Com. v. Smoot, J.

• Court: Superior Court of Pennsylvania
• Decided: May 4, 2016
• Docket: 3154 EDA 2014
• Status: Unpublished

Opinion

J-S21026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JESSE SMOOT

Appellant No. 3154 EDA 2014

Appeal from the Judgment of Sentence June 20, 2014 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005867-2013, CP-09-CR-0005868-2013, CP-09-CR-0005869-2013, CP-09-CR-0005875-2013, CP-09-CR-0005876-2013, CP-09-CR-0005879-2013, CP-09-CR-0005882-2013, CP-09-CR-0005883-2013

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

MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2016

Jesse Smoot appeals from the judgment of sentence entered in the

Court of Common Pleas of Bucks County. After our review, we rely on the

comprehensive opinion authored by the Honorable Wallace H. Bateman, Jr.

to affirm the judgment of sentence.

A jury convicted Smoot of ten counts of robbery,1 ten counts of theft

by unlawful taking,2 eight counts of conspiracy3 and five counts of terroristic ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 3701(a)(1)(ii), (iv). 2 18 Pa.C.S. § 3921(a). 3 18 Pa.C.S. § 903(a). (Footnote Continued Next Page) J-S21026-16

threats.4 The charges stemmed from a string of armed robberies at local

businesses in North Wales and Horsham, Montgomery County, and

Langhorne, Fairless Hills, Yardley, New Britain and Middletown Township,

Bucks County.5

Following trial, the court sentenced Smoot to twenty-eight (28) to

seventy (70) years’ incarceration, following by fifty-five (55) years’

probation. Smoot filed a post-sentence motion, which the sentencing court

denied. This appeal followed.

On appeal, Smoot raises six issues for our review:

1. The trial court abused its discretion in denying the Appellant’s pretrial motion for continuance where the court permitted new counsel to enter [his appearance] on behalf of Appellant to represent him at trial, but allowed new counsel less than twenty (20) days to be ready to try a case involving ten different armed robberies, and where on the day of trial, defense counsel candidly advised the trial court that he was not prepared to properly litigate the Appellant’s claim and defend him at trial?

2. The Appellant was denied a fair trial where the Commonwealth hid the fact, until Appellant’s sentencing, despite having been asked prior to trial, that it had negotiated a sentence with Commonwealth witness John Ferraro, in return for his testimony, at trial, thereby allowing its principal Commonwealth witness to testify falsely at the Appellant’s trial, in violation of federal and state law, adopted by the Courts, in Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 2d 215, 83 S.Ct. 1194 (1963), and the Court should arrest the verdicts and judgment of sentence, and discharge the _______________________ (Footnote Continued)

4 18 Pa.C.S. § 2706(a)(1). 5 The trial court granted the Commonwealth’s motion for consolidation.

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Appellant. See Commonwealth v. Jay. C. Smith, 532 Pa. 177, 615 A.2d 321 (1992); Commonwealth v. Simons, 514 Pa. 10, 16, 522 A.2d 537, 540 (1987); Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L.Ed. 2d 416 (1982).6

3. The trial court abused its discretion and committed errors of law in not granting Appellant’s motion to sever the ten robbery cases where the evidence admissible in some cases was not admissible in the others and where the victims were different and the dates of the robberies were different.

4. The trial court abused its discretion and committed errors of law in denying Appellant’s motion for mistrial, where the trial court allowed and the Appellant objected to Commonwealth’s introduction of prior bad acts, allegedly committed by the Appellant, thereby unduly prejudicing the Appellant and denying him a fair trial.

5. The trial court erred in not granting Appellant’s motion for mistrial, where the Commonwealth introduced alleged voice identification evidence at trial, tough Commonwealth witness Cameron Ralston, where the voice identifier was not able to identify the Appellant’s voice and the court allowed Detective Andrew Amoroso to identify the Appellant’s voice as that of the robber, even though the Detective was not present at or during the robbery in question.

6. Appellant was sentenced to an aggregate sentence of twenty- eight (28) to seventy (70) years[’] incarceration, in a state correctional institution, followed by fifty-five (55) years [of probation] for his February 7, 2014 convictions of ten (10) counts of Robbery, ten (10) counts of Theft by Unlawful Taking, eight (8) counts of Criminal Conspiracy, and five (5) counts of Terroristic Threats, by Bucks County Court of Common Pleas Judge, the Honorable Wallace H. Bateman, for crimes that the Appellant did not commit and where the ____________________________________________

6 Smoot filed a “Motion for an Order Directing the Clerk of Courts of Bucks County to Certify the Sentencing Transcript of March 11, 2014, in Commonwealth v. John Ferraro, Docketed at CP-09-0005863-2013, as Part of the Appellate Record.” We deny this motion. Although the transcript has been included in the Reproduced Record, it is unnecessary to our review and disposition of the issue.

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evidence presented by the Commonwealth was insufficient to sustain the verdicts, therefore Appellant’s sentence was excessive, harsh and unlawful.7

Appellant’s Brief, at 7-8.

Smoot first argues that his new counsel had only twenty days to

prepare for trial. Smoot hired a new attorney, his third, shortly before the

start of trial, and after the court had already granted two continuances at

Smoot’s request. Smoot claims his third attorney advised the court on the

day of trial that he was not prepared to defend Smoot at trial. However, the

court noted that the changes in counsel resulted in various delays, and that

after granting the second continuance, the court informed Smoot it would

grant no further continuances. The trial court determined that Smoot’s

change of counsel served to “clog the machine of justice.” See Trial Court

Opinion, 3/27/15, at 74. Under the circumstances, we agree, and we find

no abuse of discretion. See Commonwealth v. Boxley, 948 A.2d 742, 746

(Pa. 2008); see also Commonwealth v. Brown, 505 A.2d 295, 298 (Pa.

Super. 1986).

Smoot also claims the Commonwealth committed prosecutorial

misconduct by failing to disclose a negotiated sentence with co-conspirator

John Ferraro, the getaway driver in six of the robberies, in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Smoot claims the Commonwealth

____________________________________________

7 Smoot has abandoned the sufficiency of the evidence claims in the Argument section of his appellate brief. See Pa.R.A.P. 2119.

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“hid” the fact of a negotiated sentence, “thereby allowing its principal . . .

witness to testify falsely at [his] trial[.]” Appellant’s Brief, at 16. Smoot’s

argument relies on the prosecutor’s misstatement at Smoot’s sentencing

hearing. There, the prosecutor inadvertently referred to Ferraro’s plea as

negotiated. See N.T. Sentencing, 6/20/14, at 133. Thereafter, at the

October 15, 2014 hearing on post-trial motions, the prosecutor stated:

“[W]ith regards to Mr. Ferraro, there were no negotiations on or off the

record.” N.T. Post-Trial Motions, 10/15/14, at 71. Referring to a January

21, 2014 letter from the Bucks County District Attorney’s Office to Clinton

Johnson, Esquire, Smoot’s defense counsel, attached as Exhibit A of the

Commonwealth’s sentencing memorandum, the prosecutor stated:

Number 28 of that same letter states: On January 6th, 2014, John Ferraro pled guilty before the Honorable Judge Wallace Bateman, and his sentencing was deferred. Mr. Ferraro has no agreement with the Commonwealth regarding his cooperation, nor has he entered into any negotiations with the Commonwealth. This is absolutely 100 percent accurate. At Mr. Smoot’s sentencing, and those are the pages I believe that have been provided by Mr. Johnson, I mistakenly said that both defendants were negotiations. That was wrong. And as soon as I realized that was wrong, I called Mr. Johnson on phone, and I told Mr. Johnson on the phone that that was wrong. I then, Your Honor, followed up with a letter, an e-mail. . . . That I misstated that both were negotiated. Exhibit C, Your Honor, in the reconsideration memo that I’ve made part of the record, is an e- mail from myself to Mr. Johnson that states: I noticed in your motion for post-sentence relief that you allege that I’ve committed [a] Brady violation. One of the allegations that you ____________________________________________

8 Number 1 referred to co-conspirator Bruce Epp, who Smoot used as a getaway driver when Ferraro was not available.

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made is based on a supposed deal between the Commonwealth and Mr. Ferraro. You allege that I withheld the negotiation until the time of sentencing. I believe this is based on a misstatement that was made at Mr. Smoot’s sentencing. I then go on: Please find a copy of the transcript from Mr. Ferraro’s sentencing to support that there was no such deal. In fact, if you look to Page 36, you will note that I had asked the Court for a sentence higher than that which was handed down. . . . Mr. Johnson absolutely had the information that Mr. Ferraro pled guilty. He absolutely had the information that it was an open guilty plea. . . . Mr. Johnson was given an opportunity to review all of the evidence, all of the materials, all of the discovery in this case, and that was consistent with my open-file policy.

N.T. Post-Trial Motions, 10/15/14, at 71-79. We agree with the court’s

reasoning that this information did not meet the three-part Brady test – the

prosecutor did not suppress evidence; the evidence was not helpful to

Smoot; and Smoot was not prejudiced. See Trial Court Opinion, 3/27/15,

at 80-81.

Next, Smoot claims that the trial court abused its discretion in denying

his motion to sever the ten robbery cases where the evidence admissible in

some cases was not admissible in the others, and where the victims were

different and the dates of the robberies were different. We find no abuse of

discretion. Commonwealth v. Jones, 610 A.2d 931, 936 (Pa. 1992). In

the trial of one robbery, evidence of the other nine was admissible as a

common scheme. The Commonwealth satisfied the three-part test set forth

in Commonwealth v. Lark, 543 A.2d 491, (Pa. 1988) (evidence of each

offense admissible in separate trial for others; such evidence is capable of

separation by jury to avoid danger of confusion and, if answers to these

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inquiries are affirmative, whether defendant will be unduly prejudiced by

consolidation of offenses).

In his fourth issue, Smoot claims that the trial court erred in denying

his motion for a mistrial, where the trial court allowed and Smoot objected

to the Commonwealth’s introduction of prior bad acts, in particular, prior

drug use. Evidence of prior bad acts is not admissible to show propensity,

but is admissible to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident . . . [and] is

admissible only if the probative value of the evidence outweighs its potential

for unfair prejudice.” Pa.R.E. 404(b)(2). Here, the Commonwealth

introduced evidence that Smoot used the money he obtained from the

robberies to purchase Percocet. The evidence was admissible, therefore, to

prove motive, as well as to “complete the story of [the] crime.” See Lark,

supra at 497. We find no error or abuse of discretion. See Trial Court

Opinion, 3/27/15, at 68-71.

Next, Smoot claims that the trial court erred in denying his motion for

a mistrial where the Commonwealth introduced voice identification evidence

at trial. The trial court properly allowed the jury to weigh the witness’

testimony that the voice he heard from Smoot in the courthouse was the

same voice of the robber. We find no error. See Commonwealth v.

Jones, 954 A.2d 1194, 1997 (Pa. Super. 2008) (witness may testify as to

defendant’s identity from voice alone; weight to be accorded such

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identification testimony is for trier of fact). See also Trial Court Opinion,

3/27/15, at 57-60.

Finally, Smoot argues his sentence was excessive. Smoot

acknowledges that a challenge to the discretionary aspects of sentence is

considered a petition for permission to appeal and not an appeal as of right.

See Appellant’s Brief, at 33. He also acknowledges the requirement of a

Pa.R.A.P. 2119(f) statement presenting a substantial question as to the

appropriateness of the sentence. Id. at 33-34. However, he fails to present

a separate Rule 2119(f) Statement in his brief. See Pa.R.A.P. 2119(f).

While this does not automatically waive his claim on appeal, “we may not

reach the merits of claims where the Commonwealth has object[ed] to the

omission of the statement.” Commonwealth v. Farmer, 758 A.2d 173, 182

(Pa. Super. 2000) (citation omitted). See also Commonwealth v.

Hudson, 820 A.2d 720 (Pa. Super. 2003). Here, the Commonwealth has

noted its objection to the omission of the Rule 2119(f) statement, see

Commonwealth’s Brief, at 49, and, accordingly, we find that Smoot has

waived his challenge to the discretionary aspects of his sentence.

We have reviewed Judge Bateman’s well-reasoned opinion, which

comprehensively analyzes Smoot’s claims on appeal, and therefore, we

adopt his Pa.R.A.P. 1925(a) opinion. We direct the parties to attach a copy

of Judge Bateman’s opinion in the event of further proceedings in this

matter.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/4/2016

-9- .) 1 Circulated 04/21/2016 02:56 PM

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CRIMINAL DMSION

CP-09-CR-000~867-2013 COMMONWEAL TH OF PENNSYLVANIA CP-09-CR-0005868-2013 I CP-09-CR-0005869-2013 v. ' CP-09-CR-0005875-2013 CP-09-CR-0005876-2013 JESSE SMOOT CP-09-CR-0005879-2013 I

CP-09-CR-0005882-2013 CP-09-CR-0005883-2013

OPINION Defendant Jesse Smoot (hereinafter "Appellant") appeals this Court's June 20, 2014

!Judgment I of SeO:t~nce and October 17, 2014 Order denying Appellant's Post Sentence Motions. ' We file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

~ACTUAL BACKGROUND

A. Jury Trial

Appellant's jury trial began on January 30, 2014 and concluded on February 7, 2014. The l

jury determined that Appellant committed ten (10) separate armed robberies at various

businesses in Bucks County and convicted Appellant of all charges with the exception of one I 1 count of conspiracy.

The Commonwealth began its case-in-chief by presenting the testimony of Evan I

Andrews. Mr. Andrews was an employee at a Lukoil gas station located on 152 East Maple

Avenue in Langhorne, Bucks County. In the early morning hours of August 3, 2012, Mr. ! Andrews I was working alone. At approximately 4:00 a.m., Mr. Andrews was in the back room ' ~hen he heard the door buzzer indicating that someone had entered the store. As Mr. Andrews

1 : Count #22 - robbery of Dollar Tree on March 18, 2013.

1 · walked towards the counter, an individual grabbed him by the back of his shirt and dragged him I

to the cash register. N.T. 01/30/14, pp. 29-35; N.T. 01/31/14, p. 8. I

The assailant, who the jury ultimately determined to be the Appellant, was dressed in all

iblack with a winter mask and sunglasses covering his face. Mr. Andrews testified that based

upon the assailant's voice, he determined the robber to be a Caucasian male. He also observed a i

[black object in the assailant's hands. N.T. 01/30/14, pp. 32, 36-41. After being dragged towards !

the counter, Mr. Andrews was thrown to the ground and hit twice on the side of his head. The

assailant said to Mr. Andrews, "Give me the money, pussy. All the money." Mr. Andrews '

ppened the register and handed money and deposit slips to the assailant. N.T. 01/30/14, pp. 35-

!36. The assailant took approximately $350 to $400. The assailant then jumped over a portion of

the counter to exit the store and proceeded to the side of the building towards an alley. N.T. I

~1/30/14, pp. 38-39. He fled the scene before police arrived. The Commonwealth presented

video surveillance footage of the events that occurred in the Lukoil store. Mr. Andrews testified I

tn"lat it appeared from the footage that the black object he had seen in the assailant's hand was a

gun. Exhibit C-2; N.T. 01/30/14, pp. 43-44, 57.

Pennsylvania State Trooper Joseph K Schmidt investigated the August 3, 2012 Lukoil 'I robbery. N.T. 01/31'/14, pp. 5-9. He formed the opinion that the assailant must have been either a i

lf cal resident or employee who was familiar with how the Lukoil operated including who

i7orked there and how many people worked there. State Trooper Schmidt interviewed business

owners and residents of the surrounding area including Frank Seglia, the owner of Precision !

Automotive, an automotive garage located approximately fifty (50) yards from the scene of the

crone. In or around April of 2013, after a coordinated effort with other law enforcement, State

Trooper Schmidt determined the suspects to be Appellant, John Ferraro, and Bruce Epp. It was

2 • 1 i

i discovered that Frank Seglia was the stepfather of Appellant, and that Appellant had worked for IMr.1 Seglia at Precision Automotive. N.T. 01/31/14, pp. 10-14, 19-23. '

On December 10, 2012, Daniel Johnson and Joshua McCormick were working at the

'Mail 'n' More shipping store located on Stony Hill Road in Yardley, Bucks County. Due to its

!close proximity to the Christmas holiday, this date was typically the busiest day of the year and l

khe day where the business had the most amount of cash in the store. N.T. 01/31/14, pp. 31-35. l i The store, as usual, was set to close at 6:30 p.m. Typically, Mr. Johnson, the store manager, I I

kvould leave the back door open and wait for a late pickup by UPS. As he waited, Mr. Johnson

would close the register drawers at 6:30 p.m. and leave approximately $150 in each register I

&"awer as start-up money for the next business day. He would move the remaining money to a I l

~ouch which would be hidden in a secret location for the store owner to find later. N.T. 01/31/14, . . ~p. 35-37; N.T. 02/04/14, pp. 90-93.

On this particular date, Mr. Johnson decided to close the register drawers at 6: 15 p.m., I

{j.fteen (15) minutes earlier than usual. N.T. 01/31/14, p. 36. He left a total of $400 in the register

drawers, moved the rest of the cash to the secret location, and left the back door open. Mr. I I

Jbhnson and Joshua: McCormick waited until 6:30 p.m. whereupon Mr. Johnson went to lock the I

ffont door. N.T. 01/31/14, p. 38. As he did this, Mr. McCormick, who was sat near the back I

counter, observed an individual enter through the back door. N.T. 02/04/14, p. 93. Both Mr.

McCormick and Mr. Johnson testified that the assailant, whom the jury ultimately determined to !

be the Appellant, was dressed in all black. He wore baggie black pants, a black hooded I sweatshirt, black shoes, black gloves, and a black balaclava mask which only revealed his eyes.

He also carried a backpack. N.T. 01/31/14, pp. 38-42; N.T. 02/04/14, pp. 93-94. Mr. Johnson I i1'tially believed the assailant to be a friend, but as he walked closer, he realized that he did not know the assailant. N.T. 01/31/14, p. 40. Mr. Johnson was able to determine that the assailant

v}as a Caucasian male by observing a sliver of skin near the assailant's neck and the skin near the

assailant's eyes. He also observed that the assailant's eyes were a vivid green, which was the

assailant's most distinguishing feature. N.T. 01/31/14, pp. 42-45. Mr. Johnson estimated the

assailant to be approximately 5 feet 7 inches or 5 feet 8 inches in height. N.T. 01/31/14, p. 45.

Mr. McCormick similarly stated that he believed the assailant was 5 feet 8 inches or 5 feet 9

inches tall. N.T. 02/04/14, pp. 97-98.

The assailant pulled his right hand out from his pocket, revealing a black gun with a ' silver hammer and silver slide release. N.T. 01/31114, pp. 46-47, 51. He said to Mr. Johnson,

"don't be a hero" and then asked Mr. Johnson to fill the backpack. Mr. Johnson then took the

b'1ckpack and filled it with the approximately $400 of startup money located in the register I drawers. The assailant then became emotional and began to apologize, stating that he was being I evicted on December 18th and that he had two little girls he had no other means of caring for. I NLT. 01/31/14, pp. 51-53. The assailant then asked Mr. Johnson where the rest of the money was,

which brought suspicions to Mr. Johnson's mind, leading to a belief that the assailant may have

been a former employee. Mr. Johnson told the assailant that there was no more money and that

he had just missed the store owner by about ten minutes. The assailant appeared to understand

and then exited the store, at which point Mr. Johnson contacted the police. N.T. 01/31/14, pp. 53- ' 54, 58. A recording of Mr. Johnson's police call was played for the jury in which Mr. Johnson

states that the assailant was no younger than 25 years of age. Exhibit C-5; N.T. 01/31/14, pp. 54-

57. Moreover, in his initial statement to police, Mr. Johnson, a former military policeman in the

United States Marine Corps, stated that he believed the assailant's handgun could have been

either a 9 millimeter or a .380 caliber auto. N.T. 01/31/14, pp. 32, 46.

4 When asked whether he knew the Appellant, Mr. Johnson testified that Appellant was a

temporary employee at the Mail 'n' More store for approximately two (2) weeks during the

Christmas season in either 2009 or 2010. Mr. Johnson had met Appellant once during I

1ppellant's temporary employment. In the days following the Mail 'n' More robbery, Mr.

Johnson considered the distinctive eyes and the physical appearance of the assailant. He formed

the belief that Appellant could possibly be the assailant because he was the only past employee r that came close to fitting the assailant's appearance and would be aware of the busy nature of the

store during the time of year the robbery occurred. N.T. 01/31/14, pp. 59-65, 75-78.

