Com. v. Goudy, I.

• Court: Superior Court of Pennsylvania
• Decided: March 9, 2021
• Docket: 2380 EDA 2019
• Status: Unpublished

Opinion

J-A26008-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : IZENA GOUDY : : Appellant : No. 2380 EDA 2019

Appeal from the Judgment of Sentence Entered July 16, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006888-2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 9, 2021

Appellant, Izena Goudy, appeals from the judgment of sentence of life

imprisonment, without the possibility of parole, imposed after a jury convicted

him of, inter alia, first-degree murder, 18 Pa.C.S. § 2502(a). We affirm.

We need not reiterate the procedural history and factual background of

this case, as the trial court set forth a comprehensive summary of both in its

December 23, 2019 opinion pursuant to Pa.R.A.P. 1925(a). See Trial Court

Opinion (TCO), 12/23/19, at 1-33. On appeal, Appellant raises three issues

for our review: [1.] The evidence was insufficient to sustain the verdict of guilty of murder of the first degree because the Commonwealth did not prove beyond a reasonable doubt that Appellant committed an intentional killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate[,] and premeditated killing.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A26008-20

[2.] The evidence was insufficient to sustain the verdict of guilty of murder of the third degree because the Commonwealth did not prove beyond a reasonable doubt that Appellant caused the death of the victim.

[3.] The trial court erred when[,] on May 30, 2019[,] it failed to grant Appellant’s motion in limine with respect to a portion of a statement made by witness Shante Fernandez. Ms. Fernandez was permitted to testify that Appellant asked Fernandez if the victim had a security system in his home. Pa.R.E. 403 and 404(b).

Appellant’s Brief at 7 (unnecessary capitalization and emphasis omitted).

We have reviewed the thorough and well-reasoned opinion issued by

the Honorable Richard M. Cappelli of the Court of Common Pleas of Delaware

County. We conclude that Judge Cappelli’s opinion accurately and thoroughly

disposes of the issues raised by Appellant. See TCO at 4, 33-38, 39-41, 43-

45.1 Accordingly, we adopt his opinion as our own with respect to the issues

Appellant raises on appeal. We direct the parties to attach the trial court’s

opinion in the event of further proceedings in this matter.

Judgment of sentence affirmed.

1 Appellant set forth other issues in his Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal that he does not raise in his brief. We express no opinion on the trial court’s discussion of the merits of those abandoned claims.

-2- J-A26008-20

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/09/2021

-3- Per I irculated 02/15A4)0PrAM

Ataiha- IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA CRIMINAL DIVISION

NO. CP-23-CR-6888-2017 COMMONWEALTH OF PENNSYLVANIA

2380 EDA 2019 v.

IZENA GOUDY

CAPPELLI, J. DECEMBER 23, 2019

OPINION

Appellant appeals from the Judgment of Sentence entered on July 16, 2019.

Appellant's claims are without merit and Judgment of Sentence should be affirmed.

I. BACKGROUND

On September 6, 2017, Appellant was arrested and charged with: 18 Pa.C.S.

§ 2501 Criminal Homicide; 18 Pa.C.S. §2502(a) Murder of the First Degree; 18

Pa.C.S. §2502(a) Murder of the Third Degree, Felony of the First Degree; 18

Pa.C.S.§ 907(a) Possessing Instruments of Crime, Misdemeanor of the First Degree.

The Commonwealth alleged on or around May 7, 2007 Appellant murdered Gary

Jenkins ("Victim Jenkins") using a dumbbell and a knife at 128 Reese Street in Sharon Hill, Delaware County, PA. Victim Jenkins' body was found in his home,

wrapped in a comforter and covered in towels. Victim Jenkins had been beaten,

stabbed, and his head nearly decapitated. A blood covered thirty pound dumbbell

was found at the scene of the murder. Following the murder, Appellant moved to

New York City, enlisted in the Army National Guard, and began transitioning her

gender from female to male, including undergoing a bilateral mastectomy and

beginning a lifelong regimen of testosterone injections. In 2015, Appellant was

linked to the murder following a "hit" on the national DNA databank CODIS.1

Following a jury trial, on May 30, 2019, Appellant was convicted of Murder

of the First Degree, Murder of the Third Degree, and Possessing Instruments of

Crime. On July 16, 2019, Appellant was sentenced to a term of confinement of Life

without Parole for the murder of the first degree conviction (the sentence for the

murder of the third degree conviction merged) and a 30 month minimum to a 60

month maximum for the conviction of Possessing Instruments of Crime to run

consecutive to the life without parole sentence. Appellant did not file any post-

sentence motions. See Pa.R.Crim.P. 720. On August 14, 2019, Appellant filed a

Notice of Appeal. Id., and Pa.R.A.P. 903. On August 19, 2019, an order was entered

directing Appellant to file a Concise Statement of Errors Complained of on Appeal

1 This information concerning the DNA and CODIS is not a part of the trial testimony and was not considered by the jury.

2 ./a.R.A.P. 1925(b), and on October 4, 2019, following an .ie to file, order extending Appellant filed the 1925(b) Statement alleging the following 1. errors: The evidence was Murder of The First insufficient to sustain the Degree because the verdict of guilty of beyond a reasonable Commonwealth did not prove doubt that Appellant killing by means of poison, or by lying in committed an intentional willful, deliberate and wait, or by any other premeditated killing. kind of 2. The evidence was Murder of The Third insufficient to sustain the Degree because the verdict of guilty of beyond a reasonable Commonwealth did not prove doubt that Appellant victim. caused the death of the

3. The evidence was Possession of an insufficient to sustain the Instrument not prove beyond a of Crime because the verdict of guilty of Commonwealth did or other weapon reasonable doubt that Appellant possessed concealed upon his person a firearm criminally. with intent to employ it

4. The Trial Court erred when on May Appellant's Motion in 30, 2019 it failed to Limine with respect to limiting the grant Dara Raynah Jones. Jones was permitted to testimony of with Appellant was testify that her volatile. Pa.R.E. 403 and relationship 404(b). 5. The Trial Court erred Appellant's Motion in Liminewhen on May 30, 2019 it failed to grant made by Shante with Respect to a Fernandez. Ms. Fernandez portion of a statement Appellant asked Fernandez was permitted to of the victim had a testify that home. Pa.R.E. 403 and security system 404(b). in his 6. The Trial Court erred when on May 30, Appellant's Motion in 2019 it failed to grant Limine with Respect to Appellant's DNA in the the Presence of national databank. Appellant's DNA was not Pa.R.E. 403 and 404(b). and an unknown found on the murder person's DNA was found weapon. The victim's on the murder weapon. 7. The Commonwealth allocution when it stated that improperly replied to Appellant's the physical evidence was at odds with 3 allocution and that allocution contained no remorse. The Defense made a timely objection. NT 7-16-19 P 19.

Appellant's claims lack merit and Judgment of Sentence should be affirmed.

The crimes and offenses to which Appellant was convicted are defined in Title

18 of the Pennsylvania Crimes Code. The Crimes Code defines the offense of

Murder of the First Degree in relevant part: "A criminal homicide constitutes murder

of the first degree when it is committed by an intentional killing." See 18 Pa.C.S. §

2502(a). The Crimes Code defines "intentional killing" as "killing by means of

poison, of by lying in wait, or by any other kind of willful, deliberate, and

premeditated killing." See 18 Pa.C.S. § 2502(d). To establish Appellant committed

the offense of Murder of the First Degree, the Commonwealth must have proven

beyond a reasonable doubt victim Gary Jenkins is dead, Appellant killed Gary

Jenkins, and Appellant killed Gary Jenkins with the specific intent to kill and with

malice.

The Crimes Code defines the offense of Murder of the Third Degree in

relevant part: "All other kinds of murder shall be murder of the third degree. Murder

of the third degree is a felony of the first degree." See 18 Pa.C.S. § 2502(c). To

establish Appellant committed the offense of Murder of the Third Degree, the

Commonwealth must have proven beyond a reasonable doubt victim Gary Jenkins

is dead, Appellant killed Gary Jenkins, and Appellant killed Gary Jenkins with

malice. 4 The Crimes Code defines the offense of Possessing Instruments of Crime in

relevant part: "A person commits a misdemeanor of the first degree if he possesses

any instrument of crime with intent to employ it criminally." See 18 Pa.C.S. §

2502(a). The Crimes Code defines "instrument of crime" in relevant part as

"anything used for criminal purposes and possessed by the actor under

circumstances not manifestly appropriate for lawful uses it may have" and "weapon"

in relevant part as "anything readily capable of lethal use and possessed under

circumstances not manifestly appropriate for lawful uses which it may have." See 18

Pa.C.S. §907(d). To establish Appellant committed the offense of Possessing

Instruments of Crime, the Commonwealth must have proven beyond a reasonable

doubt Appellant possessed a dumbbell and/or a knife, the dumbbell and/or knife was

an instrument of crime, and Appellant possessed the dumbbell and/or knife with

intent to employ it criminally.

