J-S23025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRANDON SAWYER,

Appellant No. 1403 EDA 2014

Appeal from the Judgment of Sentence April 10, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012941-2011

BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 01, 2015

Appellant, Brandon Sawyer, appeals from the judgment of sentence 

entered following his convictions of first degree murder, carrying a firearm 

on public streets or property in Philadelphia, and possessing an instrument 

of crime. We affirm.

The trial court summarized the factual history of this case, as follows:

At approximately 1 o’clock in the morning of November 4, 

2008, Philadelphia Police Officer Sterling Staton and his partner, 

Officer Vance, were called to 54th Street and Florence Avenue in 

West Philadelphia. When they arrived at the scene, Officer 

Staton observed the body of the victim in this case, Charmaine 

McGuilken, lying beneath a pay phone, unresponsive and 

bleeding from her face. She had the telephone handset in her 

hand, and the cord connecting it to the phone had been severed. 

When the medics arrived a few minutes later, they pronounced 

her deceased at the scene. N.T. October 22, 2013, pp. 56-69.

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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Dr. Sam Gulino, Chief Medical Examiner in the Office of the 

Medical Examiner of Philadelphia, performed an autopsy on the 

decedent, Charmaine McGuilken. The decedent sustained two 

perforating gunshot wounds, to the right side of her face and to 

her chest. N.T. October 22, 2013, pp. 76-100. Officer John 

Cannon of the Firearms Identification Unit gave expert testimony 

that the ballistics evidence recovered at the scene and from the 

Medical Examiner all came from the same firearm. Id. at 153-

164.

Corey Williams1lived in Southwest Philadelphia in 2008, 

where he knew two men named Aasim Stibbins and Aaron 

McCallum. Aaron McCallum, also known as Beano, is the 

defendant’s cousin. On November 4th, 2008, at approximately 1 

in the morning, Williams was selling crack cocaine on the 5400 

block of Belmar Terrace, which is a little less than two full blocks 

east of Florence Avenue. He heard shots, but he stayed on 

Belmar Terrace because they sounded sufficiently far away that 

he did not fear for himself. Shortly thereafter, he heard police 

cars rushing to the scene of the shooting and saw [Appellant], 

Stibbins, and McCallum emerge from an alleyway, looking 

shocked and fearful. The three men went to Stibbins’ house. 

Earlier that day, Williams had seen McCallum with a gun. He 

knew McCallum to own two guns, a 40-caliber and a 9-

millimeter. Id. at 170-181.

At some point after the shooting, Williams was at Stibbins’ 

house speaking with [Appellant] and McCallum. [Appellant] told 

him that he shot Charmaine McGuilken in the head, and he and 

McCallum laughed off the incident. [Appellant] said he came out 

of the alleyway, he shot Charmaine in the head, and when he 

shot her the receiver on the phone came off. Stibbins seemed 

more troubled by what had happened. Id. at 182-187.

On November 6, 2008, Detective Keith Scott and his 

partner were working near 55th Street and Florence Avenue. He 

saw [Appellant] and attempted to stop him, and [Appellant] ran 

from him for approximately 100 feet. Scott overcame him and 

____________________________________________

1

 Mr. Williams’s first name has been spelled either “Corey” or “Cory” 

throughout the proceedings. For consistency, Mr. Williams’s first name will 

be spelled “Corey.”
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took him into custody on an unrelated matter. N.T. October 23, 

2013, pp. 36-40.

On February 9, 2011, Williams was arrested for selling 

narcotics. In order to avoid harsh penalties for his narcotics 

involvement, Williams agreed to give a statement about the 

murder of Charmaine McGuilken. He told homicide detectives 

what he remembered from the night of the shooting, and from 

[Appellant’s] confession. N.T. October 22, 2013, pp. 188-197.

