J-S47003-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NYJEAH JEROME WHITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1382 EDA 2023

Appeal from the Judgment of Sentence Entered April 19, 2023

In the Court of Common Pleas of Montgomery County 

Criminal Division at No: CP-46-CR-0002381-2021

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED APRIL 1, 2024

Appellant, Nyjeah Jerome White, appeals from his judgment of sentence 

of life imprisonment for first-degree murder and related offenses. Appellant 

contends, inter alia, that the court erred by denying his motion for a new trial 

based on a text message sent after the guilty verdict from Appellant’s former 

girlfriend claiming that another person committed the murder. We conclude 

that the trial court acted within its discretion by denying Appellant’s motion 

for a new trial, and accordingly, affirm.

The trial court accurately summarized the evidence adduced during 

Appellant’s non-jury trial as follows:

On December 31, 2020, Officer Joshua Samuels, a Norristown 

police officer, responded to the 1200 block of Markley Street for a 

shooting. In an alleyway next to the house at 1238 Markley 

Street, he found the body [of] Rasheed Bundy with a gunshot 

wound to the head. The officer described the alleyway as dark

____________________________________________

* Former Justice specially assigned to the Superior Court.
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[and] pitch black. After clearing the alleyway of onlookers, he 

started asking questions but most of them were uncooperative 

and did not provide information.

Another Norristown police officer responded to the shooting scene 

around 9:42 p.m. At trial, he described that the alleyway was 

between the residence at 1238 Markley Street and that of 1240 

Markley Street.

Lee Burke, the victim’s younger brother, was spending time with

his family at 1236 Markley Street on the night of the murder. The 

victim was also there at the residence. Mr. Burke received a call 

from Appellant [asking for] the victim to come outside to talk with 

him. [The victim] agreed but did not go out right away. Mr. Burke 

knew Appellant, a/k/a “Ny”, because Mr. Burke’s and the victim’s 

sister, Latrae Bundy, had been in a relationship with Appellant for 

about two years. Mr. Burke described his relationship with 

Appellant as cordial. Appellant called Mr. Burke a second time 

asking where the victim was and ask[ing] for the victim to come 

outside to talk. Mr. Burke and the victim went outside, walked

towards the alleyway by 1240 Markley Street. Mr. Burke testified 

that only Appellant was in the alleyway when they approached. 

The victim walked into the alleyway and Mr. Burke stood on the 

sidewalk, facing Markley Street, about three feet away. He figured 

they were just going to talk, but there was no conversation and 

within less than 30 seconds, Mr. Burke heard gunshots. After

checking his own body, he turned around and saw the victim

laying on the ground, bloody. Mr. Burke was “freaking out” and 

yelling that he was going to kill Appellant. Appellant walked right 

past Mr. Burke towards his vehicle, got in his vehicle, made a Uturn, stopped by the scene for a moment, said something 

unintelligible to Mr. Burke, and then drove off. 

Detective Michael Crescitelli of the Montgomery County Detective 

Bureau—Homicide Unit, obtained surveillance video from the area.

Specifically, one of the surveillance videos showed the Roosevelt 

School at 1161 Markley Street, about a block from the murder 

scene, just down the street. At 8:59 p.m. on December 31, 2020,

Appellant’s vehicle was captured parking in front of the school.

Two people exited the vehicle. The front passenger was seen 

removing a large object from the backseat. Appellant and the 

second person walk in the direction of 1236 Markley Street, the 

video show[ed] a vehicle pull up, which was later determined to 

be the pizza delivery driver, Br[y]an Davis, immediately after the 
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shooting, the video showed an individual run from the area of 

1240 Markley Street, cross the street to his vehicle. Appellant got 

into the driver’s side, made a U-turn, stopped, and then drove off. 

Dr. Khalil Wardak performed the autopsy on the victim [on] 

January 1, 2021. He determined that the cause of death was from 

multiple gunshot wounds. The gunshot to the neck had evidence 

of stippling from the gun powder residue. This indicated that the 

victim was within 3 feet of the firearm. This gunshot [wound]

alone would have been fatal. Dr. Wardak also testified that he 

found two gunshot wounds to the victim’s head. This would have

been immediately incapacitating. The doctor reviewed the records 

of a projectile recovered from Appellant. It had been recovered 

from the soft tissue area rear of his neck. It had not penetrated 

any bone. The shape of the bullet specimen was deformed with a 

flat surface, partially concave, it was smooth, and there was no 

jacket that ordinarily covers the bullet core. Dr. Wardak opined 

that the based on these observations of the deformations, the 

bullet ricocheted from a surface before striking Appellant.