IL TRIAL SUMMARY

The record of the jury trial in this matter reveals the Commonwealth presented

a clear, concise, and compelling case for Appellant's guilt and convictions. At trial,

the Commonwealth elicited testimony from several witnesses, building the case

against Appellant in a methodic and logical manner, beginning with the discovery

of Victim Jenkins' body, followed by the criminal investigation and analysis of

evidence at the crime scene including blood evidence matched through DNA to

5 Appellant, the testimony of witnesses that Appellant before the murder inquired

about the existence of an alarm system at Victim Jenkins' residence and whether

Victim Jenkins was living alone, and testimony Appellant admitted in 2013 to

having killed a man by beating him to death. The Commonwealth presented a cogent

theory of the case against Appellant from: 1) the direct observations of the lay

witnesses, police and detectives who investigated the case, and experts who provided

opinions within a degree of medical and scientific certainty concerning Victim

Jenkins' manner of death and the identification of DNA found at the scene of the

murder; 2) the totality of the circumstances surrounding the murder; 3) photographs

of Victim Jenkins' home depicting the property at the time of the murder,

photographs of Victim Jenkins' body in the comforter when discovered, photographs

of blood spatter and blood stains, and records from the medical examiner concerning

Appellant's brutal and deadly attack of Victim Jenkins; 4) presentation of physical

evidence found at the scene of the murder; and 5) lab reports, medical reports, police

reports resulting from the investigations in this case.

The record discloses Appellant presented a less compelling case that included

Appellant's dissonant and rationalized testimony. Following a thorough colloquy by

counsel and the court, Appellant waived the right to not testify and stated on the

record he understood: the decision to testify is Appellant's decision to make and

Appellant could not be compelled to testify; his testimony would be subject to direct

6 examination by defense counsel and cross-examination by the Commonwealth; if

Appellant did not testify, no negative inference could be drawn. See generally May

30, 2019 Notes of Testimony at pp. 94-96. Appellant called three witnesses and

presented some of Appellant's medical records from April 2007, photographs of

Appellant's graduation from West Philadelphia Highschool and swearing in

ceremony from when Appellant enlisted in the Army National Guard. Appellant's

case summary discloses: Appellant testified she beat Victim Jenkins because he

raped her and took her virginity; Appellant testified she did not murder Victim

Jenkins but is responsible for his death; Appellant testified her now deceased father

actually killed Victim Jenkins; Appellant's aunt testified Appellant came to her

home and inter alia Appellant told her she had been in a really big fight; Appellant's

grandmother testified Appellant told her Victim Jenkins raped her. Based on

Appellant's conviction of murder of the first degree and all other charges, it is clear

the jury as finder of fact believed the facts presented by the Commonwealth proved

the criminal charges beyond a reasonable doubt and was not persuaded the facts

elicited by Appellant on cross examination and during the presentation of

Appellant's case assuaged Appellant's guilt.

7 A review of the pertinent trial record reveals the following:

A. COMMONWEALTH'S CASE

1. Testimony of Gregory Shelton, Employee at CAPP. See generally May 28, 2019 Notes of Testimony at pp. 42-54.

Gregory Shelton ("Shelton") testified he has worked for 30 years at CAPP in

Clifton Heights, PA. Id. at 42-43. Shelton testified he knew Victim Jenkins as a

fellow employee from when he started working at CAPP. Id. at 43. Shelton testified

Victim Jenkins was the "Thermal Coupler Shop Manager." Id. at 44. Shelton

testified Victim Jenkins was a "very good employee" and "very reliable, very

dependable, honest". Id. Shelton testified the last time he saw Victim Jenkins was

Friday, April 27, 2007. Id. at 46-47. Shelton testified the following Monday Victim

Jenkins did not show up for work Id. at 47-48. Shelton testified Victim Jenkins had

mentioned he was going on vacation, and on the following Monday, May 7, 2007

Victim Jenkins again did not show up for work and did not call into CAPP. Id. at 48-

49. Shelton testified the owner of CAPP suggested they drive to Jenkins house and

knock on the door. Id. at 49. Shelton testified he drove over to Jenkins home, and he

observed some newspapers, an open window, and an open shed. Id. Shelton testified

no one answered when he knocked on the door. Id. Shelton testified he took the

newspapers to the door and placed them there, and he observed mail at the door. Id.

at 53. Shelton testified he called 9-1-1 to request a wellness check, and he did this

when he returned to CAPP. Id. Shelton testified later in the day he received a call 8 from an officer who asked about Victim Jenkins' girlfriend, and Shelton realized

something must have happened to Victim Jenkins. Id. at 50. Shelton testified the

CAPP general manager and he drove a photo of Victim Jenkin's girlfriend to Victim

Jenkins' home, and they learned about his death. Id. Shelton testified he gave a

statement to the police the next day, May 8, 2007. Id.

2. Testimony of Detective John Hoffner, Criminal Investigation Division of the Delaware County District Attorney's Office. See generally May 28, 2019 Notes of Testimony at pp. 55-115.

Detective John Hoffner ("Hoffner") testified he has been a police officer for

approximately 40 years. Hoffner testified in 2007 he was working as a detective in

Sharon Hill, Delaware County, PA. Id. at 56. Hoffner testified on May 7, 2007

around 12:30 p.m. he received a message from Officer Michael Attix requesting

Hoffner and then Chief Joe Kelly to come to Victim Jenkins' home to investigate a

body wrapped in a comforter on the second floor hallway of the house. Id. at 58.

Hoffner testified Officer Attix left the house and waited until Hoffner arrived. Id. at

59. Hoffner testified when he and Attix went into the house there was "a pungent

smell" he associated as the smell from a person who has been deceased for a period

of time. Id. Hoffner testified they walked to the second floor and saw a "comforter

wrapped tightly around a long object with a towel at one end" and after they removed

the towel and began to unwrap the comforter, they saw "a human head that was quite

mangled." Id. Hoffner testified they stopped, retreated downstairs, and contacted the

9 criminal investigation division ("CID") for homicide detectives and crime scene

unit. Id. Hoffner testified his police department always requested CID for serious

crimes and homicides because of their expertise. Id. at 60. Haffner testified they

secured the crime scene to preserve possible tampering of evidence. Id. at 60-61.

Hoffner testified he is familiar with Victim Jenkins' home because he grew up four

houses away. Id. at 61. Haffner testified to a series of drawing and photographs

depicting Victim Jenkins' home. Id. at 62, 63. Haffner testified Victim Jenkins' body

was found on the second floor right outside the middle bedroom door near the front

bedroom, and it was securely wrapped in the comforter. Id. at 64. Hoffner testified

to the content of several crime photographs, including a photograph of the

newspapers and mail in the doorway. Id. at 67. Hoffner testified there is a certain

method in taking crime scene photographs, and pictures are taken from multiple

locations in the same room and they attempt to get every corner of the crime scene

into the pictures. Id. at 72-73. Hoffner testified to photographs of Victim Jenkins,

wrapped in the comforter with a towel over the top. Id. at 76. Hoffner testified to the

presence of blood spatter on the trim of the middle bedroom door, blood stains on

the door of the rear bedroom, and blood on the floor of the floor of the rear bedroom

and on exercise equipment of the rear bedroom and on the radiator of the back

bedroom, and blood stains and spatter on the party wall of the middle bedroom

depicted in some photographs. Id. at 77, 82, 83, 84, and 85. Hoffner testified to the

10 photograph of a Batman comforter stained on the underside with blood. Id. at 86.

Hoffner testified to a photograph of two dumbbells that had blood. Id. at 85, 87, 88.

Hoffner testified the medical examiner was notified because of the death. Id. at 97.

