J-S82025-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM GREENE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2770 EDA 2017

Appeal from the Judgment of Sentence April 24, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0006935-2016

BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 05, 2019

Appellant, William Greene, appeals from the judgment of sentence 

following his jury trial convictions for second-degree murder, robbery, 

possessing an instrument of crime, carrying a firearm without a license, and 

carrying a firearm in public in Philadelphia.1 We affirm.

The trial court summarized the facts of this case as follows:

On August 13, 2014, Alexis Guevara and his friend Marcell 

Lawrence attended a concert hosted by Power 99 at the Dell Music 

Center in the Strawberry Mansion section of the city [of 

Philadelphia]. The concert started at 5:00 p.m. and was due to 

conclude at 9:00 p.m. Guevara and Lawrence arrived late and 

were denied entrance. They decided to hang out in the parking 

lot. 

Later, [Appellant] and Eric Jamison arrived at the same concert 

and were denied admission because, they too, arrived late. 

[Appellant] and Jamison also decided to hang out in the same 

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1

 18 Pa.C.S.A. §§ 2502(b), 3701, 907, 6106, and 6108, respectively.
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parking lot. While Guevara and Lawrence were talking to girls in 

the parking lot, Lawrence noticed that Jamison was sitting on the 

trunk of his car, and called out, “get off my car.” In response, 

Jamison walked directly toward Lawrence and confronted him 

saying, “Why? What’s up,” in a confrontational tone. During the 

confrontation between Jamison and Lawrence, [Appellant] came 

around from the other side of the car and produced a gun. With 

his gun drawn, [Appellant] said “Hey, Gold Watch. Run your 

pockets,” indicating a robbery was occurring. Jamison then 

attempted to reach into Lawrence’s pockets.

A struggle between Guevara and [Appellant] followed. [Appellant] 

backed away and shot Guevara, striking him in the leg causing 

him to fall. [Appellant] then shot Guevara again, this time hitting 

him on the left side of his lower back. Afterward, both [Appellant] 

and Jamison ran to the car they arrived in and sped away. 

Lawrence then came to the aid of the now fatally injured [] 

Guevara. 

After the shooting, Lawrence ran to the entrance gate of the Dell 

Music Center seeking help for his friend. However, the security 

guards closed the gate to keep [any potential] shooter from 

entering the venue during the concert. Meanwhile, Stephen 

Foster witnessed the entire incident as he sat facing the main 

gate. He had arrived at the Dell Music Center to pick up his 

daughter who was inside attending the concert. Later, police 

officers arrived and transported Guevara to Temple University 

Hospital, where he died the next morning. 

Both [Appellant] and Jamison were later identified as the two men 

involved in the Dell Music Center parking lot shooting. In addition, 

Lawrence, Jamison and Foster all identified [Appellant], in court 

during trial, as the person who shot the decedent. 

While in custody, Jamison received a letter from [Appellant] 

encouraging Jamison to remain positive despite murder charges 

lodged against him. The unsigned letter was consistent with 

[Appellant’s] unique manner of speaking, emotional inflection, 

and expressions that only he used while speaking to Jamison.

Trial Court Opinion, 4/25/2018, at 2-3 (record citations omitted). 

The case proceeded as follows:
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On April 24, 2017, a jury convicted [Appellant of the 

aforementioned charges]. [Appellant] was sentenced to life 

imprisonment without the possibility of parole on the 

second[-]degree murder charge. On May 5, 2017, trial counsel, 

Gary S. Silver, Esquire, filed a post sentence motion and a motion 

to withdraw. On August 29, 2017, [the trial] court issued an order 

denying [Appellant’s] post sentence motion, and [Appellant] filed 

a notice of appeal. On August 29, 2017, [the trial] court ordered 

[Appellant] to file a [Pa.R.A.P.] 1925(b) statement of [errors] 

complained of on appeal. Subsequently, on September 15, 2017, 

[the trial] court granted [Attorney] Silver’s motion to withdraw. 

John M. Belli, Esquire, entered his appearance as court appointed 

appellate counsel on October 20, 2017. On November 27, 2017, 

[Attorney] Belli filed a statement of [errors] complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). On November 28, 2017, 

Laurence A. Narcissi, Esquire, was retained as appellate counsel, 

and [he] filed a motion for an extension of time within which to 

file a Rule 1925(b) statement. On December 12, 2017, [the trial] 

court granted said motion. On December 22, 2017, counsel filed 

a second motion for an extension of time [which the trial court 

granted]. [Appellant] filed a [timely] Rule 1925(b) statement on 

January 18, 2018. [The trial court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on April 25, 2018.]

