Com. v. Lee, J.

• Court: Superior Court of Pennsylvania
• Decided: June 20, 2023
• Docket: 547 EDA 2022
• Status: Unpublished

Opinion

J-A10037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAQUAN MARQUIS LEE : : Appellant : No. 547 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-0006412-2019

MEMORANDUM PER CURIAM: FILED JUNE 20, 2023

Jaquan Marquis Lee 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 June 15, 2022 opinion and need not be reiterated in full here. See

trial court opinion, 6/15/22 at 4-40. The relevant facts and procedural history

of this case were summarized as follows:

[Appellant’s] convictions arose out of a conspiracy with co-defendants, Derrick Goins and Kyshan S. Brinkley, 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.,

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1 18 Pa.C.S.A. §§ 2502(a) and 903(a)(1), respectively. J-A10037-23

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.

The evidence showed that [Appellant] was involved in the conspiracy to murder the victim. Earlier on in the evening on March 30, 2019, [Appellant] was with his co-defendants Brinkley and Goins at a social gathering at Chestnut and Evans Streets. Several witnesses identified [Appellant] as being present with them at that location. Before [Appellant] left the gathering he told someone there that he was going to “do something, handle something.” They left that location. [Appellant] and codefendant Goins were specifically observed to have left in a black minivan together, driven by [Appellant]. All three co- defendants arrived together in the black minivan to an apartment complex at 206 Manatawny Street a short time later.

In between the time they all left the gathering and arrived at Manatawny Street, the victim was murdered. During the time of the murder, the black minivan was captured twice on surveillance in the vicinity of the victim’s car. Video surveillance which depicting both York and Walnut Streets, captured an individual in the video frame, which matched up with the audio from another video surveillance that recorded the sound of gunshots.

After leaving 206 Manatawny Street in the black minivan, [Appellant] and his co-defendants traveled to a gas station, and then onto the club in Philadelphia.

Although [Appellant’s] cell phone could not be recovered, his codefendants’ cell phone records from the night of the night of the murder show that the movements of both co-defendants’ cell phones put them in the area of the murder at the relevant time, traveling back to 206 Manatawny Street afterwards, a short time later their cell phones traveled to a gas station, and then to the Uncut club in Philadelphia.

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Surveillance footage corroborated 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 also captured [Appellant] get out of the black van to go into the gas station’s minimart.

Further evidence showed that [Appellant], along with co-defendant Brinkley, was a member of the BGB gang, through rap videos, rap lyrics, social media accounts, and gang expert testimony; and that the gang was involved in drug trafficking. Co-defendant Brinkley had confessed to a fellow inmate at Montgomery County Correctional Facility to his involvement in the murder and the motive for the murder, i.e., that it was drug-related.

Moreover, [Appellant] was established as the shooter in the conspiracy. The shooter was captured on video surveillance at the murder scene, in which the shooter is wearing a black jacket. A black jacket was recovered from the trashcan outside of 47 Beech Street, a short distance from the murder scene, and it was found in the same area as the tenth fired shell casing. DNA testing of various parts of the jacket, such as the zippers and snaps, revealed that [Appellant’s] DNA was on the jacket. [Appellant] was also seen in several photographs wearing that same jacket, which had distinctive features. Further, eyewitness identification saw a male in dark clothing the area of the murder right after each witness independently indicated they heard gunshots fired.

Id. at 1-3.

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

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

sentenced Appellant to an aggregate term of life imprisonment. On January

25, 2022, Appellant filed untimely post-sentence motions challenging the

sufficiency and weight of the evidence.2 The trial court denied Appellant’s

post-sentence motions on January 31, 2022.

Thereafter, on February 11, 2022, Appellant filed a timely notice of

appeal.3 On February 15, 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). Following an extension, Appellant filed a timely concise

statement on May 16, 2022, and the trial court filed its comprehensive Rule

1925(a) opinion on June 15, 2022.

Appellant raises the following issues for our review:

I. Whether the trial court abused its discretion and denied [A]ppellant a right to a fair trial by admitting evidence and testimony of gang activity, affiliations, and habits through social media posts, rap videos, rap lyrics, prior bad acts, and testimony by two detectives, one of whom was qualified as a “gang expert,” where the probative value of such evidence was minimal under the circumstances of the case and the unfair prejudice to appellant was great?

2 The record reflects that Appellant filed his post-sentence motion one day late. Appellant had until Monday, January 24, 2022 to file a timely post- sentence motion because the tenth day fell on Sunday, January 23, 2022. See Pa.R.Crim.P. 720.

3Appellant’s co-defendants, Kyshan Brinkley and Derrick Goins, filed related appeals at No. 549 EDA 2022 and No. 513 EDA 2022, respectively.

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II. Whether the trial court’s admission of co- defendant Kyshan Brinkley’s out of court confession to the murder, introduced through the trial testimony of a jail house informant, Elijah Williams, deprived [A]ppellant of his right to confrontation and cross-examination at the joint trial in which Brinkley was alleged to have acted in concert with [Appellant]?

III. Whether there was sufficient evidence to support the verdict of guilt as to the charge of first degree murder and conspiracy to commit the same?

Appellant’s brief at 4.

I. Admissibility of Prior Bad Act Evidence and Expert Testimony

Appellant first argues that the trial court abused its discretion admitting

evidence and testimony of gang activity, including numerous social media

posts, rap videos, and lyrics, as well the expert opinion testimony of

Lieutenant Erick Echevarria on gang structure and drug trafficking.

Appellant’s brief at 21-30.

“[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

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(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

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).

Additionally, 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

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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).

II. Confrontation Clause

Appellant next argues his right to confrontation was violated when the

trial court permitted Elijah Williams to testify to incriminatory statements

Appellant’s co-defendant Brinkley made to him when he was incarcerated.

Appellant’s brief at 31-35.

“[W]hether a defendant was denied his right to confront a witness under

the confrontation clause of the Sixth Amendment is a question of law for which

our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa.Super. 2017) (citation

and internal quotation marks omitted).

Pennsylvania law is clear that statements of a non-testifying co-

defendant are admissible at a joint trial as long as they avoid express

references to a non-declarant defendant, and the trial court gives a proper

limiting instruction advising the jury that they may only consider the

statement against the defendant who made the statement. See

Commonwealth v. Cannon, 22 A.3d 210, 218 (Pa. 2011); Commonwealth

v. Miller, 819 A.2d 504, 511-513 (Pa. 2002), cert. denied, 540 U.S. 827

(2003); Commonwealth v. Travers, 768 A.2d 845, 850-851 (Pa. 2001).

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III. 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 35-40.

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 62-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, 6/15/22 at 40-62. We find that the trial

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

of legal error.

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Accordingly, we adopt the comprehensive June 15, 2022 opinion of the

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

review.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/20/2023

-9- Circulated 05/24/2023 04:20 PM Opinion

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

COMMONWEALTH OF PENNSYLVANIA: CP-46-CR-0006412-2019

V.