Hoffner testified to photographs of Victim Jenkins, after the comforter was removed

from his body, face down. Id. at 98. Hoffner testified he wrote a report to document

the steps of his investigation. Id. at 99. Hoffrier testified the neighbors and relatives

were contacted. Id. at 100-101. Hoffner testified blood samples were submitted for

analysis and resulted in a DNA profile of a black, African American female, and

they were able to exclude and rule out individuals as being the contributor of DNA

recovered at Victim Jenkins' home. Id. at 102. On cross-examination, Hoffner

testified a photograph of the dumbbells was an accurate depiction of how they were

found on May 7, 2007. Id. at 114. Officer Hoffner testified he did not know whether

any other person accessed the house during the period of time between Victim

Jenkins' murder and Detective Attix finding the body. Id. at 144-115. On re -direct

examination, Hoffner testified there was no evidence to suggest anyone other than

the killer entered Victim Jenkins home between the time of the killing and Officer

Attix responding to Victim Jenkins' home for the wellness call. Id. at 115.

11 3. Testimony of Officer Michael Attix, Police Officer for Borough of Sharon Hill, PA Police Department. See generally May 29, 2019 Notes of Testimony at 9-17.

Officer Michael Attix ("Attix") testified he has worked for the Sharon Hill

Police Department for 29 years. Id. at 9. Attix testified on May 7, 2007, he was on

duty and received a radio call for a wellness check at Victim Jenkins' home. Id. at

9-10. Attix testified when he arrived at Victim Jenkins' home, he noticed an

accumulation of mail, newspapers, and flyers between the screen door and front

door. Id. at 10. Attix testified he knocked on the door several times, and when there

was no response, he went around the house to where there was a sliding glass door,

and he started knocking again. Id. Attix testified when there still was no answer, he

checked the sliding glass door and it opened; he stepped into the kitchen area and

called for Victim Jenkins and announcing himself as a police officer. Id. at 11. At-fix

testified as he walked from the kitchen to the dining and living room area, he noticed

there appeared to be drops of blood on the floor. Id. Attix testified he walked to the

stairs, continuing to announce his presence and calling for Victim Jenkins, and

proceeded up the stairs. Id. Attix testified when he nearly reached the top of the

staircase, he observed an object, wrapped in a comforter and towel, in the hallway,

and when he looked more closely, he saw blood on the ground where the object was

and blood on the entranceway to a nearby room. Id. Attix testified he immediately

left Victim Jenkins' residence and called for back up and requested the police radio

12 room to send the detective in chief. Id. at 12. Attix testified at first he thought the

blood was significant because Victim Jenkins could have been hurt, and that when

Attix went to the second floor, he realized it was a crime scene and he called for

backup. Id. Attix testified he radioed for backup so they could clear the house to

make sure no one was in the residence. Id. at 12-13. Attix testified he thought Officer

Brian Patterson from Darby Township Police Department arrived, and they walked

though Victim Jenkins' house. Id. Attix testified when entered the back bedroom on

the second floor, he observed gym equipment and a large amount of blood on the

walls and the floor. Id. Attix testified he and Officer Patterson did not find anyone

else in Victim Jenkins' residence. Id. at 14. Attix testified once they cleared the

house, both Officer Patterson and he exited the residence to await the detective in

chief. Id. Attix testified when he and Officer Patterson were inside Victim Jenkins'

house, they were mindful not to disturb evidence, not to step in blood, not to disturb

anything, and they kept safety in mind. Id. Attix testified when he and Officer

Patterson went back outside, Chief Kelly and Hoffner arrived. Id. at 15. Attix

testified he advised Chief Kelly and Hoffner of his actions inside the residence, and

he and Heffner went back inside to check the object wrapped in a comforter and

found in the second floor hallway. Id. Attix testified Hoffner checked to see what

was under the towel and comforter, and it was Victim Jenkins. Id. at 15. Attix

testified he and Hoffner went back outside, and no one was permitted to enter Victim

13 Jenkins' residence until CID detectives arrived. Id. On cross-examination, Attix

testified it was a sunny day but he was not sure whether any lights were turned on in

Victim Jenkins house and he does not remember whether he used his flashlight when

he was inside Victim Jenkins' residence. Id. at 15-16. Cross-examination was not

extensive and did not alter nor weaken the testimony of Attix. Id. at 16-17.

4. Testimony of Detective Sergeant David McDonald, Delaware County District Aftorney's Office, Criminal Investigation Division. See generally May 29, 2019 Notes of Testimony at pp. 18-102.

Detective Sergeant David McDonald ("McDonald") testified he has been a

police officer since 1984 and he is the Detective Sergeant, Commander of the

Forensic Science Unit. Id. at 18. McDonald testified he became involved in the

investigation into Victim Jenkins death on May 9, 20072 and he went to the scene of

the murder for a walk through to identify items at the scene that may have evidentiary

value and take additional photographs and process the scene for fingerprints. Id. at

22, 23, 73-74. McDonald testified to a series of photographs taken of the crime scene

and evidentiary items. McDonald testified in his "preliminary survey there was a lot

of blood evidence and a lot of bloodstain patterns". Id. at 29. McDonald testified the

scene showed evidence of a violent struggle and appeared there had been an attempt

to cleanse the scene, and he testified to content of a series of photographs depicting,

him his investigation 2 Later during his testimony, McDonald testified he was mistaken and the exhibits reminded the day after Victim Jenkins' body was discovered. Id. at 26. actually started on May 8, 2007, 14 inter alia, the bloody and violent crime scene of the murder. Id. at 29, 30, and

generally. McDonald testified there were droplets of blood leading from the second

floor into the kitchen and this could signify the "doer injured themselves". Id.

McDonald testified an air freshener was out on a table and this appeared to be an

attempt by someone to mask the odor of the decomposition process. Id. at 29-30.

McDonald testified there were two 30 pound metal dumbbells, one was covered with

a considerable amount of blood and the other appeared to have cast-off blood on its

surface. Id. at 33. McDonald testified the crime scene was very bloody, and they

took special precautions to avoid contamination of the crime scene by wearing

protective covers over their boots and rubber gloves. Id. at 35. McDonald testified

they took random samples of blood droplets for DNA testing. Id. at 44. McDonald

testified there was a kitchen knife found on the drying rack in the kitchen, and there

were bloodstains on the handle and the knife blade was bent consistent with being

used in a struggle. Id. at 81. McDonald testified that he was not positive, however,

the knife was used in the struggle. Id. On cross-examination, McDonald testified the

first officers who went into the house without protective clothing could possibly

contaminate the scene but the priority at that time was to make sure nobody was at

risk. Id. at 86. On re -cross-examination, McDonald testified the blood was dry but

McDonald could not testify how long the body was there, but he had information

Victim Jenkins had not reported to work in over a week. Id. at 96.

15 5. Testimony of Shante Fernandez, Daughter of Victim Jenkins' Girlfriend. See generally May 29, 2019 Notes of Testimony at 110-151.

Shante Fernandez ("Fernandez") testified her mother and Victim Jenkins were

in a relationship together from the time she was three until his death when she was

24, and Victim Jenkins was "like a step -father" to her. Id. at 110. Fernandez testified

she and her mother lived with Victim Jenkins starting in 2000, but she moved out in

2003 because she was having a baby and there wasn't enough space in the house. Id.

at 111. Fernandez testified she knows Appellant and identified Appellant. Id. at 113-

114. Fernandez testified they met when they were fourteen years old, before

Fernandez and her mom moved in with Victim Jenkins. Id. at 114. Fernandez

testified she and Appellant were friends, spent time together, and talked on the phone

regularly. Id. at 115. Fernandez testified Victim Jenkins would not allow company

generally, but sometimes when Victim Jenkins was not home, Appellant would

come over. Id. at 116. Fernandez testified sometimes Appellant would come over to

meet her and they would go out, and at those times Victim Jenkins sometimes was

home. Id. Fernandez testified she, her mother, and Victim Jenkins would use the

back sliding glass door, and usually it was not locked. Id. at 117. Fernandez testified

she and Izena were friends "on and off' because each of them moved around

frequently and would lose touch or they would get new phone numbers, but they

would reconnect through Facebook. Id. at 119. Fernandez testified in April 2007,

16 Appellant called her and asked if Victim Jenkins had an alarm system and if anybody

ever went to visit him. Id. at 120. Fernandez testified she thought Appellant's phone

call and questions were weird because Fernandez herself had no reason to go back

to Victim Jenkins' house, so it was "really weird" for Appellant to call out of the

blue and ask about Gary. Id. at 121. Fernandez testified she was not aware of any

direct contact between Victim Jenkins and Appellant, and she had no reason to think

they were in communication between 2003 and 2007. Id. Fernandez testified she

learned of Victim Jenkins' death from her sister. Id. at 122. Fernandez testified she

"taken aback" at the news, and the police talked to her a short time later. Id.