Bryan Davis, Jr., was delivering pizza and on the night of the

murder, he was called to make a delivery to 1240 Markley Street. 

When he arrived[,] no one answered the phone from that location. 

He had already returned to the pizza store when someone from 

1240 Markley Street called him and asked him to return with the

order. When he returned, two guys were waiting for him on the 

sidewalk to pick up their order. Because they could not carry the 

entire order in one trip, Mr. Davis waited for them to come back 

to get the rest. He waited for them behind his car, behind a black 

pillar, right by 1241 Markley Street. That was the closest he was 

to the alleyway between 1238 and 1240 Markley Street. From

this vantage point, he testified that he saw four people in the

alleyway. Because the alleyway was “not really lit,” he could only 

see figures and not faces. He heard about two or three gunshots 

go off. Afterwards he saw someone run out of the alleyway, past 

him, and to a vehicle across the street. Mr. Davis took two steps 

closer to the alleyway and heard someone yelling, “Ny, shot my 

brother.” That person came out of the alleyway and repeatedly 

said, “Ny shot my brother.”

After the Commonwealth presented the remaining witnesses and 

rested, defense counsel, in part called Latrae Bundy, the victim’s 

sister, to testify. Ms. Bundy characterized her relationship with 

Appellant at the time of the murder as friends; but they had 
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previously been in a four-year relationship and was his fiancé at 

one point. Before the shooting, Ms. Bundy spoke to Appellant for 

about an hour-and-a-half but had no knowledge that Appellant 

was going to talk to her brother in the alleyway. Ms. Bundy was 

inside the residence at 1236 Markley Street at the time of the

murder. She also spoke to Appellant after the murder and found 

out he was injured, and she met up with him a few days 

afterwards. They stayed in constant contact .

* * * *

The Commonwealth presented the testimony of Johon Ford, who 

at the time of trial was incarcerated in Chester County with several 

pending charges. He signed a proffer agreement in May of 2022, 

and in that agreement, Mr. Ford acknowledged that he was not 

promised anything for his testimony, and that the Commonwealth 

would only let his sentencing judge know the extent and nature of 

his cooperation. Mr. Ford testified that he grew up with the victim 

and had been friends with him and his family. He also knew 

Appellant, from being around the victim’s family. About a month 

after the murder, Mr. Ford met up with Appellant in the 

Germantown section of Philadelphia and they talked about the 

murder. During that conversation, Appellant told him that he 

killed the victim. Appellant didn’t tell him any other details of what 

happened. 

Mr. Ford knew about Appellant’s relationship with Ms. Bundy; he

knew it was rocky and that Ms. Bundy moved on from him. 

Appellant told him that he “was certain he was getting played,”

meaning Ms. Bundy had another boyfriend while still having a 

relationship with him. Appellant was hurt. Appellant believed that 

Ms. Bundy’s brothers knew about it, but they did not tell him what 

was going on. Mr. Ford spoke to Appellant about three or four 

times after the murder, prior to Appellant’s arrest. This Court, as 

fact-finder, found Mr. Ford’s testimony to be credible. 

Pa.R.A.P. 1925 Opinion, 8/3/23, at 2-6, 16-17 (cleaned up; record citations 

omitted). 

The court summarized the relevant procedural history of this case as 

follows:
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At the conclusion of the trial, [the trial court] found Appellant 

guilty of first-degree murder, persons not to possess [firearms], 

and possessing an instrument of crime.

Following his guilty conviction, but prior to sentencing, defense

counsel filed a Motion for Extraordinary Relief, alleging afterdiscovered/recantation testimony in the nature of a text message

sent by Ms. Bundy to counsel on August 24, 2022. It was alleged 

in Ms. Bundy’s text that the fourth person in the alleyway [w]as 

Rashid Wallop and that he was the shooter. She stated that she 

told detectives Appellant was not the shooter but did not want to

name the shooter because she was scared.