JAQUAN MARQUIS LEE 547 EDA 2022 t. c. t. r. (... •r o c ·r Ad re; c- c ;c :z: 1925(a) OPINION c ria. -6Oo

2Or n- > .-

Appellant, Jaquan Marquis Lee ("Lee"), appeals from the January

13, 2022, judgment of sentence imposed following his conviction of first-degree

murder and conspiracy. Lee was sentenced to a life-term of imprisonment.

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

Derrick Goins and Kyshan S. Brinkley, 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.

The evidence showed that Lee was involved in the conspiracy to

murder the victim. Earlier on in the evening on March 30, 2019, Lee was with

his co-defendants Brinkley and Goins at a social gathering at Chestnut and

Evans Streets. Several witnesses identified Lee as being present with them at that location. Before Lee left the gathering he told someone there that he was

going to "do something, handle something." They left that location. Lee and co-

defendant Goins were specifically observed to have left in a black minivan

together, driven by Lee. All three co-defendants arrived together in the black

minivan to an apartment complex at 206 Manatawny Street a short time later.

In between the time they all left the gathering and arrived at

Manatawny Street, the victim was murdered. During the time of the murder,

the black minivan was captured twice on surveillance in the vicinity of the

victim's car. Video surveillance which depicting both York and Walnut Streets,

captured an individual in the video frame, which matched up with the audio

from another video surveillance that recorded the sound of gunshots.

After leaving 206 Manatawny Street in the black minivan, Lee and

his co-defendants traveled to a gas station, and then onto the club in

Philadelphia.

Although Lee's cell phone could not be recovered, his co-

defendants' cell phone records from the night of the night of the murder show

that the movements of both co-defendants' cell phones put them in the area of

the murder at the relevant time, traveling back to 206 Manatawny Street

afterwards, a short time later their cell phones traveled to a gas station, and

then to the Uncut club in Philadelphia. Surveillance footage corroborated 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

also captured Lee get out of the black van to go into the gas station's minimart.

2 Further evidence showed that Lee, along with co-defendant

Brinkley, was a member of the BGB gang, through rap videos, rap lyrics, social

media accounts, and gang expert testimony; and that the gang was involved in

drug trafficking. Co-defendant Brinkley had confessed to a fellow inmate at

Montgomery County Correctional Facility to his involvement in the murder and

the motive for the murder, i.e., that it was drug-related.

Moreover, Lee was established as the shooter in the conspiracy.

The shooter was captured on video surveillance at the murder scene, in which

the shooter is wearing a black jacket. A black jacket was recovered from the

trashcan outside of 47 Beech Street, a short distance from the murder scene,

and it was found in the same area as the tenth fired shell casing. DNA testing

of various parts of the jacket, such as the zippers and snaps, revealed that

Lee's DNA was on the jacket. Lee was also seen in several photographs wearing

that same jacket, which had distinctive features. Further, eyewitness

identification saw a male in dark clothing the area of the murder right after

each witness independently indicated they heard gunshots fired. With all this

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

the victim.

On appeal, Lee challenges the weight of the evidence; the

sufficiency of the evidence; several pre-trial rulings regarding gang-related

evidence; the introduction of a Commonwealth witness's grand jury testimony;

and the introduction of the testimony of Commonwealth witness, Elijah

Williams.

3 FACTUAL AND PROCEDURAL HISTORY

On January 3, 2022, the eight-day jury 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.

At approximately 10:53 p.m., Officer Andrew Licwinko of the

Pottstown Borough Police Department, responded to the area of York Street

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

Upon his arrival there he observed a dark-colored Infinity parked 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

4 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. 1d. 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

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 victim 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

5 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 Montgomery

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

217. Dr. McDonald's examination 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 Montgomery 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-through. 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,

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

247 - 248.

Detective Turner was contacted by Lieutenant Kuklentz about

twenty minutes after his arrival to go to an additional location at 47 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

6 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 Montgomery 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 4 7 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 47 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 47 Beech Street. Id. at 34.

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-skinned male, athletic build, with

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

7 approach Mr. Scipio's vehicle, which made him feel uncomfortable so he left

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

described him as wearing dark-colored 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 Department. Id. at 57 - 58, 96. There he

identified co-defendant Goins as the individual he observed in the alleyway in a

photo array. Id. at 63, 65, 96, 102.

After leaving the that neighborhood 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 Montgomery County Detective

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

surveillance, 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 investigation he received

information that the suspects were at a gathering on Chestnut and Evans

Streets. Id. at 116.

The Commonwealth played a video surveillance clip taken about a

block and a half away from that gathering. Id. at 117. The lieutenant identified

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

and turned onto Washington Street. Id. Additional video depicted the black

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

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

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

walked to the middle of the video frame, and the individual goes out of the

frame at the top of the video. Id. at 132, 134. The individual runs back from

the left to the right of the video frame. Id. Further, video was obtained from 26

Walnut Street, in which the audio recorded gunshots at 10:52 p.m. Id. at 122 - 123,126 - 128.

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

Chestnut and Evans Streets gathering, and he was there with "Key, identified

in court as co-defendant Brinkley. Id. at 161 - 162. Mr. Baird acknowledged

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

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

Manatawny. Id. at 163 - 164. Using the grand jury testimony to refresh his

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" as 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" as co-defendant Goins. The Court

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

Upon questioning by the Commonwealth, Mr. Baird did not have any independent memory of the events of March 30, 2019. (N.T., Trial by Jury - Day 3 of 8, 1 / 5 /22, pp. 155 - 156). The Commonwealth presented him with a transcript of his grand jury testimony taken on May 15, 2019. Id. at 157. He continued to claim that he did not remember anything from March 30, 2019. Id. at 158 - 159. It did not refresh his recollection. Id. at 160.

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

Streets. Id. at 171. Mr. Booker testified that co-defendant Goins was present.

Id. at 193. Several minutes after arriving, Ms. Booker left, and, at the direction

of 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 Lee and co-defendant Goins 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

Commonwealth introduced his June 5, 2019 grand jury testimony where he

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

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

saw Lee and co-defendants Brinkley and Goins. 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.

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 Street?, 26

Walnut Street, and from the Gulf station3. Id. at 211-212. Detective Glauner

2 Detective Hatfield testified that the time stamp on the video from 112 Walnut 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.

10 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., he heard gunshots. Id. at 278, 280. After waiting about two

minutes, he saw a figure running though the parking Jot 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

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 4 7 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.

II 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 investigation

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 investigators 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 investigation, and he obtained video footage from there. Id. at

14. A drone video was also made in order to demonstrate 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

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

12 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

investigation he became aware that Lee and co-defendants Goins and Brinkley

had been driving a black van on the night of the murder. Id. at 76. He also

learned that it was co-defendant 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 April 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 Philadelphia; a CenterPoint crossbow; a box of Remington .45

ammunition; a plastic bag of .380 caliber ammunition; and a receipt with

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

The search also uncovered drugs, and drug paraphernalia,

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

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 -- 4 7.

Search warrants for several individuals' DNA were obtained,

including Lee, co-defendant Brinkley, co-defendant Goins, Jamar Baird, and

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

Id.

Officer Jason Smaron of the Philadelphia Police Department

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

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

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

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

handgun. Id. at 167.

