lt. Erick Echev[a]rria’s entire testimony was speculative and conjecture as it related to BGB.

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4. [Whether the trial c]ourt made an error of law and abuse of discretion in allowing 404(b) evidence in trial where the Commonwealth failed to provide any actual notice of a 404(b) filing and the 404(b) evidence, including drug dealing, possession of weapons and drugs, and social media posts was not related to [Appellant] [?]

5. [Whether the trial c]ourt made an error of law and abuse of discretion in allowing the playing of rap videos and publication of written lyrics associated with said videos as their very limited probative value, if any, was greatly outweighed by their prejudicial effect and there was no evidence presented that [Appellant] was involved in any way with said rap videos[?]

6. [Whether the trial c]ourt made an error of law and abuse of discretion in denying Appellant’s motion in limine to preclude evidence of gang affiliation[?]

7. [Whether the trial] court made an error of law and abuse of discretion in denying Appellant’s motion in limine to preclude evidence of rap videos and lyrics[?]

8. [Whether the trial c]ourt made an error of law and abuse of discretion in giving the consciousness of guilty/flight instruction based upon the testimony elicited at trial[?]

Appellant submits that there was no evidence of flight.

9. [Whether t]he jury’s verdict was against the weight of the evidence because the weight of the evidence demonstrated a reasonable doubt as to whether the Appellant had committed the crimes charged[?]

10. [Whether t]he trial court committed an error law in denying Appellant’s post sentence motion for

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judgment of acquittal based upon the fact that evidence introduced at trial was not legally sufficient to support the verdict because the evidence failed to establish each material element of the crimes charged and the commission thereof by the Appellant beyond a reasonable doubt, including the charge of conspiracy and murder in the first degree[?]

Appellant’s brief at 4-9 (extraneous capitalization omitted).

I. Severance

Appellant first argues that the trial court abused its discretion in denying

his motion to sever his case from that of his co-defendants. Id. at 34-41.

A motion for severance is addressed to the sound discretion of the trial court, and ... its decision will not be disturbed absent a manifest abuse of discretion. The critical consideration is whether the appellant was prejudiced by the trial court’s decision not to sever. The appellant bears the burden of establishing such prejudice.

Commonwealth v. Page, 59 A.3d 1118, 1133 (Pa.Super. 2013) (citation

omitted), appeal denied, 80 A.3d 776 (Pa. 2013).

Our Rules of Criminal Procedure provide as follows:

(1) Offenses charged in separate indictments or informations may be tried together if:

(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or

(b) the offenses charged are based on the same act or transaction.

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Pa.R.Crim.P. 582(A). Furthermore, “[t]he court may order separate trials of

offenses or defendants, or provide other appropriate relief, if it appears that

any party may be prejudiced by offenses or defendants being tried together.”

Pa.R.Crim.P. 583.

II-III. Expert Opinion Testimony

Appellant next argues the trial court abused its discretion in allowing

opinion Lieutenant Erick Echevarria to testify as an expert in gang structure

and organization and drug trafficking. Appellant’s brief at 44-47.

It is well settled that expert testimony is admissible if it concerns a

subject beyond the knowledge, information, or skill possessed by the average

layperson, as phenomena and situations that are matters of common

knowledge may not be the subject of expert testimony. Pa.R.E. 702.

[I]n cases involving the admission of expert testimony . . . the admission of expert testimony is a matter left largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion. An expert’s testimony is admissible when it is based on facts of record and will not cause confusion or prejudice.

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa.Super. 2013) (citation

omitted), appeal denied, 80 A.3d 775 (Pa. 2013).

IV-VII. Admissibility of Prior Bad Act Evidence

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Appellant next argues that the trial court abused its discretion admitting

prior bad act evidence, including various gang-related evidence and the

admission of rap videos and lyrics. Appellant’s brief at 41-43, 47-51.

“[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013).

It is well settled that “evidence of prior crimes is not admissible for the

sole purpose of demonstrating a criminal defendant’s propensity to commit

crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283

(Pa.Super. 2004) (en banc); see also Pa.R.E. 404(b)(1). Nevertheless,

“[e]vidence may be admissible in certain circumstances where it is relevant

for some other legitimate purpose and not utilized solely to blacken the

defendant’s character.” Id. Specifically, evidence of other crimes or bad acts

is admissible evidence of other crimes may be introduced to show:

motive; intent; absence of mistake or accident; a common scheme or plan; and identity. The evidence may also be admissible to impeach the credibility of a testifying defendant; to show that the defendant has used the prior bad acts to threaten the victim; and in situations where the bad acts were part of a chain or sequence of events that formed the history of the case and were part of its natural development.

Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002) (citations and

numeration omitted), cert. denied, 540 U.S. 850 (2003); see also Pa.R.E.

404(b)(2). When offered for a legitimate purpose, evidence of prior crimes or

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bad acts is admissible “if the probative value of the evidence outweighs its

potential for unfair prejudice.” Commonwealth v. Hairston, 84 A.3d 657,

665 (Pa. 2014) (citation omitted), cert. denied, 574 U.S. 863 (2014).

VIII. Jury Instructions

Appellant next argues that the trial court erred by providing the jury

with the consciousness of guilt/flight jury instruction. Appellant’s brief at 51-

52.

“[A] trial court has broad discretion in phrasing its instructions, and may

choose its own wording so long as the law is clearly, adequately, and

accurately presented to the jury for its consideration.” Commonwealth v.

Charleston, 94 A.3d 1012, 1021 (Pa.Super. 2014), appeal denied, 104 A.3d

523 (Pa. 2014) (citation omitted). “A jury charge will be deemed erroneous

only if the charge as a whole is inadequate, not clear or has a tendency to

mislead or confuse, rather than clarify, a material issue.” Commonwealth

v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013).

IX. Weight of the Evidence

Appellant next argues that the jury’s verdict was not supported by the

weight of the evidence. Appellant’s brief at 57-58.

This Court has recognized that “[a]n allegation that the verdict is against

the weight of the evidence is addressed to the discretion of the trial court.”

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Commonwealth v. Galvin, 985 A.2d 783, 793 (Pa. 2009) (citation omitted),

cert. denied, 559 U.S. 1051 (2010).

[W]here the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation

omitted).

Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence.

....

Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and

emphasis omitted).

X. Sufficiency of the Evidence

Lastly, Appellant argues that there was insufficient evidence to sustain

his conviction for first-degree murder and criminal conspiracy to commit

murder. Appellant’s brief at 52-57.

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In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to prove every element of the offense beyond a reasonable doubt. As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact- finder. Any question of doubt is for the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations

omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

Following a thorough review of the record, including the briefs of the

parties, the applicable law, and the well-reasoned opinion of the trial court, it

is our determination that Appellant’s claims on appeal warrant no relief. In

its extensive 67-page opinion, the trial court comprehensively discussed each

of Appellant’s allegations of error and concluded that they are without merit

or waived. See trial court opinion, 5/13/22 at 36-66. We find that the trial

court’s conclusions are supported by competent evidence and are clearly free

of legal error.

Accordingly, we adopt the comprehensive May 13, 2022 opinion of the

Honorable William R. Carpenter as our own for purposes of this appellate

review.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/20/2023

- 12 - Opinion

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA: CP-46-CR-0006411-2019

V. Jt) DERRICK GOINS 513 EDA 2022

1925(a) OPINION

CARPENTER J. MAY 13, 2022

INTRODUCTION -·< Appellant, Derrick Goins ("Goins"), appeals from his judgment of

sentence entered on January 13, 2022, following his conviction of first-degree

murder and criminal conspiracy. Goins was sentenced to a life term of

imprisonment.

Goins' convictions arose out of a conspiracy with co-defendants,

Kyshan Brinkley and Jacquan Lee, to murder Keith Robinson, a rival drug

dealer to the home-grown Pottstown gang, Bud Gang Bitch ("BGB"). On March

30, 2019, at about 10:53 p.m., the victim's vehicle was sprayed with bullets,

while the victim was parked at the corner of York and Walnut Streets,

Pottstown. Two of the ten bullets hit the victim and killed him. Goins left the

scene in a black van with co-defendants Brinkley and Lee, and a few minutes

later arrived at the 206 Manatawey Street apartment complex. Specifically as to Goins, earlier in the evening of March 30, 2019,

Goins was with his co-defendants Brinkley and Lee at a gathering. Several

witnesses identified Goins as being present at the Chestnut and Evans Streets

gathering location. Witnesses observed Goins leave there with his co-

defendants and -Elijah Davis in a black van. A short time later, a black van was

captured twice on surveillance in the vicinity of the victim's car, actually

circling the victim-'s car. A witness who was in the area of the murder scene,

just prior to the murder, observed Goins pacing in an alleyway. After the

murder, Goins was observed at 206 Manatawny Street apartment complex, the

BGB gang trap house, along with his co-defendants. Additionally, Goins' cell

phone records from the night of the murder show that the movements of his

cell phone were consistent with those of co-defendant Brinkley's cell phone,

that put both in the area of the murder at the relevant time, traveling back to

206 Manatawny Street, then a short time later their cell phones traveled to a

gas station, and then to the Uncut club in Philadelphia. Surveillance footage

corroborates that a black van was at the murder scene, at 206 Manatawny

Street, and at a nearby gas station at times that match up to the cell phone

records. The surveillance at the gas station depicted Goins exiting the black

van. Finally, the evidence showed that Goins had rented a black dodge caravan

minivan on March 29, 2019 and returned it April 2, 2019. With all this

evidence the jury convicted Goins of conspiring with his co-defendants to

murder the victim.

2 On appeal, Goins alleges error in several pre-trial rulings, denying

his motion to sever, admitting various gang-related evidence, including the

drug expert opinion of Lieutenant Erick Echevarria and the admission of rap

videos and lyrics; providing the jury with the consciousness of guilt/ flight jury

instruction; the weight of the evidence; and the sufficiency of the evidence.

FACTUAL AND PROCEDURAL HISTORY

On January 3, 2022, the eight-day trial commenced where the

following facts were established. The Commonwealth first presented the trial

testimony of Gregory Byrd, the victim's younger brother. (N.T., Trial by Jury,

Day 2 of 8, 1 / 4 /22. P. 65). Mr. Byrd testified that his brother was living in

Pottstown and had lived there for about 18 years, however, he was born and

raised in Philadelphia. Id. 66 - 67. The victim was 41-years-old at the time of

his murder, and was also known as Naz and Esco. Id. at 65, 67, 84. At the time

of his murder, Mr. Robinson worked in construction, and he also sold cocaine

with Mr. Byrd. Id . at 68.

In the morning of March 30, 2019, Mr. Byrd was selling drugs,

while his brother was out riding his motorcycle. Id. at 69. He delivered drugs to

individuals he knew as KK and Valerie. Id. Mr. Byrd and the victim met up

later that day, but went their separate ways at 10:00 p.m., until the victim

returned to help him with a flat tire. Id. at 70 - 72. The victim arrived in a

green Infinity Jeep, and drove his brother back to his apartment. Id. at 72 - 73.

That was the last time they saw each other. Id. at 74.

3 . At approximat ely 10:53 p.m., Officer Andrew Licwinko of the

Pottstown Borough Police Departmen t, responded to the area of York Street

and Walnut Street in Pottstownfo r shots fired in that area. Id. at 98, 99 - 100.

Upon his arrival there he observed a dark-colore d Infinity parkec;i close to the

intersection , with the passenger window broken out. Id. at 100. A volunteer

firefighter was on the driver's side tending to a male, who was slumped over in

the driver's seat, and later identified as Keith Robinson. Id. at 100 - 101.

Officer Licwinko, along with the firefighter, pulled the victim from his car. Id. at

101. He had multiple gunshot wounds to his chest and neck, and no pulse. Id.

The victim was transported to the hospital, where he was pronounced dead. Id.

at 102. Officer Licwinko secured the crime scene and identified eight spent

shell casings. Id. at 105 - 106.

Karen Clarke was a resident of 128 North York Street, in March of

2019. Id. at 140. Ms. Clarke, a/k/a KK, lived in the first floor apartment and

Valerie Miller was her neighbor in the second floor apartment. Id. at 141, 144.

Ms. Clarke knew the victim, who she called Naz, because she bought cocaine

from him in the past. Id. at 142. On the day of the murder, Ms. Clarke texted

the victim around 7:00 p.m. and then around 10:00 p.m. At 10:47, the Mr.

Robinson texted back, "Outside." Ms. Clarke alerted Ms . Miller that the victim

was there. Id. at 150. A few minutes later, Ms. Clarke heard gunshots. Id. at

150. Ms. Clarke made her way to the front door and yelled to Ms. Miller to

come back inside. Id. Ms. Miller got out of the car and said, "Oh, my God, Naz

been shot. So call 9 - 1-1." Id. Ms. Clarke retrieved her phone from inside the

4 house, and went outside by the driver's side of the victim's car and called 9-1-

1. Id. at 150-151.

Valerie Miller testified that she knew the Mr. Robinson through his

girlfriend, Renada. Id . at 179. On March 30, 2019, she and Ms . Clarke were

trying to buy drugs from him. Id . at 180. At some point when the victim was

there, Ms. Miller got into his car, and while in the car she heard gunshots

being fired. Id. at 181 - 182.

Dr. Gregory McDonald, the Chief Deputy Coroner for Montgomer y

County, performed an autopsy on the victim on March 31, 2019. Id. at 209,

217. Dr. McDonald's examinatio n revealed two entrance gunshot wounds, one

on the right side of the neck and the other to the right side of the chest. Id. at

218. Dr. McDonald concluded that the victim died of multiple gunshot wounds.

Id. at 227. He opined that either gunshot wound was potentially fatal, and that

the victim would have died within several minutes from these injuries. Id.