Fernandez testified no one asked her about Appellant, Id. Fernandez testified the

police took a DNA sample from her. Id. at 123. Fernandez testified her next contact

with the police took place in 2015. Id. Fernandez testified Appellant and she were in

contact around that time and Appellant was living in New York, but they never

talked about Victim Jenkins between 2007 and 2015. Id. Fernandez testified she

never thought and it never occurred to her that Appellant murdered Victim Jenkins.

Id. at 124. Fernandez testified Appellant called her the day the police went to see her

in New York. Id. at 125. Fernandez testified Appellant asked her whether Victim

Jenkins was dead and Fernandez sent to Appellant a link for the article about Victim

Jenkins' death. Id. Fernandez testified Appellant told her the police said Appellant's

DNA was found and Appellant should confess. Id. Fernandez testified she spoke to

17 the police and found out Appellant's DNA was found at Victim Jenkins' house. Id.

at 126. Fernandez testified Appellant claimed the DNA was not hers, and it would

be impossible for her DNA to be found there. Id. at 127. Fernandez testified the few

times Appellant did come to the house, Appellant never lifted weights. Id. On cross-

examination Fernandez testified Appellant's weight loss may have occurred when

she enlisted in the army. Id. at 130. Fernandez testified she and Appellant are old

friends, and when they reconnect it is as if no time has passed. Id. at 138. Fernandez

testified she told the police during her second conversation with police in 2015 about

the April 2007 phone call she had with Appellant about whether Victim Jenkins had

a security system in his house, and that Appellant has denied ever making asking

those questions. Id. at 139, 140. Fernandez testified she told Appellant she was afraid

she was going to lose her children because of this case. Id. at 139. Fernandez testified

there were times Appellant claimed she didn't like Victim Jenkins and he was mean.

Id. at 140. On re -direct examination, Fernandez testified when the police came to

speak with her on September 29, 2015, Detective Wright gave her his card and told

her to call him if she remembered anything; the next day, Fernandez called Detective

right because she remembered the April 2007 phone call when Appellant asked her

about whether Victim Jenkins had an alarm system in the house; when Fernandez

remembered the conversation, it was an "aha moment" and she wasn't trying to hold

back from the police, she just didn't think of it at first. Id. at 145.

18 6. Testimony of Heather McKiernan, Employee for the Center for Forensic Science Research and Education and Consultant for NMS Labs. See generally May 29, 2019 Notes of Testimony at pp. 152-197.

Heather McKiernan ("McKiernan") testified she has been employed since

2014 as an employee for the Center for Forensic Science and a consultant for NMS

Labs. Id. at 152-153. McKiernan testified she has specialized training in DNA

forensic analysis. Id. at 156. McKiernan testified about the summary of the

serological testing for body fluid (blood) and results following DNA testing. Id. at

162. McKiernan testified both Appellant's reference sample and Victim Jenkins'

reference sample were compared to and identified as present in a blood sample taken

from the handle of the 30 pound dumbbell found at the scene of the murder. Id. at

166, 171, 172, 174. McKieman testified Appellant's DNA was identified from a

blood sample from the living room floor and the kitchen floor, and swabs from a bite

mark found on Victim Jenkins. Id. at 175, 176, 177, 178, 179. McKieman testified

the conclusions and opinions she stated are in keeping with standards in the scientific

community. Id. at 184. On cross-examination, McKiernan testified she could not say

how Appellant's DNA got onto the dumbbell, who touched it first, or how long it

has been on the dumbbell. Id. at 188. McKiernan testified and confirmed Appellant's

blood was found in four places that were sampled for DNA: dumbbell, kitchen floor,

living room, bite mark. Id. at 189. McKiernan testified the knife found in the kitchen

had DNA sources of two persons, Victim Jenkins and an unknown individual. Id. at 19 195. On re -cross examination McKiernan testified she did not know whether that

knife was used as the murder weapon. Id. at 197.

7. Testimony of Dara Rayna Jones3, Appellant's Former Girlfriend. See generally May 29, 2019 Notes of Testimony at pp. 200-215.

Dara Rayna Jones ("Jones") testified she lives in New York and she knows

Appellant; she identified Appellant in court. Id. at 200. Jones testified Appellant and

she dated in 2013 and moved in together during that summer. Id. at 201. Jones

testified Appellant and she broke up on New Year's Eve 2013. Id. at 203. Jones

testified Appellant told her she had killed a man once and had beaten the man to

death. Id. Jones testified she thought Appellant was using a scare tactic, trying to

intimidate her. Id. at 204. Jones testified she began to research online about an

unrelated and separate matter, and she came upon information related to the Victim

Jenkins murder. Id. at 206. Jones testified she called the police. Id. at 205-207. On

cross examination, Jones testified at first she did not believe Appellant when

Appellant claimed to have killed a man. Id. at 207. Jones testified she did "not recall

anybody saying anything about stabbing anybody." Id. at 212.

In the Notes of Testimony, Dara Rayna Jones is identified as Barina Jones.

20 8. Testimony of Detective William Wright, Criminal Investigation Division of Delaware County District Attorney's Office. See generally May 30, 2019 Notes of Testimony at pp. 3-24.

Detective William Wright (Wright") testified he is Lieutenant of Detectives

for Delaware County Criminal Investigation Division ("CID"), he has been

employed with CID for eight years and has been a police officer for 29 years. Id. at

3-4. Wright testified he came into this case in 2015 as a result of Appellant's DNA

presence at the crime scene where Victim Jenkins' body was found, including the

bite mark on Victim Jenkins' arm, the blood drops on the floor, and the dumbbell.

Id. at 4. The DNA profile found at the crime scene "allowed us enough probable

cause to get a search warrant to get a buccal swab" from Appellant. Id. Wright

testified in September 2015 he traveled with Chief Herron from Sharon Hill Police

Department to New York City and with the aid of an Assistant District Attorney and

a NYPD Officer Balbone, a search warrant was obtained in New York City. Id. at 5.

Wright testified he and the two officers located Appellant and NYPD Officer

Balbone did the buccal swab in Wright's unmarked police vehicle. Id. Wright

testified he told Appellant the search warrant for the buccal swab was for an

investigation of a 2007 homicide. Id. at 6. Wright testified Appellant stated he

wouldn't be surprised if Appellant's DNA was found at the crime scene location

because Appellant knew Fernandez and hung out at the house years earlier. Id. at 7.

Wright testified following the buccal swab, he advised Appellant the DNA located 21 at the crime scene came from blood. Id. Wright testified Appellant got out of the car

and ran away. Id. Wright testified the swab was submitted to NMS lab. Id. at 7, 8.

Wright testified an arrest warrant was issued for Appellant, and Wright testified he

wrote an incident report and criminal complaint. Id. at 8. Wright testified Hoffner

and Chief Herron traveled to New York City where Appellant resided and with the

assistance from NYPD and U.S. Marshals arrested Appellant. Id. at 9-10. Wright

testified Appellant was Mirandized and an hour long interview was conducted, Id.

at 10-12. Wright testified Appellant repeatedly claimed he was never at Victim

Jenkins' home is 2007 and Appellant talked about his drug use-marijuana,

medication, cocaine. Id. at 12. Wright testified Appellant acknowledged making a

phone call about whether a person had an alarm system and Appellant did not

confirm she was inquiring about Victim Jenkins. Id. at 13. Wright testified following

the interview, they transported Appellant to Delaware County. Id. at 14. Wright

testified there wasn't any evidence tending to suggest anyone else besides Victim

Jenkins and Appellant were inside the house at the time of the murder. Id. On cross-

examination, Wright testified, inter alia, to the general circumstances surrounding

the police interview of Appellant following arrest but the cross-examination did not

reveal anything irregular surrounding the arrest and subsequent interview of

Appellant. Id. at 19-21.

22 9. Testimony of Frederic Hellman, Chief Medical Examiner for Delaware County. See generally May 30, 2019 Notes of Testimony at pp. 24-35, 42-91.

Frederic Hellman ("Hellman") testified for the past 19 years he has been

employed as the chief medical examiner for Delaware County. Id. at 24. Hellman

testified he conducted an autopsy on the body of Victim Jenkins, and he noted

decompositional changes, approximately 40 incised and stab wounds all over Victim

Jenkins' head and body, severe blunt force injuries including a gaping laceration that

extended across his forehead, and an underlying depressed skull fracture of the left

forehead that extended across the forehead bone to the right side of the skull. Id. at

24, 45, 46, 47. Hellman testified there was a second area of impact at the back of

Victim Jenkins' head. Id. at 47. Hellman testified to large areas of bruising on the

back of the head and extensive fractures of the skull arising from at least two and

probably more blunt force injuries of the head. Id. at 47, 48. Hellman testified he

observed scrapes and abrasions on Victim Jenkins' head, face, and body. Id. at 48.