On December 12, 2022, the Commonwealth filed a response. In 

part[,] the Commonwealth argued that this is an improper motion 

under Pa.R.Crim.P. 704, because this is an issue that should be 

raised by way of a post-sentence motion. 

On April 19, 2023, a sentencing hearing was held. The Motion for 

Extraordinary Relief was denied [because] counsel presented no

extraordinary circumstances under Rule 704. Appellant was 

sentenced to life imprisonment. 

On April 28, 2023, Appellant filed a post-sentence motion which

asserted a motion for judgment of acquittal and a motion for a

new trial. The motion for a new trial was warranted, it was

alleged, because the verdict was not supported by the weight of

the evidence and based upon new[ly]-discovered evidence, 

namely Mr. Bundy’s text message. The [p]ost-[s]entence 

[m]otion was denied on May 5, 2023.

Id. at 6-7 (cleaned up; record citations omitted).

Appellant filed a timely appeal to this Court, and both Appellant and the 

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

Appellant raises the following issues in this appeal:

1. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION 

FOR A NEW TRIAL BASED ON AFTER-DISCOVERED EVIDENCE[?]

2. DID THE TRIAL COURT ERR IN RULING THAT COMMONWEALTH 

PROVIDED SUFFICIENT EVIDENCE FOR MURDER[?]
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3. DID THE TRIAL COURT ERR IN THAT THE COURT’S FINDINGS 

WERE AGAINST THE WEIGHT OF THE EVIDENCE[?]

Appellant’s Brief at 3 (paginated as page “v” in Appellant’s brief).

In his first argument, Appellant contends that the court erred in denying 

him a new trial based on alleged after-discovered evidence, a text message 

that LaTrae Bundy sent to defense counsel one week after Appellant’s guilty 

verdict. The text message stated:

Hi Quinn! It’s La Trae, I just wanted to reach out and apologize 

for not stepping up and telling you the honest truth regarding 

everything I know. As you could have seen my family has put this 

burden on me while being in the middle of this whole case. They 

know the real reason behind what happened to my brother 

Rasheed, and I know it’s too late but the guy that was the 4th

person name is Rashid Wallop, he knew my brothers.

I have told detectives when all this first happened it wasn’t 

[Appellant] it was somebody else and they asked for a name but 

I was scared because he is dangerous. I know me telling you this 

now doesn’t do anything for you because the case is over but I 

want to say from the bottom of my heart I am sorry for not being 

honest. And thank you for trying your hardest with [Appellant]. 

I hope you have an amazing day and week, take care.

Appellant’s Motion For Extraordinary Relief, 9/6/22, at ¶ 8. 

To obtain a new trial on the basis of after-discovered evidence, the

defendant must show 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 corroborative or cumulative; (3) will not be used

solely to impeach the credibility of a witness; and (4) would likely 

result in a different verdict if a new trial were granted. The test 

is conjunctive; the defendant must show by a preponderance of 

the evidence that each of these factors has been met in order for 

a new trial to be warranted.
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Commonwealth v. Felder, 247 A.3d 14, 17 (Pa. Super. 2021).

To be entitled to an evidentiary hearing on a post-sentence motion for 

a new trial based on after-discovered evidence, the motion “must, at the very 

least, describe the evidence that will be presented at the hearing.” 

Commonwealth v. Castro, 93 A.3d 818, 827 (Pa. 2014). “Simply relying 

on conclusory accusations made by another, without more, is insufficient to 

warrant a hearing.” Id. An evidentiary hearing is for the presentation of 

evidence, not the potential discovery of evidence. Id. at 827-28. Thus, the

motion must assert “actual discovery of actual evidence, not merely the 

possibility of such evidence.” Id. at 828. The motion “is not to serve as a 

preemptive means of securing a hearing that will itself comprise the 

investigation. . . [an appellant] need[s] to clearly articulate in his motion 

what evidence he would present to meet the test.” Id. Further, the evidence 

“must be producible and admissible.” Id. at 827.

If the court does not grant a new trial, we review its decision for abuse 

of discretion. Felder, 247 A.3d at 17-18. The court gave two reasons for 

denying Appellant’s after-discovered evidence claim. First, it held that the 

proposed evidence was inadmissible hearsay:

Although styled by counsel as “evidence” it is not actual evidence 

and Appellant was not entitled to a new trial or even a hearing on 

the basis of this text. This text is nothing more than inadmissible 

hearsay. At trial, Ms. Bundy testified that she was inside the 

house at 1236 Markley Street when her brother was murdered. 

