Com. v. Scott, K.

Opinion

J-S17006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

KAIJIN XAVIER SCOTT :

:

Appellant : No. 634 WDA 2022

Appeal from the Judgment of Sentence Entered November 22, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004375-2018

BEFORE: LAZARUS, J., OLSON, J., and KING, J.

MEMORANDUM BY LAZARUS, J.: FILED: JUNE 12, 2023

Kaijin Xavier Scott appeals from the judgment of sentence, entered in

the Court of Common Pleas of Allegheny County, after he was convicted by a

jury of second-degree murder,1 robbery,2 conspiracy to commit robbery,3 and

tampering with/fabricating physical evidence.4 After careful review, we affirm.

Scott was charged as a co-conspirator in the February 22, 2018 shooting

death of Keiauna Davis. Scott’s co-conspirator, Dane Taylor, fatally shot Davis

after struggling with her to steal her purse. Scott drove the get-away car

____________________________________________

1 18 Pa.C.S.A. § 2502(b).

2 Id. at § 3701.

3 Id. at § 903.

4 Id. at § 4910(1).

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after Taylor shot the victim twice. The trial court recounted the underlying

facts of the alleged conspiracy as follows:

[O]n the morning of February 22, 2018, Keiauna Davis was working at the Dollar General store in Wilkinsburg. This was one of two jobs held by [] Davis, who was a single mother to two children under the age of six. During her shift, Ms. Davis’s grandmother, Linda Wilson, delivered [cash in the amount of] approximately $3,000[.00] to her, which represented her tax return. []Davis, who relied on public transportation or family members to drive her to and from work, was planning to shop for a car after work that day and to buy party supplies for her daughter’s upcoming birthday.

Laya Whitley, who only started working at the Dollar General the day before, became aware of this money and texted Dane Taylor of the same. The text exchanges were presented through several exhibits and were read [into the record] by Allegheny County Police Detective Laurie McKee. On February 22, 2018[,] the following exchange occurred:

Whitley: “Guess what?” (11:25 a.m.)

Taylor: “Wat.” (11:31 a.m.)

Whitley: "This girl at my job brought 7 bands to work. Ain't that some shit?" (11:31 a.m.)

Taylor: “It's a go. Delete all dez [sic] texts.” (12:48 p.m.)

Whitley: “They been gone.” (1:26 p.m.)

Taylor: “Ite” (1:27 p.m.)

Each of these messages from Whitley’s phone showed evidence of having been deleted.

Shortly after Whitely told Taylor about [] Davis’s money, phone records offered at trial established that [Scott] and Taylor began communicating. The phone records for [] Whitley, [] Taylor, and [Scott] revealed the date and time of the communications but not the content.

These exhibits illustrated that a call was placed by Taylor to [Scott] on February 22, 2018[,] at 12:01 p.m.[,] lasting one

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minute and nineteen seconds; followed by a call from [Scott] to Taylor at 12:03 p.m. The records evidenced two more calls from [Scott] to Taylor at 1:55 p.m. and again at 2:29 p.m. [Scott] and Taylor also communicated by text message a total of 18 times between 12:00 p.m. and 2:30 p.m.

Video surveillance from inside the Dollar General showed that [] Davis secured the money in the [m]anager’s office during her shift, and later retrieved the money along with her personal belongings at the end of her shift. She then proceeded to the counter to make some purchases at the register manned by Whitley. [Scott], who had already picked up [] Taylor, was parked in the rear lot of the Dollar General. Exterior surveillance footage then shows [] Davis exit at 2:36 p.m. Thereafter, [Scott] and Taylor leave the parking lot and drive onto Laketon Avenue. The events that followed, including [] Davis walking on Laketon Avenue, up to and including her murder, were captured on a residential surveillance camera. The entire event, beginning when [Scott] parked the vehicle until he drove away from the scene, was less than one minute.

[Scott] and Taylor knew who [] Davis was based on the physical description provided by [] Whitley. Therefore, once they located her walking on Laketon Avenue, [Scott] drove past her, and parked the car along the sidewalk. [Scott] then exited the car and bent down near the rear driver’s side tire. As [] Davis walked alongside the passenger side of the vehicle, Taylor open[ed] the front passenger door and jump[ed] out of the car. [] Davis immediately r[an] and [wa]s chased by Taylor into an abandoned lot where she physically struggle[d] with him over her purse. At this time, [] Davis is on the ground with Taylor standing over her, and [Scott] is standing in the street beside the vehicle. After several seconds of wrestling over the purse to no avail, Taylor sho[t] at [] Davis two times. The first shot missed, and the second shot struck her in the right hip, later resulting in her death. At the time of the shooting, [Scott] quickly moved to the front of the vehicle and then seconds later he walked back to the driver’s door and reentered the car.

Surveillance continued to capture the events which showed Taylor take the purse from a now[-]injured [] Davis. Taylor can be seen running back to the car at which time he tossed the purse inside through the open passenger door to [Scott], who [wa]s now seated in the driver’s seat. Taylor then returned to the location of [] Davis to retrieve an item which was later determined to be

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his phone. As Taylor entered the passenger door, the purse [wa]s thrown out of the open door by [Scott] and [wa]s caught on a nearby tree, where it was later retrieved by police. [Scott] immediately drove away from the scene with Taylor as [] Davis continued to struggle on the ground, having been critically wounded by the gunshot. The surveillance footage recorded [] Davis’s last living moments as she crawled to the sidewalk and attempted to wave at passing cars for help. Eventually, a passerby stopped and called for help as evidenced by the response of both police and EMS at the scene. [] Davis was transported to a local hospital[,] where she was pronounced dead at 3:39 p.m. on February 22, 2018.

At trial[,] the Commonwealth presented testimony from Dr. Todd Luckasevic, a forensic pathologist with the Allegheny County Office of the Medical Examiner. He testified that [] Davis, a 27- year-old African American female, died from a gunshot wound to her pelvis. D[octor] Luckasevic stated that the bullet entered through the outside of her right thigh. He described it as a contact wound, directing the jury to the photographic evidence which showed soot on her skin, as well as a muzzle imprint abrasion, and an abrasion consistent with the recoil spring of a firearm. He explained to the jury that the bullet took a trajectory from right to left and back to front, severing two major arteries and fracturing her hip bone before exiting out her inner thigh.

Following the homicide, [Scott] and Taylor were captured on video arriving at 2215 Wilner Drive, the residence of [] Whitley.

The next day, on February 23, 2018, the vehicle operated by [Scott] was recovered in Penn Hills. This same day, police made contact with [Scott] at his residence in Turtle Creek and he indicated he wished to talk with Allegheny County detectives who were investigating the homicide of [] Davis. County detectives responded to [Scott’s] residence, and he voluntarily accompanied the detectives to Allegheny County police headquarters for an interview. The nine-hour interview was recorded and played for the jury.

During the course of the interview[, Scott’s] statements as to the events of February 22, 2018[,] changed multiple times. Initially, he told police that he gave a jitney ride to an unknown person. Then [Scott] stated that during the drive to the Dollar General in Wilkinsburg, he learned that this individual knew both [Scott’s] brother and mother and went by the name “D Low.” [Scott] stated

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that after arriving at the location, “D Low” robbed him at gunpoint, and continued to keep him at gunpoint as he threatened to hurt [Scott’s] mother if [Scott] didn’t do what he said. [Scott] told detectives that it was out of fear for his life and his mother’s, that he complied with the step-by-step instructions given by “D Low” regarding where to drive and what to do. [Scott] stated that “D Low” directed him to drive past [] Davis who was walking on the sidewalk, and then park along the street ahead of her. [Scott] was then ordered out of the car by Taylor and told to pretend that he was having car trouble. As [] Davis walked by the passenger door, “D Low” got out of the car and began to struggle with Ms. Davis over her purse. During the struggle, [Scott] heard two gunshots. The first did not strike [] Davis but the second one did. “D Low” then removed the purse from [] Davis, ran back to the car, threw the purse inside, and ordered [Scott] to “get it,” which [Scott] assumed meant money. At “D Low’s” instruction, [Scott] then threw the purse out of the vehicle and drove away with “D Low” in the car. Still under “D Low’s” direction, [Scott] drove a few blocks away where he then dropped off “D Low.” Prior to exiting the vehicle, "D Low" made another threat against [Scott’s] mother. From there, [Scott] re-counted that he drove to his residence in Turtle Creek and then downtown to get his phone fixed.

[Scott’s] story then shifted as to how he initially encountered “D Low,” who he still maintained he did not know. He now explained that he was looking to buy marijuana when he came across “D Low” and that their interaction then turned into a jitney ride. He maintained[,] however[,] that his actions once they got to the Dollar General were all forced under gunpoint.

Several hours into the interview police began talking about [] Whitley, prompting another revision by [Scott] as to the events of February 22, 2018. He now admitted that the person he drove to the Dollar General was not a stranger, or a person known as “D Low,” but a man named “H.D.” He also divulged he knew the purpose of the trip to the Dollar General was to allow “H.D.” to get money, and disclosed that a girl inside the store told “H.D” that a female co-worker with red hair had $7,000. [Scott] also admitted that he had contact with “H.D.” after the shooting. Specifically, that he picked up “H.D.” that night and took him to Whitley’s residence in the East Hills section of Pittsburgh and messaged with “H.D.” through Facebook.

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A forensic download of [Scott’s] phone confirmed these Facebook messages[,] which occurred from 7:23 p.m. on February 22, 2018[,] through 1:13 p.m. on February 23, 2018. Throughout the messaging[, Scott] and Taylor refer to each other as “bro,” “"homie,” “dude[,]” and “cuhs,” which [i]s known [to be] short for [“]cousin.[”] The initial message came from [Scott] asking Taylor what he was doing. The two messaged about someone who died in Wilkinsburg, referencing a single mom. [Scott] also stated that[] “she was cute” and “lmao” which stands for “laughing my ass off.” Taylor responded that [Scott] is disgusting and “lol” which stands for “laughing out loud.” Taylor messaged [Scott] that he heard that the [police] had the car color but not the plate and [Scott] referenced that the story was on the news. The two continued to talk about football and splitting a jitney to go out that night. The messages ceased around 10:21 p.m. on February 22, 2018[,] and resumed in the early morning hours of February 23, 2018, when Taylor messaged [Scott] that he, “[p]assed out and woke up early.” They then engaged in talks about what they were doing that morning. At 10:40 a.m., [Scott] messaged Taylor that the police were at his house [and told] Taylor that he had been robbed the night before and was scared. The records revealed that Taylor continued to message [Scott] between 11:21 a.m. until 1:13 p.m., with no response from [Scott].

At this time and day, 1:13 p.m. on February 23, 2018, [Scott] was at Allegheny County headquarters[,] where his recitation of the events of February 22, 2018[,] continued to evolve. Police asked [Scott] if he received any money from the robbery and he pointedly denied that he had. However, this statement quickly changed. First, he disclosed that he was offered money but refused it. Shortly thereafter, he admitted that there was $700- $800 in a bag located in a bedroom closet, however it was H.D.’s money that [Scott] was instructed to keep at his house and not touch.

During the interview [Scott] agreed to give police his cell phone and his password to allow for a forensic download. From this download, a string of text messages w[as] discovered between [Scott] and Whitley that occurred after the murder on February 22, 2018[,] between 6:06 p.m. and 6:13 p.m.

[Scott]: “It's Rod Drey.” “How are you doing?” (6:06 p.m.)

Whitley: “Lol. I am ite. Where you from?” (6:11 p.m.)

[Scott]: “Homewood. Where you from?” (6:12 p.m.)

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Whitley: “I’m from the hill G block to be exact. Lol. And I say show b-c that my second hood.” (6:12 p.m.)

[Scott]: “Lol. I see. WYM. (Known as “what you mean”) That is cool doe. How old are you?” (6:12 p.m.)

During the investigation police returned to [Scott’s] residence in Turtle Creek[,] where they encountered his girlfriend[,] India McDonald. [] McDonald lived with [Scott] and provided police with consent to search the residence. During the search, police seized two cell phones that were subsequently submitted for a forensic download. Afterward, detectives transported [] McDonald to her parents’ residence in Wilkinsburg. During the ride [] McDonald advised them that she had money she wanted to turn over to the police. [] McDonald then entered her parents’ residence and returned to the detective’s vehicle with $669. She explained that she was giving it to them because she received it from [Scott], who told her it was proceeds from a robbery that had been committed the night before.

At trial, [Scott] testified on his own behalf. He stated that he accepted a Facebook request from [] Taylor for a jitney ride, explaining that he knew of him peripherally because Taylor was friends with Scott’s brother and that his nickname was H.D. He described exchanging multiple phone calls and text messages with Taylor prior to picking him up on Ray Street in Wilkinsburg. After picking him up, Taylor told him to drive to the Dollar General store and to back into a parking spot in the back lot. [Scott] then left the car to urinate outside an abandoned building while Taylor remained inside the vehicle. When [Scott] returned to the car, Taylor was now wearing a face mask and had a gun out and ordered [Scott] to shut the door. According to [Scott], Taylor told him that he needed this money and that [Scott] was going to do what he said. Although [Scott] described that Taylor was aiming the gun in his direction, he denied that he was being held at gunpoint. Despite telling the jury he was not under threat, [Scott] testified he did what Taylor wanted and repeatedly asked him not to shoot him.

[Scott] testified that he exited the parking lot. At this time[,] Taylor instructed him to drive past the female with red hair and park along the street. [There]after, [Scott] was ordered out of the car and instructed to act like he was fixing something on the car. According to [Scott], Taylor threatened to shoot [Scott] if he tried to run away. [Scott] felt like his life was in danger and told

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the jury he did as he was instructed. Consistent with the video evidence, [Scott] described that Taylor jumped out of the car as [] Davis walked by and immediately began to tussle with her over her purse. [Scott] then heard one gunshot and started to run towards the victim when a second gunshot stopped him in his tracks. [Scott] got back into the car at Taylor's instruction. Taylor then threw the purse at him and ordered him to take out the money. [Scott] removed the money and then threw the purse out the window.[5] [Scott] explained that Taylor still had the gun out when he told [Scott] to drive away, further instructing him to drive to [Scott’s] house. Once inside the house, Taylor, who was still holding the gun, ordered [Scott] to hide some of the money upstairs. [Scott] told the jury that Taylor followed him upstairs and watched him hide the money in a closet. Taylor then told [Scott] where to drop him off and threatened to “off” him and his brother if he called the police. [Scott] explained that it was fear for himself and his family that kept him from calling 911 or the police. He described how he then drove around for a bit when he remembered that he needed to go downtown and pick up his phone. Thereafter[, Scott] received a call from Taylor demanding that [Scott] come pick him up. [Scott] complied and drove Taylor to the East Hills residence of [] Whitley. [Scott] maintained that he had never met Whitely prior to this. He said that they exchanged telephone numbers because he wanted to make sure he had Whitley’s phone number so if he talked to the police he could give them her information. He further explained that he messaged with Taylor after the shooting, as part of a plan he and his wife concocted in an effort to get Taylor to his house so they could call the police.

[Scott] admitted on cross[-]examination that he was not truthful with the detectives during his interview when he denied knowing [] Taylor, however, he continued to deny any advanced knowledge that Taylor was going to rob [] Davis.

____________________________________________

5 Video footage shows Scott throw the victim’s purse out of the open passenger-side door and into a nearby tree. The court found that Scott’s actions supported the jury’s verdict that Scott discarded the victim’s purse with the intent to prevent its accessibility for any future investigation, resulting in Scott’s conviction for tampering with evidence. Critically, Scott testified at trial that he threw the victim’s purse to get rid of it because he was concerned it may have had his DNA and/or fingerprints on it. N.T. Jury Trial, 8/26/21, at 409-10.

