J-S32015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN E. SIMMINGER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1688 EDA 2018

Appeal from the Judgment of Sentence Entered January 22, 2018

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

No(s): CP-51-CR-0003208-2016

BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 21, 2019

Appellant, Steven E. Simminger, appeals from the January 22, 2018 

judgment of sentence following his conviction by a jury of first-degree murder 

and possessing an instrument of crime (“PIC”).1 We affirm.

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

In the early morning hours of March 13, 2016, Sean Boyd, 

Colin McGovern, Casey Walsh and Gabby DiFrancesco were 

walking around Rittenhouse Square in center city Philadelphia, 

looking for a place to crash for the night. (N.T. 11-14-2017, pp. 

75-77). [Appellant] was roaming the same streets. When 

[Appellant] and the four’s paths crossed, Boyd made a snide 

remark about the Jersey Devils’ hat [Appellant] was wearing. 

(N.T. 11-14-2017, pp. 77-79; 11-16-2017, pp. 5-8). An 

argument ensued. An unarmed Boyd and McGovern approached

[Appellant]. [Appellant] took a knife out of his right coat pocket. 

As McGovern got closer, [Appellant] lunged, stabbing McGovern 

in the stomach. [Appellant] then lunged and slashed at Boyd but 

missed. McGovern then grabbed [Appellant] and both landed on 

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1

 18 Pa.C.S. §§ 2502 and 907, respectively
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the ground, wrestling, with McGovern ending up on top. Again, 

[Appellant] stabbed the unarmed McGovern, this time in the 

heart. Boyd pulled McGovern away and the two got several steps 

away before McGovern collapsed from his wounds and soon died. 

[Appellant] fled, returning to get his hat and another object before 

again fleeing. (N.T. 11-14-2017, pp. 80-85; 11-15-2017, pp. 26-

32; 11-16-2017, pp. 9-10). [Appellant] went home to New 

Jersey, returning to Philadelphia the next morning to the Veteran’s 

Administration Hospital for treatment of a cut to his hand. (N.T. 

11-14-2017, pp. 144-148). The police were eventually called,

[Appellant] arrested, and found among his possessions were two 

knives. His clothes were soaked with Colin McGovern’s blood, as 

was one of the two knives. (N.T. 11-14-2017, pp. 139-142). 

l[Appellant’s] cell phone displayed texts in which [Appellant]

revealed that “he likes stabbing,” stating that stabbing “Is a rush,” 

“Is satisfying” and “Is what mother-fuckers deserve when they 

bother me.” (N.T. 11-15-2017, pp. 44-47).

Trial Court Opinion, 8/8/18, at 3–4.

The trial court summarized the procedural history as follows:

On March 13, 2016, [Appellant] was arrested and charged 

with murder and possessing an instrument of crime. [Appellant] 

was bound over for trial on all charges following a March 30, 2016 

preliminary hearing. A motion to quash was heard and denied on 

June 2, 2016. A Suppression Hearing was held and denied on 

August 31, 2017, with trial commencing November 22, 2017. A 

jury convicted [Appellant] of first degree murder and possessing 

the instrument of a crime[.] . . . [Appellant] was subsequently 

sentenced to life without the possibility of parole plus two and a 

half to five years’ incarceration.[2] [Appellant] timely filed a notice 

of appeal.

Trial Court Opinion, 8/8/18, at 1–2. Both Appellant and the trial court 

complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

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2

 Appellant filed a post-sentence motion on January 26, 2018, which was 

denied by operation of law on May 29, 2018.
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I. Did the trial court incorrectly conclude that the fact-finder’s 

determination that Appellant had the specific intent to 

commit the crime of first-degree murder was not against the 

clear weight of the evidence?

II. Was the evidence presented at trial sufficient to support 

Appellant’s convictions for first-degree murder and 

possessing an instrument of crime where the evidence 

established that appellant lacked the requisite specific intent 

to kill necessary to sustain his convictions?

III. Did the trial court err in denying Appel[l]ant’s motion to 

suppress all evidence recovered from his cell phone where 

the search warrant for the phone failed to describe with 

particularity the items to be seized and therefore was 

unconstitutionally overbroad?