Hellman testified Victim Jenkins had a gaping slash wound across his neck that

severed the carotid artery and jugular vein and fractured the hyoid bone. Id. Hellman

testified the physical indications suggest Victim Jenldns was alive when he suffered

the neck wound. Id. In addition to the stab and incised wounds, Victim Jenkins had

a bite mark from which he collected a DNA sample. Id. at 52, 53, Hellman testified

the evidence suggests Victim Jenkins was alive when he sustained the blunt force

23 injuries. Id. at 53. Hellman testified a thirty pound dumbbell could have been used

to inflict the blunt force injuries to Victim Jenkins and the slash wound at the neck

was an execution style slash. Id. at 54. Hellman through his testimony explained to

the jury how he conducted the autopsy, and used diagrams and photographs to

further explain the nature and type of the injuries Victim Jenkins sustained during

the murder. Id. at 58-71. Hellman testified his opinion to a reasonable degree of

medical certainty as to the cause of Victim Jenkins death is blunt force head injuries

associated with multiple stab and slash wounds. Id. at 72. Hellman testified he

received toxicology results from a specimen he sent to lab and the result showed

Victim Jenkins has the presence of alcohol in his system, and he opined the level of

alcohol was in part due to drinking and in part due to alcohol producing bacteria

from decomposition. Id. at 73-74. Hellman testified he is not able to pinpoint an

exact time of death but he estimated Victim Jenkins was deceased for 7 to 10 days

before his body was discovered. Id. at 74. On cross examination, Hellman testified

it appeared there was a progressive escalation of the nature and severity of the

injuries suffered by Victim Jenkins and the injuries likely were sustained at the end

of the struggle. Id. at 78, 79.

24 'CU Circulated 02/44-/A2? u -o)

B. DEFENDANT'S CASE

1. Testimony of Appellant. See generally May 30, 2019 Notes of Testimony at pp. 98-171.

Appellant testified he is 35 years old, has taken some college classes, and

was in the Army National Guard out of New York. Id. at 99. Appellant testified in

2007 he was living in Brooklyn, NY, but came to Chester in 2007 to see friends

and family. Id. at 100. Appellant testified he was born female, now identifies as a

male, uses the name Isaiah, and characterizes as transgender. Id. at 100, 101.

Appellant testified in 2014 he started receiving testosterone shots and in 2015

Appellant underwent a bilateral mastectomy. Id. at 102. Appellant testified in 2007,

he was a 23 year old woman. Id. Appellant testified he feared rejection from the

family because he perceived they had difficulty understanding his "alternate sexual

preference". Id. at 103. Appellant testified he know Victim Jenkins because Victim

Jenkins was dating Karen Crenshaw, mother of Appellant's friend Fernandez. Id.

Appellant testified to having been in Victim Jenkins' home on several occasions.

Id. Appellant testified on April 28, 2007 he went to Victim Jenkins' home, and he

remembers the date because an "altercation ensued there" and Appellant was

treated at Crozer Hospital for an injury to her leg and her hand. Id. at 104, 125, 156.

Appellant testified on April 28, 2007 she was visiting family and friends in the area,

including Fernandez, and they were drinking heavily, Id. at 107. Appellant testified

she decided to go back to her aunt's home where she was staying because she drank

25 too much and was feeling sick. Id. at 108. Appellant testified she was taking the

bus from Darby to Chester, but she began to get sick and was vomiting so she had

to get off. Id. Appellant testified she wasn't far from where she thought her friend

Fernandez's mom lived. Id. at 109. Appellant testified she lcnociced on Victim

Jenkins' door, he answered, and after a minute, he recognized her. Id. Appellant

testified he asked Victim Jenkins if she could use the bathroom and make a phone

call. Id. at 110-111. Appellant testified Victim Jenkins allowed Appellant to come

into the home. Id. at 111. Appellant testified she was in the home and making small

tallc with Victim Jenkins, and she needed to use the bathroom again. Id. Appellant

testified Victim Jenkins invited Appellant to stay, but Appellant said she felt it was

inappropriate and advised Victim Jenkins she probably wouldn't stay. Id. at 112.

Appellant testified Victim Jenkins startled her because when she came to the

bathroom door, he was right there, and then he "started to kind of hit on me." Id.

Appellant testified they were talking about Appellant's sexuality, and Victim

Jenkins asked, inter alia, if Fernandez and Appellant had been girlfriends and

lovers, and whether they had sex at his house. Id. at 114. Appellant testified she

had been molested by more than one male relative. Id. at 115. Appellant testified

one of the big reasons for her to not stay with Victim Jenkins is because of the

effect it could have on her relationship with Fernandez. Id. at 116. Appellant

testified Victim Jenkins put his arms around her, and she felt both excited and

26 uncomfortable and tried to stop him when he began "grabbing my breasts and my

genitals." Id. at p. 117. Appellant testified Victim Jenkins was persistent, and

Appellant became angered so Appellant shoved Victim Jenkins as hard as she could

and then punched him in the face. Id. at p. 118. Appellant testified Victim Jenkins

at first appeared stunned, and hurt, and then he became angry. Id. Appellant

testified they began physically fighting. Id. Appellant testified Victim Jenkins

grabbed Appellant's neck and squeezed her into unconsciousness. Id at. 119.

Appellant testified the altercation occurred in the upstairs hallway, but when she

regained consciousness, she was in the bedroom, and she was on the bed and she

was only wearing a tee-shirt. Id. at 119, 120. Appellant testified Victim Jenkins

"was crouched down on top of me with penis in hand, pissing on me." Id. at 120.

Appellant testified when Victim Jenkins saw she was regaining consciousness, he

held a box cutter to her and he leaned into the neck, and she bit his arm as hard as

she could. Id. Appellant testified they continued tussling, and she ended up on her

stomach, and she was trying to get away. Id. Appellant testified Victim Jenkins

then "tried to insert his penis into me" and he put it into her rectum. Id. at 121.

Appellant testified when she tried to get away he pulled her hair out, and as she

continued to attempt to get away, she tried to kick him as hard as she could in his

genitals and then he slashed open her leg. Id. Appellant testified as she was backing

away from him, she picked up a barbell and she told Victim Jenkins to "get the

27 fuck out of my way" and "if you don't get out of my fucking way, I'm going to

bust your fucking head open." Appellant testified Victim Jenkins laughed at her

and made a retort. Appellant testified "I started swinging that damn thing like I was

the Louisville slugger. And I did not stop hitting him with it until he fell." Id. at

122. Appellant testified it is possible she hit Victim Jenkins in the body and head

with the dumbbell. Id. at 123. Appellant denied stabbing Victim Jenkins. Id. at 123,

134. Appellant testified she grabbed her pants and flip flops from the hallway floor

and went out of the house. Id. Appellant testified she discarded her urine stained

tee shirt in the kitchen and put on her pants when she went outside. Id. at 124.

Appellant testified Victim Jenkins was alive and calling her a fucking bitch when

she was leaving, and Appellant then told Victim Jenkins "he was going to get

fucked up." Id. Appellant testified she had a puncture wound to her hand and a gash

in her leg, and she received eighteen to twenty stitches. Id. at 125. Appellant

testified she did not know whether Victim Jenkins was bleeding when she left the

house. Id. Appellant testified when she left, she didn't have her identification, keys,

or money, and she had to walk to Chester from Victim Jenkins house. Id. at 126.

Appellant testified she told her aunt she had been attacked and she went to Crozer.

Id. at pp. 127, 128. Appellant testified she told the hospital staff she had been in a

fight but did not tell them she had been sexually assaulted because it was

humiliating and she did not want to have a rape kit and she did not want to tell the

28 police. Id. Appellant testified she told her aunt and her father what happened. Id. at

131. Appellant testified her father drove from Brooklyn to get her and Appellant

showed him where Victim Jenkins lived. Id. Appellant testified her father did not

go into Victim Jenkins house, and they drove to Brooldyn. Id. at 132, 133.

Appellant testified when she visited her father the following week, he had her ID

card and told her "he broke the nigger's face and he took the nigger out". Id. at 134.

