J-A24011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS ZORRER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1526 EDA 2022

Appeal from the Judgment of Sentence Entered January 19, 2022

In the Court of Common Pleas of Bucks County 

Criminal Division at No: CP-09-CR-0002062-2019

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED JUNE 14, 2024

Appellant, Thomas Zorrer, appeals from his judgment of sentence of 18-

40 years’ imprisonment for attempted murder, persons not to possess 

firearms and multiple other offenses. We affirm.

On the morning of February 21, 2019, Appellant shot the victim, Kevin 

Hadley, in the ear with a 9 millimeter pink/purple handgun outside a trailer in 

Morrisville, Pennsylvania. Appellant was arrested that day and charged with 

attempted murder, persons not to possess firearms, and multiple other 

assault- and weapons-related offenses. The court severed the charge of 

persons not to possess firearms from the other charges, and on November 1, 

2021, this charge went to trial. On November 4, 2021, a jury found Appellant 

guilty of this charge. On November 30, 2021, the remaining charges 

proceeded to trial, and on December 2, 2021, another jury found Appellant 

guilty of all charges. On January 19, 2022, the court imposed sentence. 
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Appellant filed timely post-sentence motions, which the court denied, and a 

timely notice of appeal. Both Appellant and the trial court complied with 

Pa.R.A.P. 1925. 

The evidence during Appellant’s first trial shows that near noon on 

February 21, 2019, a Falls Township police officer responded to the Belaire 

Mobile Home Park following a report of a shooting. Upon the officer’s arrival, 

he observed the victim, Kevin Hadley, bleeding from his left ear. Hadley was 

transported to a local hospital for further treatment. Based on information 

that Hadley provided, the police began searching for a vehicle owned by 

Virginia Albertson, Appellant’s girlfriend. Several hours later, the police 

located the vehicle at Albertson’s address, found Appellant in the driver’s seat 

of the vehicle, and arrested him. Upon taking Appellant into custody, a police 

officer recovered a single Speer 9mm Luger bullet in Appellant’s front right 

pocket. The police also recovered a pink/purple Ruger 9mm handgun from 

the vehicle. Subsequent testing demonstrated that the gun fired a bullet and 

ejected a shell casing as a properly functioning firearm would do. The police 

obtained a DNA swab from Appellant. Expert witnesses testified for the 

Commonwealth that Appellant was the primary DNA contributor on the gun 

and had characteristic gunshot residue particles on his person. See Trial Court

Opinion, 10/21/22, at 3-8 (citations omitted).

The evidence adduced during Appellant’s second trial consisted largely 

of the same evidence submitted during the first trial. In addition, a detective 

testified that Appellant admitted taking the gun from his then-girlfriend,
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Albertson, because of a purported fear that she would harm herself. Further,

Appellant first expressed surprise that the victim, Hadley, had been shot at 

all, and then later in the interview, told detectives that it was all an accident, 

without conceding that he fired the gun at Hadley. Another detective testified 

that he intercepted several telephone communications in which Appellant 

made statements about the February 21, 2019 incident in which he said “I 

fucked up” and “it was an accident,” along with surprise and frustration that 

police had discovered an item, which the Commonwealth argued was the 9mm 

firearm. See Opinion at 8-14.

Appellant raises the following issues in this appeal:

1. Did the trial court abuse its discretion in denying Appellant relief 

based on the Rules of Criminal Procedure Rule 600[?]

2. Did the trial court abuse its discretion in denying Appellant relief 

based on the Rules of Criminal Procedure Rule 600 as the trial 

court included continuances where Rule 106 was not adhered to 

as required[?]

3. Did the trial court err in failing to suppress DNA evidence of the 

gun and magazine as it was not covered by the four corners of the 

search warrant[?]1

4. Did the trial court err in denying Appellant’s Motion in Limine 

precluding any reference, during the person not to possess a 

firearm trial, of the shooting of a person, in particular, Kevin

Hadley[?]

____________________________________________

1Appellant did not address this issue in the argument section of his brief. 

Accordingly, it is waived. Commonwealth v. Heggins, 809 A.2d 908, 912 

n.2 (Pa. Super. 2002) (“[A]n issue identified on appeal but not developed in 

the appellant’s brief is abandoned and, therefore, waived”).
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5. Did the trial court err in denying Appellant’s Motion in Limine to 

admit the November 25, 2019 Bench Warrant transcript of Kevin 

Hadley[?]