IV. Did the trial court abuse its discretion in admitting evidence 

of Appellant’s prior arrest for an unrelated shooting where 

the probative value of the evidence was outweighed by the 

potential for unfair prejudice?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

We first address Appellant’s second issue because a successful 

sufficiency-of-the-evidence claim requires discharge.3 Commonwealth v. 

Mikitiuk, ___ A.3d ___, ___, 2019 PA Super 195, *7 (Pa. Super. filed June 

20, 2019). In reviewing the sufficiency of the evidence, we must determine 

whether the evidence admitted at trial and all reasonable inferences drawn 

therefrom, viewed in the light most favorable to the Commonwealth as verdict 

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3

 In setting forth this allegation in his post-sentence motion, Appellant 

erroneously sought “a new trial based on” the sufficiency of the evidence. 

Rather, as noted above, a successful sufficiency-of-the-evidence claim 

requires discharge. Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 

2013) (“Because a successful sufficiency of the evidence claim warrants 

discharge on the pertinent crime, we must address this issue first.”).
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winner, were sufficient to prove every element of the offense beyond a 

reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). 

“[T]he facts and circumstances established by the Commonwealth need not 

preclude every possibility of innocence.” Commonwealth v. Colon-Plaza, 

136 A.3d 521, 525–526 (Pa. Super. 2016) (quoting Commonwealth v. 

Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the 

province of the fact-finder to determine the weight to be accorded to each 

witness’s testimony and to believe all, part, or none of the evidence. 

Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015). The 

Commonwealth may sustain its burden of proving every element of the crime 

by means of wholly circumstantial evidence. Commonwealth v. Mucci, 143 

A.3d 399, 409 (Pa. Super. 2016). Moreover, as an appellate court, we may 

not re-weigh the evidence and substitute our judgment for that of the factfinder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

As a preliminary matter, we must consider whether Appellant has 

preserved this issue for appellate review. In his post-sentence motion, 

Appellant generically alleged, “The evidence presented at trial was insufficient 

to sustain a conviction on all counts.” Post-Sentence Motion, 1/26/18, at ¶ 

3(a). Under Pennsylvania Rule of Criminal Procedure 720, Appellant was 

required to set forth any claims he sought to raise with “specificity and 

particularity.” Pa.R.Crim.P. 720(B)(1)(a).
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In his Statement of Matters Complained of on Appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b), Appellant stated, “Was the 

evidence presented at trial insufficient to sustain a conviction on all 

counts . . . ?” Statement of Matters Complained of on Appeal, 6/23/18, at ¶2. 

An appellant’s Pa.R.A.P. 1925(b) statement must state with specificity the 

element or elements upon which he alleges that the evidence was insufficient. 

Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016); see also

Pa.R.A.P. 1925(b)(4)(ii) (“[T]he Statement shall concisely identify each ruling 

or error that the appellant intends to challenge with sufficient detail to identify 

all pertinent issues for the judge.”). The failure to identify the specific 

elements the Commonwealth did not prove at trial in a Rule 1925(b) 

statement renders an appellant’s sufficiency-of-the-evidence claim waived for 

appellate review. See Commonwealth v. Tyack, 128 A.3d 254, 261 (Pa. 

Super. 2015) (finding the appellant’s issues waived where “1925(b) statement 

simply declared, in boilerplate fashion, that the evidence was insufficient to 

support his conviction”).

Appellant’s nonspecific claim challenging the sufficiency of the evidence, 

which fails to state any elements of any crimes allegedly not proven by the 

Commonwealth, is waived. Tyack, 128 A.3d at 261. We note that in his

“Statement of the Questions Involved,” Appellant, for the first time, contends 

that the evidence at trial was insufficient to support his convictions for firstdegree murder and PIC where the evidence established that appellant lacked 
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the requisite specific intent to kill. Appellant’s Brief at 5. Appellant asserts 

that the evidence, at most, established that he committed manslaughter 

pursuant to 18 Pa.C.S. § 2503 because he “believed he was justified in 

defending himself against what he perceived as an imminent violent attack.” 

Appellant’s Brief at 18. Such a contention, as described by the 

Commonwealth, “is a non-sequitur,” as Section 2503(b) applies to certain 

killings because they were committed without malice, not because “the 

perpetrator lacked the specific intent to kill.” Commonwealth’s Brief at 9.