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[Scott] also offered three character witnesses[,] who testified that [Scott] had a good reputation for peacefulness and non-violence in the community.

Trial Court Opinion, 10/4/22, at 3-13.

After a five-day jury trial held in August 2021, Scott was found guilty of

the above-stated offenses. On November 22, 2021, the court sentenced Scott

to a mandatory sentence of life imprisonment for murder, 6-12 years of

imprisonment for robbery, and 6½ -13 years of imprisonment for conspiracy.6

The court ran the sentences consecutively, for an aggregate sentence of life,

plus 12½ -25 years’ imprisonment. Scott filed a timely post-sentence motion

and an amended nunc pro tunc7 post-sentence motion challenging the

sufficiency and weight of the evidence. On April 25, 2022, the trial court

denied the motion.

Scott filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. He raises the following

issues for our consideration:

(1) Did the trial court abuse its discretion in excluding statements made by [] Taylor that he forced Scott to participate in the robbery of the victim where those statements implicated Taylor in the crimes against the victim and crimes against Scott, and where they [were] made under circumstances clearly corroborating their trustworthiness and, thus, were admissible statements against interest pursuant to Pa.R.E. 804(b)(3)?

____________________________________________

6 No further penalty was imposed on the tampering conviction.

7 Scott requested, and the trial court granted him, leave to file an amended/supplemental post-sentence motion nunc pro tunc. See Order, 1/4/22.

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(2) Was the evidence at trial insufficient to support Scott’s convictions for second-degree murder, robbery, and conspiracy to commit robbery because the evidence was in equipoise as to whether [it] required speculation to conclude that Scott intended to rob, aided the robbery of, or agreed to rob [] the victim, as opposed to being Taylor’s unwitting and subsequently threat-compelled pawn?

Appellant’s Brief, at 4.

In his first issue, Scott contends that the trial court erred in not

admitting evidence of statements that Taylor made to a fellow inmate, David

Tyus, that would have been admissible as a statement against Taylor’s penal

interest. See Pa.R.E. 804(b)(3).

Under the rules of evidence,

Statement Against Interest — A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declaration to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Pa.R.E. 804(b)(3) (emphasis added). See also Commonwealth v. Bracero,

528 A.2d 936, 941 (Pa. 1987) (plurality opinion) (holding “declarations against

penal interest are admissible as an exception to the hearsay rule only when

there are circumstances that provide clear assurance that such declarations

are trustworthy and reliable”).

Instantly, Tyus testified that in 2018 he was cellmates in the Allegheny

County Jail with Taylor, whom he referred to as “Gusto.” Tyus testified that

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Taylor wrote down what occurred during the instant robbery and shooting,

indicating that Scott had no intent to rob the victim. Taylor asked Tyus to

give Scott this note, but Tyus explained that he did not know Scott at the time

Taylor relayed this information to him. Tyus later changed cells in jail and

was placed near Scott but never gave him the note, having thrown it away

several months before he relocated cells.

Tyus also testified that, at some point later in time, Taylor authored and

gave to Tyus a second note, which Tyus did give to Scott. That second note

also indicated that Scott did not intend to rob the victim. The defense,

however, was unable to produce this second note at the evidentiary hearing.

See N.T. Hearing, 8/26/21, at 500 (“[T]hat note is unavailable, Your Honor.”).

Tyus, however, claimed he wrote a four-page letter detailing what Taylor had

told him in August of 2018 and mailed it to Scott’s mother. Scott sought to

have Tyus testify to the substance of what was in the letter— that, in fact,

Taylor told him that he was solely responsible for robbing and killing the

victim, and that Scott was unaware of the robbery plan.

In August 2021, the trial court held a hearing, outside the presence of

the jury, on Scott’s request to admit Tyus’ four-page letter from August 2018

and to have Tyus testify regarding conversations he had with Taylor in jail.

Taylor invoked his Fifth Amendment privilege and was deemed unavailable.

See Pa.R.E. 804(b)(3). Ultimately, the court excluded the proposed testimony

on the basis that it did not deem the statements trustworthy or reliable due

to the circumstances under which they were made. Commonwealth v.

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Colon, 846 A.2d 747 (Pa. Super. 2004). Specifically, the court determined

that “there are no assurances of reliability to the jailhouse statement Dane

Taylor made to fellow inmate David Tyus” where:

• There is no corroborative evidence to establish reliability of statement; • Both alleged notes Taylor wrote were no longer available; • Statements were made while Taylor was incarcerated and not spontaneously after robbery and homicide;

• There is nothing self-incriminatory about statements; and • Statements would have been uncorroborated hearsay as Taylor not subject to examination under oath about any claim that Scott did not participate in robbery.

Trial Court Opinion, 10/4/22, at 22.

In Commonwealth v. Robins, 812 A.2d 514 (Pa. 2002), our Supreme

Court noted “that in every circumstance where the admission of testimony

pursuant to this [hearsay] exception is considered, corroboration independent

of the statement itself is necessary.” Id. at 525. With regard to factors that

may be helpful in determining whether a statement is independently

corroborated, the Robins Court reiterated:

[C]ourts have evaluated: the circumstances under which the statements were uttered, including the custodial/non-custodial aspect of the setting and the identity of the listener; the contents of the statement, including whether the statements minimize the responsibility of the declarant or spread or shift the blame; other possible motivations of the declarant, including improper motive such as to lie, curry favor, or distort the truth; the nature and degree of the “against interest” aspect of the statements, including the extent to which the declarant apprehends that the making of the statement is likely to actually subject him to criminal liability; the circumstances or events that prompted the statements, including whether they were made with the encouragement or at the request of a listener; the timing of the statement in relation to events described; the declarant’s

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relationship to the defendant; and any other factors bearing upon the reliability of the statement at issue.

Id. at 526-27.

We agree with the trial court that the evidence is inadmissible due to its

lack of independent corroboration where Taylor’s notes were unavailable or

had been thrown away, see N.T. Hearing, 8/26/21, at 500, no one witnessed

Tyus write or send his four-page letter to Scott’s mother, id. at 503; the

defense had no proof that Tyus ever mailed the letter to Scott’s mother, id.;

the information in Tyus’ letter and Taylor’s statements were “100 percent []

opposite to all of the testimony that [was] present[ed] during the course of

the trial,” id. at 505-06; and the information does not inculpate Taylor. Id.

at 506.8 Bracero, supra.

In his next issue, Scott contends the evidence was insufficient to prove

that he was guilty of second-degree murder, robbery, and conspiracy to

commit robbery.9 Specifically, Scott asserts that the evidence presented at

trial to prove that he “was an intentional participant in the plot [to rob the

____________________________________________

8 We note that the court also found the evidence inadmissible on the grounds that a declarant’s exculpatory statement with regard to an accomplice is not considered a statement against interest. Commonwealth v. Colon, 337 A.2d 554, 558 (Pa. 1975). 9 Scott has abandoned any claim as to the sufficiency or weight of the evidence with regard to his tampering with evidence conviction as he has failed to argue it in his appellate brief. See Pa.R.A.P. 2119(a), (b) (requiring properly developed argument for each question presented including a discussion of and citation to authorities in appellate brief); Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (failure to conform to Rules of Appellate Procedure results in waiver of the underlying issue).

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victim], rather than an unwitting and, later, threat-compelled pawn,”

Appellant’s Brief, at 13, was speculative at best. “In short, the

Commonwealth’s failure to provide any evidence about how Scott came to

participate in the robbery leaves a hole in its case as to whether he intended

to do so, or, rather, was Taylor’s threat[-]compelled instrument.” Id. at 31.

We disagree.

In reviewing a challenge to the sufficiency of the evidence, we must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the crimes charged was established beyond a reasonable doubt.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

After reviewing the parties’ briefs, the relevant case law, and the

evidence of record, we rely upon the well-written opinion, authored by the

Honorable Bruce R. Beemer, to dispose of Scott’s sufficiency of the evidence

claims on appeal. See Trial Court Opinion, 10/4/22, at 22-34. The evidence

established, beyond a reasonable doubt, the elements for second-degree

murder, robbery, and conspiracy. We instruct the parties to attach a copy of

Judge Beemer’s decision in the event of further proceedings in the matter.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/12/2023

Circulated 05/25/2023 10:35 AM

Allegheny County - Department of Court Records Criminal Division - Filings Information

County caseID:CP-02-CR-0004375-2018(Opinion) Case Description: COMMONWEALTH OF PENNSYLVANIA v. LNAME SCOTT Official Docket Entry, Sort By Document Number Ascending

Document Title/Entry Filing Date Number

1 OPINION 10/04/2022

(Index Page-1)

1-OPINION

COMMON PLEAS

IN THE COURT OF COMMON PLEAS OF OF ALLEGHENY

ALLEGHENY COUNTY,

COUNTY, PENNSYLVANIA

PENNSYLVANIA

CRIMINAL DIVISION CRIMINAL DIVISION

COMMONWEALTH OF COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA CP-02-CR-0004375-2018 CP-02-CR-0004375-2018 634 WDA 634 WDA2022

2022

vv..

KAIJIN XAVIER KAIJIN XAVIER SCOTT SCOTT

Appellant, Appellant,

OPINION OPINION JUDGE BRUCE R. JUDGE BRUCE R. BEEMER

BEEMER

served by

Copiesserved Copies firstclass byfirst class mail

mailto:

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CorrieWoods,

Woods, Esq.

Esq.

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MoonTwp., Moon

OfficesPLLC

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200 Commerce Drive Ste 210

DistrictAttorney's

CountyDistrict

AlleghenyCounty Allegheny Attorney's Office Office Michael Michael W.W.Streily,

Streily,Esq.

Esq.

401 Allegheny County Courthouse 401 Allegheny County Courthouse 436Grant 436 GrantStreet

Street

Pittsburgh, PA15219 Pittsburgh, PA 15219

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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH COMMONWEAL TH OF PENNSYLVANIA CP-02-CR-0004375-2018 634 WDA 2022

WDA2022

vv..

KAIJIN XAVIER SCOTT Appellant,

OPINION

BRUCE R. BEEMER, J.

Appellant, Kaijin Scott, appeals from the judgment of sentence order imposed after a jury

trial wherein he was found guilty of Murder of the Second Degree, 18 18 Pa.C.S. § 2502(B);

Robbery, 18 18 Pa.C.S. § 3701; Conspiracy (Robbery), 18 18 Pa.C.S. § 903; and Tampering with or

Fabricating Physical Evidence, 18 18 Pa.C.S. § 4910(1).

The trial commenced on August 23, 2021. After a five-day trial, Appellant was

2021 of the charges referenced above. On November 22, 2021, the convicted on August 27, 2021

1, Murder of the Second Degree; 6-12 years Court imposed a mandatory life sentence at Count 1,

Robbery;1 and at Count 3, Conspiracy (Robbery), a sentence of 6 Y2 of incarceration at Count 2, Robbery;1 ½-

13 years of incarceration. The Court ran each count consecutively for an aggregate sentence of 13

12 'A

life in prison plus 12 ½ - 25 years.

1 The sentence imposed at Count 2 Robbery was vacated during the post sentence motion hearing held on April 22, l. Amended Order of Sentence, April 22, 2022.

2022, as it merged with Count 1.

33

On December 2, 2022, Appellant filed a timely Post Sentence Motion with a request to ·.

supplement. Upon receiving a time extension, an Amended Post Sentence Motion was filed on

March 3, 2022 challenging both the sufficiency and the weight of the evidence. The motion was

2022.2 A timely Notice of Appeal was filed on May 25, 2022, followed by a denied on April 25, 2022.2

Concise Statement of Matters Complained of on Appeal (hereinafter Statement) on June 21,

2022. This Opinion follows.

FACTUAL BACKGROUND

The majority of evidence adduced at trial was uncontested by Appellant, including that he

was present at the time co-conspirator Dane Taylor3 Taylor' shot and killed Keiauna Davis on February

2018.4 Appellant's dispute with the Commonwealth's case centered around the reasons and 22, 2018.4

circumstances for his actions.

The Commonwealth presented evidence regarding the events leading up to Davis's death

through various witnesses. Collectively, of February 22, 2018, Collectively, they testified that on the morning of

Keiauna Davis was working at at the Dollar General store store in Wilkinsburg. This was one of of two

jobs held by Ms. Davis, who was aa single single mother to two children under the age of of six.5

six.' During

shift, Ms.

her shift, Ms. Davis's grandmother, Linda Wilson, delivered approximately $3,000 $3,000 to her, which

2 2 The April The 25, 2022 April 25, 2022 order

order was

was timely inasmuch as timely inasmuch as the the Court

Court granted

granted Appellant's March 8, Appellant's March 8, 2022 2022 Motion

Motion forfor

Extension of Extension ofTime Time toto rule

rule on

on the

the Amended

Amended PostPost Sentence Sentence Motion.

Motion.

3 Dane Taylor was in connection connection withwith the

the death

death ofofKeiauna Davis atat CP-02-CR-0004793-2018.

CP-02-CR-0004793-2018. On On July 16, 16,

3 Dane charged in Taylor was charged Keiauna Davis 2019, Dane 2019, Dane Taylor entered aa guilty Taylor entered guilty plea to Murder plea to Murder of of the the Third

Third Degree,

Degree, 18

18 Pa.C.S.

Pa.C.S. §2502(c);

§2502(c); Robbery,

Robbery, 18 18 Pa.C.S.

Pa.C.S.

$3701(a)(1)(); Conspiracy §3701(a)(1)(i); Conspiracy (Robbery), (Robbery), 18 18 Pa.C.S.

Pa.C.S. §903;

§903; and

and Violations

Violations of

of the

the Uniform

Uniform Firearms

Firearms Act

Act (VUFA),

(VUFA), 18 18

Pa.C.S. §6106. Pa.C.S. §6106. He He was was sentenced

sentenced in in accordance accordance withwith aa negotiated agreement to negotiated agreement to aa period period of

of30-60 years of

30-60 years of

incarceration. A incarceration. A post sentence motion post sentence motion waswas filed filed and

and subsequently denied by subsequently denied by operation operation ofof law

law on

on July

July 28,

28, 2020.

2020. OnOn

November 10, November 10, 2020 2020 Taylor filed aa PCRA Taylor filed PCRA petition. After an petition. After an evidentiary evidentiary hearing

hearing held

held on

on November

November 22, 22, 2021,

2021, the

the

Court issued Court issued an an order

order denying the PCRA denying the PCRA petition on February petition on February 17,17, 2022.

2022. No

No direct

direct appeal

appeal was

was filed.

filed.

4 Trial Transcript,

Jury Trial Jury (J.T.) August Transcript, (J.T.) August 23,23, 2021 2021 —-August

August 27,27, 2021,

2021, 57-64,

57-64, 96-97,

96-97, 548,548,563.

563.

5 J.T. at 5 J.T. at 69.

69.

retum.6 Ms. Davis, who relied on public transportation or family members to represented her tax return.6

drive her to and from work, was planning to shop for a car after work that day and to buy party

birthday.7

supplies for her daughter's upcoming birthday.7

Whitley8, who only started working at the Dollar General the day before, became Laya Whitley8,

same.9 The text exchanges were presented aware of this money and texted Dane Taylor of the same.9

through several exhibits and were read by Allegheny County Police Detective Laurie McKee1.1° McKeel."

On February 22, 2018 the following exchange occurred:

Whitley: "Guess what?" (11:25 (11 :25 a.m.)

Taylor: "Wat." (11:31 (11:31 a.m.)

Whitley: "This girl at my job brought 7 bands to work. Ain't that some shit?" (11:31 (11 :31 a.m.)

Taylor: "It's a go. Delete all dez texts." (12:48 p.m.) Whitley: "They been gone." (1:26 ( 1 :26 p.m.)

Taylor "Ite" (1:27 (1 :27 p.m.)