Aasim Stibbins knew the decedent, who was his mother’s 

friend. On February 16th, 2011, he gave a statement to police 

in which he implicated [Appellant]. In his statement, he says 

that he was leaving a woman’s house sometime after midnight 

and saw [Appellant] and Aaron McCallum coming out of a vacant 

lot, and then saw [Appellant] raise a gun and shoot the decedent 

while she was on the phone. N.T. October 23, 2013, pp. 47-79.

On November 8, 2011, Stibbins and his lawyer signed a 

Memorandum of Agreement with the District Attorney 

memorializing their agreement that Stibbins testify against 

[Appellant] in this case, and that the District Attorney would 

agree to a sentence of time served on Stibbins’ open gun case. 

Stibbins testified at [Appellant’s] preliminary hearing that he saw 

[Appellant] shoot the decedent. Id. at 104-145.

On the witness stand, he denied being present for her 

shooting or involved in any way. Rather, he claimed that the 

detectives who took his statement used Corey Williams’ 

statement in order to fabricate a statement for him as well, and 

that he was not present when the shooting occurred but he was 

threatened with being charged in this case if he did not put 

himself at the scene as a witness. Id. at 47-79.

On March 8, 2011, Tyree Thomas gave a statement to 

police in which he reported that in February of 2009 he was at 

Aasim Stibbins’ house when Stibbins told him about the 

shooting. Stibbins said that “the boy, Brandon, shot the fiend in 

the head while she was on the phone” and that Stibbins had 

witnessed the shooting, having walked up to the intersection just 

as it was taking place. Id. at 211-224.

Tevin Clark, a friend of Aasim Stibbins, gave a statement 

on February 17, 2011 that Stibbins had told him that [Appellant] 

shot the decedent in the eye without provocation, and that 
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Stibbins witnessed the shooting but was not involved. At trial, 

he claimed that the statement was inaccurate. Id. at 211-232.

At trial, the Commonwealth played recordings of two 

phone calls that [Appellant] made while he was in custody 

awaiting trial. In the first one, he discusses the fact that “Corey” 

(presumably Corey Williams) gave a statement in this case and 

“told” in some other cases as well. In the second call, he 

declares that he has statements made by Williams and “Diddy” 

and “two other young bouls” and “I’m’a send ‘em jawns out 

tonight, you heard me?” N.T. October 28, 2013, pp. 59; 

Commonwealth Exhibit 39 (transcripts).

Trial Court Opinion, 9/9/14, at 2–5.

On October 29, 2013, a jury found Appellant guilty of the charged 

offenses. On April 10, 2014, the trial court imposed a sentence of forty-two 

and one-half years to life imprisonment on the murder conviction,2and 

concurrent sentences of one to two years on the possession of an instrument 

of crime and carrying a firearm in Philadelphia convictions, respectively. The 

trial court denied Appellant’s post-sentence motion on April 17, 2014. 

Appellant timely appealed.

On May 27, 2014, while still represented by counsel, Appellant filed a 

pro se Pa.R.A.P 1925(b) statement of errors complained of on appeal. After 

counsel subsequently filed a separate Rule 1925(b) statement, Appellant 

filed a motion to proceed pro se. Before the trial court ruled on his motion, 

on June 30, 2014, Appellant filed an additional Rule 1925(b) statement. 

____________________________________________

2

 Appellant was a juvenile when he committed the murder.
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On August 25, 2014, following a hearing pursuant to Commonwealth 

v. Grazier, 713 A.2d 81 (Pa. 1998), the trial court granted Appellant’s 

request to represent himself on appeal. In its Pa.R.A.P 1925(a) opinion, the 

trial court referenced both Appellant’s original and supplemental Rule 

1925(b) statements and stated that “both are accepted as valid filings . . . .” 

Trial Court Opinion, 9/9/14, at 2.

Appellant raises the following issues on appeal:

1. Is the Appellant entitled to a new trial whereas the trial 

judge based her 1925(a) opinion, in part, on her review of a 

hybrid pro se 1925(b) Statement of Matters Complained Of that 

was rejected by counsel on record and was not part of the 

court’s record?