An individual commits first-degree murder when he intentionally kills 

another human being; an intentional killing is defined as a “willful, deliberate 

and premeditated killing.” 18 Pa.C.S. §§ 2501, 2502(a), (d). To sustain a 

conviction for first-degree murder, the Commonwealth must prove that: (1) a 

human being was unlawfully killed; (2) the accused was responsible for the 

killing; and (3) the accused acted with malice and a specific intent to kill. 

Commonwealth v. Ballard, 80 A.3d 380, 390 (Pa. 2013). A jury may infer 

the intent to kill “based on the accused’s use of a deadly weapon on a vital 

part of the victim’s body.” Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 

2011).

We conclude that even if not waived, we would rely upon the trial court’s 

analysis in its Pa.R.A.P. 1925(a) opinion and find the issue lacking in merit. 

After setting forth the relevant standard of review, the trial court stated:

The jury found that [Appellant] intentionally and with 

premeditation stabbed Colin McGovern with a knife that he had 
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been carrying with him. When an argument broke out concerning 

[Appellant’s] Jersey Devils’ hat, [Appellant] pulled out his knife. 

When McGovern approached [Appellant], [Appellant] stabbed 

McGovern in the stomach. Neither [McGovern] nor Boyd were 

armed. [Appellant] then attempted to stab Boyd, but Boyd was 

not within the reach of the knife. [Appellant] then returned his 

attention to McGovern and as the two struggled they landed on 

the ground with McGovern on top. At that point, although 

McGovern did not possess a weapon, [Appellant] again stabs 

McGovern in the chest, this time in the heart. When combined 

with the text messages about how [Appellant] liked stabbing 

people and that it gave him a rush, the jury had more than enough 

evidence to find that [Appellant] possessed the requisite intent to 

kill when he stabbed McGovern, causing his death. First degree 

murder is a murder in which the perpetrator has the specific intent 

to kill. 18 Pa.C.S §2502. This killing was willful, deliberate and 

premeditated. The specific intent to kill needed for first degree 

murder can be discerned from the conduct and attending 

circumstances, showing the perpetrator’s state of mind. 

Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1976); 

Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super.2004); 

Commonwealth v. Kaster, 300 Pa. Super. 174, 446 A.2d 287 

(1982). [Appellant] used a deadly weapon on a vital part of the 

unarmed victim’s body, clearly circumstantial evidence of 

[Appellant’s] intent to kill. See Commonwealth v. Drum, 58 Pa. 9 

(1868); Commonwealth v. Robinson, 468 Pa. 574, 364 A.2d 665 

(Pa. 1976); Commonwealth v. 0’Searo, 466 Pa. 224, 352 A.2d 30 

(Pa. 1976).

Likewise, [Appellant] clearly of possessed an instrument of 

crime “with intent to employ it criminally” as defined under 18 

Pa.C.S. § 907(a). He possessed a knife that he used for criminal 

purposes under circumstances not manifestly appropriate for the 

lawful uses it may have had. Accordingly, [Appellant’s] claim of 

insufficiency of the evidence must fail.

Trial Court Opinion, 8/8/18, at 5–6. Thus, even if not waived, the evidence 

presented and the inference drawn from Appellant’s use of a deadly weapon 

on vital parts of the victim’s body support the first-degree murder conviction. 

Therefore, we would conclude that Appellant’s sufficiency claim lacks merit.
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Appellant also challenges the weight of the evidence, again in generic 

fashion. We have held that a motion for a new trial on the grounds that the 

verdict is contrary to the weight of the evidence “concedes that there is 

sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153 

A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer, 

744 A.2d 745, 751 (Pa. 2000)). Our Supreme Court has described the 

standard applied to a weight-of-the-evidence claim as follows:

The decision to grant or deny a motion for a new trial based 

upon a claim that the verdict is against the weight of the evidence 

is within the sound discretion of the trial court. Thus, “the function 

of an appellate court on appeal is to review the trial court’s 

exercise of discretion based upon a review of the record, rather 

than to consider de novo the underlying question of the weight of 

the evidence.” An appellate court may not overturn the trial 

court’s decision unless the trial court “palpably abused its 

discretion in ruling on the weight claim.” Further, in reviewing a 

challenge to the weight of the evidence, a verdict will be 

overturned only if it is “so contrary to the evidence as to shock 

one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations 

omitted). A trial court’s determination that a verdict was not against the 

interest of justice is “[o]ne of the least assailable reasons” for denying a new 

trial. Commonwealth v. Colon–Plaza, 136 A.3d 521, 529 (Pa. Super. 2016) 

(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A verdict 

is against the weight of the evidence where “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. Lyons, 833 A.2d 245, 258 (Pa. 