Detective John Campbell, of the Lower Makefield Township Police, investigated the , December 10, 2012 Mail 'n' More robbery. N.T. 01/31/14, p. 85. After being informed by Mr. I

Johnson of the statement made by the assailant that he would be evicted on December 18th,

Detective Campbell checked through the local courts to see which landlord-tenant proceedings

were occurring on December 18, 2012. He then researched the tenants involved to see if they

matched the description of the assailant. N.T. 01/31/14, pp. 98-99. Detective Campbell was able

to narrow his search to Appellant who had a proceeding on December 18, 2012 along with Alicia

(Cook. N.T. 02/06/14, pp. 5-6, 11-13. He then learned that Appellant's PennDOT information

listed him as being 5'8" tall and having green eyes. Thereafter, Detective Campbell checked the

Pennsylvania Firearms Database to see if Appellant had any registered firearms. He discovered

that Appellant had a semiautomatic Bersa .380 caliber handgun registered to him, which would

commonly be black with shiny accents. N.T. 01/31/14, pp. 103-05. Later in the investigation,

Detective Campbell coordinated with other law enforcement officials before arresting Appellant

en April 19, 2013. N.T. 01/31/14, pp. 105-06. On December 11, 2012, Michael Jervis was working as a cashier at the Lukoil gas station

located in Langhorne, Bucks County. He was a friend and co-worker of Evan Andrews, a victim I of the August 3, 2012 robbery at the same gas station. N.T. 01/31/14, pp. 127-30. Mr. Jervis was I behind the cash register when a male individual, whom the jury ultimately determined to be the

~pellant, entered the store dressed in a black hooded sweatshirt, black mask, and gloves. He

Was wielding a black gun with silver details in his right hand. N.T. 01/31/14, pp. 130-34. The

Jsailant asked for money, so Mr. Jervis opened the cash register and placed the money into a

b~ the assailant had placed onto the counter. However, the assailant insisted that there was more

money, and in fact, there was still money in an extra till set aside for the next shift that would

Ji0rk at the gas station. Mr. Jervis then handed the money from the extra till. N.T. 01/31/14, pp.

135-37. Thereafter, the assailant fled the store, exiting to the right of the building towards a

pkking lot and a small passage that leads to the back of the building. N.T. 01/31/14, p. 139. Mr. !

Jervis testified to being approximately 5' 1 O" and believed the assailant to be about the same l

height. N.T. 01/31/14, pp. 140-41. Also, in his initial contact with the police, Mr. Jervis stated

that he believed the assailant to be Caucasian. Exhibit C-7; N.T. 01/31/14, pp. 138-40. Video I

stp-veillance footage of the robbery was presented to the jury, which showed the assailant dressed

ill black. See Exhibit C-8; N.T. 01/31/14, p. 142. In addition, Mr. Jervis testified that he ' recognized the Appellant to be a customer who had been inside the Lukoil store on previous

OfCSSiOns. N.T. 01/31/14, pp. 143-44.

Officer Thomas DiCampello, a patrol officer with the Langhorne Borough Police

Department, was assigned to investigate the December 11, 2012 Lukoil robbery. N.T. 01/31/14, I

pp. 152-54. Officer DiCampello testified that he was the first officer to arrive on the scene. N.T.

OV31/14, pp. 154-55. Mr. Jervis told Officer DiCampello that the assailant was a Caucasian male I

wearing all black, including a black mask that revealed only his eyes, and was approximately 5 I fdet 8 inches or 5 feet 10 inches in height and of a medium build. N.T. 01/31/14, pp. 155-56. I Soon after, Officer Eckenrode of Middletown Township arrived on the scene along with a K-9

officer. The K-9 officer was a dog that specialized in tracking. N.T. 01/31/14, pp. 157-58. In

tlieir investigation, Officer Eckenrode and the K-9 officer exited to the right of the Lukoil store I tdwards an alley. The K-9 officer led Officer Eckenrode down an alley towards two businesses I directly behind the Lukoil, Amber's Tattoo and Precision Automotive. They lost the track at that

I9cation. N.T. 01/31/14, pp. 158-59.

On January 9, 2013, Vishal Patel was working alone in the Subway restaurant owned by

hls family and located on 545 Oxford Valley Road in Fairless Hills, Bucks County. At

approximately 8:30 p.m., Mr. Patel was in the back room when he heard the door buzzer

itjdicating someone had entered the restaurant. Mr. Patel proceeded to the front of the restaurant

whereupon he saw an individual dressed in black standing on the employees' side of the

srdwich counter. N.T. 01/31/14, pp. 170-73. The assailant, whom the jury ultimately

determined to be the Appellant, was wearing a black hooded sweatshirt, black cargo pants, and

gloves, and his face was covered with black material revealing only the area around his eyes. Mr.

P~tel was able to determine that the assailant was a white male and between 5 feet 8 inches and 6

f1et in height. N.T. 01/31/14, pp. 176-79. The assailant pointed a gun with a green grip to Mr.

Patel's head. During his testimony, Mr. Patel was presented with Exhibit C-4, which he

rcicognized to be the assailant's gun. N.T. 01/31/14, pp. 179-80. The assailant demanded that Mr.

Patel give him all of the money that he possibly could. The assailant stated that his house was

being taken away that night and that he had no money to pay for his house, which was the reason

*y he was doing this robbery. After Mr. Patel surrendered the money from the cash register, the I

7 l i I I assailant demanded more. Mr. Patel opened the store's safe and gave the assailant the money that

~as located therein. The assailant took approximately $1, 100 before he jumped back over the

ctunter and exited to the right of the building. N.T. 01/31/14, pp. 181-83. Video surveillance

f1otage of the January 9, 2013 robbery was presented to the jury. It showed the assailant jump

otr the sandwich counter, point a gun at Mr. Patel's head, and take money from the register and

s e located in the restaurant. See Exhibit C-10; N.T. 01/31/14, pp. 185-88. I I I As a result of this robbery, Mr. Patel and his father installed a new time-delay safe.

Additionally, they acquired a new television in the back room to be able to receive live video ' streaming from the restaurant cameras and the capability to watch the live video stream on their I

mobile devices. N.T. 01/31/14, pp. 190-91. On February 23, 2013, Mr. Patel was working along I I With another employee, 17-year-old Carlos Perez, at the same Subway restaurant located in

Fltirless Hills, Bucks County. N.T. 01/31/14, pp. 193-94; N.T. 02/04/14, pp. 103-06. At

a*proximately 9:50 p.m., Mr. Perez was in the back room, and Mr. Patel was behind the counter.

Mr. Patel observed an individual, whom the jury ultimately determined to be the Appellant, enter

ilirough the front door dressed in the same black hooded sweatshirt and black cargo pants that the I January 9, 2013 robber was wearing. This assailant also wore material covering his face

revealing only his eyes. N.T. 01/31/14, pp. 193-95; N.T. 02/04/14, pp. 106-09.

He proceeded directly towards the entrance to the back room wielding a gun, which Mr.

Patel described as the same gun with a green grip used in the first robbery. The assailant I demanded that Mr. Patel give him all of the money and told Mr. Perez to lay on the floor. N.T. I 01/31/14, pp. 195-97; N.T. 02/04/14, pp. 109-11. He also stated that his kids were hungry, he did

n~t have any money, and he had no other option. N.T. 01/31/14, p. 198; N.T. 02/04/14, p. 112. In

addition, Mr. Patel believed it to be the same individual from the January 9, 2013 robbery I l I I

l because this assailant stated that he was not there to hurt Mr. Patel and asked whether he hurt Mr. I I

Prtel the first time. N.T. 01/31/14, p. 198. After Mr. Patel gave the assailant money from the

cash register, the assailant demanded more. Mr. Patel entered the password required to open the

time-delay safe. The safe began to make a beeping noise, which caused the assailant to believe

Je police were being alerted. Mr. Patel convinced him that the beeping was coming from the

slfe. N.T. 01/31/14, pp. 198-202. Mr. Patel gave the assailant the money from the safe and

observed that the assailant was speaking into his chest beneath the black sweatshirt. Mr. Patel I b+lieved the assailant was speaking into a walkie-talkie and heard him tell the person or persons

o* the other end to keep an eye out for police. N.T. 01/31/14, pp. 204-05. Mr. Patel, who

indicated I that he is approximately 5 feet 7 inches tall, testified that the assailant was taller than

rnr· I

but was unsure of the assailant's exact height. N.T. 01/31/14, pp. 179, 223, 248. In addition, I Mr. Patel testified that he recognized the voice of the assailant to be the same as the January 9,

2013 robber. N.T. 01/31/14, pp. 206-07. Video surveillance footage of the February 23, 2013 I rdbbery was presented to the jury. See Exhibit C-12; N.T. 01/31/14, pp. 209-21.

I Detective Timothy Fuhrmann of the Bristol Township Police Department was assigned to I I

in1vestigate the January 9, 2013 and February 23, 2013 robberies of the Fairless Hills Subway

restaurant. He spoke to the victims of those robberies, Vishal Patel and Carlos Perez, and

dJtennined that the assailant was the same individual in both incidents. N.T. 02/06/14, pp. 217-

21. During the course of his investigation, Detective Fuhrmann obtained information from a

cdnfidential informant. After receiving this information, Detective Fuhrmann researched

Afpellant through the Pennsylvania Department of Transportation's database. N.T. 02/06/14, pp.

. 2t5-27. Detective Fuhrmann determined that the Appellant resided in Levittown, Bucks County ' and had a 1996 Chevrolet Tahoe registered to his name. N.T. 02/06/14, pp. 228-30. Like I I I I

Detective John Campbell who investigated the December 10, 2012 Mail 'n' More robbery, ! !Det~ctive Fuhrmann discovered that Appellant owned a Bersa .380 caliber semiautomatic gw 1 . . and I that Appellant and Alicia Cook had an eviction . notice for December 2012.

On February 28, 2013, Cameron Ralston, a 17-year-old high school student, was working

alone at the Subway restaurant on 449 Butler Avenue in New Britain, Bucks County. The

restaurant closed at approximately 9:00 p.m. Shortly after 9:26 p.m., Mr. Ralston walked out side I ¢fthe restaurant through the back door to throw away garbage. N.T. 02/04/14, pp. 6-13. As Mr. I ~alston opened the door, an individual dressed in black moved towards the doorway. The

fsailant, whom the jury ultimately determined to be the Appellant, wore a black ski mask, black

Hooded sweatshirt, black sweatpants, black work shoes, and blue latex gloves. Mr. Ralston

testified-that the assailant was Caucasian based upon the skin exposed near his eyes. Moreover,

Mr. Ralston recalled that the assailant's eyes were green. N.T. 02/04/14, pp. 13-15. He further tdstified that he was 5 feet 9 inches tall and believed the assailant to be only a little bit taller than I • himself. He also believed the assailant to be in his mid to late 20s. N.T. 02/04/14, p. 27. I \ Mr. Ralston saw that the assailant holding a small gun of a shiny dark gray color I resembling Exhibit C-4. N.T. 02/04/14, pp. 15-17, 56. The assailant entered the restaurant before I telling Mr. Ralston that he was losing his house and that he has two kids to support. He asked

w4" Ralston about the restaurant's safe, but Mr. Ralston did not know the combination. He then

as~ed about the regist.er, and Mr. Ralston explained that it contained less than $100 inside.

Firtally, the assailant asked about the vehicle in the parking lot, and Mr. Ralston lied and said it

wJ not his. N.T. 02/04/14, pp. 17-19. The assailant and Mr. Ralston then moved to the front of

the store. The assailant began talking into his hooded sweatshirt, which led Mr. Ralston to

believe the assailant had a walkie-talkie. The assailant informed the person or persons on the I other end that he was in the restaurant and going for the register. Mr. Ralston gave the assailant

tije money located therein, and then the assailant again asked about the safe. He made Mr. I Ralston search for a combination but none was found. The assailant did find a box from which he I obtained loose change and a small amount of cash. The two then proceeded to the prep area of

tlie restaurant where the assailant found a set of keys which he took. He also found a scale used

td weigh food, and the assailant jokingly said, "this is a nice scale," and chuckled. He did not

take the scale. N.T. 02/04/14, pp. 19-21. I ! The two then moved from the prep area, and the assailant again spoke into what Mr.

Ralston believed to be a walkie-talkie, stating that he was ready to go. He then told Mr. Ralston i that he had to "wait for his buddy to get gas.'' As he waited, the assailant continued conversing

with Mr. Ralston, asking him whether the manager had an office and telling Mr. Ralston to count I I to 1,000 before he left. The assailant exited the restaurant, but peeked his head back in and said, I

"you better be counting." N.T. 02/04/14, pp. 22-23. He again left, but after five seconds, the

assailant checked in once again and told Mr. Ralston that he wanted to take Mr. Ralston's phone

but decided not to. The assailant then left and closed the door fully. Mr. Ralston waited five

minutes before contacting the police at 9:49 p.m. N.T. 02/04/14, pp. 23-25. Video surveillance

footage of the robbery was presented to the jury depicting the assailant dressed in black with blue

gloves and receiving money from Cameron Ralston. See Exhibit C-15; N.T. 02/04/14, pp. 27-34.

During his testimony, the Commonwealth also presented Mr. Ralston with Exhibit C-6, which I

Was a picture of the Appellant. This picture was folded and taped to reveal the area around the I

Appellant's eyes. Mr. Ralston recognized the eyes to be that of the assailant from the February I 28, 2013 robbery. See Exhibit C-6; N.T. 02/04/14, pp. 34-35, 44-45. I On January 31, 2014, during the course of Appellant's jury trial, Cameron Ralston was

v.laiting outside of the courtroom when he heard the statement, "love you too." Mr. Ralston I

r,rther observed that the voice he heard matched that of the assailant from the approximately

twelve (12) minute robbery that occurred on February 23, 2013. He then informed his father and

alrepresentative from the District Attorney's office that he recognized the voice. Mr. Ralston

identified the Appellant as making the statement outside of the courtroom, but acknowledged

that he did not see exactly who made the statement. N.T. 02/04/14, pp. 76-79. Detective Andrew

Amoroso of the Middletown Township Police Department testified to having stood outside of the

courtroom on the same date and time. He observed the Appellant leave the courtroom and saw a

female individual on the 4th floor looking down upon the Appellant. The individual said "I love ! ypu" and the Appellant said "I love you too." N.T. 02/04/14, pp. 154-56.

On March 18, 2013, Brandon Drenkhahn was a 19-year-old working at a Dollar Tree

store on 1200 Welsh Road in North Wales, Montgomery County along with his 22-year-old

assistant manager, Kelley Hom. N.T. 02/04/14, pp. 116-19, 163-64; N.T. 02/07/14, pp. 32-33.

'Pile store was located in a shopping center next to a Subway restaurant. Around 10:00 p.m.,

dosing time for the store, Mr. Drenkhahn and Mr. Hom were on their way out of the back door

to throw out trash when they were pushed by a male figure dressed in all black. N. T. 02/04/14, I

1· 117-21. The assailant, whom the jury later determined to be the Appellant, was wearing a

~ack hooded sweatshirt, black pants, black boots, latex gloves and his face was covered except

for his eyes. He was also wielding a gun in his right hand, which was either black or gray in

cblor. Mr. Drenkhahn and Mr. Hom observed that the assailant was a white male based upon

some skin that was exposed by the bridge of his nose. N.T. 02/04/14, pp. 121-23, 126, 169-70.

l!be assailant was shorter than Mr. Hom, who is approximately 6 feet 1 inches tall. He estimated I

Il I lthe assailant, who had stood directly in front of him, to be approximately 5 feet 10 inches in I !height. N. T. 02/04/14, p. 170.

I r· The assailant first said, "I don't want to kill you, but I will ifl have to." As Mr. Hom and

Drenkhahn reached into their pockets, the assailant stated that he did not need their money

because it was theirs and they would not get reimbursed whereas the store would. N.T. 02/04/14,

bp. 170- 71. The assailant then saw that Mr. Hom and Mr. Drenkhahn were wearing Dollar Tree

shirts, and said "Oh, am I in Dollar Tree?" They confirmed that he was, at which point he said I

the following: "Oh, we were staking this out, I needed to be in Subway, we messed up, but I'm I

going to have to rob you now because I can't rob them." N.T. 02/04/14, pp. 124-25; N.T. iI ~2/04/14, pp. 171. The Dollar Tree store has two back doors while the Subway restaurant has a

Jeparate entrance around the side of the building. Further, these doors were not labeled requiring I

~ individual to know which door belongs to which store in order to enter the correct one. N.T. I q2/04/14, pp. 124-25, 165-66; N.T. 02/07/14, pp. 39-40.

As they stood there just inside of the backroom, the assailant pulled back the chamber of

ts gun and showed Mr. Hom the bullet contained inside and stated that it was not a BB gun.

N.T. 02/04/14,pp. 172-73. Mr. Horn and Mr. Drenkhahn began walkingtowardsthefrontofthe !

store where the money was located, and the assailant told them to crawl. After Mr. Hom asked

him why, he stated, "so it wouldn't be on the video cameras." Mr. Hom then explained that there I i was no camera. The-assailant then allowed them to walk while he was behind Mr. Hom with a I to his back. N.T. 02/04/14, p. 174. Mr. Hom and Mr. Drenkhahn then entered the front I o I ce with the assailant leaning against the office door keeping it open. Mr. Hom opened the

sf e located therein and gave the assailant a bank deposit bag which was to be taken to the bank

1f-4at night. The assailant stated that he felt bad for having to do this to them, but that he had a ffamily to provide for and he had to pay the electric bill. The assailant then stated that the money '

in the deposit bag was not enough, so Mr. Hom then gave him rolls of change that were located I

i iji the safe. N.T. 02/04/14, pp. 175-79. The two victims and the assailant then moved to the back I

room. As they were walking, the assailant said he was sorry and that he did not want to have to I I do this to them. He told Mr. Hom to go home and grab a beer, and that if he had any marijuana,

he would have given it to him for causing the problem. He then offered them a little bit of money

ijut they refused. Finally, he asked them to count to "100 Mississippi" before calling the police.

Ille then jumped off the back loading dock and left. The assailant was inside of the store for

dpproximately six to eight minutes. N.T. 02/04/14, pp. 179-80, 184.

Mr. Hom further observed that during the course of the robbery, the assailant had been

communicating with other individuals via what he believed to be a walkie-talkie underneath his

$ift. The assailant was pressing a button and talking into his shirt, and there was a voice Mr.

Mom could hear coming back out. Toe assailant provided an estimate of the time he would be out

of the store to the individuals on the other end. N.T. 02/04/14, p. 180. Mr. Hom also recalled that

he had seen the assailant outside dressed in all black earlier in the day at approximately 8:15 p.m. I The assailant was stood two stores down near a beer store when he pulled out a cell phone and

asked the person on the other end, "why are you making me wait, it's cold out here." N.T.

02/04/14, p. 181. Mr. Hom observed the assailant walk towards a McDonald's restaurant located

4earby. Pursuant to a stipulation of the parties, video surveillance footage from the McDonald's

restaurant was played for the jury. Mr. Hom believed the individual depicted therein to be the

¥sailant. See Exhibit C-16; N.T. 02/04/14, pp. 181-82. Employees of other nearby businesses

also saw a suspicious individual dressed in black clothing fitting the assailant's description

walking around for approximately two hours prior to the robbery. N.T. 02/07/14, pp. 45-50. I Additionally, Mr. Hom testified that he had heard the assailant's voice subsequent to the

r~bbery. He stated that on the date of the Appellant's preliminary hearing, he was sat in the

*· lobby when he heard an individual sat across from him ask ifhe could go outside for a cigarette.

Horn recognized this voice to be that of the assailant's. Mr. Horn further identified the

Appellant as the individual who made the statement. N.T. 02/04/14, pp. 197-203. II Detective Edward Davies of the Montgomery Township Police Department was assigned tJ investigate the March 18, 2013 Dollar Tree robbery. N.T. 02/07/14, pp. 29-33. He was aware o~the February 28, 2013 armed robbery of the New Britain Subway restaurant and contacted

Detective Corporal Jeffrey Cummins of the New Britain Township Police Department who was

Jsigned to investigate that robbery. After comparing notes, Detective Davies believe there to be

aconnection between the two incidents. N.T. 02/07/14, p. 51. Detective Davies discovered that I oh March 17, 2013 at approximately 8:00 p.m., the night before the Dollar Tree robbery, a full- I sized Chevrolet Tahoe or Suburban, either burgundy or maroon in color, with two occupants was

pkked in the lot near the Dollar Tree store. It was a mid-I 990s vehicle with wheels that appeared I

J be upgraded. N.T. 02/07/14, pp. 53-54. Inaddition, that same evening, an eyewitness saw two I

v}hitemales dressed in all dark clothing including a black hooded sweatshirt, black pants, and

I On March 24, 2013, Officer Mark Leonhauser of the Middletown Township Police I Department responded to the Dunkin' Donuts business located at 620 West Maple Avenue in

Middletown Township, Bucks County. Officer Leonhauser received a call from a silent panic

Jann activated by employees of the business. N.T. 01/31/14, pp. 253-55. Officer Leonhauser I conducted an investigation and contacted other officers who responded to the scene. Officer

15 ~fl ,s Leonhauser spoke to two employees, Danish Haro on and Gill F arrakh, who indicated that they

had been robbed. They described the assailant, whom the jury determined to be the Appellant, as I Jearing a ski mask and using a handgun. N.T. 01/31/14, pp. 255-57. Detective Andrew Amoroso I vJas assigned to be the lead investigator. He arrived to investigate at the scene the following day.

~.T. 02/04/14, pp. 132-34. However, he was unsuccessful in his attempts to locate and speak to

Mr. Haroon or Mr. Farrakh. He later learned that neither lived at their last known address any

ldnger. N.T. 02/04/14, pp. 139-42. Regardless, Officer Leonhauser obtained and reviewed video

surveillance footage of what occurred in the Dunkin' Donuts. This footage was played for the

jury, who determined that a robbery occurred and was carried out by the Appellant. See Exhibit

c-n, N.T. 01/31/14, pp. 257-59.

On April 11, 2013, Mukesh Patel was the owner of the Subway restaurant on 449 West I Butler Avenue in New Britain, Bucks County. Cameron Ralston, a victim of the February 28,

2613 armed robbery of the same Subway restaurant, was an employee ofMukesh Patel. N.T.