2. Is the Appellant entitled to a new trial whereas the 

prosecutor failed to abandon[] the prosecution for purpose of 

investigation in light of the fact that Commonwealth witness, 

Aasim Stibbins, testified under oath that [H]omicide [D]etective 

Santamala and [D]etective Pitts, threatened to try him for the 

shooting death of the decedent and other unrelated offenses, 

attempted murder, if he did not be a witness for the 

Commonwealth?

3. Is the Appellant entitled to a new trial whereas, Corey 

Williams, a Commonwealth witness, gave testimony which was 

contradicted by his statement to homicide detectives and by the 

incontrovertible physical facts rule and in light of the fact that he 

had reasons to lie with criminal charges pending?

4. Is the Appellant entitled to a new trial whereas the 

Commonwealth used hearsay testimony to secure a conviction in 

light of the responsibilities of a Quasi-Judicial Officer of the 

Court?

Appellant’s Brief at 6 (verbatim).

Appellant’s preliminary and rather unusual argument is that he is 

entitled to a new trial because the trial court addressed the claims raised in 
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both of his pro se Rule 1925(b) statements. Appellant asserts that the first 

pro se statement was a legal nullity because it was filed while he was still 

represented by counsel and the court should have disregarded it because 

Appellant was not entitled to such hybrid representation. 

We reject the notion that Appellant is entitled to a new trial because 

the trial court exercised caution and diligence in addressing Appellant’s 

claims of error. Additionally, if we accepted Appellant’s position that the trial 

court improperly addressed the issues raised in his May 27, 2014 Rule 

1925(b) statement, we would be compelled to decide that it was error for 

the court to likewise consider his subsequent Rule 1925(b) statement filed 

on June 30, 2014, because he was still represented by counsel on that date. 

Rather than concluding that Appellant has completely forfeited his appellate 

rights, we will address the substantive issues raised in his appellate brief. 3

Appellant next argues that the Commonwealth committed misconduct 

when it continued to prosecute him after Aasim Stibbins testified at trial that 

homicide detectives used threats to force him into giving a statement 

implicating Appellant in the crime. On or about February 16, 2011, Stibbins 

was interrogated by Philadelphia Homicide Detectives Pitts4and 

____________________________________________

3

 Even if the trial court erred in addressing the issues raised in Appellant’s 

May 27, 2014 Rule 1925(b) statement, there is no authority that would 

provide a new trial as a remedy. 

4

 Detective Pitts’s first name is not included in the record.
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Gregory Santamala about the murder of Charmaine McGuilkin. During this 

interview, Stibbins related that he saw Appellant fire the shots that killed 

Ms. McGuilkin. Commonwealth Exhibit 25A. Stibbins also testified at 

Appellant’s preliminary hearing that he witnessed Appellant shoot the victim. 

N.T. (Preliminary Hearing), 11/15/11, at 6. At trial, however, Stibbins 

recanted his earlier statements and testified that he did know who shot 

Ms. McGuilken. N.T. (Trial), 10/23/13, at 51. He acknowledged that he 

previously named Appellant as the shooter in his statement, but he claimed 

that the detectives conducting the interview threatened to charge him with 

both the instant murder and an unrelated attempted homicide if he did not 

testify to an eyewitness account incriminating Appellant. Id. at 52. Stibbins 

claimed that the detectives, rather than asking him questions, directed him 

to answer the questions as if he were present at the scene. Id. at 76. At 

trial, Detective Santamala denied that Stibbins was fed any answers during 

the interrogation. Id. at 257.

Appellant argues on appeal that the Pennsylvania Rules of Professional 

Conduct mandate that a prosecutor abandon a prosecution if justice so 

requires. He urges that prosecutors must seek justice, not only convictions, 

and that this search for justice includes an obligation to ensure that the 

accused receives a fair trial. Appellant asserts that once Stibbins recanted 

his identification of Appellant as the perpetrator of the subject crimes, the 

Commonwealth was required to discontinue its prosecution and investigate 
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Stibbins’s claim that the detectives threatened him with prosecution if he 

refused to testify as a witness for the Commonwealth.