Super. 2003) (quoting Widmer, 744 A.2d at 751–752). “[W]e do not reach 
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the underlying question of whether the verdict was, in fact, against the weight 

of the evidence.... Instead, this Court determines whether the trial court 

abused its discretion in reaching whatever decision it made on the motion[.]” 

Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation 

omitted).

A challenge to the weight of the evidence must first be raised at the trial 

level “(1) orally, on the record, at any time before sentencing; (2) by written 

motion at any time before sentencing; or (3) in a post-sentence motion.” 

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). In his postsentence motion, Appellant contended, “The verdicts were against the clear 

weight of the evidence.” Post-Sentence Motion, 1/26/18, at ¶ 2(b). Appellant 

raised the issue in his Pa.R.A.P. 1925(b) statement, as well.

Instantly, the trial court, who viewed the witnesses’ demeanors at trial, 

determined that the verdict did not shock his sense of justice. In addressing 

the weight of the evidence, the trial court stated:

The evidence in this case was both compelling and 

substantial. The entire incident was caught on surveillance video. 

[Appellant] was wandering the streets of Philadelphia in the early 

morning hours, knives in his pocket. He texted his sister that he 

liked stabbing people, that it gave him a rush, especially those 

people who annoyed him. When two young men were walking 

down the street with two girls, and one of the men made a caustic 

remark about the hat [Appellant] was wearing, they were 

annoying him. An argument ensued. The two men were 

unarmed, but [Appellant] pulled out his knife. When McGovern 

approached, [Appellant] lunged at him with the knife, stabbing his 

victim in the stomach. [Appellant] then lunged at the other male 

trying to stab him. [Appellant] returned to his original victim and 

when they landed on the ground, [Appellant] again stabbed the 
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unarmed man, this time in the heart. The verdict in this case was 

not so contrary to the evidence as to shock one’s sense of justice 

and therefore, the judgment must stand.

Trial Court Opinion, 8/8/18, at 6–7. We ascertain no abuse of discretion in 

this determination and add the following.

Appellant maintains that he had been diagnosed in the past with various 

disorders by the Veterans Administration and prescribed an anti-psychotic 

medication. Appellant’s Brief at 15 (citing N.T., 11/17/17, at 57–58, 66–67, 

70). The Commonwealth’s expert witness, Dr. John O’Brien, a psychiatrist for 

over twenty years who has been qualified as an expert approximately seven 

hundred times, n.t. 11/20/17, at 13-14, reviewed Appellant’s medical records 

dating back to the 1990s and interviewed Appellant in prison. N.T., 11/20/17, 

at 15–17. Dr. O’Brien determined that Appellant was manipulative and 

exaggerated his mental health symptom to obtain benefits, a conclusion that 

was underscored by a personality test that Appellant’s own psychiatric expert, 

Dr. Frank M. Dattilio, had recently administered. Id. at 19–23. Appellant 

suggests that Dr. O’Brien’s testimony “was so incredible that the fact-finder 

should have rejected it outright.” Appellant’s Brief at 13. Appellant’s 

argument is nothing more than a veiled attempt to have this Court re-weigh 

the evidence and substitute our judgment for that of the jury, which is wholly 

improper. Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011). As 

we stated in Commonwealth v. Jenkins, 578 A.2d 960 (Pa. Super. 1990), 

“[t]he jury was free to accept all, some or none of the testimony presented. 
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The fact that [it] chose to believe Dr. O’Brien does not shock this Court’s sense 

of justice.” Id. at 963 (internal citations omitted). Having reviewed the 

record in its entirety, we discern no abuse of discretion with respect to the 

trial court’s rejection of Appellant’s weight-of-the-evidence claim.