02/04/14, pp. 211-15. At approximately 7:30 p.m., Mr. Patel was training a new employee and

clbarung the store. A male individual, whom the jury later determined to be the Appellant, came

in~o the restaurant. He was dressed in black, including a mask and gloves, and held a gun and a

bag. Mr. Patel could see skin around the assailant's eyes and was able to determine that the

assailant was white. He shouted at Mr. Patel, demanding money and saying that he was in a

hurry. Mr. Patel surrendered approximately $1,600 from the register and a small bag below the

register. The assailant placed the money inside of the bag he had carried into the restaurant. In

addition, he took Mr. Patel's car keys and left before Mr. Patel alerted the police. N.T. 02/04/14, I

pp. 215-19. The audio recording ofMukesh Patel's phone call to police was played for the jury. I Mr. Patel estimated the assailant to be between 20 and 30 years of age. See Exhibit C-17; N.T.

fZ £ lb l !02/04/14, pp. 219-21. Video surveillance footage of the robbery was also presented, which

!showed the assailant dressed in black. See Exhibit C-18; N.T. 02/04/14, pp. 221-23. I I

I Detective Corporal Jeffrey Cummins was assigned to investigate the February 28, 2013 I land April 11, 2013 armed robberies of the New Britain Subway restaurant. N.T. 02/06/14, pp. i

~6-28. On March 22, 2013, Detective Cummins spoke to Detective Timothy Fuhrmann from the

~ristol Township Police Department who was investigating the robberies of the Fairless Hills I f ubway restaurant. They believed the robberies that occurred at these two locations were

~ommitted by the same individual. N.T. 02/06/14, pp. 30-32. Detective Cummins met with I Detective Fuhrman as well as other law enforcement officers on March 28, 2013. Based upon the I

. yuormation they shared, they developed a suspect, Appellant Jesse Smoot. Detective Cummins

btained a copy of Appellant's driver's license and learned that Appellant had a 1996 Chevrolet

t , ahoe registered tohis name. N.T. 02/06/14, pp. 37-39. Detective Cummins also learned that ! Appellant's mother lived in Warrington Township, which borders New Britain Township. N.T.

12/06/14, p. 40.

[ After the April 11, 2013 robbery of the New Britain Subway location, Detective I . qummms decided to investigate where Appellant lived. On April 18, 2013, Detective Cummins

Jove to Appellant's address. After arriving at approximately 5:15 p.m., he located the front door II tq Appellant's residence as well as Appellant's registered vehicle. One hour later, he observed a I

b ue Dodge Caravan minivan enter the apartment complex and drive up in front of the

pellant's residence. Through his binoculars, Detective Cummins observed Appellant exit the

r sidence and walk towards the minivan. The Appellant, who was wearing a dark-colored I I

h~oded sweatshirt, dark-colored pants, and dark-colored boots, entered the minivan and sat in the

fr~nt passenger's seat before the minivan exited the apartment complex. N.T. 02/06/14, pp. 41- 1

l I I . 4i, 86-87. Detective Cummins followed the minivan to a nearby Sunoco gas station and then

b!ck to the apartment. The driver and Appellant entered the apartment and then reemerged five

td ten minutes later along with a white female. The detective later learned that the driver's name

vJas Bruce Epp and the female was Mr. Epp's cousin and Appellant's girlfriend, Alicia Cook. Ms.

cbok waved goodbye to Appellant and Mr. Epp before they drove from the apartment complex.

'tjie detective followed the minivan for a period of time before losing sight of the vehicle at

a~proximately 8:40 p.m. after the vehicle made a sudden U-turn. N.T. 02/06/14, pp. 46-52, 57, i 71. I I Believing there was about to be an armed robbery, Detective Cummins contacted New

Bktain Township patrol officers as well as the Horsham Township police. Soon after, a robbery

dJd occur at the Subway location on 303 Horsham Road in Horsham Township, Montgomery I

cbunty. N.T. 02/04/14, pp. 225-29. Rasik Panchini, the owner of the Subway restaurant, closed

tile store at approximately 8:45 p.m. He turned off the open sign and all of the lights inside of the

rlstaurant before pr~ceeding towards the door to exit the building. N.T. 02/04/14, pp. 225-29. He

otened the door slightly when a male individual put a gun to his forehead. The assailant, whom I t.1:te jury determined to be the Appellant, demanded that Mr. Panchini give him money. Mr. I Panchini asked that the assailant not hurt him because he has children. The assailant responded I bf saying he also has a family and a wife, which is the reason he needs money. The assailant

Jalked with Mr. Panchini towards the register, and Mr. Panchini gave him the money located

therein. Thereafter, the assailant demanded money from the store safe. When Mr. Panchini

explained that there was no safe, the assailant claimed that Mr. Panchini was lying. Mr. Panchini

Jen recalled that he had a small box of change and gave that to the assailant. The assailant took I a total of approximately $1,500 before kicking Mr. Panchini two or three times. N.T. 02/04/14, pt- 229-34, 249. Mr. Panchini, who is 5 feet 4 inches in height, testified that the assailant was taller than himself He further described the assailant as wearing gloves and a mask that revealed I s1me of the area around his eyes. N.T. 02/04/14, pp. 234-35. However, the restaurant was dark,

v.f1ich prevented Mr. Panchini from being able to see the assailant's skin color. N.T. 02/04/14,

pp. 235-43. I

I Detective James Vincenti of the Horsham Township Police Department was assigned to

iJvestigate the Horsham Subway robbery. N.T. 02/06/14, pp. 192-95. He arrived there shortly

aiter 9:00 p.m. and spoke to Mr. Panchini who provided a description of the assailant. N.T. I 02/06/14, pp. 194-98. Meanwhile, Detective Cummins was notified of the robbery, which I

pjompted him to return to the Appellant's apartment complex. N.T. 02/06/14, pp. 74-76. It was

s~ortly after midnight on April 19, 2013 that Detective Cummins, who was outside of his

vehicle, observed the same minivan he had pursued earlier pull in front of the Appellant's

rd,sidence. When the interior light of the vehicle came on, the detective observed Bruce Epp was I

~ving and Appellant was sat in the passenger seat. Detective Cummins went back to his vehicle

td obtain a bulletproof vest, but by the time he placed it on, Appellant had stepped out of the I minivan and entered his apartment. The minivan left the complex, and Detective Cwnmins

rduowed it to the nearby Sunoco gas station. N.T. 02/06/14, pp. 53-62, 86-87. I I After communicating with officers in other townships, Detective Vincenti learned that

Detective Cummins had stopped a minivan which contained a suspect in the robbery. Detective

V;mcenti drove to the scene and found Mr. Epp outside of the vehicle. He approached Mr. Epp

a,d asked him who owned the minivan. Mr. Epp stated that it belonged to his fiancee, Brittany.

Detective Vincenti then asked where he had been, and Mr. Epp stated that he had been driving

around that night. The detective then said, "Bruce, you know why I'm talking to you." Mr. Epp I

I !began shaking and crying and said that he did not want to get anybody else involved. N.T.

02/06/14, pp. 200-02. I

Bruce Epp was taken into custody and transported to the Bristol Township Police ' Department. N.T. 02/06/14, pp. 200-01. Detective Vincenti observed that Mr. Epp's shoelaces

rere the only black article of clothing he was wearing. N.T. 02/06/14, p. 205. Mr. Epp was led to 'I an interview room to speak with Detective Vincenti, Detective Cummins, and another

investigator, Detective Slemmer. Mr. Epp was read his Miranda rights before confessing. N.T.

02/06/14, pp. 63-67, 200-03. Mr. Epp was taken to the Horsham Township Police Department I

where he was given his Miranda warnings again and placed under arrest. N.T. 02/06/14, pp. 204-

05.

Mr. Epp had known Appellant for approximately ten (10) to twelve (12) years and John

Ferraro for approximately fourteen (14) years at the time of trial. Appellant and Mr. Ferraro also I knew each other for over ten (10) years. N.T. 02/06/14, pp. 94-98. Shortly before April 11, 2013,

Appellant admitted to Mr. Epp that he was committing robberies and asked Mr. Epp to take part

,n them. In particular, Appellant needed a driver to help him, and Mr. Epp owned a 1993 blue

Dodge Caravan minivan. Mr. Epp did not give an answer as to whether he would help or not. On

ipril 11, 2013, Appellant contacted Mr. Epp and requested that he come over to the apartment

shared by Appellant and Mr. Epp's cousin, Alicia Cook. When Mr. Epp arrived there, Appellant

stated that Ms. Cook was pregnant, they were about to get evicted, and he was "hard up for

money." He said he really needed Mr. Epp's help to commit a robbery, and Mr. Epp agreed in

order to help his cousin, Ms. Cook. Mr. Epp believed he would be the driver for Appellant. N.T.

02/06/14, pp. 99-104. Through a search on his phone, Appellant found a location to commit the

20 RRlO I

~bbery, and when it was time, he went to his closet and got a gym bag full of clothing and other

itfmS. N.T. 02/06/14, pp. 104-06. I Appellant and Mr. Epp entered the blue minivan, and Appellant, who was seated in the

frbnt passenger's seat, provided directions as to where they were going. Appellant then climbed

iJo the backseat with his gym bag and changed into all dark clothes including a black coat, a I

bjack hooded sweatshirt, black boots, an item to cover his face, and black gloves. As they were i driving, Mr. Epp discovered that they were going to a Subway location in Chalfont, Bucks

County. N.T. 02/06/14, pp. 106-09, 111-12. They arrived at the location and drove past the I Subway towards a housing complex where they eventually parked out of sight of the Subway.

They also had two-way radios to communicate with each other in case police arrived, but did not

use them during the robbery. Appellant jumped out of the vehicle towards the restaurant, and Mr. I

~p pretended to be cleaning the inside of his vehicle. After approximately twenty or twenty-five

Jmutes, Appellant came running back to the minivan, jumped inside, and told Mr. Epp to go.

~. Epp jumped into the driver's seat and put the vehicle into drive. Appellant provided Mr. Epp

directions to go home and also spoke about what occurred inside of the Subway restaurant.

Appellant stated that there was a guy and a girl, and that the male would not give up the safe-

dbposit box so he yanked it from him. In addition, he stated that he grabbed the male's car keys.

1i.T. 02/06/14, pp. 109-19. After they arrived back at Appellant's residence, Appellant put his bag back in his closet and started counting money with Ms. Cook. Mr. Epp received some

money, and Appellant placed the rest of the money in his room. N.T. 02/06/14, pp. 119-20.

Approximately one week later, Appellant contacted Mr. Epp again and stated that John

~erraro, who they referred to as "Jay," was not available to drive for another robbery, so he

tjeeded Mr. Epp to drive him again. This was the first time Mr. Epp became aware that Mr. I

21 f?~ J. I I I I I I i ferraro had helped Appellant. Mr. Epp agreed to assist and drove to Appellant's residence in his I

rlue minivan. After entering the residence, Appellant went to get his bag from his closet. After

fntering the vehicle, Appellant directed Mr. Epp to enter the address for another Subway

rstaurant located on 303 Horsham Road into a GPS system belonging to Mr. Epp. Appellant

flimbed into the backseat to change his clothes. N.T. 02/06/14, pp. 121-25. On the drive, Mr. I Epp observed a white SUV had been following his minivan, but it was gone by the time they i made a U-turn and arrived at the Subway restaurant in Horsham. They parked in a nearby i parking lot and Appellant ran towards the Subway restaurant. Mr. Epp lost view of Appellant

lho was in the restaurant for approximately twenty or twenty-five minutes. While Appellant was

inside, he used the two . .way radio that the two brought once again and asked Mr. Epp if "it was l I dlear." Mr. Epp responded that it was, and a short time thereafter, Appellant ran towards the I ~ehicle and jumped back inside. Mr. Epp observed Appellant had a handgun on his lap, which he I

1ker identified as being the same gun as Exhibit C-4. N.T. 02/06/14, pp. 126-30. I I Appellant changed his clothes in the car before arriving back at the apartment. Upon

uhival, he again placed his bag of clothes into his closet. Appellant brought out a safe-deposit

bk:>x, which he opened and started counting money with Ms. Cook just as he did the prior I

obcasion. N.T. 02/06/14, pp. 130-31. Mr. Epp and Appellant then drove to Mr. Epp's apartment I

cbmplex to purchase Percocet with the money from the robbery, and both of them used the l P~rcocet soon after. N.T. 02/06/14, pp. 131-33, 186-89. Mr. Epp then took the safe-deposit box

t9 his apartment and' left it there before the two then left Mr. Epp's apartment complex and drove

blck to Appellant's residence. When they arrived, Mr. Epp observed an individual who was I I walking nearby his vehicle. The individual ran towards his car and put on a bulletproof vest. I Appellant then opened the vehicle door,jumped out, and told Mr. Epp to go. Mr. Epp drove to lthe nearby Sunoco gas station and observed a white SUV following behind. After arriving at the

gas station, Mr. Epp went to pump gas and called Appellant and told him that someone was

following him. Mr. Epp heard Appellant over the phone yelling at Ms. Cook to "put the money

1somewhere.11 Mr. Epp then observed the white SUV from earlier park nearby. Mr. Epp got into !

\ms vehicle and told Appellant that he was about to be arrested. Within seconds, police surround

~- Epp and pulled him from the vehicle and read him his Miranda rights. N.T. 02/06/14, pp. I !131-38. Mr. Epp was taken to the police station where he recalled speaking to Detective Vincenti I I

and Detective Cummins. N.T. 02/06/14, pp. 139-40. I

On April 19, 2013 at approximately 8:45 a.m., a SWAT team entered the Appellant's i residence and took the Appellant and his girlfriend, Alicia Cook, into custody and transported I

~em to the Bristol Township Police Department. N.T. 02/06/14, pp. 240-43. The Appellant was

~en led to an interview room to speak with Detective Fuhrmann and Detective Slemmer. I

f I

etective Fuhrmann read Appellant his Miranda Rights from a preprinted card, whereupon

f. ! ppellant confirmed that he understood those rights and consented to questioning without a

lawyer present. Appellant signed the card, as did Detective Fuhrmann as a witness, prior to orally

4onfessing to ten robberies. See Exhibit CS-3; N.T. 02/06/14, pp. 245-53. I l Detective Fuhrmann began the interview by discussing details of the Fairless Hills ! Subway robberies. Appellant initially denied knowledge of the robberies, but as the Detective I I qelved into more of the specifics of the individual incidents, the Appellant became visibly upset, I

ching and shaking. Detective Fuhrmann asked Appellant how many times he robbed the Fairless I i i Hills Subway, to which Appellant responded by raising two fingers. Detective Fuhrmann then I

confirmed with the Appellant that he robbed the Subway twice, to which Appellant replied I I

"!Yeah." N.T. 02/06/14, pp. 255-57. The Appellant then disclosed that there was one Indian male

23 P-.R :J.3 the first time he robbed the Subway, while there were two people present the second time we

ent. N.T. 02/06/14, p. 257.

Detective Fuhrmann then detailed information concerning the Dollar Tree robbery, and I fhe Appellant confessed to committing that robbery. Appellant acknowledged that he thought he

~as going into a Subway, but miscounted the doors. Appellant also admitted to having a

fI onversation with a woman in the parking lot and asking her to move her vehicle as it was blocking his line of sight to the Subway, using the pretense that he was doing surveillance on the lI Subway looking for a man who was cheating with his wife. Appellant likewise disclosed that he

Jeceived help from two individuals that he knew from his apartment complex named Quentin and ! ~ishak. This interview was the first time Detective Fuhrmann learned of the details of ;

f-ppellant's conversation and the existence of these accomplices. N.T. 02/06/14, pp. 258-59. I I The Appellant then instructed Detective Fuhrmann to name a place, and he will confirm

i~he robbed it N.T. 02/06/14, p. 261. Soon after, Appellant admitted to robbing the Middletown

4unkin' Donuts, but was unaware if he did that job by himself or with a driver. The Appellant I cpmmented that the robbery was a spur-of-the-moment thing. N.T. 02/06/14, p. 262. Appellant I

'I also confessed to robbing the Horsham Township Subway on April 18, 2013, the night before his I arrest. N.T. 02/06/14, p. 262. I

I I By this process, the Appellant further admitted to committing the two robberies of the

~ew Britain Township Subway. Appellant acknowledged that he was driven by John Ferraro and i I Bruce Epp, and further described how he pressured them into helping with the robberies. N.T.

ot/06/14, pp. 263. When prompted, Appellant confessed to the December robbery of the Mail & I I More, and subsequently volunteered information concerning his involvement in the two I I

r1bberies of the Langhorne Lukoil. N.T. 02/06/14, pp. 265, 267.

I I i l The Appellant also divulged his modus operandi with respect to the robberies. He would

routinely attempt to get his victims to sympathize with him by stating that he was losing his

jhouse or mentioning his two daughters. Appellant would make these declarations with the hope Irat his victims would be less likely to fight back. N.T. 02/06/14, p. 268. Additionally, Appellant bonfrrmedthat he would routinely wear dark clothing, which consisted of black pants, a black

~oodie, latex gloves, and a mask constructed from the lower portion of a black sweatpant leg cut

fbout IO inches from the bottom and worn upside down so the elastic would rest at his nose, I

~overing the lower portion of his face. The Appellant cut up his mask and the proceeds from the I

1pril 18, 2014 Subway robbery and flushed the remnants down the toilet before the police

~ved at his home'the following morning. N.T. 02/06/14, pp. 269-71. I 1 I The Appellant stated that Bruce Epp drove him when he robbed the Subway the previous I night, and Mr. Epp had some money from that robbery. Appellant claimed that John Ferraro ;

iould be able to get this money and gave Mr. Ferraro's cell phone number to Detective

Juhrmann with instructions to call and tell him that Appellant requested he bring the money to ~e Bristol Township Police Department. Appellant then declined to give a written statement to

Je Detective as he was too tired. N.T. 02/06/14, pp. 271-74. i' I While Appellant was being interviewed, a search warrant was executed on the I ,4.ppellant'sapartment. During the search, officers recovered a .380 caliber semiautomatic I

tdgun with a neon green grip under a sofa cushion. See Exhibit C-4; N. T. 02107114, pp. 109-

10. Officers also recovered a sawed-off .22 caliber rifle and a 12-gauge shotgun that had similar

libe green grips. N .T. 02/07/14, pp.111-14. A box and instructional manuals for the Bersa

h~dgun were recovered from a living room closet, as was a tupperware-style container housing I

oµe Uniden and oneMotorola two-way radio. N.T. 02/07/14, pp. 115-117. Additionally, loose I II I I I I rpunds of .380 caliber ammunition, a newspaper article concerning one of the Bristol Township

dubway robberies, and a pair of size 12 black boots were found in the Appellant's bedroom. N.T.

~/07/14, pp. 119-27. I

j At 12:00 p.m., a search warrant was executed on Mr. Epp's blue Dodge Caravan. A

4armin OPS device, a black Dickies jacket, and a gray hooded sweatshirt were all recovered ~om the vehicle. See Exhibits C-30 and C-31; N.T. 02/06/14, pp. 207. At 12:20 p.m., the

1ppellant signed a consent form allowing police to search his 1996 Chevy Tahoe. During the

course of the search, a leather holster, a dark black or navy wool pullover cap, black wool

gloves, and dark blue navy gloves were all recovered. See Exhibit C-35; N.T. 02/07/14, pp. 77-

sp. The inside of the holster contained wear marks that were a perfect match for the Bersa .380

caliber handgun that was recovered from the Appellant's apartment. N.T. 02/07/14, pp. 81-82.

After the interview with Appellant, Detective Fuhrmann placed a call to the cell phone

number that the Appellant communicated to him as belonging to Mr. Ferraro. Detective

F~ relayed that he spoke with Appellant, who wanted Mr. Ferraro to bring the money

frbm the most recent Subway robbery to the Bristol Township Police Department. No more than

~ minutes later, Mr. Ferraro arrived with a shopping bag full of coins and small bills. The

bag specifically contains $123 in one dollar bills and $100.50 in various denominations ofrolled I cdins, See Exhibit C-33; N.T. 02/06/14, pp. 275-76. I John Ferraro drove the Appellant on six robberies. Appellant first told Mr. Ferraro that he I n-~ed money quickly, as he was losing his apartment and his girlfriend was pregnant Appellant

then asked Mr. Ferraro to be a driver for him as he attempted to commit his robberies. After I I

taking a few weeks to think over the request, Mr. Ferraro agreed to help the Appellant N.T.

0~/06/14, pp. 320-22. I Mr. Ferraro drove the Appellant in the commission of the robbery of two Lukoil Gas

btations, three Subways, and one Dunkin' Donuts store. N.T. 02/06/14, pp. 322-23. Mr. Ferraro

prst remembered driving Appellant to a Langhorne Lukoil. Mr. Ferraro drove the Appellant to

tJie gas station and parked his white Chevy Tahoe in the parking lot of the nearby auto body shop I

fhere the Appellant was previously employed. N.T. 02/06/14, pp. 323-25. The Appellant left the

tehicle and headed up the side of the Lukoil store. Appellant was wearing a black hooded

!weatshirt, black pants, black boots, and a hat and mask. He later returned to the truck from the

f,ukoil while still wearing the same clothing. N.T. 02/06/14, p. 326. At a later date, Mr. Ferraro I

fgain drove Appellant to the same Lukoil in order to commit a robbery. This second attempt

occurred in similar fashion to the first, except the Appellant returned to the truck much quicker I

than he did previously. Mr. Ferraro returned the Appellant to his own vehicle sometime . tllowing the robbery, where he then observed the Appellant sitting and counting money. N.T.

q2106/14, pp. 238-29.