(N.T., Bench Trial, V. III, 8/17/22, pp. 36-37). She did not see 

the murder happen. Therefore, her assertion that there was a 
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fourth person in the alleyway and that that person was Rashid 

Wallop, did not result from her first-hand observation. This new 

“evidence” would have had to have been told to her by someone 

else, making this inadmissible hearsay. 

Opinion at 10. Hearsay is defined as a statement that (1) the declarant does 

not make while testifying at the current trial or hearing; and (2) a party offers 

in evidence to prove truth of matter asserted in the statement. Pa.R.E. 

801(c). Hearsay is inadmissible unless it falls within an exception provided by 

the Rules of Evidence, by statute, or by other rules prescribed by our Supreme 

Court. Pa.R.E. 802. The testimony cited by the court confirms that Bundy 

indeed was inside the house at 1236 Markley Street and did not witness the 

murder. Thus, the claim in her email is hearsay because it had to have been 

based upon a report from another individual and is offered for its truth. 

Appellant fails to demonstrate that Ms. Bundy’s email falls within any 

exception to the hearsay rule. Therefore, the court correctly determined that 

her statement was inadmissible. Castro, 93 A.3d at 827 (after-discovered 

evidence must be admissible to permit relief).

 The court also held that Bundy’s statement did not warrant relief 

because it would only be used for impeachment purposes. Appellant argued 

in the penultimate paragraph of his post-sentence motion, “The text message 

and the belief that the family coerced her testimony and is aware of the 4th 

person in the breezeway seriously undermines the reliability of the only 

witness to the homicide.” Post-Sentence Motion, 4/28/23, at 5 (unpaginated). 

Based on this assertion, the court deduced that the sole purpose of Bundy’s 
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statement was to impeach Mr. Burke’s testimony that the only individuals in 

the alleyway were Appellant and the victim. Opinion at 11. We find no abuse 

of discretion by the trial court in rejecting this issue. 

“Whenever a party offers a witness to provide evidence that contradicts 

other evidence previously given by another witness, it constitutes 

impeachment.” Commonwealth v. Weis, 611 A.2d 1218, 1229 (Pa. Super. 

1992). We see no purpose for Appellant to introduce Bundy’s statement other 

than to “contradict other evidence previously given by another witness,”

Burke. Thus, Bundy’s statement fails Felder’s requirement that afterdiscovered evidence “will not be used solely to impeach the credibility of a 

witness.” Id., 247 A.3d at 17. For these reasons, the trial court acted within 

its discretion by rejecting Appellant’s request for a new trial based on afterdiscovered evidence.

 In his second argument, Appellant contends that the evidence was 

insufficient to sustain his conviction for first-degree murder. We disagree. 

The standard we apply in reviewing the sufficiency of the evidence is 

whether viewing all the evidence admitted at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to 

enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for 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 
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beyond a reasonable doubt by means of wholly circumstantial 

evidence.... Finally, the finder 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.

Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017).

 The Crimes Code provides a “criminal homicide constitutes murder of 

the first degree when it is committed by an intentional killing.” 18 Pa.C.S.A. § 

2502(a). A conviction for first-degree murder requires the trier of fact to find

that “(1) a human being was unlawfully killed; (2) the person accused is

responsible for the killing; and (3) the accused acted with malice and specific

intent to kill.” Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015). 

“The Commonwealth may prove the specific intent to kill necessary for first

degree murder wholly through circumstantial evidence.” Commonwealth v. 

Ovalles, 144 A.3d 957, 969 (Pa. Super. 2016). Moreover, the factfinder “may 

properly infer malice and specific intent from the fact that a victim was shot 

multiple times.” Commonwealth v. Kennedy, 151 A.3d 1117, 1122 (Pa. 

Super. 2016). In addition, “the Commonwealth must also establish the

identity of the defendant as the perpetrator of the crimes.” Commonwealth 

v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018).

The Commonwealth adduced the following evidence during trial: Burke, 

who was present during the shooting, testified that Appellant was the shooter. 