Appellant next argues that the trial court erred in denying his motion to 

suppress the evidence recovered from Appellant’s cell phone. Appellant’s Brief 

at 23. Appellant filed a motion to suppress on January 21, 2017. The trial 

court held a hearing on August 31, 2017, and denied the motion at the 

conclusion of the hearing. N.T. (Suppression), 8/31/17, at 59. In his 

appellate brief, Appellant contends that “because the search warrant4 did not 

limit the search of his cell phone to the relevant time period surrounding the 

crime . . . the warrant was unconstitutionally overbroad.” Appellant’s Brief at 

24.

The standard of review an appellate court applies when considering an 

order denying a suppression motion is well settled:

[O]ur standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is limited to 

determining whether the factual findings are supported by 

the record and whether the legal conclusions drawn from 

those facts are correct.

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4

 Neither the search warrant nor the affidavit in support of the warrant is in 

the record certified to us on appeal. We note that “[t]he Rules of Appellate 

Procedure place the burden on the appellant to ensure that the record contains 

what is necessary to effectuate appellate review . . . .” Commonwealth v. 

Powell, 956 A.2d 406, 423 (Pa. 2008)); see also Pa.R.A.P. 1921 note 

(“Ultimate responsibility for a complete record rests with the party raising an 

issue that requires appellate court access to record materials.”).
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We may consider only the evidence of the prosecution and 

so much of the evidence for the defense as remains 

uncontradicted when read in the context of the record as a 

whole. Where the record supports the findings of the 

suppression court, we are bound by those facts and may 

reverse only if the court erred in reaching its legal 

conclusions based upon the facts.

Moreover, it is within the trial court’s province to pass on the 

credibility of witnesses and determine the weight to be given to 

their testimony.

Commonwealth v. Soto, 202 A.3d 80, 90 (Pa. Super. 2018), appeal denied, 

207 A.3d 291 (Pa. 2019) (quoting Commonwealth v. McCoy, 154 A.3d 813, 

815–816 (Pa. Super. 2017) (citations and brackets in original omitted)). 

Further, we view the record in the light most favorable to the Commonwealth 

as the prevailing party. Commonwealth v. Price, 203 A.3d 264, 269 (Pa. 

Super. 2019) (citing Commonwealth v. Mathis, 173 A.3d 699, 706 (Pa. 

2017)). We may consider only the evidence presented at the suppression 

hearing. In re L.J., 79 A.3d 1073, 1085–1087 (Pa. 2013).

Appellant concedes that Detective Francis Graf “admittedly had probable 

cause to believe that [A]ppellant’s phone”—which he was carrying at the time 

of the murder—“might be useful to the investigation into Mr. McGovern’s 

death.” Appellant’s Brief at 25. Appellant admits that at the time the warrant 

issued, police were “aware that [Appellant] intended to assert an 

insanity/diminished capacity defense.” Id. Thus, the contents of the cell 

phone would contain “useful information about [A]ppellant’s mental state at 

or near the time of the killing” and “who [A]ppellant was speaking to in the 
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minutes preceding the stabbing or to see if [A]ppellant had communicated 

with anyone in the days leading up to the incident who might shed light on his 

mental condition at the time of the stabbing.” Id. at 25–26. Despite this 

contention, Appellant argues the warrant was overly broad because it was not 

limited to data generated close in time to the murder. Id. at 26.

In the motion to suppress, however, Appellant asserted that the warrant 

“lack[ed] probable cause to support its issuance.” Motion to Suppress, 

1/21/17, at ¶ 5. Moreover, while Appellant’s argument on appeal focuses on 

an alleged denial of Appellant’s rights under the Pennsylvania Constitution, 

Appellant’s Brief at 26–29, that claim was not presented to the trial court. 

Id.; N.T. (Suppression), 8/31/17, at 19–57. Therefore, that basis for his 

suppression argument is waived. Commonwealth v. Bell, ___ A.3d ___, 11 

MAP 2018 at * (Pa. filed July 17, 2019) (Although the defendant’s pretrial 

motion mentioned the Pennsylvania Constitution, his failure “to develop an 

argument that the Pennsylvania Constitution provided any independent 

grounds for relief” in the trial court resulted in waiver). See also 

Commonwealth v. Dixon, 997 A.2d 368, 376 (Pa. Super.2010) (en banc) 

(citing Pa.R.Crim.P. 581(D) (pretrial motion to suppress must “state 

specifically and with particularity the evidence to be suppressed and the facts 

and events in support); Commonwealth v. Jones, 193 A.3d 957, 964 (Pa. 