Mr. Ferraro next drove the Appellant to a Subway in the Queen Anne Plaza in Bristol

township. Mr. Ferraro parked on a nearby residential road as Appellant exited the vehicle, I running across the street in the direction of the Subway. Again, Appellant was clad in a black

hooded sweatshirt, black pants, boots, and a mask. Additionally, Appellant wore blue latex

gloves, similar to those that he would wear when Appellant and Mr. Ferraro would work on cars

together. N.T. 02/06/14, pp. 330-31. Mr. Ferraro did not observe a gun in Appellant's possession I

at this time, but assumed that he was had one, as Appellant carried a gun on the previous Lukoil

robberies. N.T. 02/06/14, p. 332. Appellant then returned to the truck, and Mr. Ferraro drove

them both back to his own house. Appellant explained that he had jumped onto the counter in the

Subway and was screaming at the people to get down and hand over all the money. After the job

27 R~ ?-7 wrs over, Appellant gave Mr. Ferraro money for gas, as he had with the previous 2 Lukoil

rf1bberies. N.T. 02/06/14, pp. 334-34.

After the first Subway robbery, Appellant again confirmed to Mr. Ferraro that he needed f I

~ore money and further believed it would be a good idea to 'hit' that same Subway again. N.T.

o!/06/14, p. 334. So Appellant drove to Mr. Ferraro's house, parked on the driveway next to Mr.

F}rraro's truck, then Mr. Ferraro proceeded to drive both to the Queen Anne Plaza Subway. Mr. I Ferraro parked on the same residential street across from the Subway as the time before, and

atain observed Appellant leave the truck in his black hooded sweatshirt, black pants, boots, and

mask. Mr. Ferraro also described the Appellant's mask as the bottom portion of a pant leg. N.T.

02/06/14, pp. 335-37. Appellant eventually ran back down the street from the direction of the

Spbway, entered the passenger seat of the truck, and the two returned to Mr. Ferraro's house.

Ajgain, Appellant gave Mr. Ferraro money for gas. N.T. 02/06/14, p. 337. l

Mr. Ferraro drove the Appellant to his next target, which was the New Britain Subway.

Mr. Ferraro picked up the Appellant at his apartment and proceeded to drive to the Subway store.

After parking in an apartment complex across the street from the target, Appellant left the

v~hicle and headed across the highway to the Subway, again dressed in a black hooded

sweatshirt, black pants, black boots, and a mask. N.T. 02/06/14, pp. 338-39. Appellant and Mr.

Fbrraro stayed in communication during the robbery by use of two walkie-talkies. Mr. Ferraro

¥fas able to identify the walkie-talkies recovered from Appellant's home as those that they used

during the commission of the robbery. See Exhibit C-29; N.T. 02/06/14, pp. 339-41. Appellant

eventually returned to Mr. Ferraro's vehicle and gave him gas money in exchange for his help.

:N.T. 02/06/14, p. 341.

28 R~J.r . i II !l

The final robbery where Mr. Ferraro drove Appellant was the incident at the Dunkin'

'loonuts in Langhorne. Mr. Ferraro picked up the Appellant from his home and was originally I I

intending to drive to a Subway located on Street Road before he informed the Appellant that he I I

i was too tired to drive the required distance. As a result, Appellant decided to choose an alternate '' fatget, being as he still wanted to carry out a robbery. N.T. 02/06/14, pp. 342-43. Appellant

decided on the Dunkin' Donuts, and Mr. Ferraro agreed to take him there. Mr. Ferraro parked on I ~ side street past the store, and again, Appellant left the vehicle in the direction of the store while I

~earing a black hooded sweatshirt, black pants, black boots, and a mask. N.T. 02/06/14, p. 344. I

As with the previous Subway robbery, Appellant and Mr. Ferraro used walkie-talkies in order to I stay in communication. Through the walkie-talkie, Appellant told Mr. Ferraro that he was

lrutially waiting for employees to open the back door so he could enter the building, and after the I

l,nclusion of the robbery, he used the walkie-talkie to inform Mr. Ferraro to meet him as he was ! nmning from the store. N.T. 02/06/14, pp. 345-46. I

I Later in the evening after Appellant's final robbery on April 18, 2013, he placed a call to

~- Ferraro telling him to pick up a bag of money that was left at Bruce Epp's house. N.T. i I @2/06/14, pp. 347-48. Mr. Ferraro complied with Appellant's request, and later brought this same ! I bag to the Bristol Township Police Station, where he turned it over to Detective Fuhrmann. I

!Detective Fuhrmann then interviewed Mr. Ferraro, who confessed to his involvement in the six

rpbberies with the Appellant. N.T. 02/06/14, pp. 349-52.

Based upon the above evidence, the jury returned a guilty verdict on ten counts of

robbery, ten counts of theft by unlawful taking, eight counts of conspiracy, and five counts of I t~oristic threats. The Appellant was found not guilty of one count of conspiracy in relation to

ie robbery of the Dollar Tree on March 18, 2013. I

! i I I B. Hearing on Pre-Trial Motions/Suppression

At the hearing on Appellant's Motion to Suppress, the following evidence was submitted. 'Detective Timothy Fuhrmann of the Bristol Township Police Department testified that he was I ;nvolved in investigating the robberies that occurred at the Subway located at 545 South Oxford

~alley Road in Fairless Hills, PA on January 9, 2013 and February 23, 2013. As a result of his I investigation, the Detective spoke with the Appellant on April 19, 201~ at the Bristol Township

toiice Department ("BTPD"). N.T. 01/29/14, pp. 57-59. Detective Fuhrmann aided in the

txecution of a search warrant on the Appellant's apartment, and afterwards, Appellant was taken I ~ack to the BTPD for questioning. Together with his partner, Detective Slemmer, Detective

tuhrmann began his interview with the Appellant at roughly 9:30 AM, not more than ten I

minutes after they arrived back at the BTPD. N.T. 01/29/14, pp. 59-60; 70. Appellant's handcuffs

iere removed prior to the start of the interview, and he was not in restraints at any point during

t.µe ensuing conversation. N.T. 01/29/14, p. 70.

Detective Fuhrmann first read the Appellant his Miranda warnings from a preprinted

yellow rights card that the Department provided. The Detective read him his rights as they were i

printed on the card, asked Appellant ifhe under.stood those rights, and asked ifhe would like to ' speak to the Detectives without a lawyer present. N.T. 01/29/14, pp. 61-62. Appellant responded !

"f es sir," he understood his rights, and "Yes," he would like to speak without a lawyer present

'ijle Detective memorialized Appellant's exact responses at the bottom of the rights card, dated I ~e card, and signed it as a witness. Appellant also signed the card indicating that he understood

hls rights and consented to speak without a lawyer present. See Exhibit CS-3; N.T. 01/29/14, pp. I 61-64. At no time during the length of the interview did Appellant ask to speak with a lawyer.

NIT. 01/29/14, p. 71. Appellant then provided a statement that the Detective transcribed in his I I I i 30 lI ~~ 30 handwritten notes during the interview that he eventually incorporated into his written report. In ·. I tlfis statement, Appellant admitted to committing ten armed robberies. N.T. 01/29/14, pp. 64-65.

The Detective began the interview by discussing Appellant's vehicle and any firearms

tHat he owned. Appellant confirmed that he owned a Bersa semiautomatic handgun. Appellant

Jen detailed the conversation that he had with Bruce Epp from the night before, where Mr. Epp

claimed he was being arrested and that the officers were also going to speak with the Appellant.

.Appellant initially denied any knowledge as to why the police would seek to question him.

However, after the Detective started to explain the circumstances of some of the robberies, I Appellant became visibly shaken, began crying, and then gave the Detective further details about

the robberies. N.T. 01/29/14, p. 65.

Detective Fuhrmann started discussing the two Subway robberies he was investigating in

Bkstol Township, as they were most familiar to him. Appellant offered additional details

concerning those robberies. The Detective then moved on to the Dollar Tree robbery in

Montgomery Township, where he referenced a conversation that the assailant had with a woman

in front of that store. Appellant detailed that he approached the woman because she parked her '

cJr in Appellant's line of sight a neighboring Subway store. Appellant then proceeded to give

details concerning the recent New Britain Township Subway robbery. N.T. 01/29/14, pp. 66-67.

At this point in the interview, the Appellant became more upset and invited Detective

Fuhrmann to name the place and the Appellant will confirm whether he committed the robbery.

The Detective then referenced robberies of which he was aware. In this manner, Appellant

s*ecifically confessed to robbing the Bristol Township Subway twice. He also confirmed that he

robbed the Montgomery Township Dollar Tree because he thought it was a Subway. N.T.

ot129114, p. 67.

31 (\R 3 { II I II At this point in the interview, Detective Fuhrmann stepped out of the room to speak with I petective Campbell of Lower Makefield who informed him of a robbery that occurred at the I Mail 'n' More store, where Appellant was a suspect. Detective Fuhrmann approached the I ~ppellant with this robbery, and Appellant admitted his involvement. He specifically indicated

~at he had been employed there previously, and confirmed that he used his gun to rob the store ' bd gave a description of what he wore and said during the robbery as well. N.T. 01/29/14, p. 68. I

Detective Fuhrmann proceeded to question Appellant regarding two other Bristol , fownship robberies of which he was aware, but Appellant denied any involvement. So the I

Detective suggested to the Appellant that he divulge any other robberies that he committed. In I

ks manner, Appellant confessed to robbing the Langhorne Lukoil twice, as well as the !

t,'1iddletown Dunkin' Donuts. N.T. 01/29/14, pp. 68-69. The Detective then concluded his

f terview with the Appellant.

I The Detective made specific note of the fact that some of the information that he had I ileamed from this interview was information that he had not known prior to Appellant's

idmission. Particularly, the Detective was not aware of the involvement of men named Quentin

td Mishak in the Dollar Tree robbery, or that Appellant had previously been employed by his

mother, The Appellant volunteered this information in his statement. N.T. 01/29/14, pp. 167-68.

! Detective Fuhrmann confirmed that Alicia Cook was brought to the BTPD for i 1uestioning as well, although she was not officially a suspect. Appellant was placed in Interview

1-oom 1, while Ms. Cook was placed in a conference room down the hallway in the detective

division, The rooms were not next door to one another. N.T. 01/29/14, pp. 74-75. Detective

!iuhrmann had virtually no contact with Ms. Cook that morning, and did not see or hear her l

cb7ing at any point. N.T. 01/29/14, p. 76-77. Additionally, the Detective confirmed that he did I I I

32 1 I R~ 32- tt instruct Appellant that Ms. Cook could go home after he gave a statement. The Detective was

n~t aware of Ms. Cook's involvement at that time, and did not make any such statement. N.T.

0~/2~/14, p. 78.

Alicia Cook testified that on the morning of April 19, 2013, the police showed up at her

~d the Appellant's apartment. The police instructed Ms. Cook to leave the apartment, not

a~lowing her to get changed out of her nighttime attire. N.T. 01/29/14, pp. 81-82. Ms. Cook was I 9en taken to the BTPD in a police car. As the police were leading her to the vehicle, Ms. Cook

t,stified that she was hysterical and Appellant kept telling the officers that she was pregnant and

"has nothing to do with this." N.T. 01/29/14, p. 83. When Ms. Cook arrived at the BTPD, she

+ I I placed into a room that, she believed, was adjacent to the room where the Appellant sat, as

Ms. Cook claims to have heard him say "My girlfriend has nothing to do with this. Please let her I gJ." Ms. Cook confirmed that the room where she was seated did not have a two way mirror.

+ NlT. 01/29/14, p. 96. At the time, Ms. Cook was also crying hysterically, and she claims to have I doing so for the entirety of her interview. Ms. Cook maintains that she was questioned for I

between an hour and a half and two hours, then released at roughly 11 :30 AM or noon. N.T. I OV29/14, p. 84-86. I During her time speaking with the police, Ms. Cook revealed detailed information

jnceming the events that occurred the evening before, that the Appellant left, came back with

Bruce Epp, and that Mr. Epp later called the Appellant. Ms. Cook disclosed information I I • cdncerning the firearms that the Appellant owned as well. N.T. 01/29/14, pp. 100-04. I

j The Appellant similarly testified that he was called by an unidentified number early in the I

mtrning on April 19, 2013. The voice on the other end instructed the Appellant to leave his

re idence with his hands held above his head. N.T. 01/29/14, pp. 115-16. Appellant did as he was I

33 1Z.R 33 I l i 'I I fnstructed. When he opened his door, Appellant saw about 20-30 police and SWAT officers

rming their weapons at him. Multiple officers began screaming orders at him, causing Appellant

~o feel a great amount of stress. He walked backwards down the ramp in front of his apartment, I

~pped to his knees, and then he was "slammed to the ground very violently."N.T. OJ/29/14,

pp. 117-19. As the Appellant had his hands bound with zip ties and was being led to a SWAT II truck, he recalls yelling at the officers then entering his home that his girlfriend was pregnant. I fhe Appellant was then taken to the BTPD. N.T. 01/29/14, pp. 120-22. l i When the Appellant arrived at BTPD, he was made to stand in a hallway near the I

1nterview room for roughly 15 minutes. He asserts that while standing, various detectives 11 approached him, questioning him and telling him "that they know this and they know that. N. T. I i tl/29/14, pp. 122-23. Then, a detective removed the zip ties from his hands and brought

tppellant into the interview room. While sitting in the room, Appellant claims that he could hear

Ms. Cook "crying, weeping, saying that she did not know anything." N.T. 01/29/14, p. 124. I

\ Appellant recalls pleading with the detectives to let Ms. Cook go. However, according to

tppeilant, the questioning detective informed him that he needed to give the detectives what

tey want. Appellant believes that the Detective then slid him the Miranda card and told him to

sign it so that they can keep talking. Appellant responded that "I will do whatever you want me

ti do," and signed the card. N.T. 01/29/14, pp. 124-26. Appellant cla~ that he was distraught at

~t point and would have signed anything. As the interview progressed, the detective still told

Appellant that he would let Ms. Cook go, but Appellant must keep working with him. N.T. I

0~/29/14, p. 126.

Appellant also quarreled with some of the information contained in Detective Fuhrmann's I r~port of the interview as being inaccurate. Appellant claims that he never said that Bruce Epp ! tas his cousin, as that is not true, and he further alleges that the Detective did not read him his

Jghts at any point during the conversation. N.T. 01/29/14, pp. 132-34. The Appellant does

jonfinn, however, that he spoke with the detectives while knowing what his rights were, but he

Jn1y did so as he believed Ms. Cook would then be sent home. N.T. 01/29/14, p. 163.

l Based on the foregoing evidence as applied to Miranda v. Arizon~ 86 S.Ct. 1602 (1966)

and its progeny, we denied Appellant's Motion to Suppress for reasons we will set forth in detail

tlelow. I fROCEDURAL HISTORY

On April 19, 2013, Lower Makefield Township Police arrested and charged the Appellant I with Robbery and related offenses. Between April 22, 2013 and May 7, 2013, various Police

I!>epartmentsthroughout Bucks and Montgomery Counties similarly charged the Appellant in I donnection with seven other criminal informations. On February 7, 2014, a jury found the

.lppellant guilty often (10) counts ofRobbery,2 ten (10) counts of Theft by Unlawful Taking,3 I dight (8) counts of Criminal Conspiracy,4 and five (5) counts of Terroristic Threats.5 Sentencing I

Jras deferred for a Pre-Sentence Investigation and the performance of a Mental Health Jvaluation. I t On June 20, 2014, the Appellant was sentenced to serve not less than 28 years, nor more I than 70 years, in a State Correctional Institution and a term of 55 years probation to be served !ncurrently with the Appellant's incarceration. On June 27, 2014, the Appellant filed Post- 1 Sentence Motions with the Court, which were denied on October 17, 2014. Appellant timely I 5led an appeal to the Superior Court on October 31, 2014. I

"?j 18 Pa.C.S.A. § 370l(a)(l)(iv). :118 Pa.C.S.A. § 392l(a). · 18 Pa.C.S.A. § 903(a). s.18 Pa.C.S.A. § 2706(a)(l).

35 ·gp,35 ~TATEMENT OF MATTERS COMPLAINED OF ON APPEAL ! J On October 31, 2014, the date Appellant filed his original Notice of Appeal, Appellant

kso filed a Concise Statement of Matters Complained of on Appeal. On November 12, 2014, I f'-ppellant filed an Amended Notice of Appeal. On December 1, 2014, we issued an Order

fursuant to Pa.R.A.P. 1925(b) requiring Appellant to file a concise statement. On December 11,

iol4, Appellant filed an amended Concise Statement of Matters Complained of On Appeal. We ! tffer our analysis pursuant to Appellant's latest concise statement, which raised the following

isues, verbatim: l 1. The Court erred in not granting Defendant [sic] motion to sever the ten robbery cases, as evidence in one case not admissible in others, and the prejudicial effect of the Court joining the cases for trial constituted and [sic] abuse of the Court's discretion and denied the Defendant a fair trial.

The Court erred in allowing the Commonwealth to introduce evidences [sic] of an alleged voice identification where the alleged voice identification was not consistent with the Commonwealth's offer of proof for the same and where the witness stated that he was not able to identify the Defendant's voice as the voice he heard at the time of the robbery, in which he was a victim, and the admission of this evidence, under circumstances, at trial, I was irreparably prejudicial to the Defendant, denied him a fair trial and constitutes an I I abuse of the Court's discretion. 1 ... an. The Court erred in not granting the Defendant's Motion for mistrial where the Commonwealth introduced and [sic] alleged voice identification which was bungled and I not a true voice identification, after which the commonwealth called detective Amoroso l I to testify, ov:er the strenuous objections of the defendant, that the voice that the alleged victim heard was the Defendant's voice, in attempt to rehabilitate the commonwealth [sic] botched voice identification. I iv. The Court erred in denying the Defendant's Pretrial motion to suppress his statement I which was not a knowing, voluntarily [sic], and intelligent act.

The Court erred in denying the Defendant's Pretrial motion for continuance where the Court permitted new counsel to enter on behalf of the Defendant to represent him at trial, but only allowed new counsel twelve days to be ready to try a case involving ten different alleged arm [sic] robberies and where on the day of trial Defense counsel candidly advised the Court that he was not prepared to properly litigate the Defendant's claims and defend him at trial, this amounted to an abuse of the Court's discretion. vi. The Court erred in allowing police officer evidence to be admitted at trial where the police officers and detectives, [sic] improperly offered their opinions that the person who had committed one robbery had committed all ten robberies, as this evidence was highly prejudicial, constituted an abuse of the Court's discretion, and denied the Defendant a fair i I trial. I

·f· The Court erred in allowing police officer evidence to be admitted at trial where the police officers and detectives, [sic] improperly offered their opinions that the Defendant I was the robbery suspect one robbery [sic] and that he had committed all ten robberies, as this evidence and conclusion, was for the jury's determination, as this was the ultimate I issue, [sic] in the case, and the Court by allowing the police officers to offer their

I l opinions allowed the Commonwealth to invaded [sic] the province of the jury, thus denying the Defendant a fair trial.

!viii. The Court erred in allowing the Prosecutor to argue to the jury that there were other robberies that had occurred that the Defendant had not been charged with, thereby implying that the Defendant had committed other robberies, in an attempt to unfairly prejudice the jury against the Defendant, and the Defendant should have been granted a "mis-trial II.

I ix. The Commonwealth improperly argued to the jury, during closing argument, essentially that the jury had to determine that police officers, who investigated the robberies and testified at the trial, were corrupt or the jury had to find the Defendant guilty, which is not the legal standard to be applied in a criminal case.

x. The Defendant made various motions for mistrials, as a result of errors committed by the Court, and improper and impermissible evidence presented by the Commonwealth, which affected the outcome of the trial, resulting in the jury finding the Defendant II guilty" and the trial Court erred in denying the Defendant's motions for mistrial.

XI. There was insufficient evidence from which the jury could conclude beyond a reasonable doubt that the Defendant committed each and every robbery with which he was charged where the evidence was that the "Subway" robbery was committed by a "black man" and Defendant Jesse Smoot is Caucasian.

I xii. The Defendant has newly discovered evidence in that he has an alibi for the robbery that occurred on February 23, 2013, at the Subway in Levittown where Kathleen Moser will testify that he was with her at the time of the alleged crime, and this evidence is sufficient to change the outcome of bis case, and as a result [sic] a jury could find the Defendant "not guilty" at trial.

I xiii. The trial Court erred in allowing the Commonwealth to introduce evidence and records, at trial, through police officers, that the Defendant was behind in his rent and had a landlord Tenant hearing hearing [sic] scheduled or [sic] December 19, 2012, which the prosecutor asserted was a motive for the Defendant robbing the Mail N More and other business establishments.

37 f. R 31 xiv. The Trial Court erred in allowing the Commonwealth to introduce to the jury evidence of prior bad act [sic] allegedly committed by the Defendant to which the defendant objected and the Court erred in not granting the Defendant's Motion for mistrial.