On December 31, 2020, Burke was present at 1236 Markley Street spending 

time with his family, including his brother, the victim. Burke testified, and cell 

phone records confirm, that Appellant called Burke twice within a short time 

span asking to speak with the victim and asking that he come outside. After 
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the second call, Burke went outside with the victim and walked to the 

alleyway. Burke testified that he only saw Appellant in the alleyway. Believing 

that the victim and Appellant were only going to talk, he turned his back to 

the alleyway. Less than thirty seconds later, Burke heard gunshots mere feet 

away from the alleyway. Burke immediately went into the alleyway to check 

on the victim and saw Appellant run past him to his car down the street and

flee the scene. He cried out repeatedly, “Ny shot my brother.” N.T., 8/15/22, 

at 53-63.

Davis, the pizza deliveryman, testified that he saw four people, two on 

each side, in the alleyway while he was behind his car nearby 1242 Markley 

Street. He never got closer to the alleyway. Davis was only able to see figures 

and not faces, the people were quiet and he heard no arguing or conversation. 

He then heard two or three gunshots and saw someone run out of the 

alleyway, across the street past him, and into a car, which fled the scene. He 

also heard someone yell “he shot my brother” repeatedly and saw the speaker 

exit the alleyway. On redirect examination, Davis testified that the speaker 

said repeatedly, “Ny shot my brother.” N.T., 8/16/22, at 69-88. 

A surveillance video corroborated Burke’s and Davis’s testimony. The 

video showed the arrival of Appellant’s vehicle one block away from the 

murder scene at 8:59 p.m., N.T., 8/15/22, at 111-12, two people exiting the 

vehicle, one of whom was carrying a large object, and both individuals walking 

towards the alleyway, id., the arrival of Davis’s vehicle at 9:39 p.m., id. at 
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113, and an individual fleeing from the alleyway at 9:41 p.m. and departing 

in the vehicle that was parked one block from the murder scene, id. at 114.

Ford, Appellant’s friend, testified that Appellant confessed to murdering 

the victim because Appellant believed that the victim knew about Bundy’s 

relationship with another man but did not share this information with 

Appellant. N.T., 8/16/22, at 90-100. The court found Ford’s testimony 

credible. Opinion at 17. 

Appellant insists that the evidence is insufficient because Burke testified 

that three people were in the alleyway (Appellant, Burke and the victim), 

whereas Davis testified that four people were in the alleyway. In our review 

of the sufficiency of the evidence, however, we must view the evidence in the 

light most favorable to the Commonwealth. This standard requires us to 

accept as true Burke’s testimony that (1) only Appellant, Burke and the victim 

were in the alleyway, (2) Burke left the alleyway, (3) Burke heard gunshots, 

(4) Burke observed Appellant flee the alleyway and drive off in a car, and (5) 

Burke repeatedly said, “Ny shot my brother.” 

Furthermore, Davis’s testimony is consistent with Burke’s testimony 

except for the number of individuals in the alleyway. In particular, Davis, like 

Burke, heard gunshots and then saw an individual flee the alleyway and drive 

away from the scene. Finally, Appellant confessed to Ford that he murdered 

the victim, and video surveillance and cell phone evidence corroborated 

Burke’s and Davis’s testimony. Construed in the light most favorable to the 
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Commonwealth, this evidence is sufficient to sustain Appellant’s murder 

conviction. Brockman, supra.

Appellant also argues that the evidence was insufficient because Burke 

did not actually see him fire any shots at the victim. We disagree. In 

Commonwealth v. Randall, 758 A.2d 669 (Pa. Super. 2000), this Court held 

that there was sufficient evidence to sustain the defendant’s conviction for 

first-degree murder even though the witness did not actually see the

defendant shoot the victim. The defendant in Randall was standing outside 

smoking marijuana with the victim and a witness. When the witness was

smoking the marijuana cigarette, he heard three gunshots and saw the victim 

lying on the ground. He did not actually see the defendant pull the trigger or 

the death of the victim. 

This Court stated that “[a]lthough [the witness] did not directly observe 

Appellant shoot the decedent, [the witness], the Appellant and the decedent 

were the only individuals present in the near vicinity at the time of the 

shooting.” Id. at 675. The victim died of three gunshot wounds to the head. 