Detective Robert Turner, a detective with the Montgomer y County

Detective Bureau - Forensic Services Unit, was called to the scene of the crime

and arrived around 12: 15 a.m. Id. at 234, 237 - 238. Detective Turner did a

scene walk-throu gh. Id. at 239 . The detective testified that based upon the

shell casings that were identified, shooter would have about 30 feet to 46 feet

away from the passenger door of the victim's vehicle. Id.- at 243 - 244. Detective

Turner recovered nine spent shell casings. Id. at 245. They were all .40-caliber,

manufactu rer was Smith and Wesson and two brands, Blazer and CBC. Id. at

247 - 248.

5 Detective Turner was contacted by Lieutenant Kuklentz about

twenty minutes after his arrival to go to an additional location at 4 7 Beech

Street, about a block and a half from the crime scene. Id. at 260, 262. He and

Detective Schanes went there and spoke to Detective Kelly. Detective Kelly had

located a black jacket inside a residential dumpster right outside the 4 7 Beech

Street residence. Id. at 260 - 261. An orange Bic cigarette lighter was found in

the jacket's pocket. Id. at 266. Directly across from 4 7 Beech Street is 44 Beech

Street, and laying on the curb line on the roadway, the detective recovered

another .40-caliber Smith and Wesson, brand CBC spent, fired shell casing. Id.

at 268 - 269, 272.

Detective Kathleen Kelly, of the Montgomer y County Detective

Bureau responded to the crime scene in the area of York and Walnut Streets.

(N.T., Trial by Jury- Day 3 of 8, 1/5/22, p. 8). Detective Kelly and Detective

Mull from Pottstown, walked around the crime scene and found a jacket in a

trash can, located right in front of 47 Beech Street. Id. at 10 - 11, 12. The

jacket was laying right on top of the trash. Id. at 11.

Johnny Walker, the resident at 4 7 Beech Street, testified that on

March 30, 2019, he took the trash out around 4:00 or 4:30 p.m. Id. at 32. That

night he was on the couch in his first floor living room when he heard

gunshots. Id. at 33. He also heard the trash can lid open and .shut, and

someone put trash inside. Id. Mr. Walker told detectives that the jacket did not

belong to him or any other resident at 4 7 Beech Street. Id. at 34.

6 Elias Scipio, a volunteer firefighter back in March of 2019, and on

March 30, 2019, at around 10:00 or 10:30 p.m., he was on Walnut Street to

pick up his friend. Id. at 50 - 51. He was looking for parking, and when he

pulled into Union Alley, he witnessed a male walking towards his vehicle. Id. at

53. Mr. Scipio described the male as a light-skinn ed male, athletic build, with

twists in his hair. Id. The male was pacing back and forth. He started to

approach Mr. Scipio's vehicle, which made him feel uncomforta ble so he left

the alley. Id. at 54. Mr. Scipio got a good look at the individual and further

described him as wearing dark-colore d clothing, such as a dark-color hoodie or

jacket. Id. at 55, 57. On May 3, 2019, Mr. Scipio spoke with Lieutenant James

McGowen at the Pottstown Police Departmen t. Id. at 57 - 58, 96. There he

identified Goins as the individual he observed in the alleyway in a photo array.

Id. at 63, 65, 96.

After leaving the that neighborho od for a period of five minutes,

Mr. Scipio returned and observed a vehicle sitting on the corner with all of its

windows shattered and two females standing outside the vehicle. Id. at 67 - 68.

He got out of his car, and attempted to assist the victim. Id. at 68.

Lieutenant Todd Richard of the Montgomer y County Detective

Bureau - Homicide Unit and lead detective reviewed various items of video

surveillanc e, namely footage from the Pottstown Borough cameras. Id. at 112 -

114. He was on alert to look for a black Dodge minivan, which had been

identified by witnesses as a vehicle that suspects were seen in before and after

the murder. Id. Also during the course of his investigatio n he received

7 informa tion that the suspect s were at a gatherin g on Chestn ut and Evans

Streets. Id. at 116.

The Commo nwealth played a video surveill ance clip taken about a

block and a half away from that gatherin g. Id. at 117. The lieutena nt identifie d

the black Dodge minivan which at 10:45 p.m. had left from Chestn ut Street

and turned onto Washin gton Street. Id. Additio nal video depicted the black

Dodge minivan at about 10:51 p.m., go westbou nd on Walnut Street and travel

on Walnut Street towards the intersec tion of Walnut and York Streets. Id. at

118, 120 - 121, 130. An individu al from the right side of the video frame

walked to the middle of the video frame, and the individu al goes out of the

frame at the top of the video. Id. at 134. The individu al runs back from the left

to the right of the video frame. Id. Further , video was obtaine d from 26 Walnut

Street, in which the audio recorde d gunsho ts at 10:52 p.m. Id. at 122 -

123, 126 - 128.

Jamar Baird 1 testified that on March 30, 2019, he was at the

Chestn ut and Evans Streets gatherin g, and he was there with "Key'', identifie d

in court as co-defe ndant Brinkley . Id. at 161 - 162. Mr. Baird acknow ledged

that at some point that night there was a plan to go to a club in Philade lphia.

Id. at 162. Before they drove down to the club, he went with "E" to Beech and

Manata wny. Id. at 163 - 164. Using the grand jury testimo ny to refresh his

Upon questioni ng by the Common wealth, Mr. Baird did not have any independ ent - memory of the events of March 30, 2019. (N.T., Trial by Jury - Day 3 of 8, 1/5/22, pp. 155 testimony taken on 156). The Common wealth presented him with a transcrip t of his grand jury May 15, 2019. Id. at 157. He continue d to claim that he did not remembe r anything from March 30, 2019. Id'. at 158 - 159. It did not refresh his recollecti on. Id. at 160. 8 recollection , Mr. Baird testified that "Swizz" "and them pulled off' from

Chestnut and Evans Street right before he left with "E." Id. at 165 - 166. Mr.

Baird identified in court that "Swizz" is co-defenda nt Lee . Id. at 167. According

to Mr. Baird's grand jury testimony, "D" might have been in the van with Swizz.

Id. at 166 - 167. He identified in court that "D" is co-defenda nt Goins. The

Court dismissed Mr. Baird, subject to recall. Id. at 170.

Jahtae Booker, was also at the gathering at Chestnut and Evans

Streets. Id. at 171. Mr. Booker testified that Goins was present. Id. at 193.

Several minutes after arriving, Ms. Booker left, and, at the direction of co-

defendant Lee, he dropped his friend off at 206 Manatawny Street. Id. at 171,

172 - 173. A short time later when he got to 206 Manatawny Street, Mr.

Booker heard gunshots coming from a distance . Id. at 174, 194. Mr. Booker

testified that Goins and co-defenda nt Lee were in the parking lot of 206

Manatawny Street. Id. at 174 - 175, 184. Mr. Booker left the area. Id. at 175.

Upon further questioning , Mr. Booker did not remember answers

to questions he previously testified to at a grand jury. Id. at 176. The

Commonwe alth introduced his June 5, 2019 grand jury testimony where he

testified that the vehicle he saw that went to the club in Philadelphi a was at the

Gulf gas station, and it was a van. Id. at 176 - 178. At the club, Mr. Booker

saw Goins, co-defenda nt Lee, and co-defenda nt Brinkley. Id. at 190. They all

stayed until closing time. Id. While nobody talked about the murder, people

were posting stuff about the victim's death. Id. at 191.

9 Additional video surveillance was recovered by both Detective

Brooke Hatfield and Detective Michael Glauner, both of the Pottstown Police

Department. The former recovered surveillance from 112 Walnut Street2 , 26

Walnut Street, and from the Gulf station 3 . Id. at 211 - 212. Detective Glauner

recovered video footage from the camera located at Chestnut and Washington

Streets. Id . at 265.

Comese Robinson, a resident of 107 Walnut Street, Unit F,

Foundry Apartments, testified that on the night of the murder, just before

11 :00 p.m ., she heard gunshots. Id. at 278, 280. After waiting about two

minutes, she saw a figure running though the parking lot on York Street

towards Beech Street. Id. at 280, 281. The figure was wearing all black and was

hunched over with something in his right pocket. Id . at 282. At the corner of

York and Beech streets, the figure went to turn onto Beech Street, but did an

about face and pulled the hood off his head. Id. at 283. There was a police

officer at the corner of Beech and York. Id. After the police drove by, the

individual continued to go back around the corner down Beech Street. Id . at

284 .

Robert Garcia, a resident of 48 Beech Street, testified that on

March 30, 2019, he was across the street from his house when he heard

gunfire. Id. at 298. He and his wife went back to their house, and as he set

2 Detective Hatfield testified that the time stamp on the video from 112 Wal.n ut Street was one hour slow from real time. (N.T., Trial by Jury- Day 3 of 8, 1/5/22, p. 213).

3 The video from the Gulf station was about 15 minutes fast . Id. stuff down inside the door he turned around and saw someone coming down

the sidewalk on Beech Street. Id. at 299. The person was about 25 yards south

of York Street headed toward Manatawny Street. Id . The person went right into

the alleyway, between 47 and 43 Beech Street, and stopped. Id. at 301. Mr.

Garcia testified that the person was wearing sweats and a hoodie, dark in

color. Id. at 302. The person had his right hand inside the right side of the

jacket or hoodie. Id. at 303 - 304.

Lieutenant Todd Richard was recalled to testify. (N.T., Trial by Jury

- Day 4 of 8, 1 /6/22, p. 11). Lieutenant Richard testified that the investigatio n

into the murder was lengthy. Id. at 12. On April 9, 2019, he became aware that

a black van was involved in the murder, and then investigato rs developed more

information about the van. Id. at 13. On April 10, 2019, video footage was

taken from the Gulf gas station, when he found out that location was relevant.

Id. at 13 - 14. He further discovered that 206 Manatawny Street location was

involved in this investigatio n, and he obtained video footage from there. Id. at

14. A drone video was also made in order to demonstrat e the crime scene, as to

where the shooting occurred, where the jacket was found, where the shell

casing was recovered, and the alleyway that they ran to after the shooting. Id.

at 14 - 15. Lieutenant Richard testified that to travel by car from York and

Walnut Streets to 206 Manatawny , it would take a minute or less. Id. at 21 -

22.

Lieutenant Richard also obtained video from the exterior of 206

Manatawny Court Apartments , and he gathered information about individuals

11 associated with that apartment C2. Id. at 22. He obtained a cell phone picture

of four guns that had been taken inside that apartment prior to the murder. Id.

The lieutenant watched the video from about 9:00 p .m. up until 11 :30, 12

o'clock on the night of the murder. Id. He was watching for a black van pulling

into the parking lot. Id. at 23. The van had several distinctive features, and at

11:00 p.m., this black van backs into the parking lot at Building 206. Id . at 24

- 25. The video depicts several people entering the doorway of the apartment

building, and the door opening to where C2 would be. Id. at 25 - 26. At 11: 10

p.m., the van pulls out of the parking lot. Id. at 27. At some point in his

investigatio n he became aware that Goins, co-defenda nt Brinkley, and co-

defendant Lee had been driving a black van on the night of the murder. Id. at

76. He also learned that it was Goins who had rented a black van. Id. at 75 -

76.

A search warrant was obtained for 206 Manatawny , Apartment C2,

and was executed on !\pril 3, 2019. Id. The lieutenant described the apartment

as not set up to live in. Id . He detailed what was found in relevant part, a Glock

magazine fully loaded in a plastic sandwich bag; a Colt .45 handgun with an

extended magazine that was loaded and which had been determined to be

stolen out of Philadelphi a; a CenterPoin t crossbow; a box of Remington .45

ammunitio n; a plastic bag of .380 caliber ammunitio n; and a receipt with

Jamar Baird's phone number on it. Id. at 28 - 36.

The search also uncovered drugs, and drug parapherna lia,

including, plastic vial lids commonly used for packaging illegal narcotics, box of

12 wax baggies commonly used for packaging heroin, measuring cup with white

residue, pink lids for vials, grocery bag containing two blocks of a white

substance, bags stamped with stamps depicting two guns and the word

"shooter", a bag of white powdery substance, blue baggies, purple vial lids,

digital scale, and Suboxone patches. Id. at 36 - 47.

Search warrants for several individuals ' DNA were obtained,

including Goins, co-defenda nt Lee, co-defenda nt Brinkley, Jamar Baird, and

Elijah Davis. Id. at 52. He also obtained the DNA of Makael Bevins by consent.

Id.

Officer Jason Smaron of the Philadelphi a Police Departmen t

responded to the area of 1700 block of Chancellor Street on June 9, 2020 for a

theft of a constructio n site. Id . at 164. As one of the suspects ran away, he

threw a handgun underneath a car before being apprehende d. Id. at 165 - 166.

Officer Smaron identified the firearm as a Glock .40 caliber, nine-millim eter

handgun. Id. at 167.

Taylor Richart, a forensic DNA scientist with the Commonwe alth of

Pennsylvan ia was accepted as an expert in the field of DNA profiling. Id. at 179,

182. He performed DNA analysis on the zipper pulls and snaps of the black

jacket. Id . at 188. The major component of the profile mixture matched the

DNA sample from co-defenda nt Lee. Id. at 191. As to the collar strap of the

jacket, again the major contributor to that profile mixture was co-defenda nt

Lee. Id. at 193 - 194.