Appellant testified her father died in May 2016. Id. Appellant testified she hit

Victim Jenkins with the dumbbell and she "imagined some of it did got to the face

and head." Id. at 135. Appellant testified "I'm responsible for his death, but I did

not kill him." Id. at p. 136. Appellant testified if she never took her dad to the house,

Victim Jenkins probably would still be alive. Id. Appellant testified she wanted

Victim Jenkins to be hurt, not dead. Id.

On cross-examination, Appellant testified he never mentioned any of her

story to the detectives who obtained the buccal swab from her in September 2015.

Id. at 137. Appellant testified following her encounter with the police, she called

Fernandez and asked her if Gary were dead. Id. at 139. Appellant testified she had

met Victim Jenkins a handful of times before April 28, 2007. Id. at 141, 142.

Appellant testified Fernandez was mistaken when she testified Victim Jenkins was

never at the home when Appellant visited. Id. at 142. Appellant testified she doesn't

know what time she arrived at Victim Jenkins home, but she recalled it was getting

29 dark. Id. at 143. Appellant testified she was wearing a tee shirt, sweatpants, flip

flops, and a blouse, and she carried a book bag. Id. at 143, 144. Appellant testified

when Victim Jenkins progressed in touching her, when Appellant couldn't stand it

any longer, she shoved him and pushed him, and then she punched him. Id. at 147,

148. Appellant testified after she punched Appellant, he began hitting and punching

her and grabbed her around the neck and squeezed until she was unconscious. Id.

at 148, 149. Appellant testified when was became conscious, she was in the hallway

and Victim Jenkins was over her urinating on her. Id. at 149. Appellant testified

she doesn't know if Victim Jenkins purposely or accidentally inserted his penis into

her. Id. at 150. Appellant testified she agreed there were no images of the box cutter

or her hair or the urine soaked tee shirt in the many pictures of the crime scene. Id.

at 152. Appellant testified he hit Victim Jenkins with the dumbbell but he did

Appellant didn't have a knife. Id. at 153. Appellant testified she took off her tee

shirt because it was soaked in Victim Jenkins' urine and she threw it in the kitchen

or the kitchen doorway to the outside. Id. at 154. Appellant testified he thought it

would be "unintelligent to implicate myself' into the murder, and she thought if

she said anything about her story and the situation that led up to the murder, then

she would have to explain and she wasn't prepared for that. Id. at 158. Appellant

testified she admits to hitting Victim Jenkins, but she denies any involvement in a

stabbing of Victim Jenkins. Id at 160. Appellant testified it is his fault Victim

30 Jenkins is dead, and he takes responsibility for that, but he did not murder Victim

Jenkins. Id. at 160, 161. Appellant testified she did not take the opportunity to

explain to the police her version of what she alleges happened. Id. at 161. Appellant

testified Fernandez conflated two phone calls into one, and her recollection

concerning Appellant's phone call to her inquiring whether Victim Jenkins had an

alarm system is mistaken. Id. at 162, 163, 164. Appellant testified she called

Fernandez on May 4, 2007, and was trying to find out information in an indirect

manner about Victim Jenkins, and when Fernandez didn't say anything about him,

Appellant "deduced he had survived the ordeal my father had spoken about." Id. at

165. Appellant testified Jones' testimony was mistaken, and Appellant had told her

she was responsible for a man's death but explained she didn't commit murder or

say she beat a man to death. Id. at 167. Appellant testified when she went to the

hospital she tried to give facts without giving details. Id. Appellant testified she

provided truthful information to the hospital staff. Id. at 168, 169. Appellant

testified she didn't report to hospital staff information about having been strangled

to the point of unconsciousness. Id. at 169.

2. Testimony of Eugenia Bright, Appellant's Aunt. See generally May 30, 2019 Notes of Testimony at pp. 172-178.

Eugenia Bright ("Bright") testified she is Appellant's aunt and she recalled

one night during 2007 Appellant came to her home at night and was dressed in a

different way than she normally was dressed and had a "horrid" look about her. 31 Bright testified Appellant told her she had been in a "really big fight" and she had a

big gash on her leg, and Bright asked her son to drive Appellant to the emergency

room. Bright testified she would not come to court and lie on behalf of Appellant.

On cross-examination, Bright testified she did not call the police and Appellant told

her to not call the police.

3. Testimony of Ethel Atkins, Appellant's grandmother. See generally May 39, 2019 Notes of Testimony at pp. 179-185.

Ethel Atkins ("Atkins") testified she is Appellant's grandmother and she lives

in Crown Heights, Brooklyn, New York. Atkins testified Appellant graduated from

West Philly High and joined the army. Atkins testified about the contents of two

photographs of Appellant from her high school graduation and swearing in

ceremony when she joined the army. Atkins testified in April 2007 Appellant's

father brought her from Chester, PA to Brooklyn, NY, and Appellant was unable to

take care of herself and she was limping, throwing up, and sore, and Appellant told

Atkins she had been raped. Atkins testified she would not come to court, take an

oath, and lie for Appellant.

C. STIPULATIONS: Two stipulations were entered between the Assistant

District Attorney and Appellant through his Defense Counsel, and these stipulations

were agreed to the entry by the Court to be made a part of the record of the case.

32 1. Chain of Custody-DNA Evidence

There has been a proper chain of custody established with respect to all DNA

evidence in connection with this case, starting from the time when such evidence

was collected, until the time when it was analyzed and/or presented in court.

2. Chain of Custody--Physical Evidence

There has been a proper chain of custody established with respect to all

physical evidence collected in connection with this case, starting from the time such

evidence was collected until the time when it was analyzed/presented in court.

After listening to all the trial testimony, considering all the exhibits admitted

and weighing the evidence presented 'during trial, the jury believed the facts

presented by the Commonwealth's case proved beyond a reasonable doubt Appellant

committed the crimes charged and were not persuaded Appellant's version of the

facts negated or curtailed Appellant's guilt on the criminal charges. Judgment of

sentence should be affirmed.

III. DISCUSSION

A. Evidence is sufficient to establish Appellant's guilt and sustain the convictions for murder of the first degree, murder of the third degree, and possessing instruments of crime. Appellant's claim lacks merit and judgment of sentence should be affirmed.

The first three issues raised by Appellant in the 1925(b) Statement challenge

sufficiency of the evidence for the convictions of murder of the first degree, murder

of the third degree, and possessing instruments of crime. A claim challenging the 33 sufficiency of evidence is a question of law and the standard of review in a criminal

case is whether the evidence is sufficient to prove every element of the case beyond

a reasonable doubt. The scope is the entire record viewed in a light most favorable

to the Commonwealth as the verdict winner, and accepting all evidence as true and

all reasonable inferences therefrom upon which, if believed, is sufficient to prove

guilt beyond reasonable doubt of all elements of the crime and the fact finder could

have based its verdict. Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008);

Commonwealth v. Smith, 853 A.2d 1020 (Pa. Super. 2004); Commonwealth v.

Wilson, 825 A.2d 710 (Pa. Super. 2003). In reviewing a claim of insufficiency of the

evidence, an appellate court must keep in mind that the credibility of witnesses and

the weight to be accorded to the evidence produced are matters within the province

of the trier of fact, who is free to believe all, some, or none of the evidence.

Commonwealth v. McCalman, 795 A.2d 412 (Pa. Super. 2002), appeal denied 812

A.2d 1228 (Pa. 2002); Commonwealth v. Hunter, 768 A.2d 1136 (Pa. Super. 2001),

appeal denied 796 A.2d 979 (Pa. 2001).

Any doubt about the defendant's guilt is to be resolved by 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. Lynch, 2014

WL 11022453 (Pa. Super. 2014); Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.

34 Super. 2013) (citations and quotation marks omitted); Commonwealth v. Rose, 820

A.2d 164 (Pa. Super. 2003), reargument denied.

A claim challenging the sufficiency of the evidence, if granted, would

preclude retrial under the double jeopardy provisions of the Fifth Amendment to the

United States Constitution, and Article I, Section 10 of the Pennsylvania

Constitution. Tibbs v. Florida, 457 U.S. 31 (1982); Commonwealth v. Vogel, 461

A.2d 604 (Pa. 1983). When a verdict is not supported by sufficient evidence,

appropriate remedy is discharge and dismissal of all charges. Commonwealth v.

Ruffin, 463 A.2d 1117 (Pa. Super. 1983); Commonwealth v. Cardona, 463 A.2d 11

(Pa. Super. 1983).