Taylor Richart, a forensic DNA scientist with the Commonwealth of

Pennsylvania 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 Lee. Id. at 191. As to the collar strap of the jacket, again the

major contributor to that profile mixture was Lee. Id. at 193 -- 194.

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

10:16a.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

co-defendant 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

14 he answered that 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-examination, Mr. Baird denied that Lee was a part of

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

"nothing to be a part of." Id. at 23. He also denied that co-defendant 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 way to remember a close friend that was shot and killed. Id.

Finally, Mr. Baird testified that he was walking with co-defendant Brinkley

down Walnut Street on the way to the gathering when they saw the victim. Id.

at 62. There was no conversation between them. Id. at 65. As to leaving the

gathering at Chestnut and Evans, Mr. Baird remembered that 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 Lee that he would meet him at Beech and Manatawny. Id. at 83.

Lee arrived at that location about fifteen to twenty minutes after Mr. Baird

15 heard the gunshots. Id. He arrived there driving a van. Id. Mr. Baird also stated

that co-defendants Brinkley and Goins were with Lee, and that they arrived in

the van. Id. They all left Beech and Mantawny in the van, they picked up two

more people, they went to the Gulf gas station, and then straight down to

Philadelphia. Id. at 84- 85.

Detective Eric Nelson of the Montgomery County District Attorney's

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

county and was accepted as an expert in firearm and tool maker identification.

Id. at 99, 102- 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 microscopically examined and the detective

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

received six projectiles, which are bullet specimens, for his review. Id. at 111.

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

caliber ammunition. Four of the six were consistent with .40 caliber

ammunition 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 examination, Detective Nelson did not have a

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

16 Ballistic Identification System ("IBIS"). Id. at 116. The detective was notified

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

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

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

Department had the actual semi-automatic 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 Philadelphia 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 Philadelphia

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

Chestnut and Evans Streets 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 Lee, and he knew him as "Quan"

or "Swizz." Id. Mr. Majors had told police in his statement that he has seen Lee

4 IBIS is a computer-based 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.

17 at 206 Manatawny Street. Id. at 235 - 236. Mr. Majors also knew co-defendant

Brinkley who went by "Key" or "Dread and co-defendant Goins, who went by

"D." 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 Streets. 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, Lee came by around 9:00 p.m., in the van. Id. at 339. She stated that

co-defendant Brinkley and co-defendant Goins were at also Chestnut and

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

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, Lee and co-defendants Brinkley and Goins,

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 Lee was driving the van, and also in the van

were co-defendant Brinkley, co-defendant Goins, Jamir Baird, and Elijah

18 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. The victim 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 Commonwealth recalled Lieutenant Todd Richard to testify

regarding video surveillance 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 Lee got out the van and walked into

the store. Id. at 382. The video from inside the store showed that Lee grabbed a

lighter. Id. at 383. The outside video shows co-defendant Goins exit the

passenger seat, and that he also went into the store. Id.

On day six of the trial, the Commonwealth presented the expert

testimony of Detective William Mitchell, a detective with the Montgomery

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

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 co-defendant Brinkley, co-

defendant Goins, and Eiljah Davis5. Id. at 10-11. He did not obtain co-

defendant Lee's cell phone records because the cell phones that were recovered

were activated two weeks after the homicide occurred, and investigators were

s 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 unable to obtain a good cell number for him during the time of the homicide.

Id. at 13.

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

records, stating that on March 30, 2019, at 9:16 p.m., his cell phone was using

a cell site on the east end of Pottstown. Id. at 27. Co-defendant Brinkley had no

other cellular activity until the following day at 1:18. Id. at 28. However, there

were data transmissions during that time, including iMessaging texts, social

media accounts, Instagram accounts, and e-mails. Id. at 28.

At 9:48 to 9:57 p.m., co-defendant Goins' cell phone was using a

cell site at Shoemaker 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-defendant Brinkley's cell phone,

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

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

Around 10:41 p.m. just prior to the murder, co-defendant Goins' cell phone

was using the sector of a ceJI site that faces the homicide location. Id. at 32.

The detective next testified about a still image from video

surveillance 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-

defendant 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.

20 From 10:57 to 11: 14 p.m., there were 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 Shoemaker Road,

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

to 11: 19 p.m., co-defendant Brinkley's cell phone was using the Shoemaker

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

showed the van pulling in to 206 Manatawny Street. Id.

Sometime after 11 :25 p.m., the detective testified that co-defendant

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

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

detective noted that in the surveillance video the van pulled into the gas

station. Id. Therefore, the cell phone records are consistent with co-defendant

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

the gas station where the van pulls in. Id.

As to co-defendant Goins' cell phone, there were two cell sites

being utilized, the first which faced the sector at Manatawny Street, and the

second cell site, it faced the gas station location, and there was a NELOS7

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. ill at 35. He further stated that in his experience it is usually the closest tower but not always the case. ill That is the reason that he compares other evidence in the case when evaluating the call records. Id. 7 A NELOS record is information specific to AT&T, where it provides handset information in a general area, represented 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 record for the time frame when the van actually pulls into the gas station. Id. at

37. The NELOS record encompassed 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 Manatawny and going

towards the area of the gas station. Id.

The detective showed snapshots at 11:28 where that van pulled

into the gas station, and co-defendant Goins' entered 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 Brinkley travel and go into Philadelphia, 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.

Co-defendant Goins' cell site information during this time is

consistent 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.

Id. at 39 -- 40. After 2: 14 a.m., the 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. Co-defendant 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

22 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

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

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

confided in Mr. Williams, telling him specifics of the murder. Id. at 123. He

relayed 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 the

cameras were. Id. He walked to the car the guy was sitting in, and walked up

23 alongside of the car. Id. Co-defendant Brinkley said that the guy never saw it

coming. Id. Co-defendant 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 Philadelphia. Id. Co-defendant

Brinkley believed the gun would be used in a murder in Philadelphia, and if so,

then the person who got caught with the gun in Philadelphia would be thought

of as Naz's killer. Id.

Mr. Williams further testified that co-defendant Brinkley revealed

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

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

at 126. Co-defendant 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

Philadelphia, and that annoyed him. Id. Mr. Williams explained that by

hustling, he was referring to that Naz was selling drugs. Id. at 127. Co-

defendant Brinkley indicated that he was also selling drugs and that he was

competing for business. Id. He 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. Co-defendant

Brinkley talked about the habeas corpus hearing and about Jamar Baird. Id.

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). 24 Co-defendant 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,

Facebook, 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

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 Lee, co-defendant Brinkley, Tyshaun Harvey, Kelvin Harris,

25 Jarid Majors, Ryan Fields, Nahmer Baird, Makael Bevins, Ahnile Fountain, and

Elijah Davis are affiliated with BGB. Id. at 282 - 283. As to co-defendant 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-produced 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,

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 further 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. Lee and Jamir Mitchell were also depicted. Id. The

26 main rap artists in the video were Lee and Jamir Mitchell. Id. In another still

frame from the video was Steven Mitchell, who was murdered in 2014. Id. That

was also 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 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 Lee and co-defendant Brinkley shaking hands. Id.

An additional video, "Savage," featured individuals that were

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.