13 Jordan Valenci, an employee at Enterprise Rent-A-Car identified a

rental agreement in which the rental was picked up on March 29, 2019 at

10:16 a.m., and returned April 2, 2019, at 9:46 p.m. at the Pottstown location.

Id. at 286, 288 - 289. It was a 2019 black Dodge Caravan, and was rented by

Goins. Id. at 289.

Jamar Baird re-took the stand. (N.T., Trial by Jury - Day 5 of 8,

1/ 10/22, p. 11). The Commonwealth asked again, the question of whether co-

defendant Lee was still at the first location, when Mr. Baird left. The

Commonwealth read into the record Mr. Baird's grand jury testimony in which

he answered that co-defendant Lee left the gathering before he did, and that

co-defendant Lee was going to "do something, handle something." Id. at 12.

Mr. Baird acknowledged that his nickname is "Spazz," and that he

used that name as an aspiring rapper. Id. at 13. He put out some rap videos,

and in the videos there are references to BGB. Id. Mr. Baird explained that

BGB, stands for Bud Gang Bitch, in memory of his close friend, Bud, that

passed away. Id . at 13 - 14.

On cross-examinat ion, Mr. Baird denied that co-defendant Lee is a

part of BGB. Id. at 22. In fact, Mr. Baird denied that BGB is a gang, saying it is

"nothing to be a part of." Id. at 23. He also denied that Goins was a part of

BGB. Id. at 41. Further, Mr. Baird testified that BGB was named for his friend,

Jordan Scott, nickname Bud, who was shot and killed. Id. at 55 - 56. Mr. Baird

rejected the idea that BGB was organized for the purpose of selling drugs in

Pottstown. Id. at 56. According to him, it was merely a group organized as a

14 way to remembe r a close friend that was shot and killed. Id. Finally, Mr. Baird

testified that he was walking with co-defen dant Brinkley down Walnut Street

on the way to the gathering when they saw the victim. Id. at 62. There was no

conversa tion between them. Id. at 65. As to leaving the gathering at Chestnut

and Evans, Mr. Baird remembe red that co-defen dant Lee left there, and he was

driving a van. Id. at 71 - 72.

On re-direct, Mr. Baird testified that when he left Chestnut and

Evans, he told co-defen dant Lee that he would meet him at Beech and

Manataw ny. Id. at 83. Co-defen dant Lee arrived at that location about fifteen to

twenty minutes after Mr. Baird heard the gunshots . Id. He arrived there driving

a van. Id. Mr. Baird also stated that Goins and co-Brinkl ey were with co-

defendan t Lee, and that they arrived in the van. Id. They all left Beech and

Mantawn y in the van, they picked up two more people, they went to the Gulf

gas station, and then straight down to Philadelp hia. Id. at 84 - 85.

Detective Eric Nelson of the Montgom ery County District Attorney' s

Officer - Forensics unit- is the firearm and tool marker examiner for the county

and was accepted as an expert in firearm and tool maker identifica tion. Id. at

99, 10 2 - 103. He was involved in the analysis of various ballistic items related

to the murder. Id. at 109. He first analyzed ten fired shell casings a/k/a fired

cartridge cases, which were .40 caliber, Smith and Wesson. Id. at 111. All ten

fired cartridge cases were microsco pically examined and the detective

determin ed they were all fired from the same pistol. Id. at 114 - 115. He also

received six projectile s, which are bullet specimen s, for his review. Id . at 111 .

15 Detective Nelson determined that the six projectiles were all consistent with .40

caliber ammunitio n. Four of the six were consistent with .40 caliber

ammunitio n with the same type of rifling (rifling are those lands and grooves

inside a barrel.) . Id. at 113. The other two projectiles were too mutilated or

distorted and damaged to give a type of rifling. Id.

At the time of his examinatio n, Detective Nelson did not have a

firearm to compare to it. He submitted a fired cartridge case to the Integrative

Ballistic Identificatio n System ("IBIS") 4 • Id. at 116. The detective was notified

that there was a match from a case in Philadelphi a. Id. at 117 - 118. It was a

high-confid ence hit that the shell casing matched a Glock firearm submitted to

the IBIS system in Philadelphi a. Id. at 119 - 120. The Philadelphi a Police

Departmen t had the actual semi-autom atic pistol that they test-fired and they

took one of the test fired shells and submitted that to IBIS. Id. at 120. Detective

Nelson went to the Philadelphi a Firearms Unit, met with the assigned

examiner, and examined the Glock pistol. Id. The detective test fired it himself,

and compared the test fires to the shell casings in this case. Id. They were a

match. Id . Detective Nelson determined that he Glock pistol from Philadelphi a

was in fact the pistol that fired the ten shell casings in this case. Id .

Jarid Majors, was a resident of 126 North York Street in March of

2019 . Id. at 227 . At some point on March 30, 2019, he went to a gathering a

4 IBIS is a computer-bas ed database that takes digital images of the cartridge case, specifically the microscopic marks left on a fired cartridge case . (N.T., Trial by Jury- Day 5 of 8, 1/ 10/22, 116). This image is put into the database, and it searches for other fired cartridge cases that have been entered into the IBIS system for a match. Id. at 116 - 117. 16 Chetnut and Evans Street around 9:00 p.m. Id. at 228. He was there for about

10 to 15 minutes. Id. He left the gathering, and when he came back home later

that night, he saw a lot of cops there. Id. Before he arrived he was aware that

someone got shot in front of his house. Id. He denied knowing the victim. Id. at

229 - 230.

Mr. Majors testified that he knew co-defendant Lee, and he knew

him as "Quan" or "Swizz." Id. Mr. Majors had told police in his statement that

he has seen co-defendant Lee at 206 Manatawny Street. Id. at 235 - 236. Mr.

Majors also knew Goins, who goes by "D," and c-defendant Brinkley who goes

by "Key'' or "Dread." Id. at 236 - 237. Mr. Majors testified that after he spoke

with police regarding the murder, he warned several of his friends that police

had gotten their numbers from his phone. Id. at 237 - 238.

Mr. Majors was questioned about BGB, which he was aware of. Id.

at 239 - 240. He was also aware that that BGB has put out rap videos, and

that he was featured in some of them. Id. at 240.

Kelise Smith was a resident of Pottstown, in March of 2019. Id. at

328. On March 30, 2019, in the afternoon, Ms. Smith was on Chestnut Street

and Evans Street. Id. at 328 - 329, 335. She was there with several of her

friends, her sister, Denasia, and her sister's friends. Id. at 330. Ms. Smith

further testified that while she was at the gathering at Chestnut and Evan

Streets, co-defendant Lee came by around 9:00 p.m., in the van. Id. at 339.

She stated that Goins and co-defendant Brinkley were at also Chestnut and

Evans Streets hanging out. Id. at 339 - 340, 34. Someone suggested going to a

17 club, and Ms . Smith and her friends went back to Denasia's house to change.

Id. at 330, 335. Ms . Smith testified that when they left Chestnut and Evans

Streets gathering to get dressed, Goins, co-defenda nts Brinkley, and co-

defendant Lee were still there . Id. at 357. Ms. Smith and Denasia were back at

Denasia's house for about ten minutes, then they got picked up by a van . Id . at

331, 335 - 336. Ms. Smith testified that co-defenda nt Lee was driving the van,

and also in the van were Goins, co-defenda nt Brinkley, Jamir Baird, and Elijah

Davis. Id. at 333, 336 - 337, 341. After they got picked up they stopped at a

gas station in Pottstown. Id. at 358.

Sometime that night, Ms. Smith found out that Keith Robinson,

who she knew as "Naz" was murdered. Id . at 342. Mr. Robinson was close with

her family, and that is how she knew him . Id. at 342 - 343. The topic came up

in the van that Naz had died. Id. at 373 - 375 .

The Commonwe alth recalled Lieutenant Todd Richard to testify

regarding video surveillanc e that was obtained from the Gulf gas station. Id . at

380. The lieutenant testified that at about 11 :27 p .m ., the video shows a black

van pulled up to the gas station, and that co-defenda nt Lee got out the van and

walked into the store. Id . at 382. The video from inside the store showed that

co-defenda nt Lee grabbed a lighter. Id. at 383. The outside video shows Goins

exit the passenger sea,t, and that he also we_nt into the store. Id.

On day six of the trial, the Commonwe alth presented the expert

testimony of Detective William Mitchell, a detective with the Montgomer y

County Detective Bureau - Homicide Unit. (N .T., Trial by Jury- Day 6 of 8,

18 1/ 11/22, p. 6 - 7). He was accepted as an expert of cell phone record analysis.

Id. at 10. The detective obtained call details for Goins, co-defen dant Brinkley,

and Eiljah Davis 5 . Id. at 10 - 11. He did not obtain co-defen dant Lee's cell

phone records because the cell phones that were recovered were activated two

weeks after the homicide occurred , and investiga tors were unable to obtain a I good cell number for him during the time of the homicide . Id. at 13.

First, the detective spoke about co-defen dant Brinkley' s cell phone

records, stating that on March 30, 2019, at 9:16 p.m., co-defen dant Brinkley' s

cell phone was using a cell site on the east end of Pottstown . Id. at 27. Co-

defendan t Brinkley has no other cellular activity until the following day at 1: 18.

Id. at 28. However, there were data transmis sions after that, including

iMessagi ng texts, social media accounts , Instagram accounts , e-mails. Id. at

28.

At 9:48 to 9:57 p.m., Goins' cell phone was using a cell site at

Shoemak er Road, and the sector is facing the hangout location at Chestnut

and Evans Streets. Id. at 29.

Between 10: 11 and 10:25 p.m., co-defen dant Brinkley' s cell phone,

using data transmis sions, was using a cell site that was in the east end of

town, encompa ssing the gas stations and the hangout location. Id. at 31.

Around 10:41 p.m. just prior to the murder, Goins' cell phone was using the

sector of a cell site that faces the homicide location. Id. at 32.

5 He explained that he obtained the call records of Davis because he was one of the individuals at the hangout location at Chestnut and Evans Streets, he was in the van, and he also went to the Uncut club in Philadelphia afterwards. (N .T., Trial by Jury- Day 6 of 8, 1/ 11/22, p. 13).

19 The detective next testified about a still image from video

surveillan ce footage in the area of the homicide showing a black minivan by the

building, with the victim's vehicle off to the side of the video still shot. Id. at 33 .

The 9-1-1 call was at 10:53 p.m. Id. at 33. A few minutes after the homicide co-

defendan t Brinkley' s cell phone was hitting the tower right by the homicide

location. Id. The detective identified a still shot image of the van arriving at 206

Manatawny Street just after the homicide occurred at 11:01 or 11 :02 p .m. Id.

From 10:57 to 11: 14 p.m ., there are several incoming calls sent to voice mail,

and at that time the cell site tower was across the river in Chester County\

and then the cell phone was using the cell site that was off Shoemak er Road,

which is .2 miles away from 206 Manataw ny Street. Id . at 34, 36. From 11: 12

to 11: 19 p.m., co-defen dant Brinkley' s cell phone was using the Shoemak er

Road tower exclusive ly. Id . at 36. That is the location where the still image

showed the van pulling in to that location. Id.

Sometim e after 11 :25 p.m., the detective testified that co-defen dant

Brinkley' s cell phone began using multiple cell towers during a data

transmis sion, and moved to the cell site by the gas station. Id. At that time, the

detective noted that in the surveillan ce video the van pulled into the gas

6 The detective testified that he often with cell phones that are down in the area of the southern portion of Pottstown that the cell site across the river in Chester County will be used because of its location it provides good access to the southern portion of Pottstown . (N .T., Trial by Jury- Day 6 of 8, 1 / 11 /22, p. 34 - 35). The detective explained that whenever a cell phone is utilizing a tower, it is not necessarily the tower that is closest, but rather the tower with the strongest signal. Id. at 35. He further stated that in his experience it is usually the closest tower but not always the case. Id. That is the reason that he compares other evidence in the case when evaluating the call records. Id.

20 station. Id. Therefore , the cell phone records are consisten t with co-defen dant

Brinkley' s cell phone leaving the area of 206 Manataw ny Street and going to

the gas station where the van pulls in. Id.

As to Goins' cell phone, there were two cell sites being utilized, the

first which faces the sector at Manataw ny Street, and the second cell site, it

faced the gas station location, and there was a NELOS record for the time 7

frame when the van actually pulls into the gas station. Id. at 37. The NELOS

record encompa sses where the gas station location where they end up driving

to during that time frame. Id. Detective Mitchell opined that this is indicative of

the cell phone leaving the area of Manataw ny and going towards the area of the

gas station. Id.

The detective showed snapshot s at 11 :28 where that van pulled

into the gas station, and Goins' entering the store at the gas station at 11 :30

p.m. Id. at 38. After the van left the gas station, the cell sites for co-defen dant

Brinkley travel and go into Philadelp hia, to the area of the Uncut club. Id. The

cell phone arrived, and used towers in the area of the club at 12:42 a.m. Id.

Goins' cell site informati on during this time is consisten t with

traveling from the area of the gas station and traveling to the Uncut club, but

his cell phone arrives there a little bit later, around 1:05 a.m., rather than the

other ones which were around 12:30 a.m. Id. at 39 - 40. After 2: 14 a.m., the

7 A NELOS record is informatio n specific to AT&T, where it provides handset informatio n in a general area, represente d by a circle around a location. The circle can be bigger or smaller depending on AT&T's calculation of where the handset it located. (N.T., Trial by Jury- Day 6 of 8 , 1/11/22, p. 26).