Appellant's sufficiency of the evidence claims lack merit and judgment of

sentence should be affirmed. Considering the standard of review in this case, and

based on the testimony presented, the Commonwealth met its burden is the verdict

is supported by overwhelming evidence proving Appellant's guilt. The record and

applicable law belie Appellant's claims. In the present case, viewing the evidence in

the light most favorable to the Commonwealth, the record is clear the jury as fact

finder determined the evidence required to establish the elements of the crimes of

murder of the first degree, murder of the third degree, and possessing instruments of

crime was sufficient to prove the charges beyond a reasonable doubt. The jury

believed the testimony of the Commonwealth witnesses and believed the

35 Commonwealth proved beyond a reasonable doubt Appellant committed the

offenses of murder of the first degree, murder of the third degree, and possessing

instruments of crime. The jury as fact finder believed Appellant committed the

crimes and disregarded Appellant's discordant testimony. The jury considered the

details testified to concerning when the witness from Victim Jenkins place of

employment realized Victim Jenkins had not been to work nor had he been in any

communication. The jury considered the violent, bloody crime scene and Victim

Jenkins' manner of death. The jury considered Hellman's testimony Victim Jenkins

was alive when his throat was slashed, jugular vein and carotid artery severed, and

hyoid bone broken and all the autopsy findings. The jury considered the testimony

concerning the attempt to clean up the murder scene and mask odors. The jury

considered Fernandez's testimony including Appellant's inquiry in advance of the

murder whether Victim Jenkins' home had an alarm system and whether anyone else

was staying at his residence. The jury considered Jones' testimony Appellant told

her he killed a man by beating him to death. The jury considered testimony the blood

samples removed from the scene of the murder matched Victim Jenkins and a "Black

African American female". The jury considered Appellant testified on direct

examination after Victim Jenkins choked her, she was on the bed when she regained

consciousness, but on cross-examination, Appellant testified when she regained

consciousness, Appellant was over the threshold of the door to the bedroom. See

36 May 30, 2019 Notes of Testimony at 121, 149. The jury considered Appellant's

testimony admitting on April 28, 2007 she went to Victim Jenkins' home. The jury

considered Appellant's testimony he is responsible for Victim Jenkins death; the jury

considered Appellant's testimony he denies murdering Victim Jenkins; the jury

considered Appellant's testimony blaming his father, who died in 2016, as the person

who actually murdered Victim Jenkins. Id. at p. 134, 136. The jury considered

Appellant repeatedly and admittedly "started swinging that damn thing [dumbbell]

like I was the Louisville slugger. And I did not stop hitting him [Victim Jenkins]

until he fell" and the jury considered Hellman's testimony there were approximately

40 stab wounds and an execution style slash across Victim Jenkins' neck. The jury

also considered Appellant's refusal to make the connection his admitted behavior is

a direct cause of Victim Jenkins' death. Id. at 122. The jury considered the dumbbell

found at the scene of the murder was covered in blood and used in the murder of

Victim Jenkins. The jury considered Appellant's testimony he wanted Victim

Jenkins to hurt. Id. at 136. The jury considered Medical Examiner Hellman's

testimony the blunt force injuries were the most severe injuries, the crushing blows

eventually would result in death, and the blunt force trauma to the head rendered

Victim Jenkins unconscious and made him vulnerable to the slash wound to the neck.

Id. at 47, 56, 57. The jury believed, contrary to Appellant's testimony denying he

stabbed Victim Jenkins and denying he used a knife, Appellant caused Victim

37 Jenkins' execution style neck wound and this is the direct cause Victim Jenkins'

death. Id. at 57. The jury considered Appellant testified he knew Victim Jenkins was

dead because in 2007 Appellant's father told Appellant "he broke the nigger's face

and took the nigger out" but Appellant testified she called Fernandez in 2015 after

her encounter with the police and asked if Victim Jenkins were dead. Id. at 134, 139.

The jury considered Appellant testimony alleging both Jones and Fernandez were

mistaken when they presented their testimony. Id. at 166, 167. The jury considered

Appellant's testimony conflicts with the evidence presented in the case. The jury

considered all the evidence and agreed the Commonwealth proved beyond a

reasonable doubt the murder was willful, deliberate, premeditated, and committed

with malice and the death of Victim Jenkins was caused by Appellant. The jury

considered Appellant's use of the dumbbell and a knife in the commission of the

murder and found them to be used for criminal purposes and possessed by Appellant

under circumstances not manifestly appropriate for lawful uses they might have.

The jury as fact finder did not find the evidence presented by the Commonwealth

weak or inconclusive, and the totality of the evidence when viewed in the light most

favorable to the Commonwealth sufficiently proves beyond a reasonable doubt each

element of his conviction for murder of the first degree, murder of the third degree,

and possessing instruments of crime.

Appellant's claims lack merit, and judgment of sentence should be affirmed.

38 B. The trial court did not err when it denied Appellant's Motions in Limine.4 Appellant's claims lack merit and judgment of sentence should be affirmed.

The next three issues raised by Appellant in the 1925(b) Statement challenge

the court's denial of Appellant's May 17, 2019 Motions in Limine: 1) "Motion in

Limine with Respect to the Testimony of Dara Jones" in which Appellant requested

the court to exclude testimony from Ms. Jones that her relationship with Appellant

was volatile and "culminated in a criminal conviction" for Izena Goudy; 2) "Motion

in Limine with Respect a portion of a Statement Made to Police by Witness Shante

Fernandez" in which Appellant requested the court to exclude testimony from

witness Fernandez concerning Appellant's inquiry of Victim Gary Jenkins had a

security system in his home; 3) "Motion in Limine with Respect to the Presence of

the Defendant's DNA in the National Databank" in which Appellant requested the

court to preclude testimony at trial any mention of the Combined DNA Index System

(CODIS) and how Appellant's DNA got entered into that system.

When a trial court's ruling on a motion in limine is challenged, the standard

of review is whether the court committed abuse of discretion. Commonwealth v.

Stokes, 78 A.3d 644 (Pa. Super. 2013), Commonwealth v. Albrecht, 720 A.2d 793

(Pa. 1999). The first question to consider is whether the evidence sought to be

excluded is relevant, and whether the probative value of that evidence outweighs any

4 On May 30, 2019, the Court entered written orders denying Appellant's May 17, 2019 Motions in Limine.

39 unfair prejudice. If it is determined the evidence was admitted in error, the question

becomes whether the error is harmless, i.e., is the admitted evidence unfairly

prejudicial. In order to constitute reversible error, an evidentiary ruling must not only

be erroneous, but also unfairly prejudicial to the complaining party. Commonwealth

v. Robinson, 721 A.2d 344 (Pa. 1998), cent, denied, 528 U.S. 1082 (2000).

The rules governing whether evidence is relevant are set forth in the

Pennsylvania Rules of Evidence. Pa.R.E. 401 provides Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

The "Official Commentary" Pa.R.E. 401 provides in relevant part:

whether evidence has a tendency to make a given fact more or less probable is to be determined by the court in the light of reason, experience, scientific principles and the other testimony offered in the case.

Pa.R.E. 402 (General Admissibility of Relevant Evidence) provides: All

relevant evidence is admissible, except as otherwise provided by law. Evidence that

is not relevant is not admissible.

The "Official Commentary" to Pa.R.E. 402 provides in relevant part:

Relevant evidence may be excluded by operation of law, by statute, by these rules, by other rules promulgated by the Supreme Court or by rules of evidence created by case law.

40 Appellant asserts the court erred in denying the motions in limine and alleges

the evidence was unfairly prejudicial to Appeallant pursuant to Pa.Rs.E. 403 and

404(b). Pa.R.E. 403 "Exclusion of Relevant Evidence on Grounds of Prejudice,

Confusion, Waste of Time, or Other Reasons" provides in relevant part: The court

may exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice...The rule defines "unfair prejudice"

as "a tendency to suggest decision on an improper basis or to divert the jury's

attention away from its duty of weighing the evidence impartially". Pa.R.E. 403.

Pa.R.E. 404(b) Character evidence; Crimes or Other Acts provides in relevant

part:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of a mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case 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 such evidence the prosecutor intends to introduce at trial.

41 1. Motion in Limine with Respect to the Testimony of Dara Jones

On May 17, 2019, Appellant filed a "Motion in Limine with Respect to the

Testimony of Dara Jones" in which Appellant requested the court to exclude

testimony from Ms. Jones that her relationship with Appellant was volatile and

"culminated in a criminal conviction" for Izena Goudy. On May 24, 2019, prior to

jury selection, the court heard argument on the motion, and with agreement of

counsel, decided ifthe issue arose during the trial, it would be addressed at that time.