Each of these messages from Whitley's phone showed evidence of having been deleted."

deleted.'

Shortly after Whitely told Taylor about Ms. Davis's money, phone records offered at trial

established that Appellant and Taylor began communicating.12 communicating.' The phone records for Laya

6 6 J.T. at 68, 70-72, 82. 7 J.T. at 69-73, 82. 8 8 Laya Whitley was charged in connection with the death of Keiauna Davis at CP-02-CR-0004374-2018. On July ofKeiauna

18 Pa.C.S. §2502(c); Robbery, 18 16, 2019, Whitley entered a guilty plea to Murder of the Third Degree, 18 16, 18 Pa.C.S. §370l(a)(l)(i); Conspiracy (Robbery), 18 §3701(a)(1)(i); 18 Pa.C.S. §903; Criminal use of Communication Facility, 18 18 Pa.C.S.

$7512(a) and Tampering with evidence, 18 §7512(a) 18 Pa.C.S. §4910 (1). She was sentenced in accordance with a negotiated agreement to a period of 20-50 years of incarceration. No post sentence motion or direct appeal were filed. On March 25, 2020 Whitley filed a PCRA petition. The denial of her PCRA petition was appealed and affirmed by the Pennsylvania Superior Court. Commonwealth v. 1051 (Pa. Super. 2022); 850 WDA 2021. A • Whitley, 273 A.3d 1051

Petition for Allowance of Appeal was denied on July 5, 2022; 9191 WAL 2022. 99 J.T. at 79. I0JT.

J.T. at 266- 272; Commonwealth Exhibit 41, 42, 45-51. 11 J.T. at 270-272. ''J.T.

J.T. at 313-316; Commonwealth Exhibit 60. 12J.T.

55

Whitley, Dane Taylor, and Appellant, revealed the date and time of the communications communications but

but not

not

the content.'3 content.'

on February

Appellant on

These exhibits illustrated that a call was placed by Taylor to Appellant 22, February 22,

at 12:01 2018 at 12:01 p.m. lasting one minute and and nineteen seconds;

seconds; followed by aa call call from

from Appellant

Appellant

at 12:03

to Taylor at 12:03 p.m. The records evidenced two more calls from Appellant to to Taylor at

at 1:55

1 :55

and again p.m. and again at at 2:29

2:29 p.m. Appellant

Appellant and

and Taylor

Taylor also

also communicated

communicated by text

text message

message aa total

total of

of

18 times between 12:00 18 12:00 p.m. and 2:30 p.m.14 and 2:30 p.m.14

Video surveillance Video surveillance from

from inside

inside the

the Dollar

Dollar General

General showed

showed that

that Ms.

Ms. Davis

Davis secured

secured the

the

money in money in the the Manager's Manager's office

office during her shift,

during her shift, and

and later

later retrieved

retrieved the

the money

money along with her

along with her

personal belongings personal belongings at at the

the end

end of

ofher shift.15 She

her shift.15 She then

then proceeded to the

proceeded to the counter

counter to

to make

make some

some

purchases at purchases at the the register

register manned

manned by Whitley.' Appellant, by Whitley.16 who had Appellant, who had already already picked

picked up Dane

up Dane

Taylor, was Taylor, was parked parked in

in the

the rear

rear lot

lot of

ofthe

the Dollar

Dollar General.

General. Exterior

Exterior surveillance

surveillance footage then footage then

shows Keiauna shows Keiauna Davis Davis exit

exit at

at 2:36 p.m.17 Thereafter, 2:36 p.m.17 Thereafter, Appellant and Taylor Appellant and leave the Taylor leave the parking lot parking lot

and drive and drive onto onto Laketon

Laketon Avenue.

A venue. The

The events

events that

that followed,

followed, including

including Ms.

Ms. Davis

Davis walking on

walking on

Laketon Avenue, Laketon Avenue, up up to

to and

and including her murder, including her murder, were were captured

captured on

on aa residential

residential surveillance

surveillance

camera.' The camera.18 The entire entire event,

event, beginning when Appellant beginning when Appellant parked the vehicle parked the vehicle until until he

he drove

drove away

away

from the from the scene, scene, was

was less

less than one minute.'9

than one minute.19

and Taylor

Appellant and Appellant knew who Taylor knew who Keiauna

Keiauna Davis

Davis was

was based

based on

on the

the physical

physical description

description

provided by provided by Laya Laya Whitley. Therefore, once Whitley. Therefore, once they they located

located her

her walking

walking on

on Laketon

Laketon Avenue,

A venue,

drove past

Appellant drove Appellant her, and past her, and parked the car parked the car along

along the

the sidewalk.

sidewalk. Appellant

Appellant then

then exited

exited the

the car

car

J.T 13J.T atat312-314;

312-314; Commonwealth

CommonwealthExhibits

Exhibits57-60.

57-60.

J.T. 14 318-322.

J.T. atat318-322.

J,T. atat82, 15ISJ.T. 82,90-92;

90-92; Commonwealth

Commonwealth Exhibit

Exhibit1.1.

JT. atat91-92.

16I6J.T. 91-92. 17J,T.

J.T. atat91.

91.

J.T. atat144-148;

18I8JT. 144-148;Commonwealth CommonwealthExhibit

Exhibit22(audio

(audionot

notavailable).

available).

"9 CommonwealthExhibit 'Commonwealth Exhibit2,2,(Time (TimeStamp

Stamp(T.S.)

(T.S.)6:41-7:36).

6:41-7:36).

and bent down near the rear driver's side tire. As Ms. Davis walked alongside the passenger side

of the vehicle, Taylor opens the front passenger door and jumps out of the car. Ms. Davis

immediately runs and is chased by Taylor into an abandoned lot where she physically struggles

with him over her purse. At this time, Ms. Davis is on the ground with Taylor standing over her,

and Appellant is standing in the street beside the vehicle. After several seconds of wrestling over

the purse to no avail, Taylor shoots at Ms. Davis two times. The first shot missed, and the

second shot struck her in the right hip, later resulting in her death. At the time of the shooting,

Appellant quickly moved to the front of the vehicle and then seconds later he walked back to the

driver's door and reentered the car.

Surveillance continued to capture the events which showed Taylor take the purse from a

now injured Keiauna Davis. Taylor can be seen running back to the car at which time he tossed

the purse inside through the open passenger door to Appellant, who is now seated in the driver's

seat. Taylor then returned to the location of Ms. Davis to retrieve an item which was later

determined to be his phone. As Taylor entered the passenger door, the purse is thrown out of the

police.?

open door by Appellant and is caught on a nearby tree, where it was later retrieved by police.20

Appellant immediately drove away from the scene with Taylor as Ms. Davis continued to

struggle on the ground, having been critically wounded by the gunshot. The surveillance footage

recorded Ms. Davis's last living moments as she crawled to the sidewalk and attempted to wave

at passing cars for help. Eventually, a passerby stopped and called for help as evidenced by the

response of both police and EMS at the scene. Ms. Davis was transported to a local hospital

2018.21

where she was pronounced dead at 3:39 p.m. on February 22, 2018.21

20 J.T. at 171; 18 and 19.

171; Commonwealth Exhibit 18 19.

2!J.T. 21 J.T. at 151.

151.

77

Luckasevic, aa forensic

At trial the Commonwealth presented testimony from Dr. Todd Luckasevic, forensic

He testified

pathologist with the Allegheny County Office of the Medical Examiner. He testified that that

wound to

Keiauna Davis, a 27-year-old African American female, died from a gunshot wound to her her

pelvis.22 Dr. Luckasevic stated pelvis.22 stated that the bullet entered through the outside of of her

her right thigh. He

thigh. He

as aa contact wound, directing the jury to the photographic evidence which described it as which showed showed

soot on soot on her skin, skin, as

as well

well as

as aa muzzle imprint abrasion, and imprint abrasion, and an

an abrasion

abrasion consistent

consistent with

with the

the recoil

recoil

spring of spring firearm.23 He of aa firearm.23 He explained to the explained to the jury that that the

the bullet took

took aa trajectory from right to trajectory from to left left

and back and back to to front, front, severing

severing two major arteries and major arteries and fracturing her hip bone before exiting fracturing her out her exiting out her

inner thigh.24 inner thigh.?"

Following the Following the homicide,

homicide, Appellant and Taylor Appellant and Taylor were were captured

captured on

on video

video arriving

arriving at

at 2215

2215

Wilner Drive, Wilner Drive, the the residence

residence of

ofLaya Whitley.25

Laya Whitley.25

The next The next day,

day, on

on February 23, 2018,

February 23, 2018, the

the vehicle

vehicle operated

operated by

by Appellant was recovered Appellant was recovered in in

Penn Hills. Penn Hills. This This same

same day,

day, police made contact

police made contact with

with Appellant at his

Appellant at his residence residence in

in Turtle

Turtle Creek

Creek

and he and he indicated indicated he he wished

wished to

to talk

talk with

with Allegheny

Allegheny County detectives who County detectives who were were investigating the

investigating the

homicide of homicide ofMs. Davis.26 County Ms. Davis.26 detectives responded County detectives to Appellant's responded to residence, and Appellant's residence, and he he

voluntarily accompanied voluntarily accompanied the the detectives

detectives to

to Allegheny County police Allegheny County headquarters for police headquarters for an an

interview.27 The interview.27 The nine-hour nine-hour interview

interview was

was recorded

recorded and

and played

played for

for the jury.28

the jury.28

the course

During the During course of

ofthe

the interview

interview Appellant's

Appellant's statements

statements as

as to

to the

the events

events of

ofFebruary

February 22,

22,

2018 changed 2018 times. Initially, multiple times.

changed multiple he told Initially, he told police that he police that he gave

gave aajitney

jitney ride

ride to

to an

an unknown

unknown

J.T. J.T. atat232-234. 22 232-234.

JT. atat227-229; 2 J.T. 23 227-229; Commonwealth Commonwealth Exhibit

Exhibit31

31 and

and32.

32.

24J.T. 24J.T. atat229-234;

229-234; Commonwealth

Commonwealth Exhibit

Exhibit33

33 and

and34.

34.

CommonwealthExhibit 25Commonwealth 25 Exhibit38.

38.

J.T. atat178, 26J.T. 26 178,197.

197.

J,T. atat179-180. 27J.T. 27 179-180.

JT. atat184-190, 28J.T. 28 184-190,199;

199;Commonwealth

CommonwealthExhibit

Exhibit27

27 and

and28.

28. By agreementthe

Byagreement thevideo

videowas

wasredacted

redactedto

toremove

removethe

the

arrestof arrest ofAppellant andportions Appellantand ofthe portionsof theinterview

interviewwhen

whenpolice werenot

policewere notpresent.

present.

88

stated that during the drive person. Then Appellant stated drive to to the

the Dollar

Dollar General

General in

in Wilkinsburg, he

Wilkinsburg, he

brother and

learned that this individual knew both Appellant's brother and mother mother and

and went

went by

by the

the name

name "D

"D

Appellant stated Low". Appellant stated that that after

after arriving at the

arriving at the location, location, "D

"D Low"

Low" robbed

robbed him

him at

at gunpoint, and

gunpoint, and

continued to continued to keep him him at

at gunpoint as he

gunpoint as he threatened threatened to

to hurt

hurt Appellant's mother if Appellant's mother if Appellant didn't Appellant didn't

do what do what he he said.29 said.? Appellant told detectives Appellant told detectives that that itit was

was out

out of

offear

fear for

for his

his life

life and

and his

his mother's,

mother's,

that he that he complied with the complied with the step-by-step instructions given step-by-step instructions given by "D Low"

by "D Low regarding where to regarding where to drive drive

and what and what to to do.3°

do." Appellant stated that Appellant stated that "D "D Low"

Low" directed

directed him

him to

to drive

drive past Ms. Davis

past Ms. Davis who

who was

was

walking on walking on the the sidewalk,

sidewalk, and

and then

then park along the

park along the street

street ahead

ahead of

ofher.

her. Appellant was then

Appellant was then

ordered out ordered out of ofthe

the car

car by

by Taylor and told

Taylor and told to

to pretend that he

pretend that he was

was having trouble. 31 As car trouble.31

having car As Ms.

Ms.

Davis walked Davis walked by by the

the passenger door, "D

passenger door, "D Low"

Low got out of

got out ofthe

the car

car and

and began to struggle

began to with Ms.

struggle with Ms.

Davis over Davis over her herpurse.

purse. During the struggle, During the struggle, Appellant heard two Appellant heard two gunshots. The first gunshots. The first did

did not

not strike

strike

Ms. Davis Ms. Davis but but the

the second

second one

one did.

did. "D

"D Low"

Low then

then removed

removed the

the purse from Ms.

purse from Ms. Davis,

Davis, ran

ran back

back to

to

the car, the car, threw threw the

the purse inside, and

purse inside, and ordered orderedAppellant to"get

Appellantto "get it",

it", which

which Appellant

Appellant assumed

assumed

meantmoney. meant At"D money. At Lows" instruction, "D Low's" instruction, Appellant thenthrew Appellantthen threwthe

thepurse

purseout

outof

ofthe

thevehicle

vehicleand

and

droveaway drove with"D awaywith "D Low"

Low" in

in the car.32 Still

thecar.32 Still under

under"D

"D Low's"

Low's" direction,

direction, Appellant

Appellantdrove

droveaafew

few

blocksaway blocks wherehe awaywhere hethen thendropped off"D

droppedoff Low. Prior

"D Low". Priorto

to exiting thevehicle,

exitingthe vehicle,"D

"D Low"

Low"made

made

anotherthreat another threatagainst againstAppellant's mother. From Appellant'smother. Fromthere, there,Appellant

Appellantre-counted

re-countedthat

thathe

hedrove

drovetotohis

his

residencein residence inTurtle TurtleCreek

Creekand

andthen

thendowntown

downtowntotoget

gethis

hisphone

phonefixed.33

fixed.°

thenshifted

storythen

Appellant'sstory Appellant's shiftedas astotohow

howhe

heinitially

initiallyencountered

encountered"D

"DLow",

Low",who

whohe

hestill

still

maintainedhe maintained hedid didnot

notknow.

know. He

Henow

nowexplained thathe

explainedthat hewas

waslooking

lookingtotobuy

buymarijuana

marijuanawhen

whenhe

he

Exhibit28, 293Exhibit 28,Time TimeStamp

Stamp(T.S.) 12:33-12:40.

(T.S.)12:33-12:40.

T.S.12:40-12:44.

3030T.S. 12:40-12:44.

T.S.12:40-12:42.

311T.S. 12:40-12:42.

1.S.12:42-12:45.

323T.S. 12:42-12:45. 33 T.S. 12:45-12:48. T.S. 12:45-12:48.

came across "D Low"

Low and that their interaction then turned into a jitney ride.34 ride. He maintained

gunpoint.35

however that his actions once they got to the Dollar General were all forced under gunpoint.35

Several hours into the interview police began talking about Laya Whitley, prompting

another revision by Appellant as to the events of February 22, 2018. He now admitted that the

person he drove to the Dollar General was not a stranger, or a person known as "D Low", Low, but a

man named "H.D." He also divulged he knew the purpose of the trip to the Dollar General was

to allow "H.D." to get money, and disclosed that a girl inside the store told "H.D" that a female

$7,000.36 Appellant also admitted that he had contact with "H.D"

co-worker with red hair had $7,000.36

after the shooting. Specifically, that that he picked up "H.D." that night and took him to "H.D. that

Whitely's residence in the East Hills section of Pittsburgh and messaged with "H.D." through

Facebook.37 Facebook.37

A forensic download of Appellant's phone confirmed these Facebook messages which

occurred from 7:23 p.m. on February 22, 2018 through 1:13 2018.38 1:13 p.m. on February 23, 2018.38

Throughout the messaging Appellant and Taylor refer to each other as "bro", "homie", "dude"

and "cuhs", which was known as short for cousin. The initial message came from Appellant

asking Taylor what he was doing.39 doing." The two messaged about someone who died in Wilkinsburg,

referencing a single mom. Appellant also stated that, "she was cute" and "lmao" which stands

ofP." Taylor responded that Appellant is disgusting and "lol" which for "laughing my ass off'.40

loud".41 Taylor messaged Appellant that he heard that they [police] had stands for "laughing out loud".41

4 1:06-1:08.