21 records show that the cell phones leave the area of the Uncut club and begin to

travel north. Id. at 40. Co-defendant Brinkley's cell phone travels north, past

the vicinity of Gratz Street, where the murder weapon was eventually found. Id.

at 40 - 42. Detective Mitchell testified that this route taken by co-defendant

Brinkley's cell phone was not the most direct route back to Pottstown. Id. at 41

- 42. Goins' cell phone travels the same trajectory, leaving the club around

2:05 a.m., traveling north, and then traveling in a western and northern

direction back to Pottstown. His cell phone was accessing cell sites in

Pottstown at 3:47 a .m. Id . at 42. Co-defendant Brinkley's cell phone accessed

cell site towers in Pottstown at 3:57 a.m. Id. at 43.

Next to testify was Elijah Williams, an inmate at Bucks County

Correctional Facility. Id . at 118. He had been incarcerated in Montgomery

County Correctional Facility in the summer of 2021. Id. Around June and July

2021, he was on the K-4 unit, cell 422. Id. at 118 - 119. Although he did not

have a cellmate, he was able communicate with other prisoners directly next

door to his own cell. Id. at 119. In the summer of 2021, he spoke to a prisoner

who identified himself as Dread, later determined to be co-defendant Brinkley.

Id. at 120. Co-defendant Brinkley was in the adjacent cell to Mr. Williams'.

424 . Id . In the course of several conversations, the topic of a homicide on

March 30, 2019, in Pottstown came up. Id. at 121. Co-defendant Brinkley

asked Mr. Williams if he knew a guy named Naz and told him that Naz's real

name was Keith. Id. at 122. Mr. Williams told co-defendant Brinkley that he

was in Pottstown in August of 2020. Co-defendant Brinkley responded, "oh, the

22 guy was long gone by then," and he laughed about it. Id. Co-defenda nt Brinkley

told Mr. Williams that he was the one charged with that homicide. Id . Co-

defendant Brinkley confided in Mr. Williams, telling him specifics of the

murder. Id. at 123. Co-defenda nt Brinkley stated that he and some friends

were in a van and they drove past where the guy was and they saw him sitting

in the car. Id. They parked the van somewhere away from cameras because he

knew where in Pottstown where the cameras were. Id. He walked to the car the

guy was sitting in, and walked up alongside of the car. Id. Co-defenda nt

Brinkley said that the guy never saw it coming. Id. Co-defenda nt Brinkley

described it as, he walked up on him, pop, pop, pop, pop, pop, pop. Id. at 124.

He said he ran off and got rid of everything and wound up selling the strap8 to

his folks in Philadelphi a. Id. Co-defenda nt Brinkley believed the gun would be

used in a murder in Philadelphi a, and if so, then the person who got caught

with the gun in Philadelphi a would be thought of as Naz's killer. Id .

Mr. Williams further testified that co-defenda nt Brinkley revealed

his motive, telling him that Naz was an old guy, like 40-somethi ng, 20 years

older than him, and was still out there hustling, and that his time was up. Id.

at 126. Co-defenda nt Brinkley and his team wanted to take over his business

and the guy was in the way. Id . He wasn't from Pottstown, he was from

Philadelphi a, and that annoyed co-defenda nt Brinkley. Id. Mr. Williams

explained that by hustling, co-defenda nt Brinkley was referring to that Naz was

8 Williams testified that the term "strap" is synonymous with "gun." (N.T., Trial by Jury - Day 6 of 8, 1/ 11/22, p. 125). 23 selling drugs. Id. at 127. Co-defendant Brinkley indicated that he was also

selling drugs and that he was competing for business. Id. Co-defendant

Brinkley had argued with Naz, and relayed that he was arrogant because he

didn't believed that guys from Pottstown are tough like in Philadelphia. Id. at

129. Co-defendant Brinkley specifically stated, he "ain't going to let old dudes

eating while he's starving." Id. at 127. Brinkley talked about the habeas corpus

hearing and about Jamar Baird. Id. Brinkley was upset that he was going to

testify against him when he was supposed to be part of his gang, BGB. Id. at

130.

Detective Heather Long was working in March of 2019 with

Pottstown Police Department as a detective. Id. at 235 - 236. On March 30,

2019, Detective Long was called to assist with the investigation, to help

conduct interviews on the night of the murder. Id. at 236. Days later she

canvassed the area and later helped with cell phones. Id. During her time in

Pottstown, she came into contact with individuals who had information about

BGB. Id. at 236 - 237. She obtained information about BGB through

numerous interviews, talking to community members, review of cell phone

downloads in other investigations, reviewing social media, Instagram,

Face book, and Snapchat. Id. at 237.

Detective Long testified that she is familiar with BGB. Id. at 279.

The detective explained that on July 6, 2017, Jordan Bud Scott was murdered

in Norristown. Id. Speaking with people in the community, reviewing some of

the videos, social media, various prior investigations, she is aware of people

24 who associate with BGB. Id. at 280. In particular, the detective described

graffiti in Pottstown as it relates to BGB at Chestnut and North Washington

Streets, where a tractor trailer had numerous spray painting tags on it, Fly

High Bud, RIP Bud, LL23, Long Live Bud Savage, Free the Gang. Id. at 281 -

282 . Detective Long knows that Jamar Baird, has a BGB tattoo on his neck. Id.

at 282. Jamir Mitchell has a BGB tattoo on the back side of his hand. Id. She

also knows that co-defenda nt Lee, co-defenda nt Brinkley, Tyshaun Harvey,

Kelvin Harris, Jarid Majors, Ryan Fields, Nahmer Baird, Makael Bevins, Ahnile

Fountain, and Elijah Davis are affiliated with BGB. Id. at 282 - 283. As to

Goins, the detective testified that he is associated with several people in BGB,

and that they went to Pottstown High School together and hung out under the

title BFL, Brother for Life. Id. at 283 - 284 .

Detective Long reviewed self-produc ed rap videos she came across

on YouTube. Id. She came across these videos in reviewing social media, and it

was brought to her attention by another officer in Pottstown, at which point

she started additional intelligence gathering on the individuals and the gang in

· general in late 2018. Id. at 284 - 285. The detective testified that the video

"Don't Understand " has references to BGB, and that individuals associated

with BGB appear in the videos. Id. at 286. She testified that it was recorded

sometime between July 2017 and May 2018. Id. at 287.

Detective Long testified that portions of the video are filmed at

Chestnut and North Washington Street in Pottstown, that area with the trailer

that had the BGB graffiti, another portion that is filmed inside 7 Beech Street,

25 the other half of the 206 Manatawny complex. Id. at 292 - 293. The tractor

trailer location is also significant because the day prior to Jordan Scott's

murder, he was involved in a shooting at that location. Id. at 293.

Detective Long testified using still photographs taken from the rap

video. Id. at 294 . The first picture depicted the start of the video with a picture

of Jordan Scott. Id . at 294 - 295. In the background is the trailer with the BGB

graffiti. Id. at 295. Co-defendant Lee and Jamir Mitchell were also depicted. Id.

The main rap artists in the video, were co-defendant Lee and Jamir Mitchell.

Id. In another still frame from the video was Steven Mitchell, who was

murdered in 2014. Id. That was also co-defendant Lee's Instagram profile

picture. Id. at 295 - 296. Another still image depicted Alexander Dot Scott,

older half-brother of Jordan Scott, and Ryan Rizz Fields. Id. at 296. The next

still image was of the participants rapping. Id. Present were co-defendant Lee,

co-defendant Brinkley, Robert McCoy, Jamir Mitchell, and Charles Harris. Id.

They were all wearing Medellin Materials clothing. Id. at 297. Another image

shows co-defendants Lee and Brinkley shaking hands. Id.

An additional video, "Savage," featured individuals that are rapping

including, co-defendant Brinkley, Jamar Baird, and Jamir Mitchell. Id. at 298 -

299. The detective identified an image of a medallion with a picture of Jordan

Scott. Id. at 300. Another image was of co-defendant Brinkley holding a

handgun. Id. at 301.

On cross-examinat ion, Goins' defense counsel questioned Detective

Long and asked her whether she was unequivocal that Goins was not a

26 member of 8GB. Id. at 302. The detective answered that she found nothing,

other than his association to Lee . Id. She also agreed that Goins was nowhere

depicted in the rap videos she testified to. Id. at 302 - 303.

On the seventh day of trial, the Commonwe alth presented the

expert testimony of Lieutenant Erick Echevarria9 • (N.T., Trial by Jury - Day 7 of

8, 1/ 12/22, p. 47). Lieutenant Echevarria worked for the Montgomer y County

Detective Bureau, currently the supervisor of the violent crime unit. Id. at 48.

The lieutenant was accepted as an expert in gang structure and organizatio n,

drug trafficking, and jargon. Id. at 54 - 55.

Lieutenant Echevarria first described what makes a group of

affiliated individuals a gang. Id. at 62 - 63. By reviewing social media, music

videos, information from various police departmen ts and correctiona l facilities,

he and his investigato rs look for common bonds. Id. at 63. He explained that in

Montgomer y County there are primarily two locations with gang activity,

Norristown and Pottstown, with Pottstown having more of a history of gang

activity. Id. at 63 - 64. In general when a gang forms, members self-profess ,

they post, and they tag up until law enforcemen t gets involved. Then the

members stop in order to distance themselves quickly from the gang. Le!:. at 64 .

The lieutenant testified that not every group of individuals that he has

investigated , including numerous organizatio ns involved in drug trafficking and

9 Defense counsel for Goins renewed his objection to Lieutenant Erick Echevarria's expert testimony, and requested a cautionary instruction. (N.T., Trial by Jury - Day 7 of 8, 1/ 12/22, p. 47, 55 - 59). This Court overruled the objection and denied the request for a cautionary instruction. Id. at 59. 27 other crimes, are gangs. Id. at 64. One of the things that sets a group of people

apart from a gang, especially in Pottstown and Norristow n, is that they attach

that name to the criminal activity they're doing and expressin g that through

music videos, posting, tagging, and through word of mouth, and clothing. Id. at

65. This is done to bolster their image and spread fear. Id.

Lieutena nt Echevarr ia became familiar with gang and drug jargon

through his undercov er work, i.e., wiretaps, reviewing social media, and phone

download s. Id. He has gathered gang intelligen ce to identify gang members and

gang activity through local police departme nts, county and state level

correctio nal facilities, interview ing informan ts, newly released prison gang

members , music videos, and social media. Id. at 65 - 66.

Lieutena nt Echevarr ia explained the gang activity in Pottstown ,

both predeces sor gangs and BGB. Starting in 2015, his unit was tasked to

investiga te violence that was occurring within the Borough of Pottstown . Id.

What he learned is how gangs evolve, where members stay the same or split

up, but the name changes. Id. at 67. He explained that Pottstown gang activity

started out as Brothers for Life ("BFL"). Id. at 67. In fact, co-defen dant Lee has

a BFL tattoo. Id. Goins and Jarid Majors were members of that gang. Id. BFL

became Brothers From Another ("BFA"). Id. at 67. As his unit was investiga ting

this gang activity, people were either BFA or Straight Cash Money Gang,

("SCMA"). Id. SCMG was represent ed through T-shirts and rap videos. Id. There

was an investiga tion in these gangs and arrests were made. Thereafte r, there

was a void in regard to gang activity in Pottstown , until law enforcem ent began

28 to hear about 206 Manataw ny Street. Id. Initially, it was believed that it was

related to SCMG. Then in 2017, there was an influx in shootings in Pottstown

when Jordan Scott was murdered . Id. Lieutena nt Echevarr ia put his unit on

alert, he contacted the correctio nal facilities and other agencies that this could

be a triggering event for future gang activity. Id. at 68. After that, he explained

the moniker BGB came. Id.

Lieutena nt explained that a home-gro wn gangs or corner gangs are

informal groups of people that are from a neighbor hood. Id. They can either be

for money or for turf, and they're joined together. Id. These home-gro wn gangs

copy bigger gangs such as the Bloods, Crips, the Latin Kings and some of their

ideologie s. Id. In Montgom ery County there is limited influence from national

gangs, and much more home-gro wn street gangs. Id. The lieutenan t further

explained that what can happen with a home-gro wn gang is that the name can

change and mutate, and if they find a reason to justify a name change and to

be more aggressiv e and violent, they will do so. Id. at 68 - 69. Example s of

events that could justify a name change could be a split from the founding

member who created the name or law enforcem ent involvem ent. Id. at 69. For

instance the SCMG, which was everywhe re until there was an extensive

investiga tion, and now the lieutenan t testified that he rarely sees a mention of

that gang. Id . Another triggering event for a name change could be a death or a

murder. Id. Alexande r Scott was an active member of SCMG, who is now in

state prison for his gang activity, his younger brother was Jordan Scott. Id.

29 That is why when Jordan Scott was murdered he put the local police

departments, correctional facilities, and his unit on alert. Id.

More specifically as to BGB, Lieutenant Echevarria explained how

individuals are identified as being associated with BGB. A majority of the

people associated with BGB had BGB hashtags 10 , some sort of connection to

BGB, or they were in videos in front of graffiti. Id. at 69 - 70. Also, even just

going down a street in Pottstown, some people would yell "BGB." Id . at 70. The

lieutenant searched for the hashtag BGB which turned up a lot of profiles and

messages from the Pottstown area. Id. He further explained that individuals

who are not in the gang might use the hash tag just to instill fear, because you

are either with them or against them. Id. at 72 - 73. In his review of materials

in this case that apply to BGB, there are other references and hashtags. Id. at

73. There were references to: Michael Jordan because of Jordan Scott's name,

Long live Bud Savage, Bud Savage. Id.