Lieutenant Richard was recalled to testify. He testified about the

Instagram account associated with Lee, with the handle Str8_swizz. Id. at 329.

The lieutenant reviewed communications between account Str8_swizz and

d_fastlife. Id. at 331. D_fastlife was associated with co-defendant Goins. Id. The

lieutenant put together a Powerpoint in regard to the Instagram information he

obtained in this case. Id. at 333. On April 1, 2019 at 10:03 p.m., Goins says to

Lee, "Be ready in the a.m. so that jawn slide back." Id. Lee responds at 10:04

p.m., "Okay, D." Lieutenant Richard noted that the significance of April 1,

2019, is that it is the night before they returned the black rented minivan. Id.

at 333 - 334. It was returned on April 2ndat 9:46 a.m. Id. at 334. Further,

27 communications between Lee's account and co-defendant Goins' account, show

they were in close contact in days and weeks after the murder. Id. at 335-

337.

Lieutenant Richard also obtained co-defendant Brinkley's

Instagram account records. Id. at 338. Brinkley went by the username,

_dreaaaddo. Id. Between the dates of March 28 and April 14 of 2019, he

obtained conversations between Lee and co-defendant Brinkley Id. at 339. The

name of Brinkley's account was LongLiveBudSavage. Id. The lieutenant

detailed at trial these various communications. Id. at 339 - 341.

Further, Lieutenant Richard testified that after the search warrant

was executed on 206 Manatawny Street, Apartment C2 on April 3, 2019, at

11 :00 a.m., there were communications between Lee to Instagram username

Elijah.thee.prophet that same day starting at 11 :43 a.m. Id. at 342 - 344. From

Elijah Newman to Lee, "The boys just raided C2 down here, bro. Just want you

to know." He followed with a message, "Delete these messages." Id. at 343.

Then there were two video calls from Lee to Elijah Newman, followed by a

message from Lee to Elijah Newman that said, "Are they still there," followed by

a message from Elijah Newman, "Yeah, inside." Id. Lee to Elijah Newman, "A

lot. Did they bring anyone out?" [d. A message from Lee to Elijah Newman,

"Okay, Let me know if you see dem bring d-t-u-f-f out." Id. In one of Elijah

Newman's messages he replied to Lee stating, "They found stuff. I think they

came out with clear bags with shit." "They left, but they brought shit out." Id.

Lee replied, "A lot of them, question mark." Id. Elijah Newman said, "Couple. I

28 couldn't see that good." Id. Lee to Elijah Newman, "Any more still there." "Is

that door wide open?" Elijah Newman replied, "Thye left ND. !DK. I ain't go in."

The lieutenant details Instagram additional communications

between Lee and Jarid Majors and Javier Rodriguez, indicated that they knew

law enforcement was closing in. Id. at 344.

Further, Lieutenant Richard testified as to two photographs of Lee

and Bianca Kelly, in which Lee is wearing a black jacket with the same

distinctive features as the one found near the murder scene. Id. at 350 - 352.

The lieutenant testified as to additional photographs, one depicting

Samir Gould-Roberts, a friend of Lee. Id. at 355. In that post it says, "My

youngin could have been a rat, by he stayed 100, so I'ma 100 back. Free my

dawg." Id. at 356. This was from March 25, 2019. Another photograph is of a

motorcycle inside a minivan, a small portion of someone's face with the

caption, "Who bringing the bikes out?" Id. This was posted on Lee's account on

March 30, 2019 at 1:28 p.m. Id. A photograph was posted on March 30, 2019

at 6:42 p.m., with the caption, "Money, power, respect, yeah, I earned that."

Lieutenant Richard also obtained photographs from co-defendant

Brinkley's Instagram account. Id. at 363. Underneath his profile picture, he

has tag lines that read, "Long Live Bud Savage," "loyalty over royalty," and "Clip

up or get clipped, pussy." Id. at 365. There was a meme posted to co-defendant

Brinkley's account on April 10, 2019 that stated, "Never turn ya back on pp!

that had yours 100." [d. at 365 - 366. The same meme was posted on April 14,

29 2019, and stated, "Real Street" -- N word - - "ain't never going to fold, follow

that code, only thing I stand by." Id. at 366 - 367. Another photograph depicted

co-defendant Brinkley, Jamar Baird, Kelvin Harris, Jarid Majors, and Tyshaun

Harvey. Id. at 367. This was posted on March 30, 2019, at 12:00 p.m. Id. A

selfie of co-defendant Brinkley was posted wearing the medallion. Id. at 368.

Next, co-defendant Brinkley's account depicted two sayings on March 5, 2019

which said, "If you ain't out here getting yo money and yo straps up, yo

priorities fucked up." "And don't repost this shit be y'all MFS stay cappin." [d.

at 368 - 369. Later, on April 29, 2019, co-defendant Brinkley's Instagram

account read, "Loyalty first, money second, N word, don't fuck up the motto

100." Id. at 369 - 370. Next, was a photograph, posted on April 14, 2019, of co-

defendant Brinkley, Makael Bevins, and Tyshaun Harvey inside of 206

Manatawny, Apartment C2, with the caption, "free da gang!!!!" Id. at 370- 371.

On the seventh day of trial, the Commonwealth presented the

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

8, 1/ 12/22, p. 47). Lieutenant Echevarria worked for the Montgomery 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 organization,

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 departments and correctional facilities,

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

30 Montgomery 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 enforcement gets involved. Then the

members stop in order to distance themselves quickly from the gang. Id. at 64.

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

investigated, including numerous organizations involved in drug trafficking and

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 Norristown, is that they attach

that name to the criminal activity they're doing and expressing 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.

Lieutenant Echevarria became familiar with gang and drug jargon

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

downloads. Id. He has gathered gang intelligence to identify gang members and

gang activity through local police departments, county and state level

correctional facilities, interviewing informants, newly released prison gang

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

Lieutenant Echevarria explained the gang activity in Pottstown,

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

investigate violence that was occurring within the Borough of Pottstown. Id.

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

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

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

a BFL tattoo. Id. Co-defendant Goins and Jarid Majors were members of that

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

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

Gang, ("SCMG"). Id. SCMG was represented through T-shirts and rap videos.

Id. There was an investigation in these gangs and arrests were made.

Thereafter, there was a void in regard to gang activity in Pottstown, until law

enforcement began to hear about 206 Manatawny 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. Lieutenant

Echevarria put his unit on alert, he contacted the correctional 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.

Lieutenant Echevarria explained that a home-grown gangs or

corner gangs are informal groups of people that are from a neighborhood. Id.

They can either be for money or for turf, and they're joined together. Id. These

home-grown gangs copy bigger gangs such as the Bloods, Crips, the Latin

Kings and some of their ideologies. Id. In Montgomery County there is limited

influence from national gangs, and much more home-grown street gangs. Id.

The lieutenant further explained that what can happen with a home-grown

gang is that the name can change and mutate, and if they find a reason to

justify a name change and to be more aggressive and violent, they will do so.