Super. 2018) (defendant was required to raise particular ground for 

suppression in pretrial motion); Commonwealth v. Rosa, 734 A.2d 412, 420 
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(Pa. Super. 1999) (because defendant failed to raise allegation that search 

was unconstitutional under the Pennsylvania Constitution to the trial court, 

Superior Court “would be justified in deeming the claim waived.”).

The absence of the application for the search warrant and the affidavit 

of probable cause from the record further impedes our analysis of the 

suppression issue that was raised in the motion to suppress and touched upon 

in the appellate brief. For this reason, we rely on the trial court’s explanation 

and reasoning presented in its Pa.R.A.P. 1925(a) opinion, as follows:

Detective Francis Graf of the Homicide Division of the 

Philadelphia Police Department submitted an application for a 

search warrant to the Magisterial Judge with a supporting affidavit

of probable cause. The detective extensively described what had 

been discovered at the murder scene, including the video evidence 

depicting the slaying as well as the [Appellant’s] actions prior to 

the stabbing and the observation that [Appellant] was talking on 

his cellular phone immediately before the confrontation. Based 

on that affidavit of probable cause the prosecution sought a 

warrant to search and seize the [Appellant’s] white Galaxy S5 

Verizon cellular telephone IMEI 990004810987069 limited to 

“contact lists, call logs, messaging, photos, photo galleries and/or

albums, downloads, videos, video logs and any other items of 

evidentiary value in furtherance of the investigation of the 

stabbing death of Colin McGovern on 3-13-16.” The Magisterial 

Judge issued the requested warrant. It is clear that the 

Commonwealth established, by a preponderance of the evidence, 

that the search warrant for [Appellant’s] cell phone was properly 

supported by probable cause and described the items to be seized 

with the requisite specificity. The affidavit included a detailed 

explanatory narrative which not only provided the requisite 

probable cause, but identified, as clearly as possible, the item to 

be searched.

Investigation completed

[Appellant] also complained that the investigation had been 

over in that [Appellant] had been arrested on March 14, 2016, and 
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as this application was not filed until November 16th it had to be a 

fishing expedition. Although a warrant cannot be issued upon 

stale information, the phone had been seized by the police at the 

time of the arrest and since the video of the killing showed 

[Appellant] on that phone immediately prior to the killing, 

probable cause existed to believe that the phone may have 

contained information connected to the criminal activity. See

Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980); 

Commonwealth v. Montavo, 439 Pa.Super. 216, 653 A.2d 700 

(1995). A review of the affidavit of probable cause reveals that 

the search warrant sufficiently identified and limited the items to 

be searched and seized from [Appellant’s] white Galaxy S5 

Verizon cellular telephone IMEI 990004810987069 in furtherance

of the investigation and stabbing death of Colin McGovern on 3-

13-2016. See Commonwealth v. Dougalewicz, 113 A.3d 817, 827 

(Pa.Super.2015).

[Appellant] further contends that between the time of 

[Appellant’s] arrest on March 13, 2016, and the application for the 

search warrant on November 7, 2016, the cell phone had, at least 

been plugged in to power on the item and, although there was no 

successful log in, as the phone was password protected, such 

actions by the police amount to an attempt, albeit unsuccessful, 

to search the phone and that the resulting evidence, obtained with 

a warrant should be suppressed. Even if the powering on of the 

phone was an attempted illegal search, there was nothing

obtained from these attempts and as such nothing to suppress. 

The law is clear that where evidence has been obtained, pursuant 

to an unlawful search or seizure, the proper remedy is the 

suppression and exclusion of the evidence obtained. 

Commonwealth v. Dobbins, 594 Pa. 71, 89, 934 A.2d1170, 

1181(2007) (citing Commonwealth v. Gibson, 536 Pa. 123, 638 

A.2d 203, 205 (1994)). As nothing was obtained, there is nothing 

to suppress.

Trial Court Opinion, 8/8/18, at 8–10.