T.S. 1:06-1:08. 3·1.S. 35 T.S. 2:25-2:31. 36 36 T.S.

T.S. 3:38-3:54. 37 T.S. 4:23-4:48.

J,T. at 273, 275-291; Commonwealth Exhibit 52. 3 J.T. 38 1.T. at 275. 39 J.T. ao «J.T.

J.T. at 279. J.T. at 279-280 "JT.

1010

car color the car color but not the plate and and Appellant referenced that Appellant referenced that the the story was on

story was on the

the news.42

news. The

The

two continued two continued to to talk

talk about

about football

football and

and splitting

splitting aa jitney to go jitney to out that

go out night.43 The messages that night.43 The messages ceased around ceased around 10:21 10:21 p.m. on February

p.m. on 22, 2018 February 22, 2018 and

and resumed

resumed in

in the

the early

early morning hours of

morning hours

of

23, 2018,

February 23, 2018, when when Taylor that he, he, "[p]assed out and

"[p]assed out and woke

woke up early."

February Taylor messaged messaged Appellant

Appellant that up early.44 They then engaged They then in talks engaged in talks about

about what

what they were doing

they were that morning.

doing that At 10:40 morning. At 10:40 a.m., Appellant a.m., Appellant

messaged Taylor messaged that the Taylorthat the police wereat police were at his

his house,

house, informing

informing Taylor that he

Taylorthat he had

had been

been robbed the

robbed the

beforeand nightbefore night andwas scared.45 The wasscared.' Therecords

records revealed

revealed that

thatTaylor continued to

Taylorcontinued to message message Appellant

Appellant

between11:21 between 11 :21 a.m.

a.m. until

until 1:13

1: 13 p.m., withno

p.m.,with noresponse fromAppellant.

responsefrom Appellant.

Atthis At thistime

timeand

andday, 1:13 p.m.

day,1:13 onFebruary p.m.on 23,2018, February23, 2018,Appellant wasatat Allegheny Appellantwas Allegheny Countyheadquarters County wherehis headquarterswhere hisrecitation recitationof

ofthe

theevents

eventsof

ofFebruary 22,2018

February22, 2018continued continuedtoto evolve.

evolve.

Policeasked Police askedAppellant Appellantififhe

hereceived

receivedany fromthe moneyfrom anymoney therobbery andhe robberyand hepointedly denied that pointedlydenied

that

hehad. he had. However, However,this

thisstatement

statementquickly

quicklychanged. First,he changed. First, hedisclosed disclosedthat

thathe

hewas

was offered money

offered money

butrefused but refusedit.it. Shortly thereafter,he Shortlythereafter, headmitted admittedthat

thatthere

therewas

was$700-$800

$700-$800ininaabag

bag located in a

located in a

bedroomcloset, bedroom closet,however howeverititwas

wasH.D.'s

H.D.'smoney thatAppellant moneythat wasinstructed Appellantwas instructedtoto keep at his house keep at his house

andnot and nottouch.46 touch.°

theinterview

Duringthe During interviewAppellant agreedtotogive Appellantagreed givepolice hiscell policehis cellphone andhis phoneand his password to password to

allowfor allow fora aforensic download.47 From forensicdownload.47 Fromthis thisdownload,

download,a astring

stringofoftext

textmessages were discovered messageswere

discovered

betweenAppellant between andWhitley Appellantand thatoccurred Whitleythat occurredafter afterthe

themurder

murderononFebruary 22,2018 February22, 2018 between between

6:06p.m. 6:06 and6:13 p.m.and p.m.."

6:13p.m..48

"It'sRod

Appellant:"It's Appellant: RodDrey." "Howare Drey.""How areyou

youdoing?" (6:06p.m.)

doing?"(6:06 p.m.)

42 4 JT. at 280.

JT.at280. 43 4J,T.

J.T. at at 284-285.

284-285.

J.T.at at 44 J.T. 286.

286.

JT.at at J.T. 45 4 289-291 289-291

T.S.4:55-4:58, T.S. 46 4 4:55-4:58, 5:26-5:32, 5:26-5:32, 5:53.

5:53.

47JT. at 190-191; Commonwealth J.T. at 190-191; Commonwealth Exhibit Exhibit 2929 and

and 30.30.Commonwealth

Commonwealth Exhibit

Exhibit 2828 (T.S.

(T.S. 1:09).

1:09).

JT. at 292; Commonwealth Exhibit 48 J.T. at 292; Commonwealth Exhibit 53.

48 53.

"Lol. I am

Whitley: "Lol. am ite. Where you from?"

from?" (6:11

(6:11 p.m.)

p.m.)

Appellant: "Homewood.

"Homewood. Where you from?"

from?" (6:12

(6:12 p.m.)

p.m.)

"Im from

Whitley: "Im from the hill G G block

block to

to be

be exact.

exact. Lol.

Lol. And

And II say

say show

show b-c

b-c that

that my

my second

second

hood." (6:12 hood." (6:12 p.m.)

p.m.)

Appellant: "Lol. Appellant: "Lol. II see.

see. WYM.

WYM. (Known

(Known as

as "what

"what you

you mean")

mean") That

That is

is cool

cool doe.

doe. How

How old

old

are you?" are (6:12 p.m.)

you?" (6:12 p.m.)

During the During the investigation investigation police returned to police returned to Appellant's residence in Appellant's residence in Turtle Turtle Creek

Creek where

where

they encountered they encountered his his girlfriend India McDonald.

girlfriend India McDonald. Ms.

Ms. McDonald

McDonald lived

lived with

with Appellant and

Appellant and

provided police provided with consent police with consent to to search

search the residence.49 During the residence.49 the search, During the search, police seized two police seized two cell

cell

phones that phones that were were subsequently submitted for subsequently submitted foraa forensic forensic download.50

download." Afterward,

Afterward, detectives

detectives

Ms. McDonald

transported Ms. transported McDonald to to her

herparents' residence in parents' residence in Wilkinsburg.

Wilkinsburg. During the ride During the ride Ms.

Ms.

McDonald advised McDonald advised them themthat

thatshe

shehad

hadmoney shewanted

moneyshe wantedto

toturn

tumover

overto

tothe

thepolice. Ms.

police. Ms.

McDonaldthen McDonald thenentered enteredher

herparents' residenceand parents' residence andreturned returnedto

tothe

thedetective's

detective's vehicle

vehiclewith

with$669.

$669.

Sheexplained She explainedthat thatshe

shewas

wasgiving

givingititto

tothem

thembecause

becauseshe

shereceived

receivedititfrom

fromAppellant, whotold

Appellant,who told

herititwas her wasproceeds fromaarobbery proceedsfrom thathad robberythat hadbeen

beencommitted

committedthe

thenight before.51

nightbefore.51

Attrial, At trial,Appellant testifiedon Appellanttestified onhis hisown

ownbehalf

behalf. He

Hestated

statedthat

thathe

heaccepted

acceptedaaFacebook

Facebook

fromDane requestfrom request DaneTaylor foraajitney Taylorfor ride,explaining jitneyride, thathe explainingthat heknew

knewof

ofhim

himperipherally because

peripherallybecause

wasfriends Taylorwas Taylor friendswith withAppellant's brotherand Appellant'sbrother andthat thathis

hisnickname

nicknamewas H.D.52 He

wasH.D.52 Hedescribed

described

exchangingmultiple exchanging multiplephone callsand phonecalls andtext

textmessages withTaylor

messageswith Taylorprior priortotopicking

pickinghim

himup

upon

onRay

Ray

Street Wilkinsburg.53 After StreetininWilkinsburg.53 Afterpicking himup, pickinghim up,Taylor toldhim Taylortold himtotodrive

drivetotothe

theDollar

DollarGeneral

General

storeand store andtotoback backinto

intoaaparking spotininthe parkingspot theback lot.54 Appellant backlot.54 thenleft Appellantthen leftthe

thecar

cartotourinate

urinate

49«9J.T. 241.

J.T. 241.

J,T.atat240-241.

" 50J.T. 240-241.

SJ.T. at 242-243,249; 51 J.T. at 242-243, 249;Commonwealth CommonwealthExhibit

Exhibit39.

39.

J.T. atat392-394.

529J,T. 392-394. 53$ J.T. at 394-397.

J.T. at 394-397.

J.T.atat397-399.

54$4J.T. 397-399.

outsidean outside anabandoned abandoned building whileTaylor buildingwhile remained inside Taylorremained inside the thevehicle.

vehicle. When hereturned

Whenhe returnedto

to

the car, the car, Taylor Taylorwas

was now

now wearing

wearingaa face

face mask

maskand

and had

had aa gun out and

gun out and ordered

ordered Appellant to shut Appellant to shut

the door.55 According the door.55 to Appellant, According to told him Taylor told

Appellant, Taylor him that thathe

he needed

needed this

this money

money and

and that

that

Appellant was Appellant was going to do going to do what

what he

he said.

said. Although

Although Appellant described that Appellant described that Taylor was aiming Taylorwas aiming

the gun the gun in in his

his direction,

direction, he

he denied

denied that

that he

he was

was being gunpoint.56 Despite held atat gunpoint.56

being held Despite telling the jury telling the jury

he was he was not not under under threat,

threat, Appellant testified he Appellant testified he did did what

what Taylor

Taylor wanted

wanted and repeatedly asked and repeatedly asked him him

not to not to shoot shoot him.57 him."

Appellant testified Appellant testified that that he

he exited

exited the

the parking lot. At

parking lot. At this

this time Taylor instructed time Taylor instructed him him to

to

drive past drive the female past the female with with red

red hair

hair and

and park

park along the street.

along the street. Whereafter, Whereafter, Appellant was ordered Appellant was ordered

out of out ofthe the car car and

and instructed

instructed to

to act

act like

like he

he was

was fixing

fixing something on the

something on the car.

car. According to

According to

Appellant, Taylor Appellant, threatened to Taylor threatened to shoot shoot Appellant ifhe

Appellant if tried to he tried to run away.58 Appellant run away.58 like his felt like

Appellant felt his

life was life was in in danger and told

danger and told the

the jury he did

jury he did as

as he

he was

was instructed.

instructed. Consistent

Consistent with

with the

the video

video

evidence, Appellant evidence, described that Appellant described that Taylor Taylor jumped out of

jumped out of the

the car

car as

as Ms.

Ms. Davis

Davis walked

walked by

by and

and

immediately began immediately to tussle began to tussle with

with her

her over

over her

her purse.

purse. Appellant then heard Appellant then heard one

one gunshot and

gunshot and

started to started to run run towards

towards the

the victim

victim when

when aa second

second gunshot

gunshot stopped him in

stopped him in his

his tracks.59

tracks." Appellant

back into got back got into the the car

car at

at Taylor's instruction. Taylor Taylor's instruction. then threw Taylor then threw the

the purse at

at him

him and ordered him

and ordered him

to take to take out out the the money.6°

money. Appellant removed the Appellant removed the money and then money and then threw

threw the

the purse out

out the

the

window.61 He window.61 He explained explained that Taylor still still had

had the gun

gun out him to drive away, out when he told him away, further

instructing him to drive instructing Once inside the house, Taylor, who was still drive to Appellant's house. Once still

the gun, ordered Appellant to hide some holding the of the money upstairs. Appellant told the jury some of

$5 55 J,T. at J.T. at 399.

399.

56 56 J,T. at 400-401.

J.T. at 400-401. 1,T. at S1 J.T. 57 at 404.

404.

JT. at $8 J.T. 58 at 403.

403.

J,T. at "9 J.T. at 407-408.

407-408.

60 J.T. at J.T. at 409.

409.

J.T. at 6 J.T. 61 at 409-410.

409-410.

1313

that Taylor followed him upstairs and watched watched him

him hide

hide the

the money in aa closet.62 money in closet.°? Taylor then Taylor then

where to drop him off

told Appellant where off and and threatened

threatened to

to "off"

"off' him

him and

and his

his brother

brother if

ifhe called the

he called the

police. He police.63 He explained explained that

that itit was

was fear

fear for

for himself

himself and

and his

his family

family that

that kept him from

kept him from calling

calling 911

911

or the or the police.64 police. HeHe described described how

how he

he then

then drove

drove around

around for

for aa bit

bit when

when he

he remembered

remembered that

that he

he

needed to needed to go go downtown

downtown and

and pick

pick up his phone.

up his Thereafter he phone. Thereafter he received received aa call

call from

from Taylor

Taylor

demanding that demanding that Appellant come pick Appellant come him up.

pick him Appellant complied up. Appellant and drove complied and drove Taylor to the Taylor to the East

East

Hills residence Hills residence of ofLaya Whitley.65 Appellant Laya Whitley.65 maintained that Appellant maintained that he he had

had never

never met

met Whitely

Whitely prior to

prior to

this. He this. He said said that

that they

they exchanged

exchanged telephone numbers because telephone numbers because he he wanted

wanted to

to make

make sure

sure he

he had

had

Whitley's phone Whitley's phone number number so

so ififhe

he talked

talked to

to the

the police

police he

he could

could give them her

give them information.66 He her information.66 He

further explained further that he explained that hemessaged with Taylor messaged with afterthe Taylorafter theshooting, as part shooting, as ofaaplan partof heand

planhe and his

his

wifeconcocted wife concoctedin inan

an effort

effortto

to get to his

Taylorto getTaylor his house

houseso

so they could call

they could call the

the police.67

police.°

admittedon

Appellantadmitted Appellant oncross crossexamination

examinationthat

thathe

hewas

wasnot

nottruthful

truthfulwith

withthe

thedetectives

detectives

duringhis during hisinterview interviewwhen

whenhe

hedenied

deniedknowing

knowingDane

DaneTaylor,

Taylor,however,

however, he

hecontinued

continuedto

todeny

denyany

any

advancedknowledge advanced thatTaylor knowledgethat wasgoing Taylorwas goingtotorob

robMs. Davis.68

Ms. Davis.68

alsooffered

Appellantalso Appellant offeredthree threecharacter

characterwitnesses

witnesseswho

whotestified

testifiedthat

thatAppellant hadaagood

Appellanthad good

forpeacefulness

reputationfor reputation andnon-violence peacefulnessand non-violenceininthe community.69 thecommunity.69

J,T.atat413-414.

6262J.T. 413-414.

J.T.atat415.

636J.T. 415. 6464J.T.

J.T.atat416.

416.

J.T.atat418.

6565J.T. 418.

66J.T. at 421-422. 66 J.T. at 421-422.

J.T.atat424-425, 67J.T. 424-425,516-517.

516-517.

6868 J,T. at 441-470.

J.T. at 441-470.

6969JT.

J.T. atat333-336, 333-336,519-521,

519-521,522-524.

522-524.

1414

MATTERS COMPLAINED MATTERS OF ON

COMPLAINED OF APPEAL

ON APPEAL

raised seven

Appellant raised Appellant claims of seven claims error in

of error his Statement.

in his The first Statement. The claims challenge two claims

first two challenge

the Court's the ruling on Court's ruling the admissibility on the admissibility of evidence. Specifically, ofevidence. Specifically, that the Court that the its abused its

Court abused

discretion when discretion allowed admission when itit allowed ofautopsy admission of because the photographs because

autopsy photographs the prejudicial value prejudicial value

outweighed the probative outweighed the value. Next, probative value. that the Next, that erred when Court erred

the Court denied admissibility when itit denied ofaa admissibility of

statement made statement Dane Taylor by Dane

made by Taylor to third party to aa third under Pa.R.E.

party under 804(b)(3).