Id. at 1-2. 

On appeal, Appellant presents the following issues for our review:

1. Did the trial court err in the admission of a de facto confession 

alleged to have been authored by [A]ppellant, when the 

prejudicial effect of such far outweighed any probative value?

2. Did the trial court err in the admission [of the de facto

confession] by overruling an objection to the admission of 

“prior kites?”2

3. Did the trial court commit an abuse of discretion by overruling 

a motion for a mistrial pursuant to [Pa.R.Crim.P.] 646 [and 

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2

 There is no dispute that “[a] kite is a letter sent in prison from one inmate 

delivered by a second inmate to a third.” Appellant’s Brief at 10-11 (record 

citations omitted).
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permitting] the jury to have a copy of a confession during 

deliberation?

4. Did the trial court err [by] denying a request to instruct the 

jury [that witness identification must be received with caution]

and [granting the Commonwealth’s request to instruct the jury 

on consciousness of guilt/flight]?3

Appellant’s Brief at 8 (issue numbers supplied).

Appellant’s first three issues are inter-related and, accordingly, we will 

examine them together. All three issues center on an unsigned letter, or 

“kite,” Jamison purportedly received from Appellant while both men were 

imprisoned on charges related to this case. It read:

Yo, bro! Wassup baby? I'm chillin. As you already no they came 

and recharged me but you no how I am. Stand up n[****] all the 

way. No need to cry about it. You feel me. Just take it from here 

and find out who the f[***] is the surprise is. You gotta get on 

your lawyer top about that. That's gotta be the reason they put 

the separation in on us because they no you got your discovery 

already and they no you can find who the surprise is because you 

in trial status already and they don't want me to no. Feel me. Who 

care it is. They not locked up because I didn't have no separations 

down CJC. So we gotta find out ASAP so we can get that tooked 

care of. Stay on your lawyer a[**].

Give Weezy your lawyer number so he can be on his a[**] too. 

The lawyer Gary Silver came to see me but he wasn't at my court 

date because n[*****] bullshi[*****] giving him the money. 

When he came up he basically told me you good and don't 

understand why you charges didn't get dropped let alone why you 

get charged in the first place. He said even if a witness came to 

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3

 In his fourth issue presented, Appellant also baldly contends, without any 

corresponding argument, that the trial court erred by failing to give jury 

instructions regarding impeachment and inconsistent statements. See

Appellant’s Brief at 8, 20-22. We find these aspects of Appellant’s fourth 

claim waived. See Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) 

(failure to develop an argument with citation to supporting authorities and the 

record are waived).
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Court and tell the truth you can't get convicted because it's a third 

degree case all day. It wasn't planned. You had no knowledge of 

what the next man (the shooter) was gone do. Even if you fled 

the scene you was scared of getting shot. So you good.

Now me on the other hand gotta try to handle this the street way. 

So you gotta find that out for me, but other than that, wassup 

with you over there? Is it crowded? I need some get high. I get 

admin July 23rd. I'm chillin. Ray Ray and Donnie down here so I 

eat every night. I just be drinking coffee and busting on 

everybody, lol, even n[*****] I don't no. They be mad as s[***].

F[***] em. I go back down the 28th of this month.

N.T., 4/20/2017, at 35-36. The letter was addressed to “Eroc,” Jamison’s 

nickname and signed, “Who you already know.” Id. at 37. In the margin of 

the kite, it says, “Stand tall like City Hall” and, “Love you, bro.” Id. at 34.

At trial, the Commonwealth entered the kite into evidence over defense 

objection. Appellant claims the kite was not authenticated because was it was 

not signed, lacked an identifying inmate number, and the Commonwealth did 

not introduce Appellant’s handwriting samples for evaluation. Appellant’s 

Brief at 18. Appellant further argues that the kite was not properly 

authenticated merely because Jamison said Appellant authored it and it 

contained specific facts about the crimes at issue. Id. at 17. Appellant argues 

that while Jamison claimed that he could verify the kite at issue based upon 

his receipt of prior kites from Appellant, no prior kites were presented for 

comparison. Id. at 18. Thus, Appellant contends “the trial court improperly 

concentrated [on] Jamison[’s] ability to self-verify the kite.” Id. Appellant 

further maintains that the trial court compounded its error by inadvertently 

allowing the kite, which Appellant describes as a confession, to go out with 
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the jury during deliberations, in contravention of Pa.R.Crim.P. 646 and related 

case law. Id. at 19. 