.xv. The prosecutor committed misconduct by eliciting evidence of prior bad acts and introducing that evidence before a jury when that evidence was irrelevant, highly prejudicial and denied the Defendant a fair trial.

xvi, The trial Court erred and abused its discretion in not granting the Defendant's Motion for Judgment of Acquittal with regards to Dunkin Donuts robbery where there were no witnesses called by the prosecutor to the [sic] offer evidence that the Defendant robbed, [sic] the Dunkin Donuts.

xvii. The trial Court erred and abuse [sic] its discretion in allowing an alleged voice identification by Cameron Ralston, the victim of one the [sic] robberies, where the alleged voice identification was not a true voice identification arid was improperly introduced for the sole purpose of prejudicial [sic] the Defendant.

xviii. The prosecutor committed misconduct by eliciting evidence and suggesting to jury that the Defendant committed the ten (10) robberies so that he could by [sic] drugs or support bis drug habit, where there was no credible evidence introduced to support the Commonwealth's contention.

xix, The Defendant was denied a fair trial and the Commonwealth committed misconduct by withholding the fact, until the Defendants' sentencing, that it had negotiated a deal and sentence with Commonwealth witnesses Bruce Epps and/or John Ferraro, in return for their cooperation, at trial, hereby allowing its principal Commonwealth witnesses, the Co-Defendants, to testify falsely at the Defendant's trial.

xx. The Commonwealth violated the federal and state law, adopted by the Courts, in Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, (1963)by [sic] acting in bad faith and failing to disclose its deal with the Co-Defendants.

xxi. As a result of the Commonwealth's failure to disclose its negotiated deals to the Defendant and the Commonwealth's efforts to hide them, as required by Brady, the Defendant is asking the Court to arrest the verdicts and judgment herein, and discharge the Defendant. See Commonwealth vs. Jay C. Smith, _ Pa._ (September 18, 1992); Commonwealth vs. Simons, 514 Pa. 10, 16, 522 A.2d 537, 540 (1987); Oregon vs. Kennedy, 456 U.s. [sic] 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

xxii. On June 20, 2014, the Defendant was sentenced to an aggregate sentence of28 years to 70 years, incarceration in a state correctional institution, with 55 years of probation, to run concurrent with the sentence of incarceration. The sentence is excessive and harsh, as the offenses for the Defendant was sentenced [sic], constitute a first offense, since all convictions occurred on February 7, 2014, at the conclusion of a single jury trial and the Defendant had no prior adult convictions or juvenile adjudications which would justify such a sentence. xxiii. The sentence is excessive and exceeds the statutory maximum for robbery, as the offenses for the Defendant was sentenced [sic], constitute a first offense, since all convictions occurred on February 7, 2014, at the conclusion of single jury trial and the Defendant had no prior adult convictions or juvenile adjudications which would justify such a sentence.

.ANALYSIS

I. Sufficiency of the Evidence

Appellant contends that the evidence presented at trial was not sufficient to sustain the

jury's verdict. We demonstrate herein that the Commonwealth presented sufficient evidence to

the jury to prove beyond a reasonable doubt that Appellant committed the crimes of which he

was convicted.

The Pennsylvania Supreme Court has articulated that the well-settled standard of review

in judging the sufficiency of the evidence is whether, when viewing the evidence in a light most

favorable to the Commonwealth as the verdict winner and drawing the proper inferences

favorable to the Commonwealth, the trier of fact could reasonably have found that all of the

elements of the crime were established beyond a reasonable doubt. Commonwealth v. Hagan,

654 A.2d 541, 543 (Pa. 1995); Commonwealth v. Heberling, 678 A.2d 794, 795 (Pa. Super.

1996). The Superior Court has elaborated:

In applying [the above] test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.

The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. j I

Commonwealth v. Ventrini. 734 A.2d 404, 406-07 (Pa. Super. 1999) (citations omitted). Clearly, I ! I i4 finding Appellant guilty often counts of robbery, ten counts of theft by unlawful taking, eight I . counts of conspiracy, and five counts of terroristic threats, the jury believed the testimony of the I

dommonwealth's witnesses and accepted the Commonwealth's evidence to the extent it

eltablished beyond a reasonable doubt the elements of these offenses. Based on the foregoing I

fJcts and in viewing the facts most favorable to the Commonwealth, it is apparent that the I I . I qonunonwealth presented sufficient evidence to the jury to prove beyond a reasonable doubt that I I Appellant committed the offenses. i

A. Robbery

Pursuant to 18 Pa.C.S.A. § 3701(a)(l)(iv), a person is guilty of committing robbery if in I the course of committing a theft, he inflicts bodily injury upon another or threatens another with I

I

of intentionally puts lhim in fear of immediate bodily injury. In the "course of committing a theft" i i has been construed to mean both an attempt to commit a theft or in the flight after the ''I cemmission of a theft. Commonwealth v. Ford, 650 A.2d 433, 437 (Pa. 1994). An individual . ctnunits theft when he unlawfully takes, or exercises unlawful control over, movable property of

rultother with intent to deprive him thereof. 18 Pa.C.S.A. § 392l(a). Moreover, there does not II I need to be any verbal threat or utterance in order to sustain a robbery conviction. Commonwealth I :yJ Hopkins, 747 A.2a 910, 914 (Pa. Super. 2000). "The threat posed by the appearance of a I i firearm is calculated'to inflict fear of deadly injury, not merely fear of "serious bodily injury." ..

.l factfinder is entitled to infer that a victim was in mortal fear when a defendant visibly

bfandished a firearm." Id. at 914-915. I -

RRlf-0 Appellant was convicted of one count of robbery in connection with each of ten different I

incidents, resulting in a total of ten robbery convictions. Each conviction will be discussed

individually below.

The evidence in the light most favorable to the Commonwealth was sufficient to support

the jury's finding that Appellant robbed the Langhorne Lukoil on August 3, 2012. The jury first

heard testimony from Mr. Andrews that an individual dressed in all black entered the Lukoil,

pointed what appeared to be a gun at him, struck him twice in the head, and stole roughly $350

td $400 from the store. N.T. 01/30/14, pp. 31-39, 57. Security camera footage from that day

confirmed Mr. Andrews' recollection of these events. See Exhibit C-2B. The evidence supports I tlte finding that a robbery occurred at the Lukoil, being as the assailant caused bodily injury to

Mr. Andrews while unlawfully taking money from the store.

There was likewise enough evidence for the jury to determine that Appellant was the

itjdividual who committed the robbery. Mr. Andrews' testimony and the surveillance footage

from the Lukoil established that the assailant wore dark clothing, a mask, had an object later

identified to be a gun, and that he jumped over the counter. Mr. Andrews could confirm that the I

assailant was a Caucasian male by the sound of his voice. N.T. 01/30/14, pp. 31-38. After the

· commission of the robbery, the assailant fled the store to the right, which led down an alley

t4ward a mechanic's garage behind the Lukoil. N.T. 01/30/14, pp. 39. John Ferraro corroborated

Mr. Andrews' testimony by confirming that he drove Appellant to the Lukoil on two separate I occasions for the purpose of committing a robbery. N.T. 02/06/14, p. 323. Mr. Ferraro further

recalled parking his vehicle in the auto garage's parking lot, seeing Appellant leave his vehicle

clad in all black attire, head up the alley toward the front of the Lukoil, and later return down that

srie alley. N.T. 02/06/14, p. 325-26. Additionally, in his interview with Detective Fuhrmann, !Appellant also admitted himself that he robbed the Langhorne Lukoil two separate times and that I

.he always wore all black clothing. N.T. 02/06/14, pp. 267, 269-70.

The record similarly indicates that there is sufficient evidence to support the jury's

!finding that Appellant committed the December 10, 2013 robbery of the Mail 'n' More shipping I

I store in Yardley, Bucks County. Daniel Johnson and Joshua McCormick observed an individual I fnter through the back door of the store dressed in all black. N.T. 01/31/14, pp. 38-42. This

individual demanded money from the two employees at gunpoint, and left the store with roughly I $400 that belonged to the Mail 'n' More. N.T. 01/31/14, pp. 52-53. This testimony is sufficient to I

establish that a robbery occurred, as the assailant brandished a firearm in the course of

unlawfully taking money from the store.

The evidence further establishes that the Appellant was this assailant. Mr. Johnson I testified that the assailant was a Caucasian male, standing about 5 feet 7-8 inches tall, with vivid

ween eyes. N.T. 01/31/14, pp. 45-46. This description matches the Appellant. Mr. Johnson also I reported that the assailant carried a .9 millimeter or .380 caliber handgun that was black with ' I

silver accents and identified the handgun recovered from Appellant's home as looking 'exactly'

like the weapon that the assailant used. N.T. 01/31/14, pp. 46-51. During the robbery, the

assailant communicated that he was being evicted on December 18, 2012, and official records I

indicate that Appellant had a landlord-tenant proceeding scheduled for that date. See Exhibit C-

2l; N.T. 01/31/14, p. 53. Appellant also disclosed to Detective Fuhrmann at a later date that he

would often claim to be losing his home during robberies in order to evoke sympathy from his

victims. N.T. 02/06/14, p. 268. This assailant was clad in black pants, black hooded sweatshirt,

blrck shoes, black gloves, and a black mask, which matches what Appellant admitted he wore in

the commission of all of his robberies. N.T. 01/31/14, pp. 38-42; N.T. 02/06/14, pp. 269-70. I I

I I jFinally,Appellant admitted to Detective Fuhrmann that he was a former employee at the Mail 'n'

~ore and confessed that he had robbed the store in December. N.T. 02/06/14, p. 265.

The record.likewise indicates that the evidence was sufficient to support Appellant's

~nviction in the December 11, 2012 robbery of the Langhorne Lukoil. Michael Jervis testified

~at an individual entered the Lukoil store on that day dressed in all black, brandishing a gun in j pis right hand. This assailant forced Mr. Jervis to empty the register and a side till containing ! r=money, and then left the store and proceeded down the side alley in the direction of an auto I

shop. N.T. 01/31/14, pp. 130-37, 139. The surveillance footage from that night corroborates Mr. i }ervis' testimony. See Exhibit C-8. The evidence supports that a robbery occurred, being as the I i . assailant brandished a firearm while unlawfully taking money from the Lukoil store. I I The evidence further supports the jury's finding that the Appellant was this assailant. The Irsailant wore all black clothing, including a hooded sweatshirt, mask, and gloves, which ippellant confessed he wore on each of his robberies. N.T. 02/06/14, pp. 269-70. Mr. Jervis I I . dommunicated I that nhe assailant was a Caucasian male who stood about 5 feet 8-10 inches in i ijeight, and who he ~ecognized as being a customer of the store. N.T. 02/06/14, pp. 155-156. i

4,ppellant's mother con.firmedthat Appellant was a customer of that Lukoil store. N.T. 02/07/14, i

~p. 193-94. Mr. Ferraro corroborated Mr. Jervis' testimony by confirming that he drove I i}-ppellantto that Lukoil on two distinct occasions for the purpose of committing a robbery. N.T. I I ' 02/06/14, p. 323. Mr. Ferraro further recalled Appellant was dressed in all black, and that he I

~ked his vehicle in the auto garage's lot behind the store, which is the same location where the

~-9 unit lost track of the assailant after the robbery. N.T. 02/06/14, pp. 325-26; N.T. 01/31/14,

1· 158-59. Appellant also confessed that he robbed the Langhorne Lukoil two separate times in

cif1 interview with Detective Fuhrmann. N.T. 02/06/14, p. 267. · ! The evidence introduced at trial is sufficient to support the jury's finding that Appellant I fommitted the January 9, 2013 robbery of the Subway in Fairless Hills, Bucks County. Vishal ! f atel testified that an individual entered the Subway that evening dressed in all black and j remanded money. '.This assailant jumped over the front counter, put a gun to Mr. Patel's head,

and eventually left the store with approximately $1,100 of money from the register and safe. I r.T. 01/31/14, pp. 173-83. Surveillance footage from that night corroborates Mr. Patel's I iestimony of the robbery. See C-IOB; N.T. 01/31/14, p. 185-186. As this assailant used a threat I . I tf violence by brandishing a firearm and pointing it at the victim's head during the course of

lbnlawfully removing money from the Subway's register and safe, a robbery was committed. !i . The evidenoe introduced further supports a finding that this assailant was the Appellant. i ine assailant was dressed in a black hooded sweatshirt, black cargo pants, gloves, and a covering I for his face, which Appellant admitted he wore in the commission of his robberies. N.T. I q2J06/l 4, pp. 269-70. Mr. Patel identified the assailant as a Caucasian male standing between 5 I

±rt 8 inches and 6 feet tall, a description which the Appellant fits. N.T. 01/31/14, pp. 178-79. ' rkr. I Patel also was able to identify the gun found in Appellant's home as the same one that the

f sailant pointed at his head. See Exhibit C-4; N.T. 01/31/14, pp. 179-80. Mr. Ferraro also

cbnfi.rrned that he drove Appellant to that Subway on two separate occasions for the purpose of

d)Jnmitting a robbery, and Appellant wore all black clothing when he left and re-entered the I I vehicle. Mr. Ferraro further testified that the Appellant recalled to him some of the details of his . I

interaction with the victim inside the store. N.T. 02/06/14, pp. 330-33. Appellant also confessed I

. tq Detective Fuhrmann that he robbed the Fairless Hills Subway twice. N.T. 02/06/14, pp. 255- I I I I

I There was also sufficient evidence to sustain Appellant's conviction in the February 23,

2613 robbery of that same Subway in Fairless Hills, Bucks County. Mr. Patel and Carlos Perez

tistified that an individual dressed in all black entered the store, brandishing a gun in his hand. I N.T. 01/31/14, pp. 194-97. The assailant made Mr. Patel empty the register and the safe, then left I ~e store by the back door. Surveillance video from the Subway confirm Mr. Patel and Mr. I

Perez's recollections of the robbery. See Exhibit C-12; N.T. 01/31/14, pp. 198-99, 209-10.

Tpgether, the testimony and video evidence establish that a robbery occurred, as the assailant

brandished a firearm in the act of unlawfully taking money from the Subway.

The evidence in the light most favorable to the Commonwealth likewise establishes that

the Appellant was this assailant. The assailant dressed in all black, just like the previous robbery

of that Subway, and just as Appellant admitted that he did in each robbery. N:T. 02/06/14, pp. !

2~9-70. Mr. Patel was able to identify the gun that the assailant held as exactly the same gun that

was pointed at his head in the first robbery in January, and further identified the gun recovered

frpm Appellant's apartment as that same weapon. See Exhibit C-4; N.T. 01/31/14, pp. 179-80. l The assailant also asked Mr. Patel during the robbery ifhe "hurt you the first time," which Mr. I Patel took to reference the prior robbery. N.T. 01/31/14, pp. 196-98. In the commission ofthis

robbery, the assailant seemed to be using a walkie-talkie that he kept under his sweatshirt. N.T.

Ot/31/14, p. 204. Two walkie-talkies were found in Appellant's home, which Mr. Ferraro was

able to positively identify as those that he and Appellant used in the commission of several I robberies. See Exhibit C-29; N.T. 02/06/14, p. 340. Mr. Ferraro also admitted to driving

Ajppellant to this Subway for the purpose of committing a second robbery, and Appellant himself

confessed to Detective Fuhrmann that he robbed this Subway on two occasions. N.T. 02/06/14,

45 f2J~5 j I

!pp. 334-37, 256-57. Appellant even detailed that there were two employees there for the second I

!robbery, compared to only one being present in the first instance. N.T. 02/06/14, p. 257. I ' The evidence introduced is similarly sufficient to sustain Appellant's conviction in the

!February 28, 2013 robbery of the New Britain, Bucks County Subway. Cameron Ralston i ~estified that a man entered the Subway that evening dressed in all black, brandishing a gun. N.T. I ~2/04/14, I pp. 13-16. The assailant then made Mr. Ralston convey the contents of the register

~efore leaving the store. N.T. 02/04/14, pp. 20-24. Surveillance video confirms Mr. Ralston's

iestimony concerning the events of that night See Exhibits C-1 SA, C- I 5B. As the assailant i

~randished a gun while unlawfully taking money from the Subway, the jury could properly find

~at a robbery was committed.

I The evidence further shows that the Appellant was this assailant. Mr. Ralston testified I I that the assailant wore a black hoodie, black sweatpants, black work shoes, a mask, and blue I ~tex gloves, which corresponds to Appellant's admitted attire that he wore during his robberies.

*kewise, the assailant referenced to Mr. Ralston that he was losing his house and he had two

~ildren to support, which, was something that the Appellant admitted he told his victims in •

!rder to gain sympathy. N.T. 02/06/14, pp. 268-270. As a result of his extended conversation

With this assailant for approximately twelve minutes during the robbery, Mr. Ralston was later I able to positively identify Appellant's voice as that of his assailant. N.T. 02/04/13, pp. 76-79. Mr.

"ijalston could also identify certain physical attributes of his assailant, namely that he was a

daucasian male, mid to late twenties, with green eyes, and appeared to stand slightly taller than

his own height, 5 feet 9 inches. N.T. 02/04/14, pp. 14-15, 27. Mr. Ralston then confirmed that the

a4sailant used a walkie-talkie to communicate with an unknown individual outside of the

rJstaurant, which Mr. Ferraro corroborated in his testimony. N.T. 02/04/14, pp. 19-20; N.T. I • I I i II

~2/06/14, pp. 339-340. Mr. Ferraro also identified the walkie-talkies found in Appellant's home

~ those used during this robbery. See Exhibit C-29. Mr. Ferraro was further able to confirm that

~e did drive Appellant to the New Britain Subway for the purpose of committing a robbery, and

additionally verified that Appellant wore the same black hoodie, black pants, and black boots as I ' Mr, Ralston referenced. N.T. 02/06/14, pp. 337-39. And finally, Appellant confessed to

Detective Fuhrmann that he did commit two robberies at this Subway, and further detailed that I he pressured Mr. Ferraro into helping him in the commission of this first robbery. N.T. 02/06/14, I

~P· 262-63. I The evidence in light most favorable to the Commonwealth is also sufficient to support I Appellant's conviction in connection with the March 18, 2013 robbery of the Dollar Tree in !

North Wales, Montgomery County. Brandon Drenkhahn and Kelley Hom observed an individual

~essed in all black enter the Dollar Tree as they were attempting to take trash out the back door.

tJ.T. 02/04/14, pp. 117-21. This individual, armed with a gun, threatened "I don't want to kill I you, but I will if I have to," before pulling back the chamber of the gun to show the victims that I t= was a bullet loaded inside. The assailant then .forced the two to open the store safe and hand

f ver the contents before he left the store. N. T. 02/04/14, pp. 170- 73, 177-80. As this assailant I 1jb.reatened Mr. Drenkhahn and Mr. Hom with his gun as he was unlawfully taking money from

te Dollar Tree, the jury could find that a robbery was committed.

The evidence was sufficient for the jury to properly find that the Appellant was this 'l assailant. This assailant was described as a Caucasian male, who measured roughly 5 feet 10

i~ches in height. N. T. 02/.04/14, pp. 169- 70. The two victims observed that the assailant wore a l

~lack hooded sweatshirt, black boots, a mask, and latex gloves, which matches Appellant's I

~dmitted attire that he wore during each robbery. N.T. 02/04/14, p. 169; N.T. 02/06/14, pp. 269-

47 Rt-47 ' i (70. Mr. Drenkhahn and Mr. Hom also reported that the assailant told them that he did not intend I fo rob the Dollar Tree, but rather meant to rob the neighboring Subway, ultimately confusing the

6marked doors. They also recalled that the individual used what appeared to be a walkie-talkie ! underneath I his shirt in order to communicate with an unknown individual outside of the store.

~.T. 02/04/14, pp. 171, 180. Additionally, immediately before Appellant's preliminary hearing, I Mr. Horn heard the Appellant in the lobby ask to go out for a cigarette and recogniz.ed the voice

as belonging to the-assailant of the Dollar Tree. N.T. 02/04/14, pp. 197-203. And lastly, during I his interview with Detective Fuhrmann, Appellant himself admitted that he robbed the Dollar ! Tree accidently, meaning to enter the Subway, and that he committed this robbery with the help I M two African American men that he knew from his apartment complex named Quentin and

Mishak, N.T. 02/06,/14, pp. 259-61.

Sufficient evidence was presented to support Appellant's conviction in March 24, 2013 I

Jobbery I of the Dunkin' Donuts in Langhorne, Bucks County. Officer Leonhauser testified that he i responded to a silent panic alarm at the Dunkin' Donuts, where two employees had reported that ' tJley were robbed at gunpoint by a masked individual. N.T. 01/31/14, pp. 255-57. The report of a

thbbery was confirmed by the store's video surveillance system. See Exhibit C-13B. Detective I

' Amoroso attempted to locate the victims, but they did not live at their last known addresses and

9ould not be found.iso they were unavailable for trial. N.T. 02/04/14, pp. 139-42. Still, Officer

Ileonhauser's testimony coupled with the details of the surveillance video provide sufficient

Jvidence that a robbery was committed, as the assailant used threats of force by brandishing a I ffrearm in his theft ef the Dunkin' Donuts.