Id. at 68 --69. Examples of events that could justify a name change could be a

32 split from the founding member who created the name or law enforcement

involvement. Id. at 69. For instance the SCMG, which was everywhere until

there was an extensive investigation, and now the lieutenant 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. Alexander Scott was an active

member of SCMG, who is now in state prison for his gang activity, his younger

brother was Jordan Scott. Id. That is why when Jordan Scott was murdered he

put the local police departments, correctional facilities, and his unit on alert.

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, 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 hashtag 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

9 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.

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

Long Jive Bud Savage, Bud Savage. Id.

In reviewing Lee's Instagram records, Lieutenant Echevarria was

able to determine that he was involved in drug trafficking. Id. For instance,

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 reviewed. Id. at 75 -- 76. Lieutenant

Echevarria was able to determine that Lee was in a position of prestige in 8GB.

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 Lee's Instagram

posts, interpreting jargon. Id. He interpreted this jargon to reflect gang

mentality, such as not to speak to Jaw enforcement about the illegal activities.

Id. at 78- 79. As to co-defendant Brinkley's Instagram 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 pp! that had yours 100,"°

34 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 neighborhood, 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 incarcerated. Id.

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 Joyal to the code, that they're still with

35 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 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 incarcerated by law

enforcement, that there's the risk of cooperation and that they are concerned

about their cooperation. lit "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.

36 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

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 game, 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. 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

37 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 Lee's T-shirt. Id. So in the video all the 8GB

guys are wearing Medellin T-shirts, and so Medellin T-shirts become associated

with 8GB so that they become interchangeable. 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

38 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

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. Through Lieutenant Richard's testimony, co-defendant Brinkley's July

10, 2019 grand jury testimony was introduced and read into the record. Id. at

191-211. Arrest warrants were issued on July 25, 2019. Id. at 225.

At the conclusion of the trial on January 13, 2022, Lee was found

guilty of first-degree murder and conspiracy. He proceeded directly to

sentencing, at which time a life term imprisonment was imposed.

An untimely post-sentence motion was filed on January 25, 2022.

The tenth day for filing as provided for by Pa.R.Crim.P. 720, fell on Sunday,

January 23, 2022; therefore, Lee had until Monday, January 24, 2022 to file a

39 timely post-sentence motion. Therein, he challenged the weight and sufficiency

of the evidence. However, a timely appeal was filed within 30 days from the

judgment of sentence on February 11, 2022, making this a timely appeal.

ISSUES This Court issued an order directing Brinkley to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). An

extension of time to file a 1925(b) statement was granted, and on May 16,

2022, he submitting the following issues for appellate review:

1. The verdict was against the weight of the evidence in that descriptions of the likely shooter given by various eyewitnesses Elias Scipio, Comese Robinson, and Robert Garcia at trial were all conflicting with each other and each of them were inconsistent with the defendant's physical appearance and what he was alleged to have been wearing the night of the shooting. Further, the jacket, the only physical evidence from the vicinity of the crime scene purportedly linking the defendant to the scene, was not recovered until several hours after the shooting and in an area outside of the secured crime scene.

2. The evidence was insufficient to find the defendant guilty of first-degree murder or conspiracy to commit that offense, where the evidence was insufficient to establish the identity of the shooter and was further insufficient to show that the hooter acted with a specific intent to kill pursuant to a premeditated and deliberate plan.

3. The trial court erred in admitting evidence and testimony regarding the supposed involvement of defendant and his co-defendants in a gang where, under the facts and circumstances of this case, the purported probative value of the gang-related evidence and testimony was outweighed by the 40 unfair prejudice to the defendant. Relatedly, and for the same reasons, the trial court erred in permitting Detective Erick Echevarria, to testify as an expert in the area of gang structure and organization, drug trafficking, and jargon.

4. The trial court erred in permitting the Commonwealth to introduce inflammatory social media videos and photographs of defendant, his co- defendants with rap videos, photographs and messages pertaining to violence, guns, and supposed gang activity in that the purported probative value of such prior act evidence was outweighed by the unfair prejudice to the defendant.

5. The trial court erred in permitting the Commonwealth to introduce the Grand Jury testimony of Jamar Baird, which implicated defendant and his co-defendants in the crime, where Mr. Baird took the witness stand at trial, but indicated that he did not remember in response to most questions put to him.

6. The trial court erred in admitting the supposed confession of defendant's co-defendant Kyshan Brinkley through the trial testimony of Elijah Williams because Brinkley was not available to be cross-examined by defendant with regard to his supposed confession.

See, Statement of Matters Complained of on Appeal, filed 5/ 16/22.

DISCUSSION

I. Weight of the Evidence

First on appeal, Lee asserts that the verdict was against the weight

of the evidence. Specifically, he calls into question the alleged conflicting

descriptions of the shooter provided by Commonwealth witnesses Elias Scipio,

41 Comese Robinson, and Robert Garcia. Lee argues that that not only were they

all conflicting with each other, but also, each was inconsistent with the

defendant's physical appearance and what he was alleged to have been wearing

the night of the shooting. Lee further argues that the jacket, which was the

only physical evidence from the vicinity of the crime scene purportedly linking

him to the scene, was not recovered until several hours after the shooting and

in an area outside of the secured crime scene. However, this issue is waived

because it was not properly preserved.

The Pennsylvania Rules of Criminal Procedure require that a

"claim that the verdict is against the weight of the evidence shall be raised with

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

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

a post-sentence motion." Pa.R.Crim.P. 607. A challenge to the weight of the

evidence "must be presented to the trial court while it exercises jurisdiction

over the matter because appellate review of a weight claim is a review of the

exercise of discretion, not of the underlying question of whether the verdict is

against the weight of the evidence." Commonwealth v. Burkett, 830 A.2d 1034,

1037 (Pa. Super. 2003) (internal quotation marks and citation omitted). An

untimely post-sentence motion does not preserve issues for appeal.

Commonwealth y. Wrecks, 931 A.2d 717, 719 (Pa.Super. 2007).

In this case, Lee had ten days to file a timely post-sentence motion.

The tenth day in this case fell on Sunday, January 23, 2022; thereby, making

Monday, January 24, 2022 the last operative day on which to file a timely post-

42 sentence motion. Lee's motion was not filed until Tuesday, January 25, 2022,

making it untimely. Therefore, the untimely post-sentence motion did not

preserve his weight claim on appeal.

II. Sufficiency of the Evidence

Next, Lee claims that the evidence was insufficient to support his

convictions of first-degree murder or conspiracy to commit first-degree murder,

where the evidence was insufficient to establish the identity of the shooter and

was further insufficient to show that the shooter acted with a specific intent to

kill pursuant to a premeditated and deliberated plan.

Courts apply the following standard of review to sufficiency claims

which arise in the context of a motion for judgment of acquittal:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. [ ]. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. [ ). When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal citations

omitted). ). Additionally, our appellate court may not reweigh the evidence or

substitute its own judgment for that of the fact finder. Commonwealth v.

Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely

43 circumstantial as long as it links the accused to the crime beyond a reasonable

doubt. Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011).