Our standard of review is as follows:

The admission or exclusion of evidence is within the sound 

discretion of the trial court, and in reviewing a challenge to the 

admissibility of evidence, we will only reverse a ruling by the trial 

court upon a showing that it abused its discretion or committed 

an error of law. Thus our standard of review is very narrow. To 

constitute reversible error, an evidentiary ruling must not only be 

erroneous, but also harmful or prejudicial to the complaining 

party.

Abuse of discretion is not merely an error of judgment, but rather 

where the judgment is manifestly unreasonable or where the law 

is not applied or where the record shows that the action is a result 

of partiality, prejudice, bias or ill will.

Commonwealth v. Bond, 190 A.3d 664, 667 (Pa. Super. 2018) (internal 

citations and quotations omitted).

We begin with authentication of the kite. Pennsylvania Rule of Evidence 

901 provides that authentication is required prior to admission of evidence. 

The proponent of the evidence must introduce sufficient evidence that the 

matter is what it purports to be. Pa.R.E. 901(a). Testimony of a witness with 

personal knowledge that a matter is what it is claimed to be can be sufficient

authentication. See Pa.R.E. 901(b)(1). Authentication may also be achieved

through “[t]he appearance, contents, substance, internal patterns, or other 

distinctive characteristics of the item, taken together with all the 

circumstances.” Pa.R.E. 901(b)(4). We previously determined:

A document may be authenticated by direct proof, such as the 

testimony of a witness who saw the author sign the document, 
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acknowledgment of execution by the signer, admission of 

authenticity by an adverse party, or proof that the document or 

its signature is in the purported author's handwriting. A document 

also may be authenticated by circumstantial evidence, a practice 

which is uniformly recognized as permissible.

Commonwealth v. Koch, 39 A.3d 996, 1004 (Pa. Super. 2011) (internal 

citations and quotations omitted).

Moreover, 

[w]e note that the ultimate determination of authenticity is for the 

jury. A proponent of a document need only present a prima facie

case of some evidence of genuineness in order to put the issue of 

authenticity before the factfinders.

The court makes the preliminary determination of whether or not 

a prima facie case exists to warrant its submission to the finders 

of fact, but the jury itself considers the evidence and weighs it 

against that offered by the opposing party[.]

Commonwealth v. Brooks, 508 A.2d 316, 320 (Pa. Super. 1986) (internal 

citations omitted; emphasis in original).

The trial court determined that the kite was properly authenticated:

[T]he Commonwealth demonstrated that [the kite] referenced 

murder of the third[-]degree, contained displays of affection, 

suggested a possible defense for Jamison’s criminal charges, and 

mirrored a style and cadence of speaking similar to the way 

[Appellant] and Jamison spoke to each other. Jamison positively 

identified [Appellant] as the writer of the letter and stated that 

[Appellant] often communicated with him in a manner similar to 

that of the letter.

Trial Court Opinion, 4/25/2018, at 5.

Upon review, we discern no abuse of discretion in determining that the 

kite was properly authenticated. Jamison testified that he knew Appellant for 

over 13 continuous years prior to trial. N.T., 4/19/2017, at 130-131. Jamison
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testified that the kite was written in Appellant’s handwriting. N.T., 4/20/2017, 

at 32-33. In the kite, there is a specific reference to Appellant meeting with 

his court appointed trial counsel, Gary Silver, Esquire to discuss charges. Id.

at 35. Appellant used Jamison’s childhood nickname, “Eroc,” as a salutation

in the kite. Id. at 37. The kite suggests that there is a surprise witness in 

the case and encourages Jamison to find out who it is and asks him not to 

snitch. Id. at 35-38. The kite, however, falls short of documenting a 

confession. Instead, the kite explains that Jamison could not be found guilty 

of third-degree murder because he fled the scene and had no knowledge of 

what “the shooter” was going to do. See id. at 36 (“[Attorney Silver] said 

even if a witness came to court and tell the truth, you can’t get convicted 

because it’s a third degree case all day. It wasn’t planned. You had no 

knowledge of what the next man (the shooter) was [going] to do. Even if you 

fled the scene you [were] scared of getting shot. So you good.”). However, 

the kite attributes the shooting to another person. 

Here, the Commonwealth presented a prima facie case of authenticity 

through Jamison’s personal knowledge that the kite was what it was claimed

to be. Appellant and Jamison were childhood friends and the kite’s author 

used Jamison’s childhood nickname and terms of affection. The kite also 

specifically referenced Appellant’s court-appointed counsel by name and 

employed colloquial language similar to other communications between 

Appellant and Jamison. The substance and content of the kite dealt with 

detailed factual issues pertaining to Appellant and this case. As such, we 
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discern no abuse by the trial court in determining the kite was properly 

authenticated. 