There is likewise sufficient evidence to support the jury's finding that the Appellant was • qris assailant. The video surveillance showed that the assailant wore a mask and gloves, and carried a firearm, which is consistent with Appellant's admitted method of operation. See Exhibit

J 13B. Mr. Ferraro admitted that he drove Appellant to the Dunkin' Donuts for the purpose of

cemmitting a robbery. However, Mr. Ferraro testified that Appellant originally wanted him to I drive to a Subway restaurant on Street Road, but Mr. Ferraro didn't want to drive that far, as he

Was too tired. So as they passed the Dunkin' Donuts, Appellant decided to rob this store instead

of the Subway. N.T. 02/04/14, pp. 342-44. Mr. Ferraro confirmed that Appellant was again

wearing a black hooded sweatshirt, black pants, black boots, and a mask, and that they once

more used walkie-talkies for communication. N.T. 02/04/14, p. 345. In his interview with I Detective Fuhrmann, Appellant also confessed to robbing the Dunkin' Donuts and further stated

that it was a spur-of-the-moment decision, which matches Mr. Ferraro's testimony claiming that

Appellant changed his target to the Dunkin' Donuts as they were driving. N.T. 02/06/14, p. 262.

Sufficient evidence was presented to support the jury's finding that a robbery occurred on

April 11, 2013 at the New Britain, Bucks County Subway. Mukesh Patel observed an individual

clJ!essed in all black and armed with a gun enter his Subway store that evening. This assailant

demanded money, and Mr. Patel ultimately surrendered $1,600 and his personal car keys to the I assailant before he left the store. N.T. 02/04/14, pp. 215-18. Video surveillance footage from the

Subway corroborates Mr. Patel's recollection of that night. See Exhibit C-18. As this assailant I brandished a firearm while acting to unlawfully take money from the Subway, a robbery was

committed. I I There was likewise sufficient evidence to support the jury's finding that the Appellant

was this assailant. The assailant was a Caucasian male who Mr. Patel estimated was between

twenty and thirty years of age. This assailant wore all black, including a mask and gloves, carried

a ~un, and jumped over the counter towards the register, which is all consistent with Appellant's admitted method of operation. N.T.02/04/14, pp. 216-17. Bruce Epp confessed to driving . I Appellant to the Subway for the purpose of committing this robbery. N. T. 02/06/14, pp. 106-10.

1'ifr. Epp detailed that he and Appellant had two-way radios to stay in communication if the

pblice arrived, and that Appellant told him after the robbery that there were two Indians inside

ie store and he took one of the victim's car keys. Mr. Epp also observed Appellant counting

money back at his apartment just following the robbery. N.T. 02/06/14, pp. 115-19. Mr. Epp I f rher confirmed that Appellant wore all black clothing, including a coat, hooded sweatshirt,

boots, gloves, and something to cover his face. Mr. Epp was even able to identify the black

bbots, mask, and walkie-talkies recovered from Appellant's home as those used during the

commission of the robbery. See Exhibits C-27, C-28, C-29; N.T. 02/06/14, pp. 112-16. Lastly,

A.ppellant confessed to Detective Fuhrmann that he robbed the New Britain Subway on two

sjparate occasions, and further admitted that Mr. Epp drove him on the second robbery. N.T.

0!2/06/14, pp. 262-63.

There is also sufficient evidence to support Appellant's conviction in relation to the final

charged robbery of the Horsham, Bucks County Subway on April 18, 2013. Rasik Panchini

observed an individual dressed in all black enter the Subway as he was closing for the evening.

This assailant pointed a gun to Mr. Panchini's forehead, demanded money, and kicked Mr. I Panchini 2-3 times before leaving the store with approximately $1,500. N.T. 02/04/14, pp. 230-

3~, 249. The evidence is sufficient to support that a robbery did occur, being as the assailant used I the gun to aid in unlawfully taking money from Mr. Panchini.

There is similarly sufficient evidence to support the jury's finding that Appellant was this

assailant. The assailant wore all black clothing, including gloves and a mask, carried a gun,

jljimped over the counter, and stated that be needed the money to support his family as well,

50 ~R.. 50 "jhich all correspond to Appellant's admitted method of operation. Mr. Panchini could not firmly

identify the assailant's skin color due to the poor lighting in the restaurant, but he was able to I

atfirm that the assailant was a male and taller than himself, meaning taller than 5 feet 4 inches.

1'l.T. 02/04/14, pp. 2?4-37. Mr. Epp admitted to driving Appellant to that Subway in order to ' commit a robbery. He further recalled that the two of them used walkie-talkies to stay in I

cbmmunication, that Appellant again wore all black clothing, and that Appellant had a handgun I Of his lap as he reentered Mr. Epp's vehicle. N.T. 02/06/14, pp. 124-30. Mr. Epp was able to

positively identify the handgun recovered from Appellant's home as the handgun that he I

observed on Appellant's lap just after the robbery occurred. See Exhibit C-4. Mr. Epp

a~ditionally recalls witnessing Appellant and his girlfriend counting money from a safe deposit

box immediately after they returned from the Subway. N.T. 02/06/14, pp. 130-31. Furthermore, I I

Appellant confessed in an interview with Detective Fuhrmann on April 19, 2013 that he

e

I Appellant sought to cast doubt on his commission of the Horsham Subway robbery by I referencing Mr. Panchini's 911 call just following the robbery where he misidentified the

Jsailant as being African American. See Exhibit C-19. Mr. Panchini testified at trial that he

nrver saw the assailant's skin color due to the fact that the restaurant was completely dark, as he turned off all of the lighting before the robbery occurred. Based off the loudness of the assailant's

vbice, and without any reference to seeing his skin tone, Mr. Panchini assumed that he was

,irrican American. N.T. 02/04/14, pp. 236-37. Mr. Panchini reiterated that he was nervous and

seared as he called 911, and that he did not actually see that the assailant was African American.

N. T. 02/04/14, p. 251. Photos of the Subway restaurant introduced into evidence reflect the poor

lighting that Mr. Panchini referenced. See Exhibit C-20D, C-20E. Given the circumstances of I

51 {(!( 5 I !Mr. Panchini's I identification, combined with the other evidence introduced at trial and discussed

!above, the evidenoe was sufficient for the jury to find that Appellant committed the robbery of I

lthe Horsham Subway.

I B. Theft by Unlawful Taking

, 18 Pa.C.S.A. § 3921(a) provides that a person is guilty of theft ifhe unlawfully takes, or

~xercises unlawful' control over, movable property of another with intent to deprive him thereof. I pommonwealth v. Stevens further finds that theft is a lesser included offense of robbery, as the I '

refinition of robbery necessarily requires the commission of a theft. 352 A.2d 509, 511-13 (Pa.

~uper. 1975). I I Appellant was convicted of one count of theft by unlawful taking in connection with each ' pf ten different robberies, resulting in a total of ten theft by unlawful taking convictions. As has I rready been discussed in detail above, there was sufficient evidence presented at trial for the

jury to find that ten robberies were committed, and that the Appellant was the individual who

~ommitted each robbery. As such, there is necessarily sufficient evidence to likewise find that

Appellant committed the underlying thefts that formed the basis of each robbery conviction. So, I

tor these reasons, taere is sufficient evidence to find that Appellant unlawfully took money from

~e Langhorne Lukoil, the Mail 'n' More shipping store, each of the three Subways, the Dunkin'

Donuts, and the Dollar Tree with the purpose of depriving their owners of said property. l

C. CriminalConspiracy ! I Appellant has also challenged his convictions for Criminal Conspiracy. A person is guilty I Jf conspiracy if: 11

. . . with the intent of promoting or facilitating the commission of a crime, he (1) ! agrees withisuch other person or persons that they or one or more of them will I engage in conduct which constitutes such crime or an attempt or solicitation to I commit such crime; or (2) agrees to aid such other person or persons in the ' I 52 ,Z;t..EL planning or commission of such crime or of an attempt or solicitation to commit such crime. I 1~ Pa.C.S.A. § 903(;:,.). In other words, in order to find Appellant guilty of conspiracy, the j following elements must be proven beyond a reasonable doubt: "(1) an intent to commit or aid in

l unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the

cpnspiracy." Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001), citing

dommonwealth v. Spotz, 756 A.2d 1139, 1162 (Pa. 2000). "Because it is difficult to prove an

elplicit or formal agreement to commit an unlawful act, such an act may be proved inferentially

bt circumstantial evidence, i.e., the relations, conduct or circumstances of the parties or overt

afts on the part of the co-conspirators." Commonwealth v. Kno~ 50 A.3d 749, 755 (Pa. Super.

2b12) (citation omitted).

The jury found Appellant guilty of six counts of conspiracy in relation to his robberies

1th John Ferraro and two counts of conspiracy in regards to his robberies committed with the

help of Bruce Epp. Viewed in the light most favorable to the Commonwealth as verdict winner, I

ulere is sufficient evidence to support the imposition of guilt on each of these charges. I

The jury found that Appellant engaged in six robberies with the help of Mr. Ferraro,

namely, the two robberies at the Lukoil, the two at the Fairless Hills Subway, the first New !

Bhtain Subway robbery, and the Dunkin' Donuts robbery. Appellant's intent to commit these

r1bberies can be inferred by his conversations with Mr. Ferraro, where Appellant informed Mr.

Ferraro of his desire to commit robberies so that he can gain money, as he was losing his house I

Jd his girlfriend was pregnant. N.T. 02/06/14, pp. 320-21. Mr. Ferraro further testified to the

ireements he made with Appellant to drive him on these robberies that saw Mr. Ferraro receive

small amounts of money for gas. Any agreement to commit criminal conduct can also be inferred i

ht the actions that Mr. Ferraro took in knowingly driving Appellant to these robberies and the I iAppellant's actions in committing the acts and paying Mr. Ferraro for his part. N.T. 02/06/14, pp.

327-346. Appellant even admitted to "pressuring" Mr. Ferraro into helping with the robberies.

!N·T. 02/06/14, pp. 262-63. And finally, the overt act requirement is likewise satisfied as

kppellant successfully carried out all six robberies. Therefore, there is sufficient evidence to

bupport the finding that the elements of conspiracy were met with respect to each of the six I 1 robberies in whichllvlr. Ferraro was a co-conspirator.

! The jury found that Appellant conspired to commit two robberies with Bruce Epp. The

~ppellant's intent to commit these robberies can be inferred from his co~versation with Mr. Epp,

there he confided to Mr. Epp that he was committing robberies and might need a driver to help

fro with any in the future. Appellant again confronted Mr. Epp days later asking for help with

tsI robberies, as he.needed money because his girlfriend, who was Mr. Epp's cousin, was ! ·tregnant and they were abou_t to get evicted. Mr. Epp testified that he agreed to drive Appellant

f his robberies. N.T. 02/06/14, pp. 101-03. The agreement can also be inferred by Mr. Epp's I ~ctions in driving Appellant on two robberies, and his receipt of some of the proceeds of each

robbery. N.T. 02/06/14, pp. 120, 133. Appellant also confessed to Detective Fuhrmann that he I +ressured" Mr. Epp to help him in the commission of these offenses. And finally, the overt act

r~uirement is likewise satisfied as Appellant successfully completely both robberies. Therefore, I I

~ere is sufficient evidence to support the finding that the elements of conspiracy were met with

rf spect to both robberies in which Mr. Epp was a co-conspirator.

j D. TerroristicThreats I l 18 Pa.C.S.A. § 2706(a)(l) provides that a person is guilty of the crime of terroristic

rteats if the person communicates, either directly or indirectly, a threat to commit any crime of

4°lence with intent to terrorize another. In other words, the elements of terroristic threats consist

54 Ri.5f I ' I o} "I) the defendant making a threat to commit a crime of violence, and 2) the threat being

cemmunicated with the intent to terrorize another or with reckless disregard for the risk of

c,using terror." Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003). This Court

hr previously held that no verbal threat is required for the elements of this offense to be

satisfied, so long as there is a "communicated threat to commit a crime of violence."

c.6mmonwealth v. Wintz, 1 Pa. D. & C.4th 299, 303 (Com. Pl. 1988) (a person in one moving

vbhicle who points a shotgun out of a window towards the occupants of another commits the

crime of terroristic threats).

The jury found Appellant guilty of five counts of terroristic threats in relation to his

conduct during the robberies at the Mail 'n' More, the two New Britain Subways, and the ' ~orsham Subway. Viewed in the light most favorable to the Commonwealth as verdict winner,

tite evidence is sufficient to support each of these convictions.

During the robbery of the Mail 'n' More shipping store, Appellant used a gun in the

commission of the theft. Appellant pulled the gun out of his pocket and demanded money from

blth Mr. Johnson and Mr. McCormick. Appellant even stated as Mr. Johnson was looking at his

g{m, "Don't be a hero." N.T. 01/31/14, pp. 46-47, 51. Despite the fact that Appellant did not

1ake a verbal threat to the victims, the presence of the gun necessarily begs the inference that

the victims would be shot if they did not comply with his request for money. It is clear that the

Appellant used this gun for the specific purpose of terrorizing Mr. Johnson and Mr. McCormick

into surrendering any money in the store to the Appellant. As such, there was sufficient evidence

fJr the jury to determine that the elements of the crime of terroristic threats were met with

respect to both victims. Appellant similarly used a gun in the commission of the two New Britain Subway

robberies. On February 28, 2013, Appellant entered into the back door of the Subway,

frandishing a gun in the presence of Cameron Ralston. Upon seeing the gun, Mr. Ralston I immediately put his hands up, and informed Appellant that, "This job is not worth getting killed

over." I N.T. 02/04/14, pp. 13-15. Mr. Ralston reasonably interpreted Appellant's carrying of the

gun as a threat to harm him, and Appellant intended to induce this sort of terror in the victim, so

~ to entice Mr. Ralston into handing over as much money as possible. Moreover, Appellant

carried that identical gun in the April 11, 2013 robbery of that same Subway restaurant.

hppellant brandished that gun in the presence of Mukesh Patel and demanded Mr. Patel give him

money. N.T. 02/04/14, pp. 215-17. Mr. Patel was admittedly frightened by the gun, which was

Appellant's intent. N.T. 02/04/14, p. 223. As Appellant used the gun in order to threaten the

fOssibility of violence if Mr. Patel did not cooperate, and Appellant's intent was to cause the

terror that Mr. Patel felt, there is sufficient evidence to support the jury's verdict.

The Appellant likewise brandished a gun in the robbery of the Horsham Subway on April

18, 2013. Appellant entered the Subway and immediately put the gun to Rasik Panchini's I forehead, before ultimately forcing Mr. Panchini to surrender the contents of the register and a

small change box as well. By placing the gun to the victim's forehead, Appellant threatened to I commit a crime of violence if Mr. Panchini did not cooperate. Appellant also possessed the

intent to terrorize the victim in such a way, as it improved the chances that the victim would give

Appellant the money that he desired. Therefore, viewed in the light most favorable to the

admission of evidence at his trial. We begin our analysis by noting that the Pennsylvania I shpreme Court has consistently held that the admission of evidence at trial is addressed to the I sdund discretion of the trial court, and such evidentiary rulings will not be disturbed absent an

abuse of that court's discretion. See Commonwealth v. Champney, 832 A.2d 40.3, 416 (Pa.

2C)03); Commonwealth v. Ragan, 645 A.2d 811, 818 (Pa. 1994). Each of Appellant's claims will I

b! discussed herein.

A. Voice Identification

The Appellant's second, third, and seventeenth matters argue that Cameron Ralston's

voice identification irreparably prejudiced the Appellant, and Appellant's motion for a mistrial I

therefore should have been granted. For the reasons discussed below, we find this argument to be

wfthout merit. A motion for mistrial is a matter addressed to the sound discretion of the trial court. A

court "need only grant a mistrial where the alleged prejudicial event may reasonably be said to I

deprive the defendant of a fair and impartial trial." Commonwealth v. Jones, 668 A.2d 491, 502-

03 (Pa. 1995) (citations omitted). It is well-settled that reliability is the lynchpin of deciding the admissibility of voice

identifications. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). To aid in reliability

ddterminations, a court should look to the following factors: I

The factors to be considered ... include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

57 ~({57 In the case sub judice, Cameron Ralston testified that he heard the assailant's

voice saying "I love you too" while sitting on a bench outside of the courtroom as

Appellant's trial was finished for the day. He further testified that he immediately

informed both the NOV A6 representative and his father, who were both sitting beside him

iJ the time. The immediacy of Mr. Ralston notifying these individuals lends credence to

t~e accuracy of his identification of the voice. Additionally, as Mr. Ralston admitted that I he did not see who exactly uttered the comment, there is no danger that he observed

1ppellant in custody, and allowed the prejudice associated with Appellant's condition as

the defendant in the case to influence his identification.

Mr. Ralston also had a significant and meaningful opportunity to hear the

assailant's voice at the time of the crime. The assailant was in Mr. Ralston's Subway store ' fJr approximately twelve minutes, during which time he engaged Mr. Ralston in nearly

constant conversation. The event clearly had a lasting impact on Mr. Ralston and ! remained emblazoned in his memory, as he was able to recount many of the exact details

of that evening, including recalling the exact minute that he left the store and eventually I

called the police. As with his certainty in making the identification, Mr. Ralston's

II1emory of his encounter with the assailant further strengthens his later identification.

There is likewise minimal danger of a corrupting effect of this identification on a

jJrr. The jury heard Mr. Ralston's recounting of that night and the exact circumstances of the later identification. It is for the jury to decide what weight, if any, to give this I evidence. Moreover, the Court was careful for the jury not to hear any testimony detailing

thpit the defendant was in custody at the time of the voice identification, thereby

6 ·~etwork of Victim Assistance" is a nonprofit organization that helps victims of all types of crime.

I 58 ,I RRsr I preventing the jury from drawing any prejudicial inferences from that fact. Furthermore,

there is no danger in the Commonwealth's use of a police officer to complete Mr. ! Ralston's identification, as analogous case law suggests.

There is currently no case law in Pennsylvania that is exactly on point, however, the

Spperior Court has decided several cases that present a similar issue. For instance, the Superior I

qourt has held that it is permissible to introduce a victim's testimony identifying an individual's

dee and physical features as being the same as a perpetrator's, then allowing police officer

testimony identifying that individual as the defendant. See Commonwealth v. Sanders, 394 A.2d I sp1 (Pa Super. 1978); Commonwealth v. Dean, 445 A.2d 1311 (Pa. Super. 1982). In Sanders,

the victim identified her assailants after viewing a police mug shot book, and police officers

u!stified at trial as to their identities. Sanders, 394 A.2d at 594. This evidence was properly I admitted as "the declarant was present in Court and could have been examined by defense

c}unsel and the jury could have observed her demeanor as she answered his questions." Id.

Similarly, Dean held that where the victim of a sexual assault identified her assailant in a line up,

ah officer was permitted to testify in open court that she had identified the defendant. Dem 445

A.2d at 1312. Superior Court held that "the trial court's discretion in permitting testimony by the I ~cer on the subject of identification at line-up was properly exercised, and presents no

appeal able issue. 11 Id. at 1313. I Additionally, the Superior Court has applied the same rationale to cases specifically I involving a voice identification issue. In Commonwealth v. Topa, a perpetrator called 911 to

cpnfess to a murder that just occurred, however he misidentified himself as "Roger Ferretti." 410

4.2d 354, 357 (Pa. Super. 1979). The Commonwealth introduced the recording into evidence as I

it insisted that the voice on the tape belonged to the perpetrator. Id. Mr. Ferretti then testified that I he did not make the call, but as an acquaintance of the defendant, he could recognize the voice as

belonging to him. The Court held that the voice identification testimony was properly allowed, as

"the credibility of Ferretti's testimony and the weight to be given to it were proper subjects for I tlie determination of the jury." Id. I I Here, Mr. Ra1ston recognized a voice that he heard outside of the courtroom as belonging

td his assailant. This voice uttered the phrase, "I love you too." The Commonwealth then called

Detective Amoroso, who was also outside the courtroom that day. Detective Amoroso testified

t~at he heard a young woman call down from the catwalk above the lobby outside of the

c~urtroom, "I love you," in the direction of the Appellant. He then heard Appellant respond, "I

19ve you too." The officer saw Appellant utter these words.

These facts present a similar issue to the above referenced cases, as the victim was able to

make an incomplete out-of-court identification, and that identification was completed by another I witness. Mr. Ralston testified that he recognized the voice of his assailant, but could not match a I I

face with this voice. Detective Amoroso provided the testimony that affirms Appellant was the

iridividual who made the statement that was the subject of Mr. Ralston's identification. Detective I ~oroso completed the victim's identification of a perpetrator much like the testimony of the

officers in Sanders and Dean, which was upheld by the Superior Court. The voice identification

v.!as properly admitted, and its appropriate weight was a question for the jury.

B. Knowing, Intelligent, and Voluntary Statement

The Appellant's fourth matter complained of argues that this Court erred in denying the

pretrial motion to suppress Appellant's statement as it was not knowing, intelligent, and

voluntary. For the reasons discussed herein, we find this argument to be without merit. I I

60 j?({,0 The Pennsy lvania Supreme Court's standard of review for reviewing a challenge to a trial

I court's denial of a suppression motion is well-settled as follows: i I I Our standard of review in addressing a challenge to a trial court's denial of a I suppression motion is limited to determining whether the factual findings are I supported by the record and whether the legal conclusions drawn from those facts are correct, Since the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the I defense as remains uncontradicted when read in the context of the record as a I whole. wHere the record supports the factual findings of the trial court, we are I bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. I bommonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003) (citations omitted).