Id. This Court held that “[u]nder these circumstances, the jury could have 

reasonably inferred that it was Appellant who shot the decedent thereby 

causing his death.” Id. This Court further held that “[a]ppellant’s deliberate 

use of a pistol to deliver three bullets to the decedent’s head, one of the most 

vital portions of the body, was ample evidence of his specific intent to kill [the 

victim].” 
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In further support of this determination, the Randall court cited 

Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996), in which our 

Supreme Court found sufficient evidence to sustain a first-degree murder 

conviction even though the witnesses did not actually see the defendant shoot 

the victim, where (1) a witness testified that defendant wielded handgun, (2) 

the defendant threatened to kill the victim and severely beat the victim while 

his hands and feet were bound, (3) the defendant was in the room shortly 

before the witness heard the shot that killed the victim, and (4) a firearms 

expert testified that markings on bullet recovered from the victim’s body 

indicated that it could not have been fired from the victim’s firearm that had 

been taken by the defendant’s accomplice. 

Here, as in Randall and Rios, although Burke did not actually see 

Appellant shoot the victim, the evidence recounted above—specifically, the 

testimony of Burke, Davis and Ford—provides ample circumstantial evidence 

that Appellant shot the victim. Furthermore, the evidence that Appellant shot 

the victim multiple times in vital portions of his body provides ample evidence 

of his malice and specific intent. The evidence further demonstrates that 

Appellant shot himself during the robbery because one of the bullets that he 

fired ricocheted in the narrow alleyway and lodged itself in his neck. 

Appellant also claims that Bundy’s email undercuts the sufficiency of the 

evidence. This claim fails because we evaluate sufficiency claims based on 

evidence admitted during trial. Brockman, 167 A.3d at 38. Bundy’s email 

was not admitted into evidence during trial. Moreover, it was inadmissible 
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hearsay. Therefore, it does not affect our evaluation of the sufficiency of the 

evidence.

Finally, relying on Commonwealth v. Mosteller, 284 A.2d 786 (Pa. 

1971), Appellant argues that the evidence was insufficient because, in his 

view, the reliability of Burke’s testimony is open to serious question. 

Appellant’s Brief at 14. In Mosteller, the defendant’s fifteen-year-old 

daughter accused him of sexual assault. Following the complainant’s 

accusations, she was removed from her parents’ home and sent to live with 

her grandmother. She testified during trial that the defendant sexually 

assaulted her. A medical witness called by the Commonwealth testified, 

however, that the complainant’s hymen was intact and uninjured, and that a 

vaginal cotton swab and rectal examination were negative. Thus, the 

Commonwealth’s case rested entirely upon the complainant’s testimony. 

The jury found the defendant guilty. After trial, the complainant 

recanted her testimony, and the defendant moved for a new trial based on

after-discovered evidence. The complainant testified during a post-trial 

hearing that her grandmother and her uncle pressured her into testifying 

against the defendant. She maintained her recantation despite being warned 

of criminal charges for perjury and a substantial prison term. In addition, her 

great-aunt testified that she had asked the complainant before trial whether 

the defendant had done anything to her, and the complainant replied in the 

negative. The trial court and this Court held that a new trial was not 

warranted, but our Supreme Court held that a new trial was necessary, 
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reasoning, “[W]here as here the defendant’s conviction is based entirely on 

testimony of the child [witness] and the truth of that testimony is open to 

serious question because of the testimony of a disinterested medical witness, 

a subsequent recantation of testimony as supported by this record 

necessitates a new trial.” Id. at 789. The Court observed:

[N]ot only is there nothing to contradict [the complainant’s] 

recantation, [but] there is evidence from her great aunt that [the 

complainant] had fabricated her story. Additionally, [the 

complainant] persisted in her recantation despite having been 

informed that she was subject to criminal charges for perjury and 

a substantial prison term. This was a clear declaration against 

interest entitled to considerable credibility, unlike the normal 

retraction by a co-conspirator who is already in prison and 

realistically has little to lose by attempting to free his partner.

Id.

Mosteller does not help Appellant’s cause for multiple reasons. To 

begin, Mosteller held that Appellant was entitled to a new trial due to afteracquired evidence. Mosteller does not address, let alone support, the 

remedy Appellant seeks in his present argument, an arrest of judgment due 

to insufficiency of the evidence. Second, Appellant claims that Burke’s 

testimony in the present case was equally as unreliable as the complainant’s 

testimony in Mosteller. This attack on Burke’s testimony is completely 

unavailing. As we said above, in this challenge to the insufficiency of the 

evidence, we are required to construe Burke’s testimony and all other 

evidence in the light most favorable to the Commonwealth. Construed in this 

manner, we accept Burke’s testimony and the other evidence as true, and we 
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reject Appellant’s invitation to deem it unreliable.