In reviewing co-defendant Lee's lnstagram records, Lieutenant

Echevarria was able to determine that he was involved in drug trafficking. -Id.

For instance, co-defendant Lee's Instagram account posts stated, "the food is

in" which he interpreted to mean that he was waiting for an arrival of illegal

drugs. Id . at 75. He observed that "food" is code for heroin or fentanyl. Id.

There were also references to drug trafficking in the rap videos that were

10 It is a way to promote things on social media and the internet, legitimate and illegitimate. (N .T., Trial by Jury - Day 6 of 8, 1/ 12/22, p. 70, 71). Lieutenant Echevarria explained that it is the more modern equivalent of more traditional ways of promoting things such as graffiti. Id. So one way to promote your gang and your membership is to put a hashtag with that on social media. Id. 30 reviewed. Id. at 75 - 76. Lieutenant Echevarria was able to determine that co-

defendant Lee was in a position of prestige in BGB. Id. at 76. To hold a position

of prestige in a gang like this, the older members pass down the ideologies of

the gang, such as they do not cooperate, loyalty, gang mantras~ the way to live,

how to drug traffic and other various illegal activities the gang is involved with.

Id. at 77.

The lieutenant reviewed and testified to several of co-defenda nt

Lee's Instagram posts, interpreting jargon. Id. He interpreted this jargon to

reflect gang mentality, such as not to speak to law enforcemen t about the

illegal activities. Id. at 78 - 79. As to co-defenda nt Brinkley's lnstagram account

named Long Live Bud Savage, referring to Jordan Scott, along with his posts,

Lieutenant Echevarria determined that he is affiliated with BGB. Id. at 79, 81 .

The lieutenant interpreted many of these posts for the jury that exemplify gang

mentality and ethos, such as "loyalty over royalty," meaning that you're loyal to

the code, to the gang; "clip or get clipped," to the lieutenant meant that co-

defendant was armed; "never turn ya back on ppl that had yours 100,"

meaning that if someone was loyal to you, then you are loyal to them. Id. at 80

- 82. Another post, "Loyalty first, money second," - - N word - - "Don't fuck up

da motto 100," means loyalty to your gang, to your neighborho od, to your

group, and then to make money is the next priority; so first is loyalty and

second is to make money. Id. at 84 . Another post, "free the gang," the

lieutenant explained that this term comes up almost every time a group - - one

of the group of people are incarcerate d. Id.

31 Next, Lieutenant Echevarria discussed the significance of rap

videos. Id . at 85 . It was the lieutenant's expert opinion that BGB was not just a

music group. Id . at 86. It is significant that the individuals that are depicted in

the BGB videos are appearing in videos branded by BGB. Id. at 86 - 87. It

spreads fear, it's telling the community that this is BGB. Id. at 86. Both of the

videos talk about BGB itself. Id . at 87.

Lieutenant Echevarria decoded for the jury portions of the lyrics of

the rap video "They Don't Understand." Id. at 89 .

It's Bud Gang Bitch. You don't understand. Nah, they don't understand. How they killed my man. That shit wasn't in the plan . You know me, off the wake up, I'm trying to make a band. What you need? I got grams of that white and the tan.

Id. at 90. He explained that they don't understand the death of Bud Scott and

that the "wake-up" is when they wake up to try to make a band, a street term

for a thousand dollars. Id. at 91. "White and tan" denotes cocaine and fentanyl.

Id . He further explained that "[y]ou ain't a sucker free, homie. You took the

stand, rat" is professing they are still loyal to the code, that they're still with

the crew, with the gang. A "sucker" would be someone who is trying to be

something they are not. Id. at 91 - 92 . "You took the stand, rat," refers to

someone who cooperated with law enforcement. Id. at 92 .

And the streets reach deep - - N word - - ain't no turnin' back, couple - - N words-· - locked down that could turn into rants. I ain 't stressing, but he tired and I'm wearing all black. Had to learn in reality I can't get Bud back. Every time I see an opp, it's going to be a blood bath. If you ain't tryin' to die, then you better fall back. I ain't aimin' fir the chest. I aim right at your

32 head. If the cops ask me, man, I never saw that. No if the cops ask me, man, I never say that.

Id. The significance of "[t]he streets reach deep," refers to the fact that the arm

of the streets is long and that you can be retaliated. Id. at 92 - 93. "Ain't no

turnin' back," denotes that there's no turning back from that lifestyle. Id. at 93 .

It could also mean that once you cooperate that you're not permitted back into

the group. "Couple" - - N word - - "locked down" expresses a concern that when

another individual that knows your illegal activity, is incarcerate d by law

enforcemen t, that there's the risk of cooperation and that they are concerned

about their cooperation . Id. "I ain't stressing, but he tired, I'm wearin' all

black," is that they put on the clothes to conceal their identity, dark clothes at

night. Id . "I had to learn the reality I can't get Bud back," that's he's not coming

back from the dead. Id. at 93 - 94. "[E]very time I see an opp, it's going to be a

blood bath," "[o]pp" means opposition, someone that is against the gang. Id. at

94. The lieutenant testified that it is his opinion that if they see someone on the

other side or someone they perceive as an enemy, that there will be a blood ·

bath, that there'd be some sort of violence. Id.

Upon questioning of what could cause someone to be perceived as

an enemy, the lieutenant explained that it could stem from a murder of a

member. Id. Once it starts, any little thing triggers the violence. Id. "If you ain't

tryin ' to die, then you better fall back," means don't oppose us. Id. "If you ain't

aimin' for the chest, I aim right at your head," means they are going to shoot

you in the head. Id. "If the cops ask me, man, I never saw that. Nah, the cops

33 ask me, I never saw that," warns not to cooperate with law enforcement, if you

are interviewed by police, you didn't see anything. Id.

In this gaine, you gotta cheat to make it out. Yep. I feed 'em in the streets by servin' food out the house. Pedro. I come with straight cash. I don't need no handouts. Cash. I started my own label, man, Medellin the brand now. From the streets.

Id. at 96. The lieutenant interpreted this to mean, that the "game" is life, and to

get out of whatever predicament you are in, you have to do some sort of

cheating. That cheating could be drug trafficking, it could some other crime,

but cheating as in not normal work. Id. "Feed 'em" refers to heroin and

fentanyl, and here it means illegal drugs. Id. "I come with straight cash, I don't

need no handouts," the lieutenant believed it to be a reference to Lee's prior

membership in Straight Cash Money Gang. Id. at 96 - 97. Co-defendant Lee is

also referring to his clothing label that he started, Medellin. Id. at 97.

Lieutenant Echevarria opined that investigators did see an

increase of Medellin T-shirts and wear in Pottstown. Id. Co-defendant Lee was

the owner of that T-shirt company. He further explained that Medellin in from

Columbia, one of the logos that it has is similar to the coca-cola logo, Pablo

Escobar is sometimes referred to as the goat of drug-trafficking , the greatest of

all time, and it's from Medellin, Columbia. Id. at 97 - 98. In one of the videos

there is an acted-out drug transfer. Id. at 98. There's another one of the T-

shirts with weight measurements on the back, and those measurements refer

to amounts of drugs. That's on the back of co-defendant Lee's T-shirt. Id. So in

the video all the BGB guys are wearing Medellin T-shirts, and so Medellin T-

34 shirts become associated with BGB so that they become interchangeabl e. Id.

The lieutenant testified that since this murder and ensuing investigation, he

hasn't seen Medellin clothing anymore. Id.

Next, the lieutenant testified regarding the rap video, "Savage." He

explained that "We trappin," means selling drugs. Id. at 100. "None of my" - N

word - "is lackin, we just pop out of the house, we blastin';" "[n]one of are

lackin" refers to always being armed. Id. "Glizzy on me ain't lacking." Id. at 101.

This refers to a firearm or specifically to a Glock, and the expression means

that I have a gun on me. Id. "Cops come" - - N - - "run disappear like magic,"

according to the lieutenant is a gang mantra not to cooperate with police. If the

police come, go, leave. Id. at 101 - 102 . "All night we stackin"'. "Stacking"

means stacking money. Id. at 102. "Hoodie up, clips full, man's gone, shit

tragic, fill 'em up, pull off, roll up, we laughin', VIP Little Bud." "Hoodie up"

means to conceal yourself. Id. "Clip's full," the magazine is full. "Man's gone"

could be the intended victim, or they could be referencing Jordan Scott Id. at

102 - 103. "Shit tragic" still talking about Jordan Scott. "Fill 'em up, "which

would be the intended victim to full them with bullets." Id. at 103. And "pull

off, roll up, we laughin'," after the shooting it's funny. Id.

Next, the Commonwealth asked Lieutenant Echevarria about 206

Manatawny Street, Apartment C2 location, and what significance it has to

BGB. Id. He responded that that location was previously identified as a SCMG

location, and then it became a location of interest to law enforcement prior to

the murder of Jordan Scott and after his murder. Id. The lieutenant reviewed

35 several photographs of the interior of Apartment C2, and stated that they

indicate that that location is a trap house. Id. at 104, 105 - 106. He explained

that a trap house customarily does not have anyone living there so it can't be

tied to any one person, and it's used for trafficking. It's known to customers. Id .

His opinion was based on the fact that the photographs depicted limited

furniture, and other indicators that it was used for selling drugs. Id. at 106.

The Commonwealth recalled Lieutenant Richard as its final

witness. Arrest warrants were issued on July 25, 2019. Id . at 225. He was

unable to take Goins into custody at that time, because Goins left the area. Id.

Investigators spoke with family members, and tried to get Goins to turn himself

in. Id. However, Goins did not turn himself in. Id. Eventually, Goins was

located on September 19, 2019 in Upper Pottsgrove. Id. at 225 - 226.

At the conclusion of the trial, Goins was found guilty of first-degree

murder and conspiracy. He proceeded directly to sentencing, at which time a

life term imprisonment was imposed . A timely post-sentence motion was filed,

and subsequently denied.

ISSUES

This Court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and on March 2, 2022,

Appellant did so and raised the following issues set forth verbatim below:

1. The Defendant submits that the trial court made an error of law and abused its discretion in failing to grant Defendant's motion to sever as the Defendant was . prejudiced by having his co-defendants tried

36 at the same time when there were several pieces of evidence admitted in front of the jury that would have been inadmissibl e against the Defendant if he had a separate trial, including but not limited to: co- defendant's lnstagram and social media post, co-defenda nts' sworn grand jury testimony, co-defenda nt's confession, evidence of co- defendants ' prior drug activities, gang activities and rap videos. In addition, all the specific bad acts evidence only applied to the Defendant' s co-defenda nts and resulted in an unfair trial, no matter how many cautionary instruction s the court made.

2. The Court made an error of law and abuse of discretion in allowing Lt. Erick Echeverria to testify as a Gang expert, when there was no testimony or evidence presented 1) that Defendant Goins was in the gang Bud Gang Bitch "BGB", 2) that Defendant Goins was involved in any gang activity in the last 10 to 15 years, 3) that Defendant Goins was t-~ t• involved in any drug activity or had any connection to the "trap" house at 206 ') /'i Manatawny . Furthermor e, the court made an !¥ error of law and abuse of discretion in failing to give a cautionary instruction as it related to Lt. Erick Echevarria testimony, in failing to ':f~!~ advise the jury that none of the testimony of {' said witness could be used against Defendant IJ! .~,; Goins. c'.' ')

t) 3. The Court made an error of law and abuse of ") .1;1 discretion in allowing Lt. Eric[k] Echeverria to ''!i ~~ testify as a Gang expert witness, as Lt. Eric[k] Echevarria was not able to give any specific information as it related to the Bud Gang Bitch ("BGB") gang's hierarchy, organizatio n structure, specific acts of gang or its affiliates, other than general information regarding gangs in general. Lt Eric[k]

37 Echeverri a['s] entire testimony was speculati ve and conjectur e as it related to BGB.

4. The Court made an error of law and abuse of discretion in allowing 404(b) evidence in trial where the Common wealth failed to provide any actual notice of a 404(b) filing and the 404(b) evidence, including drug dealing, possessio n of weapons and drugs, social media posts was not related to Defendan t Goins.

5. The Court made an error of law and abuse of discretion in allowing the playing of Rap Videos and publicati on of written lyrics associate d with said videos as there very limited probative value, if any, that was greatly outweigh ed by their prejudici al effect and there was no evidence presented that Defendan t Goins was involved in any way with said rap videos.

,~ !)

i:1 6. The Court made an error of law and abuse of discretion in denying Defendan t's motion in ri. limine to preclude evidence of gang affiliation . ~?I 7. The court made an error of law and abuse of discretion in denying Defendan t's motion in :t limine to preclude evidence of rap videos and ]i., . ,· lyrics. fli'' ;~! ,,· 8. Defendan t submits the Court made an error ~.· of law and abuse of discretion in giving the ;,)

() consciou sness of guilt/ flight instructio n ~~ "\ based upon the testimony elicited at trial. ri}; Defendan t submits that there was no evidence of flight.

9. The jury's verdict was against the weight of the evidence because the weight of the evidence demonstr ated a reasonab le doubt as

38 to whether the Defendant had committed the crimes charged.

10. The Trial Court committed an error of law in denying Defendant' s Post-Senten ce Motion for judgment of acquittal based upon the fact that evidence introduced at trial was not legally sufficient to support the verdict because the evidence failed to establish each material element of the crimes charged and the commission thereof by the Defendant beyond a reasonable doubt; including the charge of Conspiracy and Murder in the First Degree.