Pa.R.E. 804(b)(3).

also challenges

Appellant also Appellant thesufficiency challenges the ofthe sufficiency of evidence for the evidence the convictions.

forthe He cites convictions. He to cites to

In the In Interestof theInterest J.B., 189 ofJ.B., A.3d390

189 A.3d 2018) ininsupport (Pa. 2018)

390(Pa. supportof hisargument ofhis thatthe

argumentthat the

Commonwealth'sevidence Commonwealth's insufficienttotoestablish wasinsufficient

evidencewas intentelement theintent

establishthe fortampering elementfor with tamperingwith

evidence, andininsupport evidence,and supportof hisglobal ofhis thatthe argumentthat

globalargument evidencewas theevidence insufficienttotoshow wasinsufficient he showhe

actedas acted anaccomplice asan orco-conspirator.

accompliceor Briefly,J.B.

co-conspirator. Briefly, involvedthe J.B. involved convictionof theconviction for juvenilefor

ofaajuvenile

themurder the hisstep-mother ofhis

murderof andher step-motherand unbornchild.

herunborn thePennsylvania Whenthe

child. When Court SupremeCourt

PennsylvaniaSupreme

vacated J.B.'sadjudication vacatedJ.B.'s adjudicationfor murderbased formurder insufficientevidence, oninsufficient

basedon reiteratedthe evidence,ititreiterated wellthewell -

establishedprecedent established precedentthat when,"the thatwhen, trialevidence "thetrial viewedininthe recordviewed

evidenceofofrecord lightmost thelight favorable

mostfavorable

totothe andall Commonwealthand theCommonwealth inferencesdrawn reasonableinferences

allreasonable fromthat drawnfrom evidenceisisonly, thatevidence most, only,atatmost,

consistentwith equallyconsistent equally innocenceasasititisiswith defendant'sinnocence

withaadefendant's guilt,the hisguilt,

withhis Commonwealthhas theCommonwealth not

hasnot

sustainedits sustained burdenofofproving itsburden provingthe defendant'sguilt thedefendant's beyonda areasonable guiltbeyond reasonabledoubt." 415.

Id.atat415.

doubt."Id.

thisstandard

Applyingthis Applying factsininJB., thefacts

standardtotothe theCourt J.B.,the heldthat

Courtheld theevidence thatthe insufficienttoto wasinsufficient

evidencewas

establishJ.B's establish theperson identityasasthe

J.B'sidentity whokilled personwho victimsbecause, thevictims

killedthe "allreasonable because,"all inferences reasonableinferences

derived viewedinina alight therefrom,viewed derivedtherefrom, lightmost favorabletoto[the mostfavorable Commonwealth],was, [theCommonwealth], best,inin was,atatbest,

suchthat

equipoise",such equipoise", wasequally thatititwas equallyconsistent withhim consistentwith responsiblefor beingresponsible

himbeing commissionofof thecommission

forthe

the crimeasasititwas thecrime forananunknown wasfor party.

thirdparty.

unknownthird

Lastly, Appellant asserted that the Court erred when it denied his post sentence motion

seeking a new trial wherein, he argued that the verdict was against the weight of the evidence.

ADMISSIBILITY OF EVIDENCE

The Pennsylvania Rules of Evidence define "relevant evidence" as evidence that "has any

tendency to make a fact more or less probable than it would be without the evidence" as long as

"the fact is a consequence in determining the action." Pa.R.E. 401(a)-(b). Relevant evidence is

admissible, and irrelevant evidence is inadmissible. See Pa.R.E. 402. Even relevant evidence

may be excluded if its probative value is outweighed by prejudice. See Pa.R.E. 403.

The standard of review of a trial court's evidentiary rulings is narrow, as the

admissibility of evidence is within the discretion of the trial court and will be reversed only if the

trial court has abused its discretion. Commonwealth v. Hernandez, 230 A.3d 480, 489 (Pa.

Super. 2020) (internal citations omitted). An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment is

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

evidence or the record. Commonwealth v. Seilhammer, 862 A.2d 1263, 1263, 1270

1270 (Pa.Super. 2004).

Appellant's first evidentiary claim is that this Court erred and/or abused its discretion in

admitting autopsy photographs, arguing that they lacked any significant probative value to any

fact at issue. This claim surrounds the admissibility of seven photographs the Court permitted to

be admitted and displayed to the jury during the course of testimony of the forensic pathologist,

Dr. Todd Lukasevic. During an evidentiary hearing Appellant argued that the photographs had

uncontested." Thus, the

Davis death was uncontested.7° no probative value as the cause and manner of Ms. Davis'

70 J.T. at 97-98.

autopsyphotos autopsy photos are areinflammatory andare

inflammatoryand aremore

moreprejudicial than probative.

prejudicial than The Commonwealth probative. The Commonwealth

countered the countered thephotos photos were

were probative and would

probativeand would assist assist the

thepathologist in describing pathologistin his findings describinghis to findings to

jury.71 the jury.7' the

Ifthe If the Commonwealth

Commonwealth offers

offers photographic evidence depicting photographic evidence an autopsy depicting an the trial autopsy the trial

court should court should conduct conduct aa two-part analysis to two-part analysis to determine determine whether

whether the

the evidence

evidence is

is admissible.

admissible.

First, itit should First, should be be determined

determined whether

whether the

the photograph is inflammatory.

photograph is Ifitit isis not, inflammatory. If not, then then itit

may be may be admitted admitted as as long as itit is

long as is relevant relevant and

and may assist the

may assist the jury in understanding jury in understanding aa fact fact at

at

issue. Ifthe issue. If the photograph is inflammatory, photograph is the court inflammatory, the court must mustthen

then determine

determinewhether

whetherthe

thepicture

picture

isis of of such such essential essential evidentiary value that evidentiary value that the the need

need clearly

clearly outweighs the likelihood outweighs the likelihood of of

inflaming the inflaming the minds minds and

and passions

passions of

ofthe

the jurors. Commonwealth v.v. Murray, jurors. Commonwealth 83 A.3d Murray, 83 A.3d 137,

13 7,

157 (Pa. 157 (Pa. 2013).

2013). A

A criminal

criminal homicide

homicide trial

trial can

can be

be by its very

by its very nature

nature unpleasant, and

unpleasant, and

therefore aa disturbing therefore disturbing image of the image of the victim

victim should

should not

not be

be allowed

allowed to

to rule

rule the

the question of

question of

admissibility. There admissibility. There is is no

no need

need to

to overextend

overextend an

an attempt to sanitize

attempt to sanitize the

the evidence

evidence of

of the

the

condition of condition ofthe the body

body as

as to

to deprive the Commonwealth deprive the Commonwealth of ofopportunities ofproof

opportunities of proofin support in support

of the of the onerous onerous burden burden of

of proof beyond aa reasonable proof beyond reasonable doubt. Commonwealth v.

doubt. Commonwealth v. Mollett, Mollett, 55

A.3d 291 A.3d 291 (Pa.Super.

(Pa.Super. 2010)

2010) (citing Commonwealth v.

(citing Commonwealth v. Tharp, 830 A.2d Tharp, 830 A.2d 519,

519,531 (Pa. 2003).

531 (Pa. 2003).

A trial A trial court

court abuses

abuses its

its discretion

discretion if

if itit is

is "indifferent"

"indifferent" to

to the

the photograph's prejudicial

effect, or effect, or any any precaution taken is

is not commensurate

commensurate with the nature of of the scene

scene depicted.

depicted.

Commonwealth v. Ballard, Commonwealth Ballard, 80 80 A.3d 380,

380, 393

393 (Pa.

(Pa. 2013).

2013). A photo should

should be excluded when it is

in fact in fact inflammatory and its probative value so so limited as to be outweighed by the prejudice. See

(Pa. Super. 1998)

Commonwealth v. LeGares, 709 A.2d 922 (Pa. ( color photos depicting the victims 1998) (color

71 71 J,T. at J.T. at 99-100.

99-100.

headwired head wired together togetherafter

aftersustaining

sustainingaa20-gauge blastwere shotgunblast

20-gaugeshotgun wereinflammatory andlacked inflammatory and lacked

probative value probative value as as the

the defendant

defendant never

never contested

contested the

the death

death was

was not

not homicidal).

homicidal).

After careful After careful consideration, consideration, this

this Court

Court determined

detennined that

that the

the autopsy would photographs would

autopsy photographs

assist the assist the Commonwealth's Commonwealth's witness,

witness, Dr.

Dr. Lukasevic,

Lukasevic, in

in describing the nature describing the nature of ofthe

the wounds

wounds

suffered, as suffered, as well well as

as explaining how he

explaining how he determined detennined the

the entrance

entrance wound

wound indicated

indicated the

the muzzle

muzzle of

of

the firearm the fireann was was pressed

pressed tightly

tightly against the skin.

against the skin.

The seven The seven photos photos clearly had probative clearly had value, as probative value, as they assisted Dr.

they assisted Dr. Lukasevic Lukasevic in

in

explaining the explaining the nature nature of

ofthe

the wounds,

wounds, which

which included

included aa description ofthe description of the entrance entrance wound

wound which

which

indicated the indicated the muzzle muzzle of

ofthe

the firearm

fireann was

was pressed

pressed tightly

tightly against the skin.

against the skin. Although Although Appellant did

Appellant did

not contest not contest that that Dane

Dane Taylor

Taylor shot

shot and

and killed

killed Ms.

Ms. Davis

Davis while

while robbing her of

robbing her ofmoney, the photos money, the photos

were evidence were evidence that that assisted

assisted Dr.

Dr. Lukasevic

Lukasevic in

in explaining the trajectory explaining the ofthe trajectory of the bullet

bullet through her

through her

body and body and the the level

level of

ofincapacitation

incapacitation that

that prevented her from

prevented her from offering offering any further resistance.

any further resistance.

Three photographs Three photographs depicted only clothing depicted only that had clothing that had been

been removed

removed from

from the

the victim

victim and

and the

the

location of location ofthe the bullet

bullet hole

hole and

and only

only aa small

small amount

amount of blood. 72 These ofblood.72 These photographic exhibits were photographic exhibits were

not inflammatory not inflammatory and and were

were admissible

admissible relevant

relevant evidence.

evidence. The

The remaining four autopsy remaining four autopsy

photographs did photographs did not not display

display her

her face

face or

or head

head and

and the

the genitalia

genitalia region

region was

was blacked

blacked out.73

out. Two

Two of

of

these photographs were these were close-up of the images of

close-up images the entrance wound wound to

to the

the left

left hip without depicting hip without depicting

any other any other part of body.74 The Court of the body.74 Court did did not deem

deem these inflammatory and and determined

detennined that

they were were probative. The last two photographs which showed showed the victim from the mid-torso to

were potentially inflammatory as they displayed the abdominal area where organs the mid-thigh, were

had been had been removed. To minimize any impact, the Court instructed the Commonwealth to crop

72 72 J.T. at J.T. at 101;

IOI; Commonwealth Exhibits 35-37.

7 JT. at J.T. at 102, 102, 121.

121.

74J,T. 74 at 121;

J.T. at 121; Commonwealth Commonwealth Exhibits 33 and 34.

outthe out thetorso torsososothat thatonly

onlythe

thevictim's

victim'slower

lowerwaist

waistand

andleg areawere

legarea werevisible

visiblerelevant

relevanttotothe

the

locationofofthe location theentrance entranceand

andexit

exitwound.75

wound.'

Additionally,the Additionally, theCourt Courtprovided thefollowing providedthe followingcautionary instructiontotothe cautionaryinstruction thejury jury

contemporaneouslywith contemporaneously withthe theadmission

admissionofofthe

theexhibits:

exhibits:

So,Ladies So, Ladiesand andGentleman,

Gentleman,these theseparticular particularphotos

photosarearebeing admittedinto beingadmitted intoevidence evidence

forthe for thepurpose purposeof ofshowing

showingthe thenature

natureofofthe

thewounds

woundsthat thatwere

werereceived

receivedbybyMs.Ms.

Davisand Davis and toto aid aidthe

thedoctor

doctorinin explaining whathe explainingwhat he found foundtoto you. Several ofofthe you. Several the

photographsmay photographs maynotnotnecessarily necessarilybe bepleasant pleasanttoto look

lookat.at. But

ButI I caution

cautionyou,

you, you

you

shouldnot should notallow allowthat

thattotostir

stirup emotionsororprejudice upemotions prejudiceininanyanyway.

way. Any verdictyou

Anyverdict you

ultimatelyreach ultimately reachininthis thiscase

casemust

mustbe bebased

basedononfactual

factualand

andfair

fairconsideration

considerationof ofall

all

of the of the evidence evidence and and notnot onon any passion oror prejudice any passion against the prejudice against the Defendant, Defendant,

Commonwealth or Commonwealth or anyone anyone else else connected connected with

with this

this case.

case. TheThe purpose

purpose ofofthethe

photographsisislimited, photographs limited,and andyouyoushould shouldconsider

considerthem

themonly

onlyforforthat

thatpurpose andnot

purposeand not

forany for other."° anyother.76

Whilefive While fiveof ofthe

theseven

sevenadmitted

admittedphotos containedwere photoscontained werenot

notdeemed

deemedinflammatory,

inflammatory,the

the

Courttook Court tookmeasures measures to

tominimize

minimizethe

theinflammatory

inflammatoryeffect

effectof

ofthe

theother

othertwo

two photographs. The

photographs. The

Courthad Court hadportions portions of

ofboth

bothphotos

photos cropped to exclude cropped to exclude the

the abdominal

abdominal cavity andonly cavity and depictthe only depict the

lowerbody lower bodywhere where the

the entrance

entrance and

and exit

exit wounds

wounds were

were located.

located. Additionally,

Additionally, aa limiting limiting

instruction was instruction was given to the given to the jury

jury prior to showing

prior to showing the photographs. 77 The the photographs.77 The instruction instruction explained

explained

the purpose the purpose of ofshowing

showing the

the photographs and explained photographs and to the explained to the jury

jury they

they should

should not

not let

let the

the photos

photos

stir their stir their emotions.

emotions.

Here, the Here, the probative probative value

value of

ofthe

the above

above described

described photographs outweighed the photographs outweighed the prejudicial prejudicial

value in value in light light of

ofthe

the protective measures and protective measures and precautionary instruction to precautionary instruction to the the jury, which

which served

served

to minimize to minimize that that impact. Thus, the

impact. Thus, the Court

Court did

did not

not abuse

abuse its

its discretion

discretion in

in admitting

admitting the

the

into evidence.

photographs into photographs evidence.

75 J,T. at 122; Commonwealth Exhibit 31 and 32. 75 J.T. at 122; Commonwealth Exhibit 31 and 32. 76 J.T. at 226-227. 76 J.T. at 226-227. 7 J.T. at 226-227. 77 J.T. at 226-227.

second evidentiary

Appellant's second Appellant's issueisis that evidentiaryissue thatthe the court

court erred

erredwhen

whenititexcluded

excluded evidence

evidenceof

of

statements allegedly statements made by allegedly made co-defendant Dane by co-defendant DaneTaylor to aa fellow Taylor to fellow inmate, inmate, David

David Tyus.

Tyus.

Appellant claimed Appellant claimed this this evidence

evidencewas

was admissible

admissibleas

as aastatement

statement against

against Taylor's

Taylor's penal interest

penal interest

pursuant to pursuant to Pa.R.E.

Pa.R.E. 804(b)(3).

804(b)(3).