First degree murder is a criminal homicide committed by an

"intentional killing." 18 Pa.C.S.A. § 2502(a). "Intentional killing" is defined as

"killing by means of poison, or by lying in wait, or by any other kind of willful,

deliberate and premeditated killing." 18 Pa.C.S.A. § 2502(d). The elements of

first-degree murder are: (1) a human being was unlawfully killed; (2) the

defendant was responsible for the killing; and (3) the defendant acted with

malice and a specific intent to kill. Commonwealth v. Houser, 18 A.3d 1128, 1133

(Pa.2011). Premeditation and deliberation exist whenever the assailant

possesses the conscious purpose to bring about death. The law does not

require a lengthy period of premeditation; indeed, the design to kill can be

formulated in a fraction of a second. Specific intent to kill as well as malice can

be inferred from the use of a deadly weapon upon a vital part of the victim's

body. Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013) (quotation marks

and citations omitted).

In order to convict a defendant of criminal conspiracy. the

Commonwealth must establish that: "(1) [he] entered into an agreement to

commit or aid in the commission of a crime; (2) he shared the criminal intent

with that other person; and (3) an overt act was committed in furtherance of

the conspiracy." Commonwealth y. Knox, 50 A.3d 749, 755 (Pa. Super. 2012)

(citation omitted). "This overt act need not be committed by the defendant; it

need only be committed by a co-conspirator." Id.

44 Our Pennsylvania Superior Court has further explained:

As conspiracy by its nature is often difficult to prove due to the absence of direct evidence, cases examining the sufficiency of the evidence often look to the conduct of the parties and the circumstances surrounding their conduct which may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.

Among the circumstances that which are relevant, but not sufficient by themselves, to prove a [criminal] confederation are: (1) an association between alleged coconspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accursed to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred. Other circumstances which are relevant include post- crime conduct, such as flight, because it tends to establish consciousness of guilt. When combined with other direct or circumstantial evidence, that conduct may provide sufficient evidence to establish a conspiracy.

Jordan, 212 A.3d at 97 (quotation marks and citations omitted).

Here on appeal it is argued that the evidence was insufficient to

prove the identity of the shooter as Lee and was further insufficient to show

that the shooter acted with a specific intent to kill pursuant to a premeditated

and deliberated plan. However, this issue is without merit. There was sufficient

evidence to support Lee's convictions. Specifically, it was proven

circumstantially that Lee was the shooter.

Lee was established as the shooter in the conspiracy. The shooter

was captured on video surveillance at the murder scene, in which the shooter

45 is wearing a black jacket. A black jacket was recovered from the trashcan

outside of 4 7 Beech Street, a short distance from the murder scene, and it was

found in the same area as the tenth fired shell casing. DNA testing of various

parts of the jacket, such as the zippers and snaps, revealed that Lee's DNA was

on the jacket. Lee was also seen in several photographs wearing that same

jacket, which had distinctive features. Further, eyewitness identification saw a

male in dark clothing the area of the murder right after each witness

independently indicated they heard gunshots fired. With all this evidence the

jury had sufficient evidence in which to determine that Lee was the actual

shooter.

In addition, "[t]he specific intent to kill may be inferred where ...

the accused uses a deadly weapon on a vital part of the victim's body."

Commonwealth v. Cash, 137 A.3d 1262, 1269 (Pa. 2016). Here, the deputy

coroner testified that the victim was shot in the neck and the chest. Therefore,

the Commonwealth showed that Lee used a deadly weapon on a vital part of

the victim's body. This evidence was sufficient to prove Lee acted with the

specific intent to kill required to support a conviction for first-degree murder,

had a specific intent to kill. See, Commonwealth v. Briggs, 12 A.3d 291, 306

(Pa. 2011); Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011).

III. Gang-Related Evidence

Lee, in his third and fourth issues on appeal he challenges the

admission of gang-related evidence. Specifically in issue number three, Lee

contends that the this Court erred in admitting evidence and testimony

46 regarding his supposed involvement and his co-defendants in a gang where,

under the facts and circumstances of this case, the purported probative value

of the gang-related evidence and testimony outweighed by the unfair prejudice

to the defendant. Relatedly, and for the same reasons, the trial court erred in

permitting Detective Erick Echevarria to testify as an expert in the area of gang

structure and organization, drug trafficking, and jargon. As to issue number

four, he claims that this Court erred in permitting the Commonwealth to

introduce inflammatory social media videos and photographs of defendant, his

co-defendants with rap videos, photographs and messages pertaining to

violence, guns, and supposed gang activity in that the purported probative

value of such prior act evidence was outweighed by the unfair prejudice.

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

BGB gang. As evidence in support of this theory, the Commonwealth sought to

introduce evidence that Lee and co-defendant Brinkley were members of a

home-grown Pottstown gang, BGB, through witness testimony, rap videos and

lyrics, social media posts, and through gang expert testimony of Lieutenant

Erick Echevarria. The Commonwealth 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. In addition, this gang

related evidence was relevant to show the motive to kill the victim, namely that

47 the victim was a rival drug dealer. To this end, Lieutenant Echevarria would

provide expert testimony as to gang ethos of loyalty and the desire to have

control of the streets. This gang related evidence of affiliation with 8GB; 8GB

rap videos; BGB rap lyrics; and Instagram account evidence would mainly

come in as evidence through the expert testimony of Lieutenant Echevarria and

from the testimony of Detective Heather Long.

At the first Pre-Trial Motion Hearing on June 23, 2021, the

Commonwealth stated that Lieutenant Echevarria was 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 Commonwealth represented that Lieutenant Echevarria would be able to

provide information about gangs generally as well as knowledge specific to

8GB. Id. at 18. The Commonwealth 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 Commonwealth asserted that this evidence was relevant

to show an association which goes to the existence of a conspiracy. Id. at 14-

15. Additionally, the Commonwealth argued that expert testimony was critical

to provide understanding as to motive and without this testimony the motive

would not be clear. Id. at 15, 33. Under the Commonwealth's theory, BGB gang

members want the victim gone, they wanted a strong hold in the Pottstown

48 area in terms of street credibility as well as the drug and gun trade. Id. at 33.

All this information would come in through the expert testimony, and that it is

up to the jury to give weight to this testimony or not.

Further argument was conducted at a Pre-Trial Motions Hearing

on November 29, 2021. At that time the Commonwealth argued that the expert

testimony would tie all the circumstantial pieces of evidence together to show

that even the slightest show of disrespect 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). Witnesses would

establish the victim was a drug dealer, that everyone knew he was a drug

dealer, and that these co-defendants knew he was a drug dealer and wanted to

take him out. Id. at 7. Through the testimony of Elijah Williams, there would be

significant evidence regarding the motive for the murder, i.e., that these co-

defendants were frustrated that individuals are coming from Philadelphia to

Pottstown to 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 would review BOB 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.

49 After considerable deliberation, this Court issued orders denying

the co-defendants' motions in limine, and granting the admission of evidence

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.

Commonwealth v. Mangel, 181 A.3d 1154, 1158 (Pa. Super. 2018).