The trial court addressed Appellant’s claim of prosecutorial misconduct, 

as follows:

[Appellant] argues that the Commonwealth committed 

misconduct when it continued to prosecute him after Aasim 

Stibbins repudiated his statement incriminating [Appellant]. He 

cites no authority in support of the notion that it is misconduct to 

pursue a conviction when a witness, even a key witness, claims 

that his inculpatory statement was not voluntary or accurate. In 

fact, recantations are a sadly common feature of criminal 

actions. See, e.g., Commonwealth v. Brown, 52 A.3d 1139 (Pa. 

2012) (conviction based solely on statements subsequently 

repudiated in court is permissible). Under Brown, it is clear that 

the [Appellant’s] rights were not violated by a prosecution that 

included the admission of statements that were subsequently 

repudiated, and this claim is meritless.

Trial Court Opinion, 9/9/14, at 11–12. 

Although the trial court addressed the allegation of prosecutorial 

misconduct and we agree generally with its assessment of the legal issue, 

Appellant has waived this argument. A claim of prosecutorial misconduct 

“either sounds in a specific constitutional provision that the prosecutor 

allegedly violated or . . . implicates Fourteenth Amendment due process.” 

Commonwealth v. Tedford, 960 A.2d 1, 28 (Pa. 2008). Because the 

benchmark of due process is the fairness of the trial rather than the 

accountability of the prosecutor, it is the trial court’s ruling on the alleged 

prosecutorial transgression that is reviewed on appeal, not the underlying 

misconduct. Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014). 
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Consequently, where, as here, Appellant did not raise a contemporaneous 

objection to the prosecutor’s failure to discontinue the prosecution, there is 

no trial court ruling to scrutinize, and the issue is waived. See Pa.R.A.P. 

302(a) (providing that issues not raised in the lower court are waived and 

cannot be raised for first time on appeal); Arrington, 86 A.3d at 854 (claim 

of prosecutorial misconduct waived pursuant to Pa.R.A.P. 302(a) because 

counsel did not object to prosecutor’s statement).

Appellant also argues that he is entitled to a new trial due to the 

unreliability of the testimony of Commonwealth witness Corey Williams. On 

February 9, 2011, Williams was interviewed by Detective Levi Morton. In his 

statement, Williams related that Aasim Stibbins told him on the day of the 

shooting that Appellant shot the victim. Commonwealth Exhibit 33. Then, 

“[a]bout 2–3 months after[,] [Appellant] told [Williams] that ‘I rocked 

Charmaine, I shot her in the head.’” Id. On cross-examination, Williams 

clarified that the “two to three months later” language in the police 

statement was in error and what he actually said, or meant to say, was that 

Appellant confessed his involvement “two to three months before” Williams 

gave his February 9, 2011 statement to the police. N.T. (Trial), 10/22/13, 

at 229. 

Appellant contends on appeal that Williams’s trial testimony was 

untrustworthy because it differed from the statement he provided earlier to 

Detective Morton. Appellant also avers that because he was incarcerated in 
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the two-to-three-month period after the shooting, his alleged conversation 

with Williams was physically impossible. Finally, Appellant asserts that 

Williams was motivated to lie because he had criminal charges pending 

against him. 

The trial court considered Appellant’s arguments in this regard as a 

challenge to the weight of the evidence,5 and concluded as follows:

In the context of the wealth of evidence establishing the 

[Appellant’s] guilt, any uncertainty as to dates when a 

conversation is recalled after the fact is hardly shocking to the 

conscience of this Court. Further, [Appellant] has submitted no 

evidence to establish that he would have been incarcerated 

during the time period that the statement suggests that the 

confession took place. Because this argument is extremely weak 

and unsupported, it should be rejected.

Trial Court Opinion, 9/9/14, at 11. 