The rules The rules of ofevidence

evidence provide in pertinent provide in pertinent part as follows:

part as follows:

Statement Against Statement Interest —--A Against Interest statement which A statement which was was at at the

the time

time ofofitsits making

making so so

far contrary far to the contrary to the declarant's declarant's pecuniary

pecuniary or or proprietary interest, or proprietary interest, or soso far far tended

tended to to

the declaration

subject the subject declaration to to civil civil or

or criminal

criminal liability, or to liability, or to render render invalid

invalid aa claim

claim byby

the declarant the declarant against another, that against another, that aa reasonable reasonable person

person in in the

the declarant's

declarant's position

position

would not would not have have made

made the

the statement

statement unless

unless believing

believing itit to

to bebe true.

true. In

In aa criminal

criminal case,

case,

aa statement statement tending

tending to to expose

expose the the declarant

declarant toto criminal

criminal liability

liability isis not

not admissible

admissible

unless corroborating unless corroborating circumstances circumstances clearlyclearly indicate indicate the the trustworthiness trustworthiness of of the the

statement. statement.

Pa.R.E. 804(b)(3). Pa.R.E. 804(b)(3).

At trial, At trial, the the Court

Court conducted

conducted an

an evidentiary

evidentiary hearing outside the hearing outside the presence ofthe presence of the jury.

to call

sought to

Appellant sought Appellant call Dane Dane Taylor to question

Taylor to him about question him about statements statements he

he purportedly made to

purportedly made to

inmate David inmate David Tyus Tyus that

that were

were exculpatory as to

exculpatory as Appellant.78 Alternatively, to Appellant.78 Alternatively, Appellant Appellant offered

offered

from David

testimony from testimony David Tyus Tyus regarding conversations he any conversations

regarding any he had had with

with Taylor

Taylor at

at the

the Allegheny

Allegheny

Jail relative County Jail County relative to to Appellant's

Appellant's participation. The Commonwealth participation. The Commonwealth sought sought to

to exclude

exclude the

the

on the basis

proposed testimony on basis that itit was was not

not against interest, and against Taylor's penal interest, and itit did did not

not

contain sufficient contain sufficient indicia indicia of

of reliability as

as there were no corroborating circumstances that would corroborating circumstances

indicate the trustworthiness of indicate of the statement.79 statement."

7 78 asserted his Taylor asserted Taylor Fifth Amendment privilege through counsel, Marco Attisano, and thus was deemed by the his Fifth

parties and the parties and the Court Court to

to be unavailable pursuant to Pa.R.E. 804(b)(3). At the time of Appellant's trial Taylor had a be

pending PCRA pending wherein he sought to withdraw his plea of guilty to Third Degree Murder, Robbery, and PCRA petition wherein Criminal Conspiracy due Criminal to alleged ineffective assistance of counsel. The petition was subsequently denied due to

an evidentiary hearing on February 17, following an following 17, 2022. No appeal has been filed.

Commonwealth Motion in Limine filed on August 18, 79 Commonwealth 79 18, 2021.

Tyus testified that in 2018 he was cellmates with Dane Taylor who he referred to as

"Gusto"." He stated that Taylor wrote down his "life story" and an explanation of what "Gusto".8°

occurred during the robbery and shooting indicating that Appellant had no intent to rob the

case.81 Taylor asked him to get this note to Appellant. Tyus explained that he did victim in the case.81

him.82 Tyus

not know Appellant or Ms. Davis at the time Taylor relayed this information to him.82

Appellant.83 He further

switched pods in the Allegheny County Jail and was placed near Appellant.83

explained that although Taylor had provided him this handwritten note with his life story and an

explanation of how Appellant was not involved with the robbery, he nevertheless threw the note

pod.84

away because it was several months before he actually located Appellant on the pod.84

Tyus further explained that at some time later Taylor authored a second note and gave it

second note to Appellant, but the defense was unable to produce to Tyus. He then provided this second

it at the evidentiary hearing."

hearing. He then claimed he wrote a four page letter detailing what Taylor

of 2018

had told him in August of mom.86 Appellant sought to have 2018 and mailed it to Appellant's mom.86

Tyus testify to the substance substance of

of what was in the letter, that in fact Taylor told him that he was

solely responsible for robbing and solely and killing Ms. Davis, and and that Appellant was unaware of of the

robbery plan.

accused has An accused has aa fundamental right to present defense evidence so so long as it is relevant

and not and not excluded by an established rule of by an of evidence. Commonwealth v. Seibert, Seibert, 799 A.2d 54,

54, 67

(Pa. Super. (Pa. In this 2002). In

Super. 2002). this instance, instance, before the hearsay statement statement of

of what Taylor told Tyus can be

JT. at "80 J.T. at 493-494.

493 -494.

"'JT. at 494.

J.T. at 494. J.T. at $2 J.T. 82 at 495.

495.

3JT. 83 at 497.

J.T. at 497. 4JT. 84 at 497-498.

J.T. at 497-498. J,T. at 85 J.T. 85 at 498-500.

498-500.

86J,T. at 491-493. 86 J.T. at 491-493. TheThe letter letter was

was admitted

admitted forfor purposes of the purposes of the hearing

hearing as

as Defendant

Defendant Exhibit

Exhibit A.

A. No

No evidence

evidence was

was

presented to presented to establish establish when

when in fact the

in fact the note

note was

was written

written by

by Tyus.

Tyus.

admitted under Rule 804(b)(3) it must be shown the statement was made under circumstances

that provide considerable assurance of its reliability. Commonwealth v. Colon, 846 A.2d 747 (Pa.

Super 2004). In addition, any statement would need to actually be against the penal interest of

the individual who purportedly uttered it. Our Supreme Court has held that a confession or

statement which exculpates a declarant's accomplices is not a statement against interest because

it does not subject the declarant to any additional crime or punishment. Commonwealth v. Colon,

337 A.2d 554, 558 (Pa. 1975).

1975).

The reliability of a declarant's statement that is arguably against penal interest may be

established through the circumstances in which the statement was given. See Chambers v.

(1973). In Chambers, another person confessed multiple times to a Mississippi, 410 U.S. 284 (1973).

murder for which Chambers was standing standing trial. This person confessed to three known associates

shortly after the murder and explained he had fired the gun that killed the victim. He further shortly

sworn confession to attorneys who were representing Chambers. The trial court excluded gave a sworn

statement and each statement and the United States States Supreme

Supreme Court held the Due Process Clause of of the United

States Constitution States Constitution requires aa defendant be afforded afforded the right to present such such evidence if

if the

statements are statements are made under circumstances that provide considerable assurance of of their reliability.

at 300.

410 U.S. at 300. The Supreme Court found an Supreme Court an assurance assurance of

ofreliability in Chambers as follows:

reliability in

Each ofof(confessor's)

(confessor's) confessions was was made spontaneously acquaintance spontaneously to a close acquaintance after the

shortly after shortly the murder murder occurred.

occurred. Second,

Second, each

each one

one was

was corroborated

corroborated by somesome

other evidence other evidence inin the the case....Third,

case .... Third, ...

... each

each confession

confession here was

was in

in aa very real sense

sense

self-incriminatory and self-incriminatory and unquestionably against interest. Finally, if against interest. if there was any any

about the

question about question the truthfulness truthfulness ofof the

the extrajudicial

extrajudicial statements, statements, (the

(the confessor)

confessor) was

in the

present in the courtroom courtroom andand waswas under under oath.

oath.

Id. at Id. at 300-301.

300-301.

Based on Based on the the above above circumstances,

circumstances, the

the Supreme Court found

Supreme Court found the

the mechanistic

mechanistic application

application of

of

rules of

Mississippi's rules Mississippi's of evidence evidence deprived Chambers of deprived Chambers of his

his right

right to

to due

due process

process of

oflaw.

law.

statement

judice, there are no assurances of reliability to the jailhouse statement In the case sub Judice,

Dane Taylor made to fellow inmate David Tyus. There is no corroborative evidence to establish

of the statement, and in fact both alleged statements authored by Taylor himself the reliability of himself

available. The statement

were no longer available. statement was made while Taylor was incarcerated and and not

not

spontaneously shortly spontaneously after the robbery and shortly after and homicide. There is nothing self-incriminatory and self-incriminatory and

interest about

against interest

unquestionably against about aa statement statement that

that seeks

seeks to

to exculpate

exculpate Appellant from

Appellant from

in the

participation in participation the robbery of of Ms.

Ms. Davis.

Davis. Taylor would not have been subject Taylor would subject to to examination

examination

under oath under oath about about any claim that

any claim that Appellant did not Appellant did not participate in in the

the robbery.

robbery. Tyus would simply Tyus would simply

have taken have taken the the witness

witness stand

stand and

and offered

offered an

an uncorroborated

uncorroborated hearsay

hearsay statement

statement made

made by

by Taylor

Taylor

seeking to seeking to exculpate exculpate Appellant. As the Appellant. As the proposed testimony is proposed testimony is aa far far different

different factual

factual scenario

scenario

from the from the type offered in type offered in Chambers Chambers (both in its

(both in its lack

lack of

ofassurance

assurance of

of reliability and its

reliability and its failure failure to

to

as aa statement qualify as qualify statement against the declarant's against the declarant's interest), interest), this

this Court

Court did

did not

not err

err in

in excluding

excluding itit

to Pa.R.E.

pursuant to pursuant Pa.R.E. 804(b)(3).

804(b)(3).

SUFFICIENCY OF SUFFICIENCY OF THE

THE EVIDENCE

EVIDENCE

The applicable The standard for applicable standard for assessing assessing aa challenge to the challenge to the sufficiency sufficiency of

ofthe

the evidence

evidence is

is

whether, viewing whether, all the viewing all the evidence evidence admitted

admitted at

at trial

trial in

in the

the light

light most

most favorable

favorable to

to the

the verdict

verdict

winner, there winner, there is is sufficient

sufficient evidence

evidence to

to enable

enable the

the factfinder

factfinder to

to find

find every

every element

element of

ofthe

the crime

crime

beyond aa reasonable beyond reasonable doubt.

doubt. Commonwealth

Commonwealth v.v. Johnson, Johnson, 236

236 A.3d

A.3d 1141,

1141, 1151-1152

1151-1152 (Pa.

(Pa. Super.

Super.

The Commonwealth 2020). The 2020). Commonwealth isis not not burdened

burdened with

with precluding every possibility precluding every ofinnocence.

possibility of innocence.

Commonwealth v.v. Shaw, Commonwealth Shaw, 203 203 A.3d

A.3d 281,

281,284 (Pa. Super.

284 (Pa. 2019). Moreover, Super. 2019). Moreover, the the Commonwealth

Commonwealth

sustain its maysustain may its burden burdenof

ofproving

proving every elementof every element ofthe

the crime

crimebeyond

beyond aa reasonable

reasonable doubt

doubt by

by

means of means ofwholly circumstantial evidence.

wholly circumstantial evidence. Id. Whenthe Id. When the evidence

evidence isis circumstantial circumstantial rather

ratherthan

than

direct,ititisissufficient direct, sufficientwhen whenaacombination

combinationof

ofthe

theevidence

evidencelinks

linksthe

theaccused

accusedtotothe

thecrime

crimebeyond

beyondaa

reasonabledoubt. reasonable doubt.Commonwealth Commonwealthv.v. Cassidy, 668A.2d Cassidy,668 A.2d1143,

1143,1144

1144(Pa.

(Pa.Super. 1995).

Super.1995).

InInaccordance accordancewith

withthe

theabove

abovestandard,

standard,ititisisnecessary necessarytotoreview

reviewthe

therelevant

relevantstatutory law

statutorylaw

withrespect with respecttotoAppellant's Appellant'sarguments

argumentsthat

thatthe

theevidence

evidencewas

wasinsufficient

insufficienttotosustain

sustainhis

his

convictionsfor convictions forconspiracy, conspiracy,robbery,

robbery,second-degree murder,and second-degreemurder, andtampering withevidence.

tamperingwith evidence.

CONSPIRACYTO CONSPIRACY TOCOMMIT

COMMITROBBERY

ROBBERY

Conspiracyisisdefined Conspiracy definedinin18 Pa.c.S. §$ 903, 18 Pa.C.S. 903, ininrelevant relevantpart, asfollows:

part,as follows:

(a)Definition (a) Definitionof ofconspiracy.

conspiracy. AAperson

personisisguilty

guiltyofofconspiracy

conspiracywith withanother anotherperson

personor orpersons

persons

to commit to commitaacrimecrimeififwith withthe

theintent

intentofofpromoting

promotingor orfacilitating facilitatingitsitscommission commissionhe: he:

(1) agrees (1) agrees with

withsuch

suchother

otherperson

personor orpersons thatthey personsthat theyororone oneorormore

moreof ofthem

themwill

will engage

engage

in conduct in conduct which

which constitutes

constitutessuch

suchcrime

crimeor oran

anattempt

attemptor orsolicitation solicitationtoto commit

commitsuch

such

crime; or crime; or (2) agrees (2) agrees to

to aid

aidsuch

suchother

otherperson

personor orpersons

persons inin the

theplanning

planningor orcommission commissionof ofsuch

such

crime or crime orof

ofan

an attempt

attempt oror solicitation solicitation to

to commit

commitsuchsuch crime....

crime ....

(e) Overt (e) Overt Act.

Act. NoNo person

person may

may be be convicted

convicted of ofconspiracy conspiracy to to commit

commit aacrime

crime unless

unless an

an overt

overt

act in act in pursuance pursuance of ofsuch

such conspiracy

conspiracy isis alleged and proved alleged and proved to to have have been

been done

done by him or

by him orby

by aa

person with person with whom whom he he conspired.

conspired.

18 Pa.C.S. §$ 903. 18 Pa.C.S. 903.

The Court The Court in in Commonwealth

Commonwealth v.v. Lambert, 795 A.2d Lambert, 795 A.2d 1010

1010 (Pa.

(Pa. Super.

Super. 2002),

2002), thoroughly

thoroughly

discussed the discussed the necessary necessary components to establish components to establish conspiracy.

conspiracy.

A conviction A conviction forfor criminal criminal conspiracy,

conspiracy, 18 Pa.C.S.A. §$ 903, 18 Pa.C.S.A. 903, is is sustained

sustained where

where the

the

Commonwealth establishes Commonwealth establishes that that the

the defendant

defendant entered

entered anan agreement

agreement to to commit

commit or or

aid in aid in an an unlawful

unlawful act

act with

with another

another person

person or or persons with aa shared persons with shared criminal criminal intent

intent

and an and an overt overt act

act was

was done

done inin furtherance

furtherance of of the

the conspiracy. Commonwealth v.v.

conspiracy. Commonwealth

546 Pa.

Rios, 546 Rios, Pa. 271, 271,684 A.2d 1025,

684 A.2d 1025, 1030

1030 (1996),

(1996), cert.

cert. denied, 520 U.S.

denied, 520 U.S. 1231,

1231, 117

117

S.Ct. 1825, S.Ct. 1825, 137 137 L.Ed.2d

L.Ed.2d 1032

1032 (1997),

(1997), citing Pa.C.S.A. §§ 903.

18 Pa.C.S.A.

citing 18 903.

The essence The essence of of aa criminal

criminal conspiracy is the conspiracy is the common

common understanding that aa particular understanding that

criminal objective criminal objective is is to to be

be accomplished. Commonwealth v. Keefer, 338 accomplished. Commonwealth 338 Pa. Super.

Super.

184, 487 184, 487 A.2d A.2d 915,915, 918

918 (1985). association with the (1985). Mere association the perpetrators, mere at the

presence at presence the scene, scene, oror mere

mere knowledge of of the crime is insufficient. Id. Rather,

the Commonwealth must prove that the defendant defendant shared shared the

the criminal

criminal

• "an active participant intent, i.e., that the Appellant was "an participant in in the the criminal

criminal enterprise

enterprise

and that he had knowledge of and of the conspiratorial conspiratorial agreement."

agreement." Hennigan, 753 at Hennigan, 753 at 253.