In his final issue, Appellant asserts the following:

During [A]ppellant’s trial, the Commonwealth sought to 

introduce evidence that [A]ppellant had previously been arrested 

nearly twenty years previously for shooting an individual in 1999. 

The Commonwealth argued that evidence about this previous 

arrest was relevant and admissible because [A]ppellant’s expert, 
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Dr. [Frank] Dattilio, considered [A]ppellant’s criminal history in 

evaluating his insanity and diminished capacity claims. Over 

[A]ppellant’s objection, the trial court ruled that the 

Commonwealth could cross-examine Dr. Dattilio about all the 

facts and data he reviewed, including [A]ppellant’s prior arrest

and conviction. Appellant respectfully submits that the trial court

erred in admitting this prior bad act into evidence where the 

evidence was not critical to the doctor’s conclusions and the 

Commonwealth essentially used this evidence as propensity 

evidence to argue that [A]ppellant was acting in conformance with 

his violent character when he fatally stabbed the victim.

Appellant’s Brief at 30. Appellant importantly fails to include citation to the 

record and the relevant notes of testimony where the above controversy 

occurred at trial. “It is not this Court’s responsibility to comb through the 

record seeking the factual underpinnings of an appellant’s claim.” 

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014). For 

this reason, we could find the issue waived. Commonwealth v. Perez, 93 

A.3d 829, 838 (Pa. 2014) (claims failing to advance developed argument or 

citation to supporting authorities and record are waived). However, the 

Commonwealth has directed us to the relevant place in the record; thus, we 

consider the issue.

In response, the Commonwealth asserts:

[Appellant] litigated a motion to preclude the prosecution 

from questioning the expert witnesses about a matter discussed 

in their mental health reports. It concerned a prior incident in 

which he had allegedly acted in self-defense and been convicted 

of simple assault. At a hearing outside the presence of the jury, 

the prosecution called [its expert witness,] Dr. O’Brien[,] to the 

stand. He testified that the incident was relevant to the 

assessment of whether or not [Appellant] suffered from a 

psychiatric condition that affected his perception of danger (N.T. 

11/17/17, 11-22). After carefully considering the issue, Judge 
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O’Keefe denied the defense motion, but noted that he would 

provide the jury with a cautionary instruction (id., 36).

Commonwealth’s Brief at 13–14.

The trial court underscores that Appellant presented an insanity defense 

at trial. Prior to presentation of the testimony of defense expert, Dr. Dattilio, 

the trial court charged the jury as follows:

I told you before there are certain witnesses who are expert

witnesses and there are some who are going to be coming forward

that may or may not be experts. But an expert witness is a person

who has special knowledge or skill in some science, art, 

profession, occupation or subject that the witness acquired by 

training, education and experience. Because an expert has special 

skill, that is out of the ordinary knowledge or skill, he or she may 

be able to supply you jurors with specialized information, 

explanations and opinions that will help you decide the case.

Regular witnesses are bound by two limitations that do not

apply to an expert. First, regular witnesses can generally testify 

only to things that they personally perceive. Things that they saw 

and heard themselves. Second, regular witness are not allowed 

to express opinions about matters that require special knowledge 

or skill.

By contrast, an expert is allowed to express an opinion 

about a matter that is within the area of his or her expertise. 

Furthermore, while an expert may base an opinion on things 

personally perceived, he or she may also base an opinion on 

factual information learned from other sources. Remember, you 

jurors are the sole judges of the credibility and weight of 

all testimony. The fact that the lawyers or I may refer to certain 

witnesses as experts and that the witnesses may have special 

knowledge or skill does not mean that their testimony and 

opinions are right.

When you are determining the credibility and weight of an

expert’s testimony and opinions, consider all the factors that I 

have described earlier that are relevant to evaluating the 

testimony of any witness. You should also consider all other 

things bearing on credibility and weight including the training, 
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education, experience and ability of each expert. The factual 

information upon which he or she based the opinion. The source 

and reliability of that information. And the reasonableness of any 

explanation he or she gave to support the opinion.

Now, some of these experts or witnesses are going to give

you an opinion. They are going to refer to certain facts that have 

not been presented from the witness stand except by the expert.