See May 24, 2019 Notes of Testimony at p. 19. The court did not abuse its discretion

when it postponed addressing the motion until the issue concerning witness Jones

relationship with Appellant was volatile and "culminated in a criminal conviction"

for Appellant might be raised during witness Jones' testimony. In addition, the

attorney for the Commonwealth indicated to the court and defense counsel he "will

instruct the witness prior to their testifying that she is not to testify with regard to

any alleged physical assault that occurred between them resulting in criminal

charges." Id. A review of the witness testimony reveals the issue of the volatile

nature of their relationship and subsequent criminal charges and conviction were

never brought up during Jones' testimony and did not come up during the trial.

Contrary to Appellant's statement "Jones was permitted to testify that her

relationship with Appellant was volatile. PaR.E. 403 and 404(b)", the issue

concerning the volatile nature of their relationship, in fact, did not arise during

42 witness Jones' testimony nor any other time during trial. Appellant's allegation

Jones was permitted to testify about the volatile nature of her relationship with

Appellant is not supported in the record, there was no testimony concerning a

volatile relationship between witness Jones and Appellant, and Appellant did not

suffer unfair prejudice and was not harmed in the absence of the testimony. Even if

witness Jones had testified to the volatile nature of her relationship with Appellant,

the testimony could be detrimental to Appellant without being unfairly prejudicial,

and the court would not have abused its discretion in permitting the testimony.

Appellant's claim lacks merit and judgment of sentence should be affirmed.

2. Motion In Limine with Respect to a Portion of a Statement Made to Police by Witness Shante Fernandez

On May 17, 2019, Appellant filed a "Motion in Limine with Respect a portion

of a Statement Made to Police by Witness Shante Fernandez" in which Appellant

requested the court to exclude testimony from Fernandez concerning Appellant's

inquiry of Victim Jenkins had a security system in his home and whether he lived

alone. On May 24, 2019, prior to jury selection, the court heard argument on the

motion. Id. at 19. Appellant claims when police spoke to Fernandez in 2007, she did

not mention that Appellant had allegedly indicated to her or called her several weeks

before the homicide to inquire about who lived with Victim Jenkins and whether or

not he had an alarm system. Appellant claimed this testimony although relevant

should be excluded because of its unfairly prejudicial nature. Appellant pointed out 43 Fernandez had three interviews with the police; the first in 2007; the second in

September 2015 in which Fernandez had no recollection of the particulars of any

conversations she had with Appellant; the third the day after the second interview

but eight years after the murder in which Fernandez indicated she had a conversation

with Appellant in which Appellant asked Fernandez whether Victim Jenkins's house

had an alarm system.

The trial court denied the motion indicating the issues concerning the time -

frame of the statements and the lack of mentioning about the alarm system until the

third conversation with the police could be addressed on cross-examination, and they

are not so prejudicial as to affect the Commonwealth's right to call witness

Fernandez. During the trial, before Fernandez testified, Appellant questioned

whether the Motion in Limine was denied; the Court reiterated the motion was

denied but Appellant would be permitted to thoroughly cross-examine Fernandez on

the issue concerning Appellant calling Fernandez and asking about the presence of

an alarm system and whether Victim Jenkins lived alone. See May 29, 2019 Notes

of Testimony at p. 103. The trial court has broad discretion with regard to the

admissibility of evidence, and it is not required to exclude all evidence that may be

detrimental to Appellant. Appellant argued Witness Fernandez testified Appellant

called her in April 2007 and asked if Gary Jenkins had an alarm system and if anyone

ever visits Gary or spends time at his house. Appellant through counsel had the

44 opportunity to cross-examine witness Fernandez concerning her statement, and he

did thoroughly cross-examine the witness. Id. at 132-154. A review of the Notes of

Testimony reveals Appellant testified to the phone call and attempted to rationalize

and impugn Fernandez's testimony by testifying Fernandez was mistaken in 'her

recollection and had conflated two separate and distinct phone calls made several

weeks apart. Id. at 162-164.

Appellant does not have to like the fact the court made a decision against him;

the court has broad discretion regarding the admissibility of evidence, including

evidence that may be considered detrimental to Appellant. The court did not abuse

its discretion in denying Appellant's motion and making the determination

Fernandez could testify about the phone call from Appellant concerning the

existence of an alarm system at Victim Jenkins' house, and Appellant did not suffer

unfair prejudice as a result of the trial court's decision. Although the testimony may

have been detrimental to Appellant, it had probative value and was not so unfairly

prejudicial to warrant exclusion. Appellant's claim lacks merit and judgment of

3. Motion in Limine with Respect to the Presence of the Defendant's DNA in the National Databank

On May 17, 2019, Appellant filed a "Motion in Limine with Respect to the

Presence of the Defendant's DNA in the National Databank" in which Appellant

requested the court to preclude testimony at trial any mention of the Combined DNA 45 Index System (COD'S) and how Appellant's DNA got entered into that system. On

May 24, 2019, prior to jury selection, the court heard argument on the motion, and

decided with agreement of counsel, if the issue arose during the trial, it would be

addressed at that time. Id. at 19. The court reminded counsel Appellant could object

to the introduction of testimony concerning the DNA database if it was brought in

an inappropriate manner. During the Commonwealth's case and the testimony of

Detective William Wright who testified he obtained Appellant's DNA pursuant to a

search warrant for a buccal swab DNA collection from Appellant to compare to

DNA found at the crime scene, there never was any testimony concerning a database

of any kind, and therefore Appellant did not suffer any prejudice. Appellant's claim

lacks merit and judgment of sentence should be affirmed.

C. Appellant claims the Commonwealth improperly replied to Appellant's allocution by stating the physical evidence was at odds with allocution and contained no remorse. Appellant's claim lacks merit and judgment of sentence should be affirmed.

Appellant claims the Commonwealth improperly replied to Appellant's

allocution when it stated the physical evidence was at odds with allocution and

allocution contained no remorse. See July 16, 2019 Notes of Testimony at p. 19.

Pa.R.Crim.P. 704(C)(1) provides in relevant part: "at the time of sentencing, the

judge shall afford the defendant the opportunity to make a statement in his or her

behalf and shall afford counsel for both parties the opportunity to present

information and argument relative to sentencing." 42 Pa.C.S.A. § 9752(a)(2) 46 provides: "as soon as practicable after the determination of guilt and the

examination of any presentence report, a proceeding shall be held at which the court

shall afford to the defendant the right to make a statement." See also Commonwealth

v. Thomas, 553 A.2d 918 (Pa. 1989).

A review of the transcripts from the July 16, 2019 Sentencing proceeding

reveals Appellant allocated for several minutes without interruption, and the

following exchange among the court, attorney for the Commonwealth DeNucci, and

attorney for Appellant Taggart:

THE COURT: Mr. DeNucci, anything else?

MR. DENUCCI: Judge, I just want to point out that the physical evidence is completely at odds with the Defendant's recitation of events.

THE COURT: Well, I can't consider anything other than what the jury did. The jury found the person guilty of 1St degree Murder. That's what he's going to be sentenced on. And that's what we have in front of me today. There's no retrying the case at sentencing.

MR. DENUCCI: I understand that, judge, but there's also - there's been no display of remorse of any kind.

MR TAGGART: Your Honor, I object to the District Attorney responding to his right of allocution. He has a right of allocution without cross-examination or second-guessing.

THE COURT: I appreciate that. Thank you.... .

See July 16, 2019 Notes of Testimony at pp. 19-20.

47 The record is replete and resplendent with Appellant's allocution. Appellant's

right to allocution was not compromised, and Appellant was not interrupted during

allocution, Id. at pp. 15-19. The judge heard and listened to Appellant's allocution.

The trial court during the sentencing hearing did not consider the statements of the

attorney for the Commonwealth immediately following Appellant's allocution. The

record demonstrates the Court, immediately following the attorney for the

Commonwealth's statements concerning the physical evidence vis a vis Appellant's

recitation of events and absence of remorse, disregarded them. Appellant's claim

IV. CONCLUSION

For all the foregoing reasons, Judgment of Sentence should be affirmed.

BY THE COURT:

el 1.r

cc: A. Sheldon Kovach, Esquire, Deputy District Attorney, Delawarkto*ity District Attorney's Office (via: Interoffice and E-mail) Kelly Wilson, Appeals Unit Coordinator, Delaware County District r

Attorney's Office (via: Interoffice and E-mail) P" Richard J. Blasetti, Esquire, Attorney for Defendant, Office of*eli Defender (via: Interoffice and E-mail)