Com. v. Scott, K.

• Court: Superior Court of Pennsylvania
• Decided: June 12, 2023
• Docket: 634 WDA 2022
• Status: Unpublished

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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). J-S17006-23

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

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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: to:

CorrieWoods, Woods, Esq. Esq.

2 ORIGINAL Corrie

1) «nu WoodsLaw Woods 200 LawOffices

MoonTwp., Moon OfficesPLLC Commerce Twp.,PA Drive PA15108 PLLC

15108 Ste210 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

111V 0 JO 1103 AO 1d30

92lH 91 - 130VA :al Wci 1-100 220%

Gal 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.

2 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. 33 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.

4 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).

55 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.

6 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.

77 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.

88 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. 41

9 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.

1010 "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.

11 11 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.

12 12 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.

1313 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 well- thewell-

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

1414 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.

15 15 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.

16 16 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.

17 17 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.

18 18 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.

19 19 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.

20 20 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.

21 21 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

22 22 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,

23 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 hisco- co- 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 co- co- areresponsible conspiratorsare conspirators foractions responsiblefor actionsundertaken undertakenininfurtherance furtheranceofofthe theconspiracy conspiracy

24 24 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

25 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",

26 "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

27 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.

28 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).

29 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

30 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.

31 31 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 32 32 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.)

33 • 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.