I Our findings of fact and conclusions of law are as follows:

J. . It appears that I have to make two particular findings that are required. One is whether ~s statement made by Mr. Smoot is given after being given is [sic] Miranda warnings. I don't ynruc that's a question, at this point, that he was given them. Question was whether I find that he Ifowingly, intelligently and voluntarily understood them and, secondly, whether or not he was coerced by the police in giving the statements. I ... I As to my conclusion of law, I find the testimony of Detective Fuhrmann to be credible and believable and I accept it in it's [sic] entirety. I believe that he advised the defendant of his fyfiranda warnings as I read them and as has been indicated from the warnings pursuant to CS-3. J. And, therefore, the statement by Mr. Smoot was knowingly, intelligently and voluntarily ~1ven. I Secondly, I do not believe that he was coerced into making that statement as he fully dpoperated with Detective Fuhrmann and I believe that Detective Fuhrmann, as he indicated, had viery little, if any, contact with Ms. Cook and, therefore, I cannot make that connection or do I think that it's a connection that I could logically conclude about the evidence. I 1.T. 01/29/14, I '

pp. l84-85. l The Pennsylvania Supreme Court, in a plurality opinion, first determined that an explicit l iaiver of Miranda rights was required and such an "explicit waiver" was defined as "an outward

Jl1anifestation of a waiver such as an oral, written or physical manifestation." Commonwealth v. I ~ 404 A.2d 1309, 1314 n.11 (Pa. 1979). Bussey was later applied in Commonwealth v.

J.ighes, in which the Superior Court found an explicit waiver of Miranda rights by a defendant's

I I

I I I . ,ctions where he "clearly manifested an intent to waive his rights at the time that these allegedly

f criminating statements were made." 63 9 A.2d 7 63, 770 (Pa. 1994 ). "After a defendant is given

fils or her Miranda rights, a statement by the defendant that he understands those rights followed I y the answering of questions posed by the interrogating officer constitutes a sufficient

anifestation of a defendant's intent to waive those rights so as to satisfy state constitutional

rotections." Commonwealth v. Baez, 21 A.3d 1280, 1286 (Pa Super. 2011).

Additionally, Miranda requires that "such waiver be made knowingly, intelligently, and I ~oluntarily.11 Commonwealth v. O'Bryant, 388 A.2d 1059, 1061 (Pa. 1978) (citations omitted).

~egarding voluntariness in particular:

A statement is voluntary if the decision to speak was the product of a free and unconstrained choice. To determine voluntariness, the totality of the circumstances surrounding the statement must be examined, including: duration and methods of interrogation; the conditions of confinement; the manifest attitudes of the police toward the defendant; defendant's physical and psychological condition; and any other condition which may drain the defendant's power of resistance to suggestion or to undermine his ability to exercise free will. I

-, Id. at 1062. ! In the present case, this Court found at the Suppression Hearing that Detective Fuhrmann I I

rJad Appellant his Miranda warnings prior to beginning the interview. The Detective read

tBrough each warning from a preprinted card, then asked Appellant if he understood his rights I I ait1d if he wanted to talk to the detectives without an attorney present. Appellant responded I

~tively to each of these questions, then made incriminating statements to the Detective.

'Ihese facts illustrate that Appellant understood his rights and clearly manifested his intent to I ~ive those rights by verbally communicating his desire to speak without a lawyer present,

si~g the Miranda card, and then proceeding to answer the detectives' questions. I

I: I ' I. This Court further found that Appellant's claims of police coercion that affected the

vbluntariness of his waiver were without basis in fact. Our factual findings, supported by the I

record, indicate that there was no issue with the duration or conditions of confinement, methods

o} interrogation, Appellant's psychological condition, or the existence of any other element that

tuld inhibit his ability to voluntarily waive his Miranda rights.

iI Given the fact that this Court's factual findings and legal conclusions drawn therefrom are

s~pported by the record, we ask that the Superior Court deny Appellant's argument.

C. Police Officer Opinion Testimony

The Appellant's sixth and seventh matters complained of on appeal argue that the Court

erred by allowing law enforcement officers to give their opinions stating that the suspect of one I of the robberies could have committed all ten robberies. It appears that Appellant takes issue

with specific testimony by either Detective Edward Davies or Detective Corporal Jeffrey I Cummins, in that their opinions go to the ultimate issue in the case. These contentions are

addressed below.

First, a party must make a timely and specific objection in order to preserve an issue for

appeal. Commonwealth v. Brown, 701 A.2d 252, 254 (Pa. Super. 1997). "The Superior Court

,'fill not consider a claim on appeal which was not called to the trial court's attention at a time i when any error committed could have been corrected." Commonwealth v. Montalvo, 641 A.2d

1176, 1184 (Pa. Super. 1994).

Detective Davies testified that he learned of multiple robberies involving Subway

r~staurants and gas stations in the Lower Bucks County area, and the uniqueness of the

circumstances around each robbery led him to believe that they were all "interconnected and

~ossibly done -- most probably done by the same actor or actors." Detective Davies then

J I 63 /<.t< t3 confirmed that one individual was arrested in connection with all ten robberies, the Appellant.

~-T. 02/07/14, p. 87. Appellant's counsel did not lodge an objection to this line of questioning.

Therefore, he did not preserve the issue for appeal, and it is waived.

Detective Cummins' opinion testimony was properly admitted over Appellant's objection.

Opinion evidence can generally be offered by either lay or expert witnesses. Bessemer Stores,

Ibc. v. Reed Shaw Stenhouse, Inc., 496 A.2d 762, 766 (Pa. Super.1985). Additionally, Pa.R.E.

104 provides that opinion testimony is not objectionable solely because it may embrace an

ultimate issue of fact in the case. The Court may exclude opinion testimony, however, if its

admission would serve to confuse, mislead, or prejudice the jury. McManamon v. Washko, 906

A.2d 1259, 1276 (Pa. Super. 2006).

In order for a ruling on evidence to constitute reversible error, it must be shown not only to have been erroneous, but harmful to the party complaining. The appellant must prove the court erred in admitting the challenged evidence and that the appellant was unduly prejudiced thereby.

The opinion evidence at issue was Detective Cummins' testimony that after conferring

with Detective Fuhrmann concerning his investigation, he developed a suspect who he thought

was connected to both of the Detectives' cases, the Appellant. Initially, the record reflects that

Il)etective Cummins stated, "after speaking with [Detective Fuhrmann], we felt that the robberies

J..ere committed by the same individual." However, Appellant's counsel objected before the

Detective could identify the individual in question. After argument at sidebar, the question was

rephrased, and Detective Cummins then testified that during the course of his investigation,he

then developed the Appellant as a suspect. N.T. 02/06/14, pp. 32-37.

Given the rephrasing of Detective Cummins' testimony, Appellant's objections were

*operly overruled as there was no undue prejudice in allowing the jury to hear the revised t1stimony. It is doubtful to suggest that the Detective's testimony, as the jury ultimately heard it,

gave an opinion as to the ultimate issue in the case, whether Appellant committed the ten

charged robberies. Even if so, the testimony should not have been excluded absent some form of

undue prejudice suffered by Appellant or confusion caused to the jury. The Detective's

a~mission that he developed Appellant as a suspect after conversing with another Detective does

npt unduly prejudice Appellant in any way or work to confuse the jury. In fact, the testimony

s¢rved to inform the jury as to the course of the investigation, and as such, was properly

admitted.

Appellant's referenced case of Commonwealth v. Carter is distinguishabie from the facts

of the present case. 589 A.2d 1133 (Pa. Super. 1991). In Carter, the testifying police officers

Were deemed expert witnesses, then allowed to testify to the facts of the case. After the officer

dlscussed personally witnessing the defendant's alleged drug sales outside of a bar, he then stated

tfu_at, in his opinion, the defendant was "dealing narcotics." Id. at 1134. The Superior Court held

tftat the admission of such testimony was cumulative and prejudicial to the defendant. The Court

specifically ruled that expert testimony is not needed when the matter is of common knowledge

f'hr a jury, and will thereby only encourage the jurors to defer to the officer's expertise in

narcotics investigations, substituting the officer's opinion in place of their determination of the

Jedibility of the communicated facts. Id. Carter is distinguishable from the present case in that

Detective Cummins was not an expert witness and never testified as to his ultimate belief as to

.J.hether the Appellant committed the charged offenses.

D. Eviction Evidence

The Appellant's thirteenth matter complained of on appeal alleges that the Court erred in

~lowing the Commonwealth to introduce evidence in various forms averring that Appellant was I I behind on his rent and had a landlord-tenant hearing scheduled for December 2012. Each

itjstance where such evidence was admitted will be discussed below.

To begin our analysis, we note that admissibility of any eviction evidence depends upon

"ihether the evidence is relevant and, if so, whether its probative value outweighs its prejudicial

efect. Evidence is relevant if it logically tends to establish a material fact in the case, tends to I ~ake a fact at issue tnore or less probable, or supports a reasonable inference or presumption

r~garding the existence of a material fact." Commonwealth v. Hawk, 709 A.2d 373, 376 (1998)

(citations omitted). Any evidence of Appellant's landlord-tenant hearing is probative of

Appellant's motive to commit the robberies in question. Moreover, any such evidence

c?rroborates Appellant's co-conspirators' testimony citing Appellant's monetary problems and I ilie testimony of the various victims who recalled their assailant's references to losing his home.

Af such, the evidence is relevant and highly probative. As demonstrated below, each reference to Appellant's landlord-tenant proceeding also survives any hearsay challenge as well.

Detective Campbell and Detective Fuhrmann's testimony concerning their discoveries

that Appellant had a landlord-tenant hearing the same day as the suspect of various robberies

claimed he was being evicted was not hearsay and, as such, was correctly admitted. Pa.RE.

801(c) defines hearsay as a statement that "(1) the declarant does not make while testifying at the

er-rent trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted

i 'l the statement." It is well-established that an out-of-court statement offered to explain a course I of conduct is not hearsay. Commonwealth v. C~ 414 A.2d 1032, 1035 (Pa 1980).

Detective Campbell testified that the robber of the Mail 'n' More on December 10, 2012

told the victims that he would be losing his home on December 18, 2012. Detective Campbell

~stifled to this fact not to assert that the robber actually lost his home on said date, but rather to inform the jury as to why he then searched all local eviction proceedings occurring on that date, I ultimately discovering Appellant's scheduled landlord-tenant hearing. N. T. 01/31/14, pp. 97-104. 'I .PJs the statement was offered to explain bow the Detective's investigation ultimately lead him to

identify the Appellant as a suspect, it is a valid, non-hearsay statement. I

I Similarly, Detective Fuhrmann also referenced a statement made by a robbery victim to

~m communicating-that the robber was losing his house on December 18, 2012. N.T. 02/06/14,

Pl 231. As was the case with Detective Campbell's testimony, Detective Fuhrmann's use of the

statement was limited to informing the jury as to why he took his chosen course of conduct in

i:q.vestigating the robbery. The Detective already identified the Appellant as a suspect, and based

on the victim's statement, the Detective then searched the local District Court for landlord-tenant

proceedings. N.T. 02/06/14, pp 231-34. The Detective was not introducing the statement for its I truth, so the statement was not hearsay. I j The introduction of a certified record of Appellant's landlord-tenant hearing through

detective Campbell was likewise validly admitted in accordance with the rules of evidence. 42

P~.C.S.A. § 6103(a) permits:

An official 'record kept within this Commonwealth by any court, magisterial district judge or other government unit, or an entry therein, when admissible for any purpose; may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by that officer's deputy, and accompanied by a certificate that the officer has the custody.

Moreover, neither§§ 6103 or 6104 mandate that personal knowledge is a requirement for the

admission of an official record into evidence. Commonwealth v. Visconto, 448 A.2d 41, 45 (Pa. I Super. I 1982). I The certified record of Appellant's eviction notice and proceeding was admitted through I the testimony of Detective Campbell. Detective Campbell was not involved in the preparation of I !the records in any way. N.T. 02/06/14, p. 17-18. However, the law does not require personal

~owledge as a prerequisite for the introduction of a certified record. Tue record of the I ~ppellant's landlord-tenant proceeding was kept by the Magisterial District Court of Judge

J)aniel Baranowski, affixed with the court seal, and accompanied by a signed certification that I rerified the authenticity of the document. As such, the record was duly admitted into evidence. I fee Exhibit C-21.

I E. Prior Bad Acts

Appellant's ~ourteenth, fifteenth, and eighteenth state13:1ents of matters complained of on

1 I ppeal allege that the Court improperly allowed the Commonwealth to introduce evidence of

trior bad acts.

Pa.RE. 404(b )(2) provides that evidence of prior bad acts is admissible for purposes I

~ther than to show propensity, "such as proving motive, opportunity, intent, preparation, plan,

~owledge, identity, absence of mistake, or lack of accident In a criminal case this evidence is

,amissible only if the probative value of the evidence outweighs its potential for unfair

Jrejuclice.11 Additionally, this evidence is also permissible in order "to complete the story of a I I d,rime.11 Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988). More specifically, evidence of

the I prior bad acts can be admissible as part of the "chain of events" which became "part of the

~tory of the case and formed part of the natural development of the facts." Id. I i Appellant's issues with prior bad acts relate to the Commonwealth's introduction of

ektidence of Appellant's use of Percocet pills. Bruce Epp testified that just prior to the April 11, I 2b13 robbery of the New Britain Subway restaurant, Appellant snorted some Percocet. N.T. I 02/06/14, p. 187. Additionally, Mr. Epp testified that immediately following the April 18, 2013 I i r~bbery of the Horsham Subway, he purchased Percocet for Appellant from a person that he ! . i ew in his apartment complex, and Appellant paid for the pills using the proceeds of that night's

r bbery. N.T. 02/06il4, pp. 131-34, 186-87. This evidence of Appellant's prior bad acts was

i1troduced as part of the chain of events of each robbery. The details of Appellant's Percocet use

f4rmed part of the "natural development of the facts," and as such, these specific instances of I

P~rcocet use were admissible.

I Appellant's pnor Percocet use also satisfied the requirements of 404(b). The

dommonwealth introduced this evidence not to prove Appellant's propensity for committing

c~ acts, but rather to establish a motive for Appellant to commit the robberies. Motive is

i eluded in the list of permitted uses of prior bad act evidence set forth in Pa.RE. 404(b)(2). The

p obative value of the evidence also outweighed the potential for unfair prejudice, as mandated

by 404(b)(2). Appellant's Percocet use flowed directly from the proceeds of the April 18, 2013

1bbery. Additionally, the April 11, 2013 Percocet use helped Appellant to "amp himselfup" for

+ t~e ensuing crime. N.T. 02/07/14, pp. 131-134, 187. As such, the probative value of the evidence

i significant and outweighed any potential for prejudice stemming from these instances.

Lastly, Bruce Epp's confirmation on redirect examination that Appellant used Percocet

glnerally prior to April 11, 2013 was also admissible, as Appellant's counsel opened the door to I etidence of overall prior drug use through his cross-examination of Mr. Epp. If an Appellant I of ens the door to a fact, the Appellant cannot complain if the Commonwealth chooses to explore

rf111erany information that was behind that door. Commonwealth v. Smith, 17 A.3d 873, 914

(~a. 2011). Appellant's counsel questioned Mr. Epp extensively about his own Percocet use, I it!cluding if he was a "pill popper," the exact details concerning how he used the Percocet, why

h~ used Percocet, how he got the pills, and how much he paid for his pills. N.T. 02/06/14, pp.

th4-57. Through such cross-examination aimed at establishing a possible motive for Mr. Epp to I I

II cbmmit the robberies, Appellant's counsel opened the door for the Commonwealth to similarly

ekplore Mr. Epp's knowledge of Appellant's history of Percocet use for the same purpose. So Mr.

~pp's indication on redirect examination that he observed the Appellant use Percocet before I

1pril 11, 2013 was validly permitted. I

I At trial, Appellant also moved for a mistrial as a photograph featuring evidence of

Appellant's possible marijuana use was introduced into evidence. A motion for mistrial is a

~atter addressed to the sound discretion of the trial court. A court "need only grant a mistrial

vyhere the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and

impartial trial." Commonwealth v. Jones, 668 A.2d 491, 502-03 (Pa. 1995) (citations omitted).

, Tue Commonwealth introduced a photograph into evidence of the top of Appellant's

Jesser that was taken during the search of Appellant's apartment on the afternoon of April 19,

2b13. See Exhibit C-248. Among other items, this photograph featured two clear, stand-up style

1j>ng pipes. Appellant's counsel did not object to the admission of the photograph despite having

a great deal of time to examine each of the photographs prior to their admission into evidence. I Only after C-248 was admitted and after the sponsoring witness' testimony concluded did

,.{ppellant move for a mistrial. Despite the fact that the prejudice of C-248 likely outweighs its

Ifob~tive value, such prejudice does not nearly rise to the level required to deprive Appellant of

3f1 impartial trial, and therefore his motion for a mistrial was denied.

Additionally, the Superior Court has established that an appellant cannot complain of I Jejudicial error on appeal after he elects against the available relief at trial. Commonwealth v.

Quartman, 385 A.2d 429, 432 (Pa. Super. 1978). Appellant's counsel's failure to object when the

evidence was admitted waived any possible objection, yet the Court still offered to provide a

c:autionary instruction in an attempt to cure any potential prejudice done by counsel's error. I iowever, Appellant declined the Court's curative efforts. As Appellant did not object to this I ~xhibit when presented with the opportunity and further elected against the available remedy for I lfis own error at trial, this Court was well within its discretion to deny the motion for mistrial. I ! III. Denial of Motion for Severance i It is well established that a motion for severance is addressed to the sound discretion of I die trial court, and that its decision will not be disturbed absent a manifest abuse of discretion.

Jommonwealth v. Jones, 610 A.2d 931, 936 (Pa. 1992). Offenses charged in separate

informations may be tried together if "the evidence of each of the offenses would be admissible I ip a separate trial for the other and is capable of separation by the jury so that there is no danger i

Jr confusion," or if the offenses are "based on the same act or transaction." Pa.R.Crim.P. ~82(A)(l). I ! I When offenses not based on the same transaction are joined together in the same

Juormation, the Pennsylvania Supreme Court has established a three part test to determine the • Pfopriety of consolidation. A trial court must analyze:

. . . whether the evidence of each of the offenses would be admissible in a separate trial for the other; whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, whether the defendant will be unduly prejudiced by the consolidation of offenses.

Dark, 543 A.2d at 497. Generally, evidence of another crime is inadmissible to prove behavior in

~nfonnity therewith; however, such evidence can be introduced for another purpose, "such as

~oving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, I I

a, lack of accident." Pa.RE. 404(b)(2).

The court may order separate trials of offenses if it appears that consolidation will cause

fY party to be prejudiced. Pa. R. Crim. P. 583. Prejudice "would occur if the evidence tended to

convict appellant only by showing his propensity to commit crimes, or because the jury was I I 71 I! ,?12. 11 I ! I 11 ,capable of separating the evidence or could not avoid cumulating the evidence. Lark, 543 i 4.2d at 499.

l In the present case, Appellant's motion to sever the ten robbery cases was properly

d nied, as the 3 part-Lark test was satisfied. First, evidence of each of the ten robberies would i hrve been admissible in trials for the others. Testimony from the various witnesses supplied that

~e individual who c.ommitted each of the robberies was a Caucasian male, wore all black

cfothing, usually specifying a black hooded sweatshirt and baggie black pants, brandished a dark

·ctlor handgun, appeared during nighttime hours, and always targeted retail establishments. The

cf mes also occurred during a ten month period of time, and each of the victim stores was located

1ong a corridor in between the Appellant's Levittown home and his mother's Warrington

. wnship residence: Additionally, this individual consistently justified the robberies to his

v ctims by claiming that he was losing his house and he needed the money for his family, usually

r ferencing two daughters. This evidence would have established the common identity of the

~ppellant, and the references to his eviction and family would have likewise established a

fI mmon motive for the robberies. The evidence of each crime would have also been admissible to determine a common

plan or preparation for each offense. As stated above, Appellant targeted retail establishments in

g~neral, but more specifically, he targeted either Subway stores or places where he was

4timately familiar. The Appellant robbed five Subway sandwich shops. He robbed a Dollar Tree

b~cause he mistakenly believed it was a Subway and further robbed a Dunkin' Donuts store

Jcause his driver, Mr. Ferraro, was too tired to drive to Appellant's desired Subway target. The I rtmaining robberies targeted the Mail 'n' More, where Appellant previously worked, and a ! iI I I

itukoil gas station that was located near fifty yards from an auto shop where Appellant was I

jlikewise previously employed. I I The method by which Appellant conducted the robberies also demonstrates a common I I jpreparation and plan. For each robbery, Appellant waited until nightfall, wore similar black j

!clothing and a mask, brandished the same handgun, threatened the victims through use of the

~andgun, apologized and justified bis efforts as necessary to keep his home and feed bis '! ~aughters, and typically used a close friend as a driver. ' The testimony provided by each of Appellant's drivers, both Bruce Epp and John Ferraro,

[further highlights the idea of a common identity, motive, and plan. And of course, it cannot be

forgotten that Appellant himself verified these purposes through his own confession

~ommunicated to Detective Fuhrmann. I I Second, the record demonstrates that the evidence was capable of being easily separated IJy the jury, thereby limiting the danger of confusion. Each of the robberies occurred on a

different date, and with few exceptions, different witnesses supplied the testimony that relayed

~e facts of each robbery. The jury could have easily parsed through the relevant facts with

hunimal danger of confusion. In fact, the only testimony that delved into specifics concerning all

len robberies was provided by Detective Fuhrmann, who communicated the details of the

kppellant's confession that implicated him in each of the ten robberies.