253.

commit the overt

The defendant does not need to commit overt act;

act; aa co-conspirator

co-conspirator may commit may commit

the overt the overt act.

act. Commonwealth

Commonwealth v. Johnson, 719 719 A.2d A.2d 778,

778, 784

784 (Pa.

(Pa. Super.

Super. 1998)

1998) (en

(en

bane), appeal banc), 559 Pa.

denied, 559

appeal denied, Pa. 689, 689, 739

739 A.2d

A.2d 1056

1056 (1999).

(1999).

A conspiracy A conspiracy is is almost almost always always proved circumstantial through circumstantial

proved through

evidence. Commonwealth evidence. Commonwealth v. v. Swerdlow, Swerdlow, 431431 Pa.

Pa. Super.

Super. 453,

453, 636

636 A.2d

A.2d 1173,

1173, 1176

1176

(1994). "The (1994). "The conduct conduct ofof the

the parties and the

parties and the circumstances circumstances surrounding surrounding their

their

conduct may conduct create 'a may create 'a web

web of of evidence'

evidence' linking

linking the

the accused

accused toto the

the alleged

alleged

beyond aa reasonable

conspiracy beyond conspiracy reasonable doubt."

doubt." Johnson, 719 A.2d Johnson, 719 A.2d at

at 785.

785. The

The evidence

evidence

must, however, must, however, "rise "rise above

above mere mere suspicion suspicion or or possibility possibility of of guilty

guilty

collusion." Swerdlow, collusion." 636 A.2d Swerdlow, 636 A.2d atat 1177 1177 (citation

(citation omitted).

omitted).

This Court This Court has has identified

identified factors

factors to

to be

be considered:

considered:

Among the Among the circumstances circumstances which which are are relevant,

relevant, butbut not

not sufficient

sufficient byby themselves, themselves, to to

prove aa corrupt prove confederation are:

corrupt confederation are: (1)

(1) an

an association

association between

between alleged

alleged conspirators;

conspirators;

(2) knowledge (2) knowledge of of the the commission

commission of of the

the crime;

crime; (3)

(3) presence

presence atat the

the scene

scene ofofthe

the

crime; and crime; and (4) in some situations, (4) in some situations, participation in the participation in the object of the conspiracy.

object of the conspiracy. The The presence of such circumstances may furnish presence of such circumstances may furnish a web of evidencea web of evidence linking linking an an accused

accused

to an to an alleged alleged conspiracy beyond aa reasonable conspiracy beyond reasonable doubt doubt when

when viewed

viewed in in conjunction conjunction

with each with each other other and

and inin the

the context

context in in which

which they occurred. Commonwealth they occurred. Commonwealth v.v.

Carter, 272 Carter, 272 Pa.

Pa. Super. 411,416

Super. 411, A.2d 523 416 A.2d 523 (1979).

(1979).

Commonwealth v.v. Olds, Commonwealth 322 Pa.

Olds, 322 Pa. Super. 442, 469 Super. 442, 469 A.2d

A.2d 1072,

1072, 1075

1075 (1983).

(1983). See

See

also, Commonwealth also, Commonwealth v.v. Azim, 313 Pa.

Azim, 313 Pa. Super.

Super. 310,

310,459 A.2d1244

459 A.2d 1244(1983).

(1983).

Once there Once there isis evidence evidence of ofthe

the presence

presence ofofaa conspiracy, conspiracy, conspirators

conspirators are

are liable

liable for

for

acts acts of of co-conspirators co-conspirators committed committed in

in furtherance

furtherance of the of the

Commonwealth v.v. Stocker, conspiracy. Commonwealth conspiracy. 424 Pa.

Stocker, 424 Pa. Super.

Super. 189,

189, 622

622 A.2d

A.2d 333,

333, 342

342

Even ifif the

(1993). Even (1993). the conspirator did not conspirator did not act act as

as aa principal

principal inin committing committing the the

crime,he

underlyingcrime, underlying heisisstill stillcriminally liablefor criminallyliable forthe theactions

actionsofofhis

hisco-conspirators

co-conspirators

takenininfurtherance taken furtheranceof ofthe theconspiracy. Commonwealthv.v.Soto, conspiracy. Commonwealth 693A.2d Soto, 693 A.2d226,

226,229-

229-

230 (Pa. 230 (Pa. Super. 1997),appeal Super. 1997), 550 Pa.

denied, 550

appeal denied, Pa. 704, 704, 705

705 A.2d

A.2d 1308

1308 (1997).

(1997).SeeSee

18Pa.C.S.A.

also, 18 also, Pa.C.S.A.§§306. 306.

Thegeneral The ruleof general rule oflaw

law pertaining

pertaining toto the

the culpability ofconspirators culpabilityof conspirators isis that that each

each

individualmember individual memberof ofthe theconspiracy

conspiracyisiscriminally responsiblefor criminallyresponsible forthe theacts

actsof ofhis

hiscoco

-

committedininfurtherance

conspirators committed conspirators furtheranceof ofthe the conspiracy.

conspiracy. The

The co-conspirator

co-conspiratorrule rule

assigns legal assigns legal culpability equally toto all culpability equally all members members of of the

the conspiracy.

conspiracy. All All coco -

areresponsible

conspiratorsare conspirators foractions responsiblefor actionsundertaken undertakenininfurtherance furtheranceofofthe

theconspiracy

conspiracy

regardless of regardless oftheir their individual

individual knowledge

knowledge ofofsuch

such actions

actions and

and regardless ofwhich

regardless of which

memberof member ofthe the conspiracy undertook the conspiracy undertook theaction.

action.

Commonwealth v.v. Galindes, Commonwealth Galindes, 786 786 A.2d

A.2d 1004,

1004, 1011

1011 (Pa.

(Pa. Super. 2001).

Super. 2001).

Thepremise The premiseof ofthe therule

ruleisisthat

thatthe

theconspirators

conspiratorshave haveformed formedtogether

togetherfor foran

anunlawful

unlawful

purpose, and purpose, and thus, thus, they share the

they share the intent intent to

to commit

commit any acts undertaken any acts undertaken in in order order toto

achieve that achieve that purpose, purpose, regardless

regardless of ofwhether whether they

they actually intended any actually intended distinct act any distinct act

undertaken in undertaken in furtherance furtherance of of the

the object

object ofof the

the conspiracy.

conspiracy. ItIt isis the the existence

existence of of

shared criminal shared criminal intent intent that

that"is

"is the

the sine

sine qua non of

qua non ofaa conspiracy."

conspiracy."

Commonwealth v.v. Wayne, Commonwealth 553 Pa.

Wayne, 553 Pa. 614,

614, 720

720 A.2d

A.2d 456,

456, 463-464

463-464 (1998), cert.

(1998), cert.

denied, 528 denied, 528 U.S.

U.S. 834,

834, 120

120 S.Ct.

S.Ct. 94,

94, 145

145 L.Ed.2d

L.Ed.2d 80

80 (1999)

(1999) (citations

(citations omitted).

omitted).

Lambert, 795 Lambert, 795 A.2d A.2d at

at 1016-1017.

1016-1017.

A review A review of ofthe

the record

record in

in the

the light most favorable light most favorable to

to the

the Commonwealth

Commonwealth supports that supports that

there was there was an an agreement

agreement between

between Appellant and Dane Appellant and Dane Taylor that he Taylor that he would

would assist

assist him

him in

in the

the

robbery of robbery ofKeiauna Keiauna Davis.

Davis. Phone

Phone records

records showed

showed that

that Appellant and Taylor Appellant and Taylor began began

communicating shortly communicating shortly after after Whitley informed Taylor Whitley informed about the Taylor about the money Ms. Davis money Ms. Davis brought to brought to

work. Thereafter, work. Thereafter, Appellant Appellant drove

drove Taylor

Taylor to

to the

the Dollar

Dollar General

General where

where Ms.

Ms. Davis

Davis was

was ending her

ending her

shift. He shift. He and and Taylor

Taylor waited

waited for

for her

her to

to exit

exit the

the store

store before

before pulling out of

pulling out ofthe

the parking lot and

parking lot and

following her following her onto onto Laketon

Laketon Avenue.

A venue. At

At this

this time

time Appellant is aware

Appellant is aware that

that Taylor,

Taylor, who

who was

was now

now

wearing aa ski wearing ski mask, mask, was

was armed

armed with

with aa firearm.

firearm. Appellant

Appellant positioned the

the car

car in

in advance

advance of

of Ms.

Ms.

Davis, who Davis, who was was walking

walking on

on the

the sidewalk.

sidewalk. Appellant to examine Appellant pretended to examine his his car

car as

as aa ruse so

so

could jump out

that Taylor could out of of the

the car

car as

as Ms.

Ms. Davis approached

approached Appellant's vehicle. Appellant

remained at at the vehicle within within feet of

of the entire

entire incident

incident and

and watched as

as Taylor physically

struggled with Ms. Davis over her purse. After hearing gunshots, Appellant never left he struggled

perimeter of of the car and only re-entered the car once Taylor gained control of of the purse.

Appellant then removed the money from the purse and threw it out the open passenger door as

Taylor returned to the scene to retrieve his dropped phone. Appellant then drove away from the

with Taylor and hours later drove Taylor to Whitley's house. Facebook records submitted scene with scene

26

at trial showed on-going communications with both Taylor and Whitely after the robbery and

Appellant's girlfriend provided police with nearly $700 from the $3,000 stolen from Ms. Davis.

Thus, the evidence viewed in the light most favorable to the Commonwealth, as verdict

winner, showed an association between Appellant and Taylor as well as Appellant's knowledge

that Taylor intended to rob the victim. Testimonial and video evidence confirmed Appellant's

presence at the scene of the crime and that he aided Taylor by driving him to commit the robbery

and providing his subsequent escape.

Appellant argues that this case is similar to In the Interest of J.B., because this same

evidence, even when viewed in the light most favorable to the Commonwealth, is equally

consistent with his innocence. That is simply belied by the record and was rejected by the jury

who was presented with, and instructed on, the defense of duress as offered through Appellant's

testimony.

Appellant offered an alternative explanation for the phone records and video surveillance

which unquestionably demonstrated a connection to Taylor and his presence during the

commission of the crime. Appellant offered that he became an unwilling participant after

providing Taylor a jitney ride. He testified that he acted out of fear that he or his family

members would be shot based on threats made by Taylor. However, the video evidence does not

show that Taylor ever directed the gun at Appellant. The entire incident transpired in less than

one minute. During this brief time, Appellant's movements are slow and deliberate and in

concert with Taylor and not consistent with someone under threat, or unaware of what was

happening, or that he was acting under the direction of Taylor. Moreover, Appellant continued

his association with Taylor after the robbery and murder, including driving him to Whitley's

house and messaging with him over a period of eighteen hours, referring to Taylor as "bro",

"homie", "homie, and "cuhs". During these messages Appellant made disparaging comments about Ms.

Davis and discussed going out with Taylor that night. Additionally, Appellant's nine-hour

interview with police demonstrated that he was less than forthcoming regarding his knowledge

and involvement in the robbery and his association with Taylor and Whitley.

Appellant's argument that his testimony, which served to prove that he acted under

duress, and was thus equally supportive of his innocence, is without merit. A jury could

conclude beyond a reasonable doubt that Appellant was aware that Taylor planned to rob Ms.

Davis of her money and that Appellant agreed to act as his driver to aid in the commission of that

crime. cnme.

ROBBERY

In his Statement, Appellant contends that the Commonwealth's evidence was insufficient

to support a finding that he aided Dane Taylor in the commission of the Robbery.

ofrobbery

As charged, a person is guilty of 18 Pa.C.S. §$ 3701 robbery as defined in 18 3701 if:

(a) Offense defined (1) A person is guilty of robbery if, in the course of committing a theft, he:

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 18 Pa.C.S. §3701(a)(1)

§3701(a)(l) and (2).

As offered in more detail above, the video evidence unquestionably established that Dane

Taylor robbed Keiauna Davis of her purse and money. Additional evidence demonstrated that

Appellant agreed to take part in the robbery, and in fact aided Taylor by driving him to and from

the scene. As a co-conspirator, Appellant is responsible for the actions of his co-conspirator

28

taken in furtherance of the conspiracy. A person who is guilty of conspiracy involving an

accomplished robbery is necessarily guilty of the robbery itself.

MURDER OF THE SECOND DEGREE

Murder of the second degree is a criminal homicide committed while a defendant was

engaged as a principal or an accomplice in the perpetration of a felony. 18 18 Pa.C.S. § 2502(b).

2502(b ).

Perpetration of a felony is further defined as:

[t]he act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

18 Pa.C.S.A §$ 2502(d). 18 A person is legally liable as an accomplice when:

(1) With the intent of promoting or facilitating the commission of the offense, he: ...

(ii) aids or agrees or attempts to aid such other person in planning or committing it; ...

(d) ( d) Culpability of accomplice.—When accomplice.-When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is ifhe

sufficient for the commission of the offense. 18 18 Pa.C.S.A. §§ 306(a), (b)(3), (c)(1)(ii)

(c)(l)(ii) and (d).

Appellant argues that the evidence was insufficient to convict him of second—degree second-degree

murder because the Commonwealth failed to establish a conspiracy with Taylor or that he acted

as an accomplice. For the reasons stated above in the Court's analysis of the conspiracy charge

this claim is without merit.

Regarding Appellant's claim that the evidence was insufficient to establish that he

was an accomplice to the felony murder, the court again looks to the holding in Lambert.

The statute defining second degree murder does not require that a homicide be foreseeable; rather, it is only necessary that the accused engaged in conduct as a principal or an accomplice in the perpetration of a felony. Whether evidence sufficiently indicates that a killing was in furtherance of a predicate felony can be a difficult question. The question of whether the killing was in furtherance of the conspiracy is a question of proof for the jury to resolve. It does not matter whether the appellant anticipated that the victim would be killed in furtherance of the conspiracy. Rather, the fact finder determines whether the appellant knew or should have known that the possibility of death accompanied a dangerous undertaking.

Lambert, 795 A.2d 1010, 1010, 1023

1023 (internal citations omitted).

The Lambert court also discussed the resulting legal responsibility of an accomplice:

The very nature of accomplice liability is that one who actively and purposefully engages in criminal activity is criminally responsible for the criminal actions of his/her co-conspirators which are committed in furtherance of the criminal endeavor. [M]ere presence at the scene is insufficient to support a conviction: evidence indicating participation in the crime is required.

Lambert, 795 A.2d at 1024 1024 (internal citations omitted).

The Court finds the holding in Commonwealth v. Pone, 251 251 A.3d 1265

1265 (Pa. Super. 2021)

persuasive.87 The facts and evidence in Pone are strikingly similar to the (non-precedential) persuasive."

facts sub judice. Pone was convicted of second-degree murder, robbery, and conspiracy wherein

evidence at trial established that he traveled to the robbery scene aware that his two co-

conspirators were going to rob someone. Pone laid in wait for the victim to arrive, entered the

business where the robbery was to occur, and prevented a third party from interceding during the

robbery. It was during the robbery that the victim was shot and killed by a co-conspirator.

Surveillance footage captured Pone and the two other actors arrive in advance of the victim.

Additional footage of the robbery and shooting confirmed that Pone participated in the assault

the victim and physically blocked a third party from intervening. Pone is also seen following the

87 1, 2019 may be cited for its persuasive value. Pa.R.A.P. 126(b).

A non-precedential case decided after May 1, 126(b).

third party third outside and party outside and whereafter whereafter he

he leaves

leaves in

in aa car

car operated by the

operated by third co-conspirator.

the third co-conspirator. During During

•• the police the police investigation, all three investigation, all three actors actors provided

provided inculpatory Pone challenged statements. Pone

inculpatory statements. challenged the the

ofthe

sufficiency of sufficiency the evidence evidence for

for his

his conviction

conviction for second-degree murder for second-degree murder under two theories.

under two theories.