DISCUSSIO N

I. Motion to Sever

First on appeal, Goins contends that his motion to sever should

have been granted because he was prejudiced when the following pieces of

evidence were admitted in his co-defenda nt trial, when such evidence would

not have been admissible against him in a separate trial: (1) co-defenda nt's

Instagram and social media post, (2) co-defenda nts' sworn grand jury

testimony, (3) co-defenda nt's confession, (4) evidence of co-defenda nts' prior

drug activities, (5) gang activities and (6) rap videos.

On June 23, 2021 a Pre-Trial Motion Hearing was held in which

defense counsel argued as he does on appeal that evidence that the

Commonwe alth sought to introduce would be inadmissibl e against Goins in a

separate trial. (N.T., Pre-Trial Motions, 6/23/21, p. 115 - 116). Specifically ,

defense counsel asserted that Goins is not in any of the rap videos and he did

not testify in front of the grand jury. Id. at 115. Defense counsel further argued

39 that it would be impossible for the jury to parse out the evidence, and that it

would confuse the jury as it relates to Goins' involvement in the murder or

conspiracy. Id. at 116.

The Commonwealth responded that the victim's murder was a

single event, where all of the co-defendants are alleged to have participated in

that single act. Id. at 118. According to the Commonwealth a majority of the

evidence and witness testimony are applicable against all defendants. Id.

Specifically, there is a lot of evidence that connects Goins to the conspiracy,

and to the murder; such as testimony from multiple witnesses that puts Goins

leaving the same location on Chestnut Street together just prior to the

shooting, traveling in a black minivan together, the minivan was rented by

Goins the day prior to the shooting; the black van is seen on surveillance twice

in the area where the victim was shot and killed; and that just prior to the

murder, Goins was identified by a witness as being in close proximity to the

place the victim was shot. Id. at 118 - 119. Additionally, the Commonwealth

pointed to the photo array from which Goins was identified, there is video

surveillance at a gas station, a short time after the murder, of Goins getting out

of the van in which co-defendant Lee is the driver. Id. at 119. Further, cell

phone evidence shows Goins traveled to the area of the Uncut night club with

his co-defendants. Id. at 119 - 120.

The Commonwealth argued that these co-defendants were

associated, and that it would be arguing the inference that Goins was in the

black van prior to the murder, he was in the area of the murder on foot as

40 identified by a witness, he was dressed in similar clothing as on the video and

is of similar size and stature as the person in the surveillance video . The

Commonwealth concluded that there was a lot of evidence connecting Goins to

the conspiracy, and that a lot of the evidence overlaps. Id. at 120. The motion

to sever was taken under advisement, and no ruling was made at that time .

On November 29, 2021, defense counsel renewed his motion to

sever at another Pre-trial Motions Hearing. (N.T., Pre-trial Motions, 11/29/21,

p. 35 - 36). In significant part he added that there was new evidence regarding

Elijah Williams, turned over by the Commonwealth , that he is a jailhouse

informant and will testify to a confession that co-defendant Brinkley gave. Id.

at 36. The Commonwealth responded as to the witness Elijah Williams, the

jury would be instructed to consider his testimony only as to co-defendant

Brinkley, and that if there are specific references to the other co-defendants,

the witness would be instructed not to provide those specific names, rather

they would be replaced with expressions like "with his boys" , "with his crew'',

"with others ." Id. at 20 - 21 .

At the conclusion of that Hearing, this Court denied the severance

motion. Id. at 60.

The decision whether to sever trials of codefendants is within the

sound discretion of the trial court, and we will not disturb this decision absent

a manifest abuse of discretion. Commonwealth v. Wharton, 607 A.2d 710, 717

(Pa. 1992); see Pa.R.Crim.P. 582(A)(2) and 583 . In cases where co-defendants

are charged with conspiracy, severance is disfavored because

41 [i]t would impair both the efficiency and the fairness of the criminal justice system to require ... that prosecutors bring separate proceedings , presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenien ce (and sometimes trauma) of testifying, and randomly favoring the last tried defendants who have the advantage of knowing the prosecution 's case beforehand . Joint trials generally serve the interests of justice by avoiding inconsisten t verdicts and enabling more accurate assessmen t of relative culpability.

Commonwe alth v. Travers, 768 A.2d 845, 847 (Pa. 2001). However, our

Pennsylvan ia Supreme Court has also recognized that there are potential

difficulties arising from joint trials. A common problem arises in situations

where evidence is admissible against one co-defenda nt but inadmissibl e

against another. As a general matter, an instruction to the jury that it is to

consider that evidence only with respect to the defendant against whom it is

offered is sufficient to remove any potential prejudice:

Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness "against" a defendant if the jury is instructed to consider that testimony only against a co-defenda nt. This accords with the almost invariable assumption of the law that jurors follow their instruction s .... Travers, supra.

In this case, severance was unwarrante d because Goins and his

co-defenda nts were charged with conspiracy and the vast majority of the

evidence presented at trial was equally admissible against all of the co-

42 defendants. Out of the Commonwealth 's twenty-eight witnesses, all but two 11

had testimony relevant to Goin's involvement in the murder. Therefore at a

separate trial, the Commonwealth would be required to recall twenty-six of

these witnesses. And although portions of those twenty-five witnesses'

testimony might not have been relevant to Goins, such as that of Detective

Long and Lieutenant Echevarria regarding gang related evidence, i.e., the rap

videos, rap lyrics, social media accounts, and the introduction of co-

defendants' Brinkley and Lee grand jury testimony introduced through the

testimony of Lieutenant Richard, (N.T., Trial by Jury- Day 7 of 8, 1/ 12/22 pp.

192,212), they would have had to be presented at a separate trial for Goins

because they still had testimony directly relevant to Goins.

The main evidence that Goins took issue with is the gang related

evidence; however, upon extensive cross-examinat ion of Detective Long and

Lieutenant Echevarria, Goins' defense counsel clearly brought out to the jury

that he was not a member with BGB and that the gang-related evidence did not

apply to him. Therefore, the jury was fully apprised that this evidence did not

relate to Goins.

The charged crimes against all of the co-defendants arose from the

same incident, much of the evidence presented at the eight-day trial related to

Goins and his two co-defendants, and with effective cross-examinat ion

11 For instance the testimony of Elijah Williams, the jail house informant, did not relate to Goins since Mr. Williams testified to the conversations he had with Brinkley at Montgomery County Correctional Facility. (N.T., Trial by Jury- Day 6 of 8, 1/ 11/22, pp. Id. at 118 - 130). Further, the testimony of Joseph Interrante, the Major at the Montgomery County Correctional Facility, was not relevant to Goins, as he testified to the fact co-defendant Brinkley's cell was next to Mr. Williams. Id. at 194 - 200. 43 regarding gang affiliated evidence, the jury was aware that this evidence did not

apply to Goins and could have easily been separate out by them. Accordingly,

the motion to sever was properly denied.

II. Gang Related Evidence

Five of Goins' ten issues on appeal, namely issues number two,

three, five, six, and seven as set forth above, involve alleged errors regarding

gang related evidence. In addressing these issues, it is vital to understand that

the Commonwealth 's theory of this case was that the co-defendants conspired

to murder the victim, who was a rival drug dealer to the 8GB gang. As evidence

in support of this theory, the Commonwealth sought to introduce evidence that

the co-defendants Brinkley and Lee were members of a home grown Pottstown

gang, BGB, through witness testimony, rap videos and lyrics, social media

posts, and through drug expert testimony of Lieutenant Erick Echevarria. The

Commonwealt h offered Lieutenant Echevarria's testimony to decode the

various drug jargon contained in the rap videos and lyrics, and would testify as

to how gangs operate, and gang related ethos of loyalty and respect. This gang

related evidence was relevant to show the relationship among the parties,

which goes to conspiracy. And although Goins was not a member of the BGB

gang, Lieutenant Echevarria's testimony would show that he was affiliated with

BGB members.

In addition, gang related evidence was relevant to show the motive

to kill the victim, namely that he was a rival drug dealer. To this end,

44 Lieutenant Echevarria would provide expert testimony as to gang ethos of

loyalty and the desire to have control of the streets.

At two Pre-Trial Motions Hearings on June 23, 2021 and November

29, 2021, this Court heard argument on several motions in limine regarding all

of the gang related evidence in this case, including the expert testimony of

Lieutenant Echevarria, the introductio n of the rap videos and lyrics, social

media accounts, and the 206 Manatawny Street, Apartment C2 location. These

motions in limine were denied after extensive argument and considerati on by

this Court.

At the first Pre-Trial Motion Hearing on June 23, 2021, the

Commonwe alth stated that Lieutenant Echevarria is being offered for his

background information on 8GB throughout his time as a county detective as

well as an expert in gangs generally. (N.T., Pre-Trial Motion, 6/23/21, p. 12).

The Commonwe alth represented that Lieutenant Echevarria would be able to

provide information about gangs generally as well as knowledge specific to

8GB. Id. at 18. The Commonwe alth suggested that the jury would be aided by

his testimony regard the background and history of BGB, how groups like that

are formed, how they rely on each other, how they function, how they are

structured, use a common home base at 206 Manatawny Street, Apartment C-

2, and how these groups value and depend on the concept of loyalty and

respect. Id. at 17. The Commonwe alth asserted that this evidence was relevant

to show an association which goes to the existence of a conspiracy. Id. at 14 -

15. Additionally , the Commonwe alth argued that expert testimony was critical

45 to provide understa nding as to motive and without this testimony the motive

would not be clear. Id. at 15, 33. Under the Common wealth's theory, BGB gang

members want the victim gone, they wanted a strong hold in the Pottstown

area in terms of street credibilit y as well as the drug and gun trade. Id. at 33.

All this informati on would come in through the expert testimony , and that it is

up to the jury to give weight to this testimony or not.

In response , Brinkley' s defense counsel in part argued that BGB

gang evidence is irrelevan t. Id . at 34. He noted that the discovery that defense

counsel have received was devoid of the critical connectio n between BG B's

alleged drug dealing, the victim's drug dealing, and his drug dealing being the

reason that BGB wanted to murder Robinson . Id. at 36. The matter was taken

under adviseme nt.

Further argumen t was conducte d at a Pre-Trial Motions Hearing

on Novembe r 29, 2021. At that time the Common wealth argued that the expert

testimony will tie all the circumst antial pieces of evidence together to show that

even the slightest show of disrespec t perceived or real could cause gang

members to express that loyalty to one another, which is what was a motive for

the murder. (N.T., Pre-Trial Motions, 11/29/21 , p. 8). Witnesse s would

establish the victim was a drug dealer, that everyone knew he was a drug

dealer, and that these co-defen dants knew he was and wanted to take him out.

Id. at 7. Through the testimony of Elijah Williams, there would be significan t

evidence regarding the motive for the murder, i.e., that these co-defen dants

were frustrated that individua ls are coming from Philadelp hia to Pottstow n to

46 sell drugs, they didn't get the respect in Pottstown they deserved, and that is

why they wanted to kill the victim; and the testimony of Lieutenant Echevarria

who will review BGB affiliation, rap videos and lyrics, social media posts, drug

jargon would put the whole picture together. Id. at 7-- 8. According to the

Commonwealth , every piece of the puzzle would come together through this

expert testimony. Id. at 8. He would be called to testify of how a gang operates

and how these co-defendants' mentality operated as part of a gang and to

contribute to the motive in this case. Id. at 51.

At the hearing, defense counsel for co-defendant Brinkley observed

that Lieutenant Echevarria's eleven page expert report spends four pages

reviewing his qualifications, two pages talking about the permutations of

different gangs that ultimately led to the formation of BGB, three pages talks

about the rap videos and the lyrics from the rap songs, one page talked about

an unrelated investigation into 206 Manatawny Street, and finally one page

talked about a straw purchase, subject to a separate motion in limine. Id. at

23. Defense counsel argued that what he did not see anywhere in those 11

pages was one single mention that Lieutenant Echevarria had actual

knowledge of a conflict between BGB and the victim. Id. at 23 - 24. He further

argued that the evidence regarding rap videos and the rap lyrics falls under the

same argument. Id. at 27. The Court deferred ruling for further review. Id. at

60.

After considerable deliberation, this Court issued orders denying

the co-defendants' motions in limine, and granting the admission of evidence

47 on December 20, 2021. The denial of a motion in limine, granting the

admission of evidence is reviewed by our appellate courts for an abuse of

discretion. Commonwe alth v. Mangel, 181 A.3d 1154, 1158 (Pa. Super. 2018).

It is well settled that the "[a]dmissio n of evidence is within the

sound discretion of the trial court and will be reversed only upon a showing

that the trial court clearly abused its discretion." Commonwe alth v. Tyson, 119

A.3d 353, 357 (Pa.Super. 2015) (en bane) (internal citation and quotation

marks omitted); see also Commonwe alth v. Hoover, 107 A.3d 723, 729 (Pa.

2014) (noting that an appellate court applies an evidentiary abuse of discretion

standard when reviewing the denial of a motion in limine). "Accordingl y, a

ruling admitting evidence will not be disturbed on appeal unless that ruling

reflects manifest unreasonab leness, or partiality, prejudice, bias, or ill-will, or

such lack of support to be clearly erroneous." Commonwe alth v. Huggins, 68

A.3d 962, 966 (Pa.Super. 2013) (internal citations and quotation marks

Relevance is the threshold for admissibili ty of evidence.