As to the complaint that Williams’s trial testimony concerning the 

timing of his conversation with Appellant was inconsistent with his statement 

to Detective Morton, we agree with the trial court that contradictions in a 

witness’s testimony concern the witness’s credibility and are for the factfinder to resolve. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 

2003). As the Pennsylvania Supreme Court has explained:

A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. A trial judge must 

do more than reassess the credibility of the witnesses and allege 

____________________________________________

5

 Appellant raised a challenge to the weight of the evidence in his postsentence motion. 
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that he would not have assented to the verdict if he were a 

juror. Trial judges, in reviewing a claim that the verdict is 

against the weight of the evidence do not sit as the thirteenth 

juror. Rather, the role of the trial judge is to determine that 

“notwithstanding all the facts, certain facts are so clearly of 

greater weight that to ignore them or to give them equal weight 

with all the facts is to deny justice.”

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (quoting 

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (citations 

omitted)). 

In the instant matter, when Williams was cross-examined about the 

time-frame of Appellant’s confession, he clarified that the conversation 

occurred two or three months prior to February 9, 2011, and that the 

information to the contrary in his earlier statement was either his mistake or 

an error in the detective’s recording. Thus, the perceived conflict in 

Williams’s recollection was less an inconsistency than a misunderstanding. 

Accordingly, the trial court did not abuse its discretion in concluding that the 

verdict was not contrary to the evidence. See Lofton, 57 A.3d at 1273 

(appellate review is limited to whether trial court palpably abused its 

discretion in ruling on weight of evidence claim). 

Appellant also assails Williams’s credibility by avowing that Williams 

was motivated to lie because he had criminal charges pending against him 

and did not want to return to jail. On direct examination, Williams admitted 

as much and offered that he provided information to the police about 

Ms. McGuilken’s murder, hoping for some leniency in his own situation. N.T. 
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(Trial), 10/22/13, at 194. On cross-examination, Williams explained that, 

although he was eager to receive some help regarding his personal legal 

woes, he was not promised anything in return for his testimony against 

Appellant. Id. at 225. 

This particular challenge to Williams’s believability also implicates the 

weight to be accorded to the evidence. Here, the jury was clearly aware of 

Williams’s legal situation, and it was within its province to assess whether 

Williams’s credibility was compromised thereby. Commonwealth v. 

James, 46 A.3d 776 (Pa. Super. 2012) (role of the fact-finder is to 

determine weight to be accorded witness’s testimony and to believe all, part, 

or none of evidence).

Appellant also argues that Williams’s testimony was discredited by the 

“incontrovertible physical facts” rule. The Pennsylvania Supreme Court has 

held that “‘testimony in conflict with the incontrovertible physical facts and 

contrary to human experience must be rejected[.]’” Commonwealth v. 

Charleston, 94 A.3d 1012, 1041 (Pa. Super. 2014) (quoting Widmer, 744 

A.2d at 752). Appellant maintains that he was incarcerated when Williams 

claimed that Appellant told him that Appellant killed Ms. McGuilken. He thus 

submits that the undisputed facts reveal that the conversation never 

occurred and any evidence of it should have been disallowed. 

Appellant is not entitled to enforcement of the incontrovertible physical 

facts rule in this matter. There was no evidence presented at trial that 
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Appellant was incarcerated when he supposedly confessed to Williams. 

Therefore, there were no physical facts controverting Williams’s testimony 

regarding the timing of the conversation. Appellant’s argument is simply 

unavailing.

Appellant’s final argument is that a new trial is warranted because 

witnesses Tyree Thomas and Tevin Clark provided hearsay testimony at trial 

that should have been excluded. We agree with the trial court that this 

assertion of error is waived because Appellant did not object to this 

testimony at trial. Trial Court Opinion, 9/9/14, at 6. See Pa.R.E. 103(a) 

(party may claim error in admission of evidence only when party makes a 

timely objection); Commonwealth v. Heckathorn, 241 A.2d 97, 102 (Pa. 

1968) (failure to object to purported hearsay testimony resulted in waiver). 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/1/2015