Next, we examine whether the trial court erred in allowing the kite to 

go out with the jury during its deliberations. This Court has found:

Ordinarily, whether an exhibit should be allowed to go out with 

the jury during its deliberation is within the sound discretion of 

the trial judge.

This discretion, however, is not absolute. Pennsylvania Rule of 

Criminal Procedure 646 expressly forbids juries from having 

certain enumerated categories of exhibits during deliberations, 

including written defendant confessions. See Pa.R.Crim.P. 

646(C). The underlying reason for excluding certain items from 

the jury's deliberations is to prevent placing undue emphasis or 

credibility on the material, and de-emphasizing or discrediting 

other items not in the room with the jury. If there is a likelihood 

that the importance of the evidence will be skewed, prejudice may 

be found; if not, there is no prejudice per se and the error is 

harmless.

Commonwealth v. Miller, 172 A.3d 632, 648 (Pa. Super. 2017) (quotations, 

original brackets, and case citations omitted).

Here, the trial court “concluded that the letter was not a confession, and 

thus its admission did not prejudice [Appellant] or result in an unfair trial.” 

Trial Court Opinion, 4/25/2018, at 9. The trial court further found that the 

kite was only in the jury’s possession for less than 30 minutes. Thus, the trial 

court determined the kite could not have impacted the jury’s decision in light 

of the fact that they heard it read into the record in its entirety and the 

Commonwealth highlighted it during closing arguments. Id. at 9-10. Upon 

review, we agree with the trial court’s assessment.
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Primarily, we note that Appellant concedes that, “defense counsel 

initially consented to the kite going back with the jury deliberations.” 

Appellant’s Brief at 19; see also N.T., 4/24/2017, at 11 and 13 (“the initial 

position of defense counsel had been that the kite would go out.”). Defense 

counsel changed tack later, arguing “the determination of a confession is 

liberally viewed at this time by the appellate courts[; a]s such, it could be 

construed in this letter, even though it wasn’t specifically [Appellant’s] position 

and has not been [Appellant’s] position that it was a confession, but it can be 

construed to be a confession in this manner.” N.T., 4/24/2017, at 15. 

Appellant did not change his argument until after the jury already had the 

kite. Thus, Appellant waived his arguments that the kite was a confession and 

that it should not have gone out with the jury. See Commonwealth v. 

Roles, 116 A.3d 122, 130 (Pa. Super. 2015) (“Trial counsel specifically stated 

on the record that he had no objection to the documents that were given to 

the jury. Thus, even if the exhibits were somehow included among the 

admitted exhibits provided to the jury, the issue is waived.”).

Moreover, we discern that the kite did not constitute a confession by 

Appellant. “Confession” is defined as “[a] criminal suspect's oral or written 

acknowledgment of guilt, often including details about the crime.” BLACK'S LAW 

DICTIONARY (10th ed. 2014). Appellant never admits or denies shooting the 

victim in the kite. Instead, he makes reference to “the shooter” or “the next 

man.” There were no factual details provided about the crime. The proffered 

kite simply did not rise to the level of a confession. Thus, Appellant is not 
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entitled to relief on his claim that the trial court abused its discretion under 

Rule 646.

Finally, upon our review of the record, we observe that the trial court 

charged the jury on a Friday, but they did not start their deliberations until 

the following Monday morning. N.T., 4/24/2017, at 10. On Monday, the jury 

asked to see the kite. Id. at 11. The trial court only realized that the kite 

had gone out with the jury when they requested to see it. Id. The parties 

conceded that “the kite was inadvertently presented to the jury and they had 

it in their possession [] for some 30 minutes.” Id. at 12. Hence, it appears 

that the jurors had the kite for 30 minutes at the beginning of their 

deliberations, but still asked to see it. Because they were not even aware that 

the kite was in their possession, they could not have reviewed it. 

Subsequently, “after the kite was taken back from the jury, [but] before [the 

trial court] could [call] the jury out for curative or cautionary instructions,” 

the jury had decided the verdict. Id. at 20. Accordingly, from our review of 

the certified record, it is not entirely clear whether the jury was aware that 

the kite was in its possession during deliberations or otherwise relied upon it 

in rendering the verdict. 