Pennsylvan ia Rule of Evidence 401 provides that evidence is relevant if it

logically tends to establish a material fact in the case, tends to make a fact at

issue more or less probable or supports a reasonable inference or presumptio n

regarding a material fact. Pa.RE. 401. All relevant evidence is admissible,

except as otherwise provided by law. Evidence that is not relevant is not

admissible. Pa.R.E. 402. The court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

48 unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.' Pa.RE. 403.

Rule 404(b) prohibits evidence of a defendant's prior bad acts "to

prove a person's character" or demonstrate "that on a particular occasion the

person acted in accordance with the character." Pa.RE. 404(b)(l). However,

prior bad acts evidence "may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident." Pa.RE. 404(b)(2). "In a criminal case,

this evidence is admissible only if the probative value of the evidence outweighs

its potential for unfair prejudice." Id. "Unfair prejudice means a tendency to

suggest decision on an improper basis or to divert the jury's attentfon away

from its duty of weighing the evidence impartially."

A. Gang Expert Testimony by Lieutenant Erick Echeverria as to Goins and No Cautionary Instruction

In Goins' issue number two, Goins contends that this Court

abused its discretion in permitting Lieutenant Echeverria to testify as a gang

expert, when there was no evidence that Goins was in the gang BGB, that he

was involved in any gang activity, that he was involved in any drug activity or

had any connection to the "trap" house at 206 Manatawny. Goins further

alleges that this Court erred in failing to give a cautionary instruction as it

related to Lieutenant Echeverria's testimony, advising the jury that none of his

testimony could be used against him.

49 In this issue, Goins is seemingly re-litigating his motion to sever.

His current appellate argument focuses solely on Lieutenant Echevarria' s

expert opinion as it related to him, i.e., that the lieutenant's opinion should

have been excluded because there was no evidence that he was a part of BGB

and that his testimony was irrelevant to him. This the same reasoning that

Goins asserted in his motion to sever, that he should have not been tried at a

co-defenda nt trial because there was admissible evidence as to co-defenda nts

Brinley and Lee, but not to him. This current argument is just another

variation of his sever argument.

However, addressing more specifically the issue of Lieutenant

Echevarria 's testimony, it was crucial to both the existence of the alleged

conspiracy and to the motive. As a drug expert he testified about gangs in

general and specifically about BGB. He opined on the values that are important

to gangs such as loyalty, respect, and instilling fear. As to BGB, he explained

how this Pottstown gang arose out of predecesso r Pottstown gangs, its various

members, and decoded gang and drug jargon in the BGB videos and lyrics

exemplifyin g the gang ethos. All of his testimony went to association of the co-

defendants , whether BGB members as in the case of co-defenda nts Brinkley

and Lee or simply affiliated with BGB members, as in the case of Goins. As to

Goins, the lieutenant explained that he was part of a predecesso r gang, BFL,

along with co-defenda nt Lee, and that BFL later mutated to become BGB.

Accordingly , the motion in limine requesting exclusion of this expert testimony

was properly denied.

50 Although defense counsel did request a cautionary instruction as it

related to the expert opinion and Goins, it was properly denied. Prior to

Lieutenant Echevarria testifying, defense counsel made his request for a

cautionary instruction, arguing that there was nothing in Lieutenant

Echevarria's report linking Goins to being a member of BGB, involved in any

gang, in any rap videos, drug activity, or linked to 206 Manatawny Street. (N.T.,

Trial by Jury- Day 7 of 8, 1 / 12/22, pp. 55 - 56). The Commonwealth

responded that the export report does reference that BGB is a home-grown

gang and is a development from prior gangs. Id . at 56. It also sets forth that

Goins was a member of a predecessor gang, BFL, along with Mr. Majors and

co-defendant Lee. Id. The Commonwealth argued that although Goins doesn't

self-identify with BGB, he is a close trusted associate of co-defendant Lee's

because of their prior gang association. Id. at 57, 58. The request for a

cautionary instruction was denied, and at that time this Court stated that

defense counsel's argument that Goins is not related to BGB is for cross-

examination and dosing argument. Id. at 60.

The denial of a cautionary instruction _was proper. Defense counsel

wanted a cautionary instruction that Lieutenant Echevarria's expert testimony

should not be considered against Goins. However, while it is true that

Lieutenant Echevarria did not testify that Goins was a member of BGB, he did

testify that Goins was a member of a predecessor gang and through that he

was affiliated with co-defendant Lee . More specifically he stated that starting in

2015, his unit was tasked to investigate violence that was occurring within the

51 Borough of Pottstown. Id . at 66. During that time, his unit identified two

warring gang factions. Id. Within six months, they identified 22 various

shootings. Id . at 66 - 67. What he learned during this time about gangs in

Pottstown is how gangs evolve, where members stay the same or split up, but

the name changes. Id. at 67. He explained that it started out as Brothers for

Life, and co-defenda nt Lee has that tattoo. Id. Goins and Jarid Majors were

members of that gang. Id. Therefore, because the expert testimony was relevant

in part to Goins he was not entitled to a cautionary instruction that this

testimony cannot be considered against him.

Additionally , defense counsel extensively cross-exam ined this

witness and clearly brought out the fact that Goins was not a member of BGB.

Id. at 128 - 147. First, Lieutenant Echevarria acknowledg ed that Detective

Long specifically said that Goins was not a member of BGB. Id. at 132 .

Detective Echevarria also stated that Goins is not a member of 8GB. Id. 132 -

133, 141, 144. The detective testified that he did not find any videos of Goins

proclaiming to be a member of BGB and that there were no hash tag references

by Goins to BGB. Id. at 133. Goins was in none of the rap videos identified by

law enforcemen t as relating to BGB, Goins was not mentioned in any of the

videos, and there was no link between Goins and these videos . Id. at 138 - 139.

Defense counsel also questioned the lieutenant about the lack of affiliation

between Goins and 206 Mantawny Street. Id. at 140, 142 - 143.

52 B. Gang Expert Testimony by Lieutenant Erick Echeverria Not Specific to BGB

In Goins' third enumerated issues as set forth above, he contends

that this Court erred in permitting Lieutenant Echevarria to testify as a gang

expert witness because he was not able to give any ~~ecific information about

BGB as to the gang's hierarchy, organization structure, specific acts of the

gang or its affiliates, other than general information regarding gangs in general.

Appellant argues that this rendered _his testimony speculative and conjecture

as it related to BGB.

On December 20, 2021, this Court entered an order finding

Lieutenant Echevarria's expert testimony to be admissible, and denying

defense counsel's motion in limine to preclude his testimony.

Now on appeal, the issue that is asserted claims that his testimony

should have been rendered inadmissible because it only provided general

information about gangs and none specific to BGB; therefore, it was speculative

in nature. However, this theory as a basis to exclude the expert testimony is

novel. It was never raised before this appeal by Goins' defense counsel or any of

the co-defendants' counsel, which he could have adopted.

All defense counsel were presented with his expert report by the

time of the second Pre-Trial Motions Hearing and understood the substance of

his proffered testimony; however this issue was never raised. This Court

respectfully requests that this issue be deemed waived. "A theory of error

different from that presented to the trial jurist is waived on appeal, even if both

53 theories support the same basic allegation of error which gives rise to the claim

for relief." Commonwe alth v. Gordon, 528 A.2d 631,638 (Pa.Super. 1987)

Even if this issue was properly preserved it lacks merit. The

lieutenant's trial testimony is replete with specific information as to BGB. He

described the predecesso r gangs, how this specific gang formed and why, and

the ethos of BGB members as expressed through BGB related rap videos and

lyrics.

C. Rap Videos and Rap Lyrics

In issue number five, Goins alleges that this Court made an error

of law and abused its discretion in allowing the playing of rap videos and

publication of written lyrics associated with said videos as there very limited

probative value, if any, that was greatly outweighed by their prejudicial effect

and there was no evidence presented that Goins was involved in any way with

said rap videos. In Goins' seventh enumerated issue, he claims that this Court

abused its discretion in denying his motion in limine to preclude evidence of

rap videos and lyrics. These issues will be addressed simultaneo usly.

The Commonwe alth sought to introduce the rap videos and lyrics

in order to establish conspiracy and motive. The Commonwe alth argued that

the rap videos demonstrat e gang activity and association . This goes to the

conspiracy, the conspiracy to commit murder, which all of the co-defenda nts

were charged with. (N.T., Pre-Trial Motions, 6/23/21, p. 12 - 13). The

Commonwe alth argued that there is only one shooter, and the remaining co-

defendants assisted in committing the murder. Id. at 45. It would be their

54 affiliation through the gang that is relevant to show this conspiracy. Id. More

specifically , the Commonwe alth argued that the rap videos are associated with

the BGB, with numerous BGB tags and graffiti, and are filmed in locations

significant to BGB, including 206 Mantawny Street. Id. at 16. There are

references to always carrying firearms and there are specific references to not

cooperating with police. Id. at 56. The Commonwe alth told this Court that

other members of BGB would be called to testify, Jamar Baird and Jarid

Majors. Id. at 30. There would be a drug expert to testify that you are only

going to have close associates appearing in these sorts of videos. Id. at 43.

In addition, this gang association explains the motive of the

murder. Id. at 13, 14 - 15. The Commonwe alth noted that there is a significant

emphasis in the rap videos on the importance of drug dealing and making

money, with many drug dealing references. Id. at 43. This goes to motive. Id.

The Commonwe alth stated that there would be testimony from a jargon expert

about those drug dealing references. Id.

Defense counsel argued that Goins was in no way associated with

the rap videos. Id. at 25, 51. Additionally , he argued that the nexus between

the rap videos and the murder is lacking. Id. at 53. The matter was taken

under advisement .

Further argument on the matter was held on November 29, 2021.

At that time, the Commonwe alth asserted that had witness testimony

establishin g that the victim was a drug dealer. That it was well-known all

across Pottstown, that the co-defenda nts knew this, and that they wanted to

55 take him out. (N.T., Pre-Trial Motions, 11/29/21, p . 7). The Commonwe alth

stated that it will establish this circumstan tially through multiple ways. Id. The

Commonwe alth pointed to testimony of Elijah Williams who will provide

significant information regarding the motive to the murder, that these co-

defendants were frustrated, that individuals from Philadelphi a were coming to

Pottstown to sell drugs, and that they didn't get the respect in Pottstown that

they deserved, which goes to the motive to murder Keith Robinson. Id. at 7 - 8.

The Commonwe alth reiterated that Lieutenant Echevarria will testify as a gang

expert, whose testimony will tie all these circumstan tial pieces of evidence

together. Id. at 8. The Commonwe alth argued that this is a conspiracy case,

and it would establish that these co-defenda nts worked together to eliminate

the victim, and that Lieutenant Echevarria' s testimony ties all of the evidence

together. Id. At the conclusion of the hearing, the Court did not rule on the

issue so as to take further time to review. Id. at 60.

On December 20, 2021, an order was issued denying the motion in

limine to exclude the rap videos. An additional order was issued permitting the Ji,. I'•lt t'') audio and video evidence of the rap videos to be admissible at trial.

On appeal, Appellant contends that the denial of the motion in

limine was in error and an abuse of discretion. For the reasons that follow this

Court respectfully argues that its ruling should be upheld.

The rap videos and lyrics were properly admitted to show that

there was an association among the co-defenda nts, i.e., that they belonged to a

gang, BGB, and that as a gang there were a set of ethos, as testified to by gang

56 expert Lieutenant Echevarria, which in gave rise to their collective motive, their

conspiratorial motive, to murder the victim. In other words, the rap videos and

lyrics was evidence of gang activity, and such gang activity was relevant to

show a conspiracy existed. It is well-establishe d that evidence ofa defendant's

gang activity is admissible to establish a conspiracy. See Commonwealth v.

Gwaltney, 442 A.2d 236, 241 (Pa. 1982) ("evidence of the gang activity is highly

probative of whether a conspiracy existed"); see also. Commonwealth v. Flamer,

53 A.3d 82, 89 (Pa.Super. 2012) (rap lyrics should have been admitted where

lyrics about people "keeping their mouths shut," sending friends to kill for

him, and "popping shells" in people that "run their mouth" had a tendency to

show a conspiratorial agreement).

In addition, the gang activity evidence was relevant to establish a

motive for the murder. This evidence when pieced together with other

testimony and evidence, including the drug expert testimony, presented by the

Commonwealt h established that co-defendants viewed the victim as a rival

drug dealer. See, Commonwealth v. Ramos, 532 A.2d 22, 23-24 (Pa. Super.

1987) (properly admitting evidence of gang activity and drug dealing to explain

motive and relationship). Evidence of gang affiliation and gang ethos was

relevant to show that these co-defendants had the motive, intent, and plan to

conspire in the murder. Therefore, this gang-related evidence in the form of rap

videos and lyrics was properly admitted at trial. And although Goins was not a

member of BGB, he was closely associated with members of that gang, and had

been a gang member of a predecessor gang, BFL.

57 As to whether the playing of the videos for the jury and the

publication of the lyrics was proper, this issue is waived . Presumably the

inclusion of the rap videos and rap lyrics would include the playing of videos

for the jury as well as the publication of the lyrics. None of the defense counsel

raised this as an issue at any time prior to trial or at trial. The argument that

defense counsel focused on was the general argument that this evidence

should b~ excluded. It was never argued that if this evidence is deemed

admissible then the videos should not be played and that the lyrics not be

transcribed . Accordingly , this argument is waived on appeal.