It is well settled that the "[a]dmission 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. Tyson, 119

A.3d 353, 357 (Pa.Super. 2015) (en bane) (internal citation and quotation

marks omitted); see also Commonwealth 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). "Accordingly, a

ruling admitting evidence will not be disturbed on appeal unless that ruling

reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or

such lack of support to be clearly erroneous." Commonwealth v. Huggins, 68

A.3d 962, 966 (Pa.Super. 2013) (internal citations and quotation marks

omitted).

Relevance is the threshold for admissibility of evidence.

Pennsylvania 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 presumption

regarding a material fact. Pa.R.E. 401. All relevant evidence is admissible,

50 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:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.' Pa.R.E. 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.R.E. 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.R.E. 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 attention away

from its duty of weighing the evidence impartially."

A. Gang Affiliation

The Commonwealth sought to introduce evidence of gang

affiliation. The Commonwealth claimed that there was only one shooter, and

the remaining co-defendants assisted in committing the murder. (N.T., Pre-

Trial Motions, 6/23/21, p. 45). It would be their affiliation through the gang

that would be relevant to show this conspiracy. Id. In addition, according to the

Commonwealth, this gang association explained the motive of the murder. Id.

at 13, 14- 15.

51 It is well-established that evidence of a 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 Commonwealth 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).

As noted earlier, gang affiliation evidence was comprised of several

components such as the rap videos, rap lyrics, social media accounts, which

was all testified to, explained, and tied together by Lieutenant Echevarria's

expert testimony. It also included the testimony of Detective Long, and

questioning of Jamar Baird and Jarid Majors. In general, the evidence of gang

affiliation was properly admitted and relevant to show association among the

co-defendants to establish conspiracy and motive for the murder.

Evidence of gang affiliation and gang ethos as testified to by Lieutenant

Echevarria was relevant to show that these co-defendants had the motive,

52 intent, and plan to conspire in the murder. Therefore, this gang affiliation

evidence was properly admitted at trial.

B. Rap Videos and Rap Lyrics

The Commonwealth sought to introduce the rap videos and lyrics in order to

establish conspiracy and motive. The Commonwealth argued that the rap

videos demonstrate gang activity and association, which went to the conspiracy

to commit murder. (N.T., Pre-Trial Motions, 6/23/21, p. 12- 13). More

specifically, the Commonwealth stated 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. The videos and

lyrics contained references to always carrying firearms and specific references

to not cooperating with police. Id. at 56. Finally, the Commonwealth suggested

that Lieutenant Echevarria would testify that only close associates would

appear in these sorts of videos. Id. at 43. As to motive, the rap videos and lyrics

contain an emphasis on the importance of drug dealing and making money,

with many drug dealing references as explained through Lieutenant

Echevarria's interpretation of drug dealing jargon and drug references. Id. at

43. On December 20, 2021, an order was issued denying the motion in limine

to exclude the rap videos and lyrics.

The rap videos and lyrics were properly admitted to show that

there was an association among the co-defendants, 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

expert Lieutenant Echevarria, which in gave rise to their collective

53 conspiratorial motive, to murder the victim. In other words, the rap videos and

lyrics were evidence of association and of BGB's drug dealing, which went to

both the conspiracy and motive to kill the victim.

C. Lieutenant Echevarria's Expert Testimony

Lieutenant Echevarria's expert testimony was crucial to both the

existence of the alleged conspiracy and to the motive. As a gang 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 8GB, he explained how this Pottstown gang arose out of predecessor

Pottstown gangs, its various members, and decoded gang and drug jargon in

the 8GB videos and lyrics exemplifying the gang ethos. All of his testimony

went to association of the co-defendants as 8GB members as in the case of

Brinkley and co-defendant Lee or simply affiliated with 8GB members, as in

the case of co-defendant Goins. Accordingly, the motion in limine requesting

exclusion of this expert testimony was properly denied.

D. Instagram Account

At the June 23, 2021 Pre-Trial Motions Hearing the

Commonwealth stated that in the Defendants' motions in limine they

contemplated that the Commonwealth would seek to introduce certain forms of

evidence related to gang affiliation related to BGB, namely witness testimony,

rap videos, rap lyrics, gang related tattoos, social me3dia posts, and testimony

from gang expert, Lieutenant Echevarria. (N.T., Pre-Trial Motions Hearing,

54 6/23/21, p. 10). The evidence that was contemplated by defendants included,

in part, social media posts related to BGB, relating to Brinkley. Id. at 10, 12.

The reason this Court admitted this evidence is the same as to the

other gang related evidence. In particular however, Lee's social media account

provided relevant and highly probative evidence of the gang mentality; gang

ethos of loyalty and respect. It also went to Lee's association with co-defendant

Goins. Additional Instagram account evidence belonging to co-defendant

Brinkley also demonstrated the association with the gang, the gang trap house,

and to the gang mentality. This evidence was highly probative to the issue of

association which goes to conspiracy and to the drug-related motive. The

probative value outweighed any prejudice and was properly admitted at trial.

IV. Jamar Baird's Grand Jury Testimony

Lee's fifth issue on appeal alleges that this Court erred in

permitting the Commonwealth to introduce the Grand Jury Testimony of

Jamar Baird, which implicated defendant and his co-defendants in the crime,

where Mr. Baird took the witness stand at trial, but indicated that he did not

remember in response to most questions put to him.

On day three of the trial, Jamar Baird was called to testify. (N.T.,

Trial by Jury - Day 3 of 8, 1 / 5 /22, p. 108). He refused to answer any of the

Commonwealth's questions. Id. at 108 - 109. Rather, he sat on the witness

stand in silence. Id. This Court warned Mr. Baird that a failure to answer

questions could result in a contempt of court, and was sent back to the jail to

think about how he wanted to proceed. Id. at 110.

55 Later, Mr. Baird was brought back to testify. He stated that in

2019, he lived in Pottstown. Id. at 155. On March 30, 2019, he acknowledged

that he was hanging out with a bunch of people at Chestnut and Evans

Streets. Id. While he stated that there were a lot of people there, he did not

remember anyone specific being there. Id. When asked specifically, Mr. Baird

agreed that his girlfriend, Denasia, was present at the gathering, but knew no

further details. Id. at 156. The Commonwealth next asked Mr. Baird if he

remembered testifying before the Montgomery County Grand Jury, and he did

remember that he was there and that he was asked questions. Id. He could not

recall whether he answered those questions. Id. at 156- 157. The

Commonwealth introduced the transcript of Mr. Baird's grand jury testimony

taken on May 15, 2019. Id. at 157; see also, Exhibit "C-100." Next, the

following exchange occurred:

[THE COMMONWEALTH]: Okay. I'm going to read you this question, and I'm going to ask you to read me the answer. Okay?

"Do you know who lived at Chestnut and Evans when - - when you were there?

Is that what it - - did I read that right?

[MR. BAIRD]: Yeah.

[THE COMMONWEALTH]: Okay. And you answer: "I think they call her -- I think they call her like Cedes or something like that. I don't know." Was that you answer?

[MR. BAIRD]: I don't remember.

56 [THE COMMONWEALTH]: Did I read that correctly off that piece of paper?

[MR. BAIRD]: Right.

[THE COMMONWEALTH]: That's what the piece of paper says?