Next, Appellant challenges the trial court’s denial of a jury instruction 

regarding witness identification pursuant to Commonwealth v. Kloiber, 106 

A.2d 820 (Pa. 1954) and the trial court’s grant of the Commonwealth’s request 

to charge the jury on flight and consciousness of guilt. On these issues, 

Appellant argues, in sum:
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Trial counsel requested a Kloiber charge relating to 

inconsistencies in the identification of [Appellant] and objected to 

the flight charge. The request was based on the inconsistencies 

in the identification of [Appellant] and the description of the 

shooter as alternatively being five foot six inches or six foot two 

inches tall. The witnesses varied regarding the clothing the 

shooter was wearing and the shooter’s locations throughout the 

trial. The request for the charge was appropriate and the failure 

to give the charge was reversible error because it was warranted 

by the evidence [i]n the case.

Giving the flight charge was inappropriate. The testimony elicited 

was that individuals involved after the shooting fled to a white 

vehicle and drove off immediately. The distinction is leaving the 

scene immediately after altercation versus flight to avoid arrest. 

[Appellant] was arrested at his home. For this charge to be 

correct then every individual who is not arrested immediately at 

the scene of the crime would be a factual circumstance justifying 

giving this charge. 

Appellant’s Brief at 21-22. 

“Our standard of review when considering the denial of jury instructions 

is one of deference—an appellate court will reverse a court's decision only 

when it abused its discretion or committed an error of law.” Commonwealth 

v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation and brackets omitted).

We have summarized the law regarding the Kloiber charge as follows:

[W]here the witness is not in a position to clearly 

observe the assailant, or he is not positive as to 

identity, or his positive statements as to identity are 

weakened by qualification or by failure to identify 

defendant on one or more prior occasions, the 

accuracy of the identification is so doubtful that the 

Court should warn the jury that the testimony as to 

identity must be received with caution.

Commonwealth v. Kloiber, 106 A.2d 820, 826–827 (Pa. 1954).
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The Kloiber charge alerts the jury where a witness might be 

physically incapable of making a reliable observation. This inquiry 

is distinct from the credibility determination a fact-finder must 

make. Our Supreme Court has found that even where witnesses 

were

under the influence of alcohol, the room was dark, 

they had been awakened from sleep, and the events 

being observed were confusing ... Appellant's 

objections relate to the credibility of the eyewitness 

testimony, not to the actual physical ability of the 

witnesses to observe.... Accordingly, a Kloiber

charge was not required.

Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995).

Commonwealth v. Collins, 70 A.3d 1245, 1255 (Pa. Super. 2013).

In this case, two eyewitnesses saw the entire shooting from close, 

unobstructed vantage points. Appellant’s Kloiber charge argument is based 

upon minor inconsistencies in their testimony. However, Appellant does not 

argue that the witnesses were physically incapable of making reliable 

observations. Appellant’s objections related solely to the eyewitnesses’ 

credibility in making out-of-court identifications. However, both eyewitnesses 

unequivocally identified Appellant as the shooter at trial. Accordingly, a 

Kloiber charge was not warranted. As such, we conclude the trial court did 

not err in failing to issue a Kloiber jury instruction. 

Finally, in examining Appellant’s claim that the trial court erred by giving 

an instruction on flight and consciousness of guilt, our Supreme Court has 

stated:

A jury instruction is proper if supported by the evidence of record. 

[...W]hen a person commits a crime, knows that he is wanted 
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therefor, and flees or conceals himself, such conduct is evidence 

of consciousness of guilt, and may form the basis [of a conviction] 

in connection with other proof from which guilt may be inferred.

Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (internal citations 

omitted). A reviewing court “need not determine whether or to what extent 

a flight instruction must be supported by evidence other than an accused's 

departure from the scene of the crime.” Id.

Here, there is no dispute that Appellant fled the scene following the 

shooting. Upon review, the trial court gave the following instruction:

There was evidence, including the testimony of Eric Jamison, that 

tended to show that [Appellant] fled from Dell Music Center after 

the shooting in this case by driving from the scene at a high rate 

of speed. The credibility, weight and effect of that evidence is for 

you to decide.

Generally speaking, when a crime has been committed and a 

person thinks he is or may be accused of committing that crime 

or those crimes and he flees, such flight is a circumstance tending 

to show the person is conscious of guilt.

Such flight does not necessarily show consciousness of guilt in 

every case. A person may flee for some other motive and may do 

so even though innocent.

Whether the evidence of flight in this case should be looked at as 

tending to show consciousness of guilt depends upon the facts and 

circumstances of this case and especially upon motives that may 

have prompted the flight.

You may not find [Appellant] guilty solely on the basis of evidence 

of flight.

N.T., 4/21/2017, at 22-23. The evidence of record supported the instruction 

and the trial court’s charge gave an accurate statement of the law. 
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Accordingly, for all of the foregoing reasons, there was no trial court error 

regarding jury instructions.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/5/19