1

 Other distinctions between 

Burke’s testimony and the complainant’s testimony in Mosteller deserve 

mention as well. Unlike the complainant in Mosteller, Burke did not recant 

his testimony. As well, the complainant’s testimony in Mosteller was the only 

evidence against the defendant, but here, there were two other important 

witnesses besides Burke—Davis and Ford—as well as video and cell phone 

evidence. Appellant does not dispute the reliability of Davis’s or Ford’s 

testimony, the video evidence, or the cell phone evidence, all of which 

provides important details that complete the web of circumstantial evidence 

against Appellant. For these reasons, Appellant’s challenge to the sufficiency 

of the evidence fails.

In his third and final argument, Appellant contends that he is entitled to 

a new trial because the verdict was against the manifest weight of the 

evidence. Our Supreme Court has instructed:

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 

A.2d 745, 751–52 (2000); Commonwealth v. Brown, 538 Pa. 

410, 435, 648 A.2d 1177, 1189 (1994). 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. Widmer, 560 Pa. at 319–20, 744 A.2d at 752. 

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 

____________________________________________

1 We note that the trial court also rejected Appellant’s attack on Burke’s 

credibility. See Opinion at 20 (“Burke was a credible witness”).
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the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation 

omitted).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). “A motion for 

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.”

Widmer, 744 A.2d at 751. “[A]n appellate court’s role is not to consider the 

underlying question of whether the verdict is against the weight of the 

evidence. Rather, appellate review is limited to whether the trial court 

palpably abused its discretion in ruling on the weight claim.” Commonwealth 

v. Champney, 832 A.2d 403, 408 (Pa. 2003).

Appellant claims that the Commonwealth’s “only witness,” Burke, was 

not credible. As discussed above, Burke was not the only witness against 

Appellant, and the trial court found Burke’s testimony credible, a ruling well 

within the court’s discretion. Appellant also claims that Bundy’s affidavit

entitles him to a new trial, but we held above that Bundy’s affidavit does not 

entitle Appellant to relief. Next, Appellant argues, “No firearm was found or 

retrieved from [Appellant]. Moreover, [Appellant] was also shot from behind 

yet the Commonwealth presents some tale to suggest he shot a firearm and 

it ricocheted off of something and hit him in the back of his neck without any 

scientific certain[t]y despite testimony.” Appellant’s Brief at 18. 

The trial court did not address these issues in its opinion because 

Appellant did not raise them in his Pa.R.A.P. 1925 statement of matters 

complained of on appeal. The closest that Appellant came to making these 
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claims in his Rule 1925 statement was his statement that “Burke’s testimony 

was insufficient to show that [Appellant] was the actual shooter.” Pa.R.A.P. 

1925 Statement, 6/13/23, at ¶ 3(b). Arguably, therefore, these claims are 

waived. See, e.g., Commonwealth v. Elia, 83 A.3d 254, 262-63 (Pa. Super. 

2013) (defendant’s claim that trial court erred in granting his motion to 

withdraw guilty plea waived argument that trial court abused its discretion by 

conducting plea withdrawal hearing while defendant was being represented by 

counsel under an alleged conflict of interest, where defendant failed to raise 

such issue in his statement of matters complained of on appeal).

Even if they were preserved for appeal, they do not entitle Appellant to 

relief. Though no firearm was recovered, ample evidence proved that 

Appellant was the perpetrator, including the testimony of multiple witnesses, 

the video surveillance evidence and cell phone records. Regarding the detail 

that a bullet struck Appellant in the neck, Dr. Wardak’s testimony established 

that this bullet ricocheted off the pavement before striking Appellant. This 

testimony suggests that Appellant fired the bullet, and that the bullet 

ricocheted off the pavement and lodged itself in his neck. Nothing in the 

record contradicts this scenario, and in any event, other evidence points 

squarely at Appellant as the murderer.

For these reasons, the trial court acted within its discretion by denying 

Appellant’s motion for new trial. Accordingly, we affirm Appellant’s judgment 

of sentence.
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Judgment of sentence affirmed.

Date: 4/1/2024