Lastly, Appellant was not unduly prejudiced by the consolidation of the ten robbery

cases. The evidence of each crime did not prove the propensity of the Appellant to commit !

?rime, but rather illustrated the common identity, motive, and plan that were present during each

fffense. Additionally, there was no danger that the jury simply viewed the evidence of each

brime in the aggregate, giving the evidence a cumulative effect, as the respective evidence was

I I I

73 I /~7j easily separated by each charged offense. Therefore, Appellant's motion to sever the ten robbery

charges was properly denied. I IV. Denial of Motion for Continuance II The Appellant's fifth matter complained of on appeal insists that the Court erred in

denying Appellant's motion for a continuance where Appellant hired new counsel only weeks

prior to the date set for trial. This issue will be discussed herein.

The allowance of a motion for a continuance is largely within the sound discretion of the

trif11- court, and a denial of such a motion will only be deemed reversible error if the court abused

its discretion. Commonwealth v. Kittrell, 427 A.2d 1380, 1381 (Pa. Super.1981). Generally in I deciding if a court "abuses its discretion in denying a continuance, an accused's right to choose a j

particular counsel, which is not absolute, must be weighed against the public need for the

e~cient and effective administration of justice." Id. More specifically:

Although the accused may personally elect to waive his right to a speedy trial, he clearly cannot be permitted to utilize his right to choose his own counsel so as unreasonably to clog the machinery of justice and hamper and delay the state in its efforts to do justice with regard both to him and to others whose rights to speedy trial may thereby be affected.

Cpmmonwealth v. Robinson, 364 A.2d 665, 674 (Pa. 1976).

Appellant's hiring of new counsel soon before the date set for trial served to "clog the

machinery of justice." Appellant has been represented by three different lawyers at various times

throughout the process. The changes in counsel, while Appellant's legal right to do so, have I

1used lengthy delays in the case. The trial date was initially set for October 28, 2013, where Appellant was represented by the Bucks County Public Defender's Office. N.T. 01/29/14, pp. 16- 1 19. However, Appellant refused to speak with his appointed counsel, insisting that he would

obtain counsel privately. So the trial was continued until December 19, 2013. During the

~ajority of that time, Appellant did not acquire private representation. Shortly before that date,

74 · Al7tf Appellant ; hired Michael Nix as his trial counsel. N.T. 01/29/14, pp. 19-20. As a result of the

s~ort notice for Mr. Nix, the trial was rescheduled again. After consulting their individual , schedules, the Court, Appellant's counsel, the District Attorney, and counsel for Appellant's then

c9-defendant decided upon January 29, 2014 as the trial date. The Court then confirmed that due I

tol the natural complexities involved in scheduling this case comprised of ten distinct robberies, I there would be no more continuances granted and all parties must be ready to proceed on the

agreed upon date. N.T. 01/29/14, pp. 20-21. The Commonwealth affirmed to the Court that in a

Dbcember 30, 2013 conversation with Mr. Nix, there was a consensus that all parties would be

prepared to proceed to trial on the agreed upon date, providing that no there was no earlier

re~olution. N.T. 01/29/14, p. 36. On January 13, 2014, the District Attorney first gained

Iatowledge that Appellant hired Clinton Johnson, who was Appellant's eventual trial counsel.

NlT. 01/29/14, pp. 22-23.

Mr. Johnson entered this case knowing that the trial date was set for January 29, 2014

without the possibility of continuance. The Court had continued the case previous times in order

toi accommodate Appellant's fluctuating legal counsel, and any further attempt to continue the

cJse would have had a negative effect on the thirty or more witnesses that the Commonwealth

eJpected to provide testimony. Considering the prior continuances for similar reasons, the fact

thbt Appellant's original trial counsel affirmed that he would be ready to proceed by the January I 29 date, the scheduling conflicts that approximately thirty witnesses would incur, and the I scheduling issues for the Court, the Court did not abuse its discretion in denying the motion for a I . continuance.

V. Lack of Victim Testimony

RI?. 7£' Appellant's'sixteenth matter complained of on appeal argues that the Court erred in not

ranting Appellant's Motion for Judgment of Acquittal in relation to the March 23, 2013 robbery

f the Dunkin' Donuts. In support of the issue, Appellant specifically references the fact that the

frosecution did not call the victims of the robbery to offer evidence against the Appellant. This

~gument is without merit for the reasons discussed herein.

I I There is no requirement that the Commonwealth call the victim of a crime to testify at

tial, so long as the victim's testimony is not being withheld because it would be unfavorable to I ~e Commonwealth'scase. Commonwealth v. Leatherbury, 469 A.2d 263, 266 (Pa Super.1983).

iowever, the Commonwealth must generally disclose the victim's name and whereabouts at time

Jr trial I to the defense, unless the defense would be able to locate the witness through their own I ievices. Id. at 266-67.

j The victims of the Dunkin' Donuts robbery were not called to testify at trial. The

1ommonwealth represented that both of the victims no longer resided at their last known

~dresses and were unavailable at time of trial. Appellant made no allegation that their testimony I fas being withheld solely because it would be unfavorable to the Commonwealth. As such, the

qommonwealth did.not need to call these victims to testify, and the Court did not err in denying I

1-ppellant's Motion of Judgment of Acquittal on these counts as a result. Additionally, as

c$scussed above, there was sufficient evidence to convict Appellant of the charges stemming

~om this robbery even absent the testimony of the two victims, so the Motion was correctly ! drnied.

, VI. Newly Discovered Evidence I I The Appellant's twelfth claim alleges that newly discovered alibi evidence for the

F Jbruary 23, 2013 Subway 1 robbery would be sufficient for the jury to find Appe11ant not guilty

at a new trial. For the reasons discussed below, we find no merit to Appellant's contention.

Pa.R.Crim.P. Rule 720 permits an individual to file a post-sentence motion for a new trial

bted upon after-discovered evidence. To be granted a new trial on the basis of after-discovered

e~dence, Appellant must demonstrate that the evidence: (1) could not have been obtained prior

to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely

c rroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness;

d (4) would likely result in a different verdict if a new trial were granted. Commonwealth v.

P dillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citation omitted). Appellant must show by a I I I

prreponderance of the evidence that each of these factors has been met in order for a new trial to

bJ warranted. Id.

I Appellant fails to establish the first element: that he could not have obtained the new

eiidence, alibi testimony from Kathleen Moser, prior to the conclusion of trial by the exercise of

reasonable diligence. This alibi evidence would have been in the exclusive knowledge and

cdntrol of Appellant, so barring the unavailability of the witness, there is no reason why such

e~idence could not have been presented at trial. Appellant has made no showing of why Ms. i ~oser was unavailable or why he could not locate her prior to trial. As such, the first element is

nit satisfied.

Appellant similarly fails to establish the final element: that the evidence would likely I rfuit in a different verdict if a new trial was granted. The verdict in this case was supported by I overwhelming evidence, not only in respect to all ten robberies generally, but also to the I

F~bruary 23, 2013 Subway robbery individually. Concerning the February 23, 2013 robbery, I

II I V~shal Patel gave a description of the assailant that matched the Appellant. The assailant claimed I

thit he could not afford his home, and Appellant had an eviction proceeding two months prior.

Atpellant owned a gun with a green grip that Mr. Patel positively identified at trial as the same

w¢apon used by his assailant. John Ferraro, the admitted driver of the assailant, also confessed I I

j r t he drove Appellant to that Subway restaurant on two separate occasions in order to commit a

bery. Appellant even confessed to a detective that he robbed that Subway twice and gave

bJef details of each that corroborated the victims' accounts. In light of this evidence, the Court

cannot find that a different verdict would likely result if the after-discovered evidence were

presented to a jury at a new trial. Therefore, Appellant is not entitled to a new trial on the basis of I after-discovered evidence.

, VII. Prosecutor's Argument to Jury ! I Appellant contends that the prosecutor improperly argued to the jury that (1) "there were ! other robberies that occurred that the Defendant had not been charged with/ and (2) "essentially

thrt the jury had to determine that the police officers, who investigated the robberies and testified !

at trial, were corrupt or the jury had to find the Defendant guilty." This Court finds that not only

wlre the prosecutor's statements to the jury proper, but Appellant has not preserved his right to

,peal on these grounds.

I Remarks of counsel cannot form a basis for a new trial in the absence of timely objection.

Nhrciso v. Mauch Chunk Twp., 87 A.2d 233, 235 (Pa. 1952). "The reason for this rule is

obvious. In many cases the effect of an erroneous or misleading statement can be corrected if it is

called to the court's attention immediately but if a party chooses to remain silent we must assume I tbh.t he felt the remark did him no harm." Id. If no objection is made at the time of the

78 ~R7f I I ptpsecutor's statement or at the conclusion of the prosecutor's argument, then the objection is

w~ived. Commonwealth v. Williams, 455 A.2d 632, 634 (Pa. 1983). I

In the present case, Appellant's counsel did not object to any portion of the

Cf mmonwealth's opening or closing remarks to the jury that referenced other robberies or any al1egation of the police officers involved in the case being corrupt. There are no recorded I o~jections to the Commonwealth's opening argument, and the only recorded objection to the I c1flsing argument concerns the Commonwealth's mention of Appellant's use of Percocet. N.T.

ot/07/14, pp. 334-38. Appellant, through his counsel, did not object to these statements made by

Je prosecutor, which did not give the Court an opportunity to cure any harm that was done to

Je Appellant. Due to Appellant not bringing these issues to the Court's attention, it was and is

Jsumed that no harm was indeed done. Therefore, the Appellant did not preserve these issues I ftr appeal.

I This Court will also note that any comments made by a prosecutor before the jury "must

bp examined within the context of defense counsel's conduct. It is well settled that the prosecutor

nlay fairly respond to points made in the defense closing." Commonwealth v. Chmiel, 889 A.2d

s61, 543 (Pa. 2005). During Appellant's closing, his counsel advanced arguments that I ppellant's confession may have been fabricated by the Detectives, and any remarks made by the

ommonwealth referencing corruption were in direct response to Appellant's arguments. Even a

ain reading of the Notes of Testimony evinces that the Commonwealth was simply responding

tf Appellant's closing, and there was no indication of Commonwealth instructing the jury that it must find Appellant guilty or the officers corrupt, as Appellant claims on appeal. VIII. Alleged Brady Violation I

! In his nineteenth, twentieth, and twenty-first matters complained of on appeal, the

A~pellant argues that the Commonwealth failed to disclose negotiated deals with co-defendants

B+ce Epp and John Ferraro as required by Brady, and as such, the guilty verdicts should be

~ested and the Appellant discharged. For the reasons discussed herein, these matters I corplained of are meritless.

i The Supreme Court held in Brady v. Maryland that an individual's due process rights are

vj!lated where the prosecution fails to disclose evidence favorable to an accused that is material

to guilt or punishment. 373 U.S. 83, 87 (1963). The Pennsylvania Supreme Court has further

ruf ed that a Brady violation occurs where "(I) the prosecutor has suppressed evidence; (2) the e~dence, whether exculpatory or impeaching, is helpful to the defendant; and (3) the

stpression prejudiced the defendant." Commonwealth v. Carson, 913 A.2d 220, 244 (Pa. 2006).

The record in the instant case does not reflect that any Brady violation occurred, as no

PfI of the 3 part test is satisfied. Appellant alleges that the Commonwealth failed to disclose

e+dence of negotiated sentencing agreements with both co-defendants, however, the record

~ongly indicates that no such evidence existed. Prior to Appellant's trial, the record reflects that

Atpellant's counsel sent a letter to the Commonwealth requesting information concerning any

t•ments or understandings between the Commonwealth and any witnesses in exchange for

1ir cooperation. Appellant's counsel concedes that the Commonwealth informed him that there

wb a negotiated sentence with Bruce Epp for 2.5 to 5 years, and that John Ferraro pied open and I wruld be sentenced after Appellant's trial. N.T. 10/15/14, pp. 35-37. During direct examination,

Bpice Epp clearly detailed that the Commonwealth did not negotiate a deal with him in exchange I

rdr his testimony. Instead he delineated that the Commonwealth I promised him a recommended

s+itence of2.5 to 5 years, but that the judge was not bound by the recommendation. N.T. I

80 tfitO I I p2t06/14, pp. 142-43. Similarly, John Ferraro also confirmed on direct examination that there

as no deal between himself and the Commonwealth as a result of his testimony. N.T. 02/06/14,

I Appellant's contention that the Commonwealth failed to disclose a negotiated agreement

ftems from the prosecutor's errant admission in responding to a question by the Court at ·

~ppellant's sentencing that the sentences for Mr. Epp and Mr. Ferraro were both negotiated. N.T. I I 16/20/14, p. 133. In arguing post-sentence motions, Appellant's counsel cited that a member of

i-fr. Ferraro's family told Appellant that Mr. Ferraro negotiated a deal of 6 years with the bommonwealth, I and Appellant discovered that Mr. Ferraro was then sentenced to 6 years.

f owever, the record does not confirm this speculative account.

The prosecutor admitted on the record that she inadvertently told the Court that Mr.

J erraro's sentence was negotiated. The prosecutor also detailed that she contacted Appellant's

counsel as soon as she uncovered the errant statement to inform him of the mistake. Appellant's ! counsel concedes that the prosecutor so told him in an email dated August 4, 2013. N.T. i .

10/15/14, pp. 72-73, 84. The prosecutor also cited to Mr. Ferraro's sentencing, where the record

c early shows that the Commonwealth requested a sentence of 8 to 16 years, which would have

*en within the guidelines for each offense. The Court declined to follow the Commonwealth's I riquest and instead imposed a sentence of 6 years. Furthermore, the Court also declined to give

"tt. Epp a 2.5 to 5 y~ar sentence, instead sentencing him to 2 to 4 years. N.T. 10/15/14, p. 38. As

s ch, the facts of the case strongly oppose the allegation that the Commonwealth failed to

sclose any negotiated agreement with Mr. Ferraro or Mr. Epp, and therefore, the

pellant's argument be denied. I .

I I IX. Sentence Imposed •I I Appellant asserts that the sentence imposed by this Court was excessive. At the outset,

!e note that no automatic right of appeal exists for a challenge to the discretionary aspects of I ~entencing. Rather, this type of appeal is more appropriately considered a petition for allowance l

~f appeal. Commonwealth v. Rossetti, 863 A.2d 1185, 1193 (Pa. Super. 2004). Before reaching

t~e merits of a discretionary sentencing issue, a court must ascertain whether an appellant (i)

41ed a timely notice of appeal, (ii) properly preserved the issue to be heard on appeal, (iii) filed a

~rief free of fatal defects, and (iv) raised a substantial question that the sentence appealed from is I ~ot appropriate under the Sentencing Code. Commonwealth v. Mastromarino, 2 A.3d 581, 588 I

qpa. Super. 2010).

A court evaluates whether a particular issue raises a substantial question on a case-by-

4ase basis. Rossetti, 863 A.2d at 1193. "[The court] will grant an appeal only when the appellant

ddvances a colorable argument that the sentencing judge's actions were either: (I) inconsistent

fI th a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms

tmch underlie the sentencing process." Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. l ~uper. 1999) (en bane). 11 [A] claim of excessiveness of sentence does not raise a substantial

question where the sentence is within the statutory limits." Id.

I No substantial question exists as the sentence imposed upon Appellant was within the l

~tandard range of the sentencing guidelines. Therefore, Appellant's sentence is not an appealable

1sue. The standard range for each count of robbery is 40-54 months. This Court imposed a

~entence of 48-120 months on each of seven counts, to run consecutively, and 20 years of I 9robation each on two counts, served concurrently to one another and concurrently with the I ~ppellant's incarceration. This Court did not sentence on the remaining robbery. The standard j

I I ! I I I fange for conspiracy is 30-42 months. We imposed a sentence of 5 years probation on 6 counts to

~n consecutively to one another, but served concurrently with the Appellant's incarceration.

t I s Court did not sentence on the remaining two counts. The standard range for terroristic

eats is 6-7 months. We imposed a sentence of 5 years probation on one count, served

tonsecutively to the Appellant's other probation sentences, but concurrently to the Appellant's

fcarceration. This Court did not sentence on the remaining 4 counts. I

ii Even assuming Appellant's sentence is an appealable issue, the sentence imposed was

~ppropriate and should be affirmed. First, it is well-established law that the sentencing function I i~ a matter vested within the sound discretion of the sentencing court and will not be disturbed on ;

ypeal absent a manifest abuse of discretion. See Commonwealth v. Walls, 926 A.2d 957, 961

a. 2007). "[A]n abuse of discretion is more than a mere error of judgment .... [A] sentencing

ourt will not have abused its discretion unless the record discloses that the judgment exercised

• as manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. (citations

9mitted). "An abuse of discretion may not be found merely because an appellate court might

~ve reached a different conclusion." Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003).

'ilherationale offered by the Pennsylvania Supreme Court for this deferential standard is as

ff11ows:

Ii Simply stated, the sentencing court sentences flesh-and-blood defendants and the i nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed. Even with the advent of the sentencing guidelines, the power of sentencing is a function to be performed by the sentencing court. Thus, rather than cabin the exercise of a sentencing court's I discretion, the guidelines merely inform the sentencing decision.

~ 926 A.2d at %1-62 (citations omitted), Furthermore, a sentence of confinement must be

"~onsistent with the-protection of the public, the gravity of the offense as it related to the impact

83 f?I< f 3 n the life of the victim and on the community, and the rehabilitative needs of the defendant." 42

a.C.S. § 9721(b). A sentencing court may determine a defendant's potential for rehabilitation by

fmsidering his demeanor, apparent remorse, manifestation of social conscience, and cooperation

tth law enforcement agents. Commonwealth v. Begley, 780 A.2d 605, 644 (Pa. 2001);

ommonwealth v. Constantine 478 A.2d 39 (Pa. Super. 1984); Commonwealth v. Gallagher,

42 A.2d 820 (Pa. Super. 1982). ! In imposingAppellant's sentence, we first took into consideration the sentencing

Juidelines. As discussed above, Appellantwas sentenced within the standard range. In I

s~ntencing Appellant, we also took into account his lack of a prior criminal history, which was

fso reflected in the guidelines that were submitted in the case. N.T. 06/20/14, p. 119. I Additionally, this Court considered the particular circumstances of the offenses committed, the l l tjature and character of Appellant, his background, the need to deter Appellant and others from I

~mmitting these crimes, and the impact on the victims and the community at large. N.T.

q6/20/14, pp. 129-31. Based upon the testimony heard at trial, Appellant demonstrated his

~iolent nature in committing these crimes. His actions included placing a loaded gun to the bead

df multiple victims.including even a teenager, physically striking multiple victims, and even

t~eatening to kill these victims who were simply trying to earn a living. N.T. 06/20/14, pp. 120-

~l. Such callous disregard for the victims and the welfare of those in the community were

~nsidered by this Court. N.T. 06/20/14, p. 134-35.

j The impact of Appellant's offenses on the victims is, in this Court's judgment, immense

id immeasurable. N.T. 06/20/14, p. 129. The numerous victims in this case have each felt I 1auma and terror as a result of Appellant's senseless crime spree, which was made evident

tough both the victim impact statements and the victims' testimony. Victims have subsequently

l I I I Ii feft their jobs, suffered anxiety, nightmares, and panic due to the Appellant. N. T. 06/20/14, p. 121, 134. And the :amage is not limited to the direct victims in this case, but rather the rippling I

effect that Appellant's actions will have on the families of each victim has been considered as I I }vell. N.T. 06/20/14, p. 127. 'I I I We also considered Appellant's lack of remorse. The presentence report indicated that I

~ppellant adamantly denied committing or even conspiring to commit these robberies. Appellant

claimed his confession was fabricated by detectives, and he was simply guilty by association and i ~ "victim" of circumstance. N.T. 06/20/14, pp. 122-23. Through this report and even in recorded I [elephone calls and' visits to the prison, Appellant has demonstrated absolutely no remorse I Whatsoever for the destruction that he has wrought. N.T. 06/20/14, pp. 123-124. I

The Appellant presented mitigating evidence which we took into account as well. This I ipcluded letters and testimony from multiple family members and friends who described

Appellant as the kind of person who is trustworthy, enjoyable to be around, and who ultimately I

i~n't afraid to help others in their time of need. N.T. 06/20/14, p. 120. Before imposing sentence,

~s Court further considered evidence of Appellant's troubled background and his relatively I

~oung age of 28. N;T. 06/20/14, pp. 119-20, 134.

j After careful evaluation of all of the above factors as well as the presentence report and

mental health evaluation, we imposed sentences of28-70 years of incarceration and 55 years of I ~robation to run concurrently to the Appellant's sentence of incarceration. Both of these

+ntences were within the standard range. We believe the sentence imposed was appropriate and I I ask that it be affirmed. < ONCLUSION For the foregoing reasons, this Court perceives that the issues of which Appellant has

1 c mplained in this appeal are without merit, and that this Court's June 20, 2014 Judgment of

S~ntence and October 17, 2014 Order denying Appellant's Post Sentence Motions were

stpported by both the law and the record in this case. We respectfully request the Superior Court

11 affirm this Court's decision. I II l BY THE COURT: I

1ut 4ate ! 'JR. J.