First, that First, that he

he was

was not

not physically present at physically present the time at the time the victim was the victim was killed, and second killed, and second that

that

he abandoned he abandoned the the conspiracy. Pone's convictions conspiracy. Pone's were affirmed convictions were affirmed on appeal, with on appeal, with the

the Court

Court

having concluded having concluded that that he

he was

was liable

liable as

as an accomplice. The

an accomplice. Pennsylvania Superior The Pennsylvania Superior Court Court noted

noted

that "absence that "absence or or presence at the

presence at the scene"

scene" is

is aa factor,

factor, and not dispositive, and not regarding accomplice dispositive, regarding accomplice

Pone, 251

liability. Pone, liability. 251 A.3d A.3d 1265,

1265, citing Commonwealth v.v. Gross, citing Commonwealth Gross, 101 101 A.3d 28,35 (Pa.

A.3d 28,35 (Pa. 2014).

2014).

Second, the Second, the facts facts supported that Pone's supported that Pone's conduct aided in conduct aided in the

the commission

commission of the underlying ofthe underlying

and specific

robbery, and specific to to his claim,

claim, found

found that

that he

he took

took no actions to

no actions to abandon the conspiracy.

abandon the conspiracy.

Here, Appellant Here, Appellant drove

drove Taylor to the

Taylor to scene, waited the scene, waited during the commission during the commission of the robbery, of the robbery,

and enabled and enabled his flight flight afterwards.

afterwards. As

As discussed above, the

discussed above, the Court Court found this evidence found this evidence sufficient sufficient

to support support aa jury's conclusion conclusion that

that Appellant aided Taylor Appellant aided Taylor in in the

the robbery of Ms.

robbery of Ms. Davis.

Davis.

Appellant drove Taylor to to the

the victim's workplace and victim's workplace and waited waited in the parking lot for her in the to leave.

her to leave.

Appellant then drove past Ms. Davis as Appellant as she she walked home

home and car in and positioned his car in advance advance of

of

of this crime, Appellant created aa ruse to facilitate Taylor's surprise her. In furtherance of attack on surprise attack on

served as

the victim. The video, which served as direct evidence of showed that of the robbery, unmistakably showed

shot at Ms. Davis,

struggle with Ms. Davis over her purse. Taylor shot Taylor began a physical struggle Davis, not

subsequently fatal gunshot second and subsequently

struggle. It was the second once, but twice during this struggle. gunshot that

allowed Taylor to physically overcome her and complete the robbery by taking the purse.

shooting, took the money

Appellant waited outside the vehicle, watched the robbery and the shooting,

scene. Thus, Appellant was more than from Ms. Davis's purse, and drove Taylor away from the scene.

merely present at the scene of the crime. Legal precedent has held that culpability for murder is

31

not limited to the killer in cases of felony murder but is imputed to "all participants in the felony, « including the getaway driver." Lambert A.2d at 1023.

1023. Here, the evidence is sufficient that

Appellant participated and aided Taylor, and therefore, he is legally responsible as an accomplice

for Taylor's crimes, which included the murder of Keiauna Davis.

TAMPERING WITH PHYSICAL EVIDENCE

In his last sufficiency claim, Appellant alleges that the Commonwealth's evidence failed

to prove that he intended to impair the availability of any items for the investigation.

18 Pa.C.S. §$ 4910, in relevant part, as a Tampering with physical evidence is defined in 18

person who believing that an official proceeding or investigation is pending or about to be

instituted: "alters, destroys, conceals or removes any record, document or thing with intent to

18 Pa.C.S. §$ 4910(1).

impair its verity or availability in such proceeding or investigation." 18

Appellant's actions, which were captured on video, show him throw the victim's purse

out the open passenger door and into a nearby tree. The sequence of the events leading up to,

during and after Appellant's act supports the jury's verdict that he discarded the victim's purse

with the intent to prevent its accessibility for any future investigation. No less significant were

Appellant's own words at trial, wherein he explained that he threw the purse to get rid of it

it.88

because he was concerned it may have had his DNA and/or fingerprints on it.88

Therefore, after viewing all the evidence admitted at trial in the light most favorable to

the verdict, the evidence was sufficient to support the conviction for tampering with evidence.

88 J.T.

J,T. at 409-410.

WEIGHTOF WEIGHT OFTHE

THEEVIDENCE

EVIDENCE

•

AAchallenge

challengeasastotothe

theweight

weightofofthe

theevidence,

evidence,"concedes

"concedesthat

thatsufficient

sufficientevidence

evidencewas

was

adducedtotoconvict adduced convictthe thedefendant

defendantbut

butthat

thatthe

theverdict

verdictmust

mustnevertheless

neverthelessbe

beoverturned

overturnedbecause

because

theevidence the evidencewas wasuntrustworthy andunreliable."

untrustworthyand unreliable."Commonwealth Commonwealthv.v.Gaskins, 692A.2d Gaskins,692 A.2d224,

224,228

228

(Pa.Super. (Pa. 1997).

Super.1997).

AAclaim

claimalleging

allegingthetheverdict

verdictwas

wasagainst

againstthe theweight

weightof ofthe

theevidence

evidenceisis

addressedtotothe addressed thediscretion discretionof ofthe

thetrial

trialcourt.

court.Accordingly,

Accordingly,an anappellate court appellatecourt

reviewsthe reviews theexercise

exerciseof ofthe

thetrial

trialcourt's

court'sdiscretion;

discretion;ititdoes

doesnot

notanswer

answerfor foritself

itself

whetherthe whether theverdict

verdictwaswasagainst

againstthetheweight

weightof ofthe evidence.ItItisiswell theevidence. wellsettled settledthat

that

the[fact-finder] the [fact-finder]isisfree freetotobelieve

believeall,

all,part, ornone

part,or noneof ofthe

theevidence

evidenceand andtoto

determinethe determine thecredibility credibilityof ofthe

thewitnesses,

witnesses,and andaanew newtrial trialbased

basedon onaaweight

weightof of

theevidence the evidenceclaim

claimisisonly

onlywarranted

warrantedwhere

wherethe the[factfinder's]

[factfinder's]verdict

verdictisissosocontrary

contrary

totothe

theevidence

evidencethat thatititshocks shocksone's

one'ssense

senseof ofjustice. Indetermining justice. In whetherthis determiningwhether this standardhas standard hasbeen

beenmet,met,appellate reviewisislimited appellatereview limitedtotowhether whetherthe thetrial

trialjudge's

judge's

discretionwas discretion wasproperly exercised, and properlyexercised, andrelief reliefwill

will only

onlybe begranted wherethe grantedwhere thefacts facts

andinferences and inferencesof ofrecord recorddisclose

discloseaapalpable

palpableabuseabuseof ofdiscretion.

discretion.

Commonwealth v.v. Landis, Commonwealth 89 A.3d Landis, 89 A.3d 694,

694,699 (Pa. Super.

699 (Pa. 2014)(citation Super. 2014) (citationomitted).

omitted).

Appellatereview Appellate review ofofaaweight weightclaim

claim isisaa review

reviewof ofthe

the exercise

exerciseof discretion, not ofdiscretion, notofof the underlying the underlyingquestion question ofofwhether

whether the the verdict

verdict isis against

against the the weight

weightof the

ofthe

evidence. Brown, evidence. 648 A.2d Brown, 648 A.2d atat 1189.

1189. Because

Because the the trial

trial judge

judge hashas had

had the

the

opportunity to opportunity to hear

hear and

and see

see the

the evidence

evidence presented,

presented, an an appellate court will appellate court will give give

the gravest the gravest consideration consideration to to the

the findings

findings andand reasons

reasons advanced

advanced by the trial by the trial judge

judge

when reviewing when reviewing aa trial trial court's

court's determination

determination that that the the verdict

verdict is is against

against thethe weight

weight

ofthe of the evidence.

evidence. Commonwealth

Commonwealth v.v. Farquharson, Farquharson, 467 467 Pa.Pa. 50, 50,354 A.2d 545

354 A.2d 545

(Pa.1976). One (Pa.1976). One ofofthe the least

least assailable

assailable reasons

reasons for for granting

granting or or denying

denying aa newnew trial

trial

is the is the lower

lower court's

court's conviction

conviction thatthat the

the verdict

verdict was

was oror was

was notnot against the weight against the weight

ofthe of the evidence

evidence and

and that

that aa new

new trial

trial should

should bebe granted

granted in in the

the interest

interest of

ofjustice.

560 Pa.

Widmer, 560 Widmer, Pa. at

at 321-22,

321-22, 744

744 A.2d

A.2d at

at 753

753 (emphasis

(emphasis added).

added).

This does This does not

not mean

mean that

that the the exercise

exercise of

ofdiscretion

discretion byby the

the trial

trial court

court in

in granting

granting or

or

denying aa motion denying motion for

for a'a' new

new trial

trial based

based on

on aa challenge

challenge to to the

the weight

weight ofof the

the

evidence is evidence is unfettered.

unfettered. In In describing the limits describing the limits of of aa trial

trial court's

court's discretion,

discretion, we

we

have explained: have explained:

The term The term "discretion"

"discretion" imports the exercise imports the exercise of

of judgment, wisdom and skill so as to reach aa dispassionate reach dispassionate conclusion conclusion within

within the

the framework of

of the law, and is not

exercised for exercised forthe

the purpose

purpose of ofgiving effect to giving effect to the

thewill

will of

ofthe

thejudge. Discretion must judge. Discretion must • be exercised be exercised onon the

the foundation

foundation of ofreason, reason, asas opposed

opposed toto prejudice,

prejudice, personal

personal

motivations, caprice motivations, caprice ororarbitrary actions. Discretion arbitrary actions. Discretion isis abused abused where

where thethe course

course

pursued represents pursued represents notnot merely merely an an error

error of

ofjudgment,

judgment, but but where

where thethe judgment

judgment isis

manifestly unreasonable manifestly unreasonable or orwhere where thethe law

law isis not

not applied orwhere

applied or where the

the record

record

shows that shows that the

the action

action isis aa result

result of

ofpartiality,

partiality, prejudice, bias or prejudice, bias or ill-will.

Commonwealth v.v. Clay, Commonwealth 64 A.3d Clay, 64 A.3d 1049,

1049, 1055

1055 (Pa.

(Pa. 2013).

2013).

ItIt isis this

this Court's

Court's position that this position that this claim claim isis waived

waived for

for vagueness.

vagueness. Appellant's claim does Appellant's claim does

not specify not specify which which evidence

evidence over

over the

the course

course of

ofthe

the four-day

four-day trial

trial which

which included:

included: eleven

eleven witnesses

witnesses

and sixty-one and sixty-one exhibits exhibits from

from the

the Commonwealth,

Commonwealth, and

and four

four witnesses

witnesses and

and four

four exhibits

exhibits from

from the

the

defense, deserved defense, deserved little little or

or no

no weight. Furthermore, even weight. Furthermore, even in in its

its most

most generous

generous interpretation, this interpretation, this

claim as claim as framed framed is

is irrelevant

irrelevant to

to the

the charge oftampering

charge of with evidence, tampering with evidence, which which Appellant includes Appellant includes

in his in his request request for

for aa new

new trial.

trial. Moreover,

Moreover, even

even if

ifthe

the Court

Court were

were to

to read

read Appellant's

Appellant's post-sentence post-sentence

motion in motion in tandem tandem with

with the

the Concise

Concise Statement,

Statement, the

the Court

Court is

is left

left without

without an

an understanding of

understanding of

Appellant's weight Appellant's weight claim.

claim. This

This is

is because

because the

the claim

claim as

as raised

raised in

in the

the post-sentence motion

post-sentence motion

conflates sufficiency conflates sufficiency of of the

the evidence

evidence and

and weight. As noted

weight. As noted above,

above, aa weight claim concedes weight claim concedes that that

the evidence the evidence was was sufficient.

sufficient. However,

However, in

in the

the Appellant's motion he Appellant's post-sentence motion he argued that argued that

the verdicts the verdicts were were against the weight

against the of the weight of the evidence

evidence because

because the

the Commonwealth

Commonwealth offered

offered "scant"

"scant"

evidence and/or evidence and/or there there was

was aa "lack

"lack of

of evidence"

evidence" of

of aa conspiracy. Attacking the conspiracy. Attacking the quantity of of the

the

evidence is evidence is contrary contrary to aa concession concession that the evidence was sufficient.

sufficient. Thus, the

the Court

Court is in no

no

better position to assess assess Appellant's weight weight claim

claim even with the benefit of of the previous motion

that was designed to preserve the claim. See See Commonwealth v. Rogers, 250 250 A.3d 1209

1209 (Pa.

(Pa.

2021) (Pennsylvania Supreme Court held that an appellant's weight claim was not waived for (Pennsylvania Supreme

at the intermediary level, when, despite the exceedingly brief nature of the concise vagueness at

the post-sentence motion articulated the evidentiary-weight claim at some length, such statement, the statement,

that the that the trial trial level court was able to address the claim in its opinion.)

• To the To the extent

extent that

that this

this is

is reviewable

reviewable on

on the

the merits,

merits, the

the record

record does

does not

not support that the

support that the

court abused court abused its its discretion

discretion when

when itit denied

denied Appellant's for aa new request for

Appellant's request new trial.

trial. The

The

Commonwealth's evidence Commonwealth's evidence was was both

both direct

direct and

and circumstantial

circumstantial in

in demonstrating

demonstrating Appellant's Appellant's

participation in participation in the the robbery that led

robbery that led to

to the

the senseless

senseless death

death of

ofMs.

Ms. Davis.

Davis. That Appellant was That Appellant was not

not

the trigger the trigger man man nor

nor responsible for the

responsible for the actual actual robbery ofMs.

robbery of Ms. Davis

Davis is

is irrelevant

irrelevant to

to the verdict of

the verdict of

murder of murder ofthe the second

second degree as he

degree as he is

is equally liable as

equally liable as an

an accomplice and as

accomplice and as aa co-conspirator of co-conspirator of

the robbery. the robbery.

The jury had The had an

an opportunity to fairly

opportunity to assess the fairly assess the credibility credibility of

ofall

all the

the witnesses

witnesses and

and

evidence, including evidence, including Appellant's Appellant's videotaped interview wherein police interview

videotaped police wherein he he repeatedly made false

repeatedly made false

claims regarding his claims and participation. ItIt is his knowledge and is important to reiterate important to reiterate that the Appellant that the Appellant

did not did not dispute dispute his participation in in this

this crime,

crime, as

as the

the majority

majority of

of itit was captured on

was captured on video.

video. Thus,

Thus,

was presented with

the jury was with two two different

different versions

versions for

for his

his actions,

actions, Appellant's and the Appellant's and the

Commonwealth's. As Commonwealth's. As stated stated above,

above, the

the factfinder

factfinder is

is free

free to

to believe,

believe, all,

all, some,

some, or

or none of the

none of the

testimony that he

simply rejected Appellant's testimony evidence. The jury simply acted under duress he acted duress while while under

threat from Dane Taylor, in in light of the Commonwealth.

of the credible evidence produced by the Commonwealth. "In "In

order for aa defendant to prevail on evidence, the evidence of the evidence,

on aa challenge to the weight of evidence must

be so so tenuous, vague and and uncertain that the verdict shocks conscience of shocks the conscience of the court."

court."

213 A.3d 290, 305

Commonwealth v. Mikitiuk, 213 305 (Pa. Super. 2019) citing Commonwealth v.

(Pa. Super.

129 A.3d 536,

Talbert, 129 (Pa. Super. 2015). The record does not support 536, 546 (Pa. such aa conclusion.

support such

of sentence

stated in this Opinion, the judgment of For all the reasons stated should be sentence should

AFFIRMED.