[THE COMMONWEALTH]: Okay. So you were at Chestnut and Evans at Cedes' house. You said your girlfriend, Denasia, was there. Do you remember any of the other individuals that were there?

[THE COMMONWEALTH]: You don't remember?

Okay. Page 17. Okay. I'm going to read this to you.

[GOINS' DEFENSE COUNSEL]: Your Honor, I'd just object at this point, improper questioning of the witness trying to show a prior inconsistent statement.

THE COURT REPORTER: Trying to show ... ?

[GOINS' DEFENSE COUNSEL]: A prior inconsistent statement.

[THE COMMONWEALTH]: Judge, he said that he doesn't remember. I'm going through his prior testimony.

[GOINS' DEFENSE COUNSEL]: Your Honor, my response would be I think she should show him the transcript so he can refresh his memory.

THE COURT: Yeah. Are you trying to refresh his memory?

57 [THE COMMONWEALTH]: I can go that route. Sure.

[THE COMMONWEALTH]: All right. So, Mr. Baird, if you can take a look right here, this is page 17, if you can read from Line 3 down through Line 14. Take a look at that. Let me know when you are finished.

[MR. BAIRD]: (Complies.)

[THE COMMONWEALTH]: Finished reading it?

(MR. BAIRD]: Mm-hmm.

[THE COMMONWEALTH]: Does that refresh you recollection as to who was there that you remember?

[MR. BAIRD]: Um ...

k#4e

(THE COMMONWEALTH]: You don't remember?

[MR. BAIRD]: No.

[THE COMMONWEALTH]: I'm going to read this to you.

[MR. BAIRD]: You're saying does it refresh my memory. I'm saying--

[THE COMMONWEALTH]: Right. And you're saying it doesn't refresh your memory?

[MR. BAIRD]: Not for the people, no.

(THE COMMONWEALTH]: Okay. The question here, it says, "Tell me who you remember that was there."

Did I read that correctly?

58 [MR BAIRD]: Right.

[THE COMMONWEALTH]: "My girlfriend, Kelise; Swizz was parked up; my man, my friend, E."

"A?

"E, the letter E. That's all I remember from really out there."

[MR. BAIRD]: Yes.

[THE COMMONWEALTH]: That's what the paper say?

Okay. When you went to Chestnut and Evans, do you remember about what time that was, Mr. Baird?

[MR. BAIRD]: Around like 5:00, 6:00 I don't -- I don't remember

Id. at 157 - 161. Mr. Baird was able to answer several of the Commonwealth's

questions without the assistance of the grand jury transcript. Id. at 161- 165.

Further in his testimony, Mr. Baird's memory was refreshed with the grand

jury transcript. Id. at 166 - 167. Additional portions of the grand jury

transcript was read into evidence, when Mr. Baird's recollection could not be

refreshed. Id. at 169.

Initially, this Court notes that there was never an official objection

to the introduction of the grand jury transcript by Lee's defense counsel;

therefore, this issue is waived on appeal. Pa.R.A.P. 302(a). Even if it was

properly preserved for appellate review, this Court submits that the grand jury

59 testimony was properly admitted into evidence under Pa.R.E. 803.1(4), which

reads as follows:

Rule 803.1. Exceptions to the Rule Against Hearsay--Testimony of Declarant Necessary

The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement:

Comment: A witness must be subject to cross- examination regarding the prior statement. See Commonwealth v. Romero, 722 A.2d 1014, 1017-1018 (Pa. 1999) (witness was not available for cross- examination when witness refused to answer questions about prior statement:

••• (4) Prior Statement by a Declarant-Witness Who Claims an Inability to Remember the Subject Matter of the Statement. A prior statement by a declarant-witness who testifies to an inability to remember the subject matter of the statement, unless the court finds the claimed inability to remember to be credible, and the statement:

(A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;

(B) is a writing signed and adopted by the declarant; or

(C) is a verbatim contemporaneous electronic recording of an oral statement.

Comment: Pa.R.E. 803.1(4) has no counterpart in the Federal Rules of Evidence. The purpose of this hearsay exception is to protect against the "turncoat witness" who once provided a statement, but now seeks to deprive the use of this evidence at trial. It is intended to permit the admission of a prior statement given under demonstrably reliable and trustworthy 60 circumstances, see, e.g., Commonwealth v. Hanible, 30 A.3d 426, 445 n. 15 (Pa. 2011), when the declarant- witness feigns memory loss about the subject matter of the statement.

A prior statement made by a declarant-witness having credible memory loss about the subject matter of the statement, but able to testify that the statement accurately reflects his or her knowledge at the time it was made, may be admissible under Pa.R.E. 803.1(3). Otherwise, when a declarant-witness has a credible memory loss about the subject matter of the statement, see Pa.R.E. 804(a)(3).

Pa.R.E. 803.1. In this case, Mr. Baird's grand jury testimony fell within this

exception. His grand jury testimony was given under oath subject to penalty or

perjury, and at trial he was subject to cross-examination about his grand jury

testimony. Mr. Baird at first refused to answer the Commonwealth's questions,

and simply sat on the witness stand without even acknowledging that a

question had been asked of him. He sat there in silence. Then he was warned

that he could face contempt charges, and this Court permitted him time to

consider how he wanted to move forward. Once back on the stand, again Mr.

Baird was resistant to the Commonwealth's questions. He stated he "didn't

remember" when the Commonwealth began to question him. When the

Commonwealth attempted to refresh his memory with the grand jury transcript

he denied that that had helped. Based upon on the demeanor and conduct of

Mr. Baird, this Court made the credibility determination that his memory loss

was feigned, and his claim to not remember was not credible at all. This is

exactly the purpose of Rule 803.1(4), which permits a trial court to determine

whether the inability to remember is credible. Having determined it was not, 61 that the grand jury testimony was taken under oath, and that Mr. Baird was

subject to cross-examination of this grand jury testimony, it was properly

admitted at trial.

V. Elijah William's Testimony

In Lee's sixth issue on appeal he asserts that this Court erred in

admitting the supposed confession of co-defendant Brinkley through the trial

testimony of Elijah Williams because Brinkley was not available to be cross-

examined by Lee with regard to his supposed confession. At issue here is

whether this Court properly admitted the testimony of Commonwealth witness

Elijah Williams. This issue is waived on appeal. Lee's defense counsel never

objected to the admission of Mr. Williams' testimony prior to trial or at trial,

and was not properly preserved for appellate review.

CONCLUSION

Based upon the foregoing analysis, Brinkley's 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 38" JUDICIAL DISTRICT

62 Copies sent on June 15, 2022 By Electronic Mail to:

Robert Falin, Esquire, Deputy District Attorney, Chief of Appellate Division; RFalin@montcopa.org

Brooks T. Thompson, Esquire; brooks@mcmahon41aw.com

Denise S. Vicario, Esquire, Executive Director; opinions@montgomerybar.org

Paul DAnnunzio; PDAnnunzio@alm.com

Copies sent on June 15, 2022 By First Class Mail to: Jaquan Marquis Lee #QN7650 SCI Greene 169 Progress Drive Waynesburg, PA 15370

@,tot 6es.e. Judicial Assistant