Because these facts have not been presented in evidence 

except through the expert’s testimony, you should consider 

them for the limited purpose only of deciding whether to 

accept that expert’s opinion. You should not consider 

those facts in any other way to your deliberations in this 

case because they have no bearing on the question of 

whether the defendant is guilty or not guilty except for the 

purpose I have just described to you.

N.T., 11/17/17, at 37–40 (emphases added).

When Dr. O’Brien referred to the prior incident during his rebuttal 

testimony, the trial court again reinforced its prior warning:

Ladies and gentlemen, the doctor has given you an opinion. 

He’s referring to certain facts that have not been presented from

the witness stand except by the experts. They are describing in 

part a basis of their opinion. Because these facts have not been 

presented into evidence except for the expert’s testimony, you 

should consider them only for the limited purpose of 

deciding whether or not to accept the expert’s opinion. You 

should not consider those facts in any other way in your 

deliberations in this case because they have no bearing on 

the question of whether defendant is guilty or not guilty of 

the crime except for the purpose I have just described.

N.T., 11/20/17, at 42–43 (emphasis added).

Appellant maintains that the trial court erred when balancing “the 

probative value of such evidence against its prejudicial impact.” Appellant’s 

Brief at 31. We disagree. As noted by the trial court, “Pennsylvania Rule of 

Evidence 705 provides: ‘If an expert states an opinion the expert must state 
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the facts or data on which the opinion is based.’ Precedent clearly requires

disclosure of the facts used by an expert in forming an opinion. See Kozak v. 

Struth, 515 Pa. 554, 560, 531 A.2d 420, 423 (1987).” Trial Court Opinion, 

8/8/18, at 12. Furthermore, the trial court minimized any prejudice5 by 

means of its instructions, which jurors are presumed to have followed. See 

Commonwealth v. Powell, 171 A.3d 294, 304 (Pa. Super. 2017), appeal 

denied, 183 A.3d 975 (Pa. 2018) (citing Commonwealth v. Tyson, 119 A.3d 

353, 362 (Pa. Super. 2015) (noting “to alleviate the potential for unfair 

prejudice, the court can issue a cautionary instruction to the jury,” and “jurors 

are presumed to follow the trial court's instructions.”).

We “will not disturb a ruling on the admission of evidence ‘unless that 

ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or illwill, or such lack of support to be clearly erroneous.’” Price, 203 A.3d at 271 

____________________________________________

5

 Appellant also criticizes a portion of the Commonwealth’s closing argument 

wherein the prosecutor indirectly referenced Appellant’s 1999 shooting, and 

he asserts resulting prejudice. Appellant’s Brief at 34, 35. First, this is a 

veiled attempt to raise an issue that has not been properly raised and 

preserved. See Samuel, 102 A.3d at 1006 (Pa.R.A.P. 1006(a) provides that 

no question will be considered unless it is stated in the statement of questions 

or fairly suggested therein); Pa.R.A.P. 1925(b)(4)(ii) (“[T]he Statement shall 

concisely identify each ruling or error that the appellant intends to challenge 

with sufficient detail to identify all pertinent issues for the judge.”). Second, 

Appellant failed to object to these remarks at the time of trial. N.T., 11/21/17, 

at 99–100; see also Pa.R.A.P 302(a) (“Issues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”); 

Commonwealth v. Storey, 167 A.3d 750, 757 (Pa. Super. 2017) (failure to 

request cautionary instruction after objection was sustained waives claim of 

trial court error in failing to issue cautionary instruction).
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(quoting Commonwealth v. Akrie, 159 A.3d 982, 986-987 (Pa. Super. 

2017)). Moreover, “an erroneous ruling by a trial court on an evidentiary 

issue does not require us to grant relief where the error was harmless.” 

Commonwealth v. Yockey, 158 A.3d 1246 (Pa. Super. 2017) (citing 

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005)).

We will not disturb this evidentiary ruling. As the trial court determined, 

“As both experts had relied upon [Appellant’s] recitation of the history of his 

life, including previous contacts with the law, those instances were properly 

admitted into evidence.” Trial Court Opinion, 8/8/18, at 12. The cautionary 

instructions provided before the experts testified “were more than adequate” 

to dispel any prejudice. Id. Accordingly, we reject this claim, as well.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2019