D. Motion in Limine as to Gang Affiliation

Appellant's sixth issue on appeal asserts that this Court abused its

discretion in denying his motion in limine to preclude evidence of gang

affiliation . Gang affiliation evidence was comprised of several component s. It

was introduced through expert witness testimony. The expert testimony

analyzed 8GB rap videos and rap lyrics, and 8GB related social media

accounts . As explained earlier in this opinion, gang affiliation was properly

admitted and relevant to show association among the co-defenda nts to

establish conspiracy and motive for the murder.

III. Notice of 404(b) Evidence

Next on appeal, Goins claims that this Court abused its discretion in

permitting Rule 404 (b) evidence at trial where the Commonwea lth failed to provide

any actual notice of a 404(b) filing and the 404(b) evidence, including drug dealing,

possession of weapons and drugs, social media posts that were not related to Goins.

58 At the June 23, 2021, Pre-Trial Motions Hearing, the Commonwealth

addressed the Court stating that the co-defendants had filed motions in limine to

exclude forms of evidence related to gang affiliation, specifically to a local Pottstown

gang referred to as BGB. (N. T., Pre-Trial Motions, 6 / 23 / 21, 10). The Commonwealth

contemplated admitting witness testimony to establish the relationships among the

co-defendants; the co-defendants' association with BGB, including rap videos and

lyrics referencing BGB; social media posts related to BGB, and expert testimony of

Lieutenant Echevarria related to gang jargon. Id. The Commonwealth· detailed that it

intended to call Detective Heather Long of the Montgomery County Detective Bureau

and Lieutenant Erick Echevarria, who would testify as to social media posts with

"#BGB", references to Jordan Scott who is the murdered individual who inspired the

creation of BGB, rap videos and rap lyrics referencing BGB. Id. at 11 - 13. The

Commonwealth would further present the testimony of Jamar Baird and Jarid Majors,

both who testified at the grand jury or gave statements, that were members of BGB.

Id. at 30.

Defense counsel for co-defendant Brinkley asserted on behalf of all of the

co-defendants that they received no 404(b) motions from the Commonwealth in this

case. Id. at 19. He stated that if the Commonwealth wished to introduce evidence of

gang affiliation, activity, or membership among any of the co-defendants, that those

are prior bad acts, which requires a Rule 404(b) motion. Id. Defense counsel continued

that all of the co-defendants' motions in limine to preclude such evidence was

anticipatory in nature. Id. Defense counsel acknowledged that the Commonwealth

raised the relevant issues of expert testimony of Lieutenant Erick Echevarria, 12 social

12 The notes of testimony refer to Lieutenant Erick Echevarria as Detective Eric Echevarria. This Court will refer to this witness with his proper title and correct spelling of his name. 59 media posts, rap videos and lyrics, and BGB membership . Id. at 19 - 21. However, it

was asserted that based upon the offer of proof the Commonwealth provided earlier at

the hearing, counsel are forced to speculate as to what particular evidence that intend

to introduce. Id. at 22. Goins' defense counsel joined in on the argument. Id. at 24. He

claimed that they are at a disadvantage because without the normal offer of proof in

writing, they cannot be put on notice to adequately argue against excluding the

evidence under Rule 404(b). Id. at 24 - 25. Goins' defense counsel further brought to

the Court's attention that the rap videos and social media posts with gang affiliations

were in no way connected to Goins. Id. at 25. He said that that is related to his motion

to sever. Id.

The Commonwealth responded that under Rule 404(b) (3), the notice that

is required in a criminal case is that the prosecutor must provide reasonable notice in

advance of trial, or during trial if the Court excuses pretrial notice on good cause

shown, of the general nature of any type of evidence the prosecutor intends to

introduce at trial. Id. at 30. The Commonwealth' s position was that this requirement

was met when in its responses to the co-defendants' motions in limine it stated its

intention to admit evidence related to gang activity. Therein the Commonwealth stated

the types of evidence it was seeking to admit, the basis for that evidence under Rule

404(b), and the case law in support of its admission. Id.

Under the Pennsylvania Rules of Criminal Procedure, Rule

404(b)(3) 13 , in effect at the time this matter was adjudicated, "... the prosecutor

13 Pa.R.Crim.P. 404 was amended on December 2, 2021, and became effective as of April 1, 2022. Rule 404(b)(3) was amended to read as follows:

(3) Notice in a Criminal Case. In a criminal case the prosecutor must provide reasonable written notice in advance of trial so that the defendant has a fair opportunity to meet it, or during trial if

60 must provide reasonable notice in advance of trial, or during trial if the court

excuses pretrial notice on good cause shown, of the general nature of any such

evidence the prosecutor intends to introduce at trial." See, Rule 404(b)(3). "The

purpose of this rule is to prevent unfair surprise, _and to give the defendant

reasonable time to prepare an objection to, or ready a rebuttal for, such

evidence. However, there was then no requirement that the "notice" must be

formally given or be in writing in order for the evidence to be admissible."

Commonwealth v. Lynch, 57 A.3d 120, 125-26 (Pa.Super. 2012) (internal

citations and quotation marks omitted) . Our courts have held that sufficient

notice exists where the prior bad acts evidence was discussed during a

preliminary hearing or where the defense received the evidence in discovery.

Commonwealth v. Stallworth, 781 A.2d 110, 118 n.2 (Pa. 2001);

Commonwealth v. Mawhinney, 915 A.2d 107, 110 (Pa.Super. 2006) .

In this case, although the Commonwealth did not file a written

motion, the Commonwealth as noted by defense counsel presented extensive

discovery (N .T., Pre-Trial Motions, 6/23/21, p . 11) and the Commonwealth filed

responses to co-defendants' anticipatory motions in limine which was based

upon the discovery that was provided. In those responses the Commonwealth

detailed the gang related evidence it intended to introduce. Further, at the Pre-

the court excuses pretrial notice on good cause shown, of the specific nature, permitted use, and reasoning for the use of any such evidence the prosecutor intends to introduce at trial.

See, Pa.R.E. 404. The version relied on in this appeal, which expired on March 31, 2022, is the version that was in effect at the time that the pre-trial motions were adjudicated and at the time of trial. 61 Trial Motions Hearing on June 23, 2021, the Commonwe alth further fleshed

out what evidence they were seeking to be admitted. This evidence was

discussed extensively at this hearing and it was further discussed at another

Pre-Trial Motions hearing on November 29, 2021. There can be no claim of

surprise or that there was not a sufficient amount of time to prepare an

objection to this evidence. This claim must fail.

IV. Jury Instruction s - Consciousn ess of Guilt/Fligh t

In issue number eight as set forth about, Goins claims that it was

an error of this Court and an abuse of discretion in charging the jury with the

consciousn ess of guilt/ flight jury instruction.

After the jury was excused at the end of day seven of the trial, this

Court notified counsel of its intention of providing the jury with the

consciousn ess of guilt/flight jury instruction. (N.T., Trial by Jury- Day 7 of 8,

1/ 11/22, p. 361). Goins' defense counsel objected, arguing that there was no

evidence of fleeing. Id. at 362. The objection was overruled, and this Court

stated that there was testimony that investigato rs went to Goins' mother's

house repeatedly, asking to try to have Goins turn himself in; therefore it could

be argued that Goins was avoiding the police. Id. at 362 - 363. This Court did

provide the standard jury instruction on consciousn ess of guilt/flight. (N.T.,

Trial by Jury - Day 8 of 8, 1/ 12/22, p. 227).

In examining an appellant's challenge to a jury instructjon on flight

as consciousn ess of guilt, our Supreme Court has stated:

62 A jury instructio n is proper if supporte d by the evidence of record. [... W)hen a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciou sness of guilt, and may form the basis [of a convictio n] in connectio n with other proof from which guilt may be inferred.

Common wealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (internal citations

omitted). An instructio n on flight/co nsciousn ess of guilt is appropria te where

the evidence existed that defendan t committe d a crime, knew he was wanted,

and fled or concealed himself. Common wealth v. Lukowich , 875 A.2d 1169,

1173 (Pa.Super . 2005) (citations omitted).

In this case, Detective Richard testified that the arrest warrant for

Goins was issued on July 25, 2019, and that he was unable to take him into

custody at that time because Goins left the area. Investiga tors spoke with

family members , and tried to get Goins to turn himself in, which he did not do.

Eventual ly Goins was located on Septemb er 19, 2019 in Upper Pottsgrov e.

From this evidence it can be inferred that Goins knew he was wanted in

connectio n with this murder, but concealed his location until the time law

enforcem ent was able to locate him.

V. Weight of the Evidence

In Goins' issue number nine, he asserts that "[t)he jury's verdict

was against the weight of the evidence because the weight of the evidence

demonstr ated a reasonab le doubt as to whether the Defendan t had committe d

the crimes charged." See, Concise Statemen t of Matters (sic) Complain ed of on

Appeal, filed 3/2/22. 63 In this case, Goins was convicted of first-degree murder and

criminal conspiracy. Goins' l 925(b) statement, merely alleges that these

convictions were against the weight of the evidence. Given the lack of any

specificity as to which conviction and why that conviction was against the

weight of the evidence, this Court finds a waiver of this issue . To preserve a

challenge to either the sufficiency or weight of the evidence on appeal, an

appellant's Rule l 925(b) concise statement must state with specificity the

elements or verdicts for which the appellant alleges that the evidence was

insufficient or against the weight of the evidence. See Commonwealth v.

Freeman, 128 A.3d 1231, 1248-49 (Pa.Super. 2015) (finding waiver of

appellant's sufficiency and weight challenges where the Pa.R.A.P. 1925

statement was too vague to permit the court to identify (1) which crimes, or the

elements of any crimes, that the Commonwealth allegedly failed to prove

beyond a reasonable doubt; or (2) which verdicts were contrary to the weight of

the evidence, and the specific reasons why the verdicts were contrary to the

weight of the evidence); see also, Commonwealth v. Reeves, 907 A.2d 1, 2

(Pa.Super. 2006) ("If a Rule 1925(b) statement is too vague, the trial judge may

find waiver and disregard any argument.") citing, inter alia, Commonwealth v.

Lemon, 804 A.2d 34, 37 (Pa.Super. 2002) (statements in Rule 1925(b) that "the

verdict of the jury was against the evidence," "the verdict of the jury was

against the weight of the evidence," and "the verdict was against the law'' were

too vague to permit adequate review); and Commonwealth v. Seibert, 799 A.2d

54, 62 (Pa.Super. 2002) (Rule l 925(b) statement that "the verdict of the jury

64 was against the weight of the credible evidence as to all of the charges" was too

vague to permit appellate review).

Further, looking at Goins' Post-Senten ce Motion is of no help,

where it is also vaguely alleged that "Defendant submits the jury's verdict was

against the weight of the evidence. Specifically , the Defendant contends the

weight of the evidence presented demonstrat ed a reasonable doubt to whether

the Defendant had committed the cringes charged" See, Post-Senten ce Motion,

filed on 1/21/22, i!i!14, 15. Accordingly , without more specificity this Court is

unable to address this issue on appeal, and is therefore waived.

IX. Judgment of Acquittal

Finally, Goins contends that this "Court committed an error of law

in denying Defendant' s Post-Senten ce Motion for judgment of acquittal based

upon the fact that evidence introduced at trial was not legally sufficient to

support the verdict because the evidence failed to establish each material

element of the crimes charged and the commission thereof by the Defendant

beyond a reasonable doubt; including the charge of Conspiracy and Murder in

the First Degree."

A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only in

cases in which the Commonwe alth has failed to carry its burden regarding that

charge." Commonwe alth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014) .

Again, this Court is constrained to find that Goins has waived his sufficiency

claim. "In order to preserve a challenge to the sufficiency of the evidence on

65 appeal, an appellant's Rule 1925(b) statement must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient ." Commonwe alth v. Stiles, 143 A.3d 9p8, 982 (Pa.Super. 2016

(quoting Commonwe alth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013)). "Such

specificity is of particular importance in cases where, as here, [Appellant] was

convicted of multiple crimes each of which contains numerous elements that

the Commonwe alth must prove beyond a reasonable doubt." Commonwe alth v. Ellison, 213 A.3d 312, 321 (Pa.Super. 2019). "Therefore, when an appellant's

[Rule] l 925(b) statement fails to specify the element or elements upon which

the evidence was insufficient[ ,] ... the sufficiency issue is waived on appeal." Id.

Here, Goins has failed to either articulate the specific elements of

any crime which he deems the evidence presented at trial failed to sufficiently

establish. In addition, Appellant's Post-Senten ce Motion is similarly devoid of

any specificity. See, Concise Statement of Matters (sic) Complained of on

Appeal, filed 1/21/22, ,i,i 16, 17. Therefore, this issue is waived.

66 CONCLUSI ON

Based upon the foregoing analysis, Goins' judgment of sentence

entered on January 13, 2022, should be affirmed.

BY THE COURT:

WILLIAM R. CARPENTER J. COURT OF COMMON PLEAS MONTGOMERY COUNTY PENNSYLVANIA 38TH JUDICIAL DISTRICT

Copies sent on May 13, 2022 By Electronic Mail to:

Robert Falin, Esquire, Deputy District Attorney, Chief of Appellate Division; RFalin@mon tcopa.org

Gregory P. DiPippo, Esquire; gdipippo@p mrbm.com

Denise S. Vicario, Esquire, Executive Director; opinions@),m ontgomeryba r.org

Paul DAnnunzio; PDAnnunzio @alm.com

Copies sent on May 13, 2022 By First Class Mail to:

Derrick Goins #QN7308 SCI Camp Hill P.O. Box 8837 2500 Lisburn Road Camp Hill, PA 17001

/7. . ,A., [' n. (,!4._J.,~{'.l!O~f«. tv.Mj-h,1 .Q.. Judicial Assistant