6. Did the trial court err in instructing the jury “if you believe the 

Defendant intentionally used a deadly weapon on a vital part of 

the victim’s body” when it was an ear that was injured[?]

7. Did the trial court err in denying Appellant’s demur motion as 

the evidence produced by the Commonwealth was insufficient to 

sustain guilty verdicts beyond a reasonable doubt against the 

Appellant in both trials[?]

8. Did the trial court err in denying Appellant’s request for a new 

trial, both the first and second trial, as the verdicts by both went 

against the weight of the evidence[?]

9. Did the trial court err in denying Appellant’s request for a new 

trial based on Brady violations[?]

10. Did the trial court abuse its discretion in sentencing appellant 

by imposing manifestly excessive sentences, failing to consider all 

relevant factors, failing to adequately state the reasons relied 

upon and relying on improper factors in imposing said sentence[?]

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

denying his motion to dismiss all charges under Pennsylvania’s speedy trial 

rule, Pa.R.Crim.P. 600. This argument is devoid of merit.

When presented with a speedy trial claim arising under Rule 600, 

our standard of review of a trial court’s decision is whether the 

trial court abused its discretion. Judicial discretion requires action 

in conformity with law, upon facts and circumstances judicially 

before the court, after hearing and due consideration. An abuse 

of discretion is not merely an error of judgment, but if in reaching 

a conclusion the law is overridden or misapplied or the judgment 

exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias, or ill will, as shown by the evidence or the record, 

discretion is abused.

The proper scope of review is limited to the evidence on the record 

of the Rule [600] evidentiary hearing, and the findings of the 
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[trial] court. An appellate court must view the facts in the light 

most favorable to the prevailing party.

Additionally, when considering the trial court’s ruling, this Court is 

not permitted to ignore the dual purpose behind Rule [600]. Rule 

[600] serves two equally important functions: (1) the protection 

of the accused’s speedy trial rights, and (2) the protection of 

society. In determining whether an accused’s right to a speedy 

trial has been violated, consideration must be given to society’s 

right to effective prosecution of criminal cases, both to restrain 

those guilty of crime and to deter those contemplating it. 

However, the administrative mandate of Rule [600] was not 

designed to insulate the criminally accused from good faith 

prosecution delayed through no fault of the Commonwealth.

So long as there has been no misconduct on the part of the 

Commonwealth in an effort to evade the fundamental speedy trial 

rights of an accused, Rule [600] must be construed in a manner 

consistent with society’s right to punish and deter crime. In 

considering [these] matters ..., courts must carefully factor into 

the ultimate equation not only the prerogatives of the individual 

accused, but the collective right of the community to vigorous law 

enforcement as well.

Commonwealth v. Reed, 292 A.3d 601, 610 (Pa. Super. 2023). The 

Commonwealth bears the burden of proving, by a preponderance of evidence, 

that it acted with due diligence throughout the proceedings. Id. 

Rule 600 provides that “[t]rial in a court case in which a written 

complaint is filed against the defendant shall commence within 365 days from 

the date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). In 

computing the Rule 600 deadline, however, we do not necessarily count all 

time following the filing of the complaint. Instead, “periods of delay at any 

stage of the proceedings caused by the Commonwealth when the 

Commonwealth has failed to exercise due diligence shall be included in the 
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computation of the time within which trial must commence. Any other periods 

of delay shall be excluded from the computation.” Pa.R.Crim.P. 600(C)(1). 

In order for delay to count toward the 365-day deadline, the 

Commonwealth must cause the delay, and the Commonwealth must fail to 

exercise due diligence. Where the Commonwealth does not cause the delay, 

or delay caused by the Commonwealth does not arise from lack of diligence, 

it is excluded from computation of the Rule 600 deadline. “Due diligence is 

fact specific, to be determined case-by-case; it does not require perfect 

vigilance and punctilious care, but merely a showing the Commonwealth has 

put forth a reasonable effort.” Commonwealth v. Selenski, 994 A.2d 1083, 

1089 (Pa. 2010).

The Rule 600 analysis entails three steps:

First, Rule 600(A) provides the mechanical run date. Second, we 

determine whether any excludable time exists pursuant to Rule 

600(C). We add the amount of excludable time, if any, to the 

mechanical run date to arrive at an adjusted run date.

If the trial takes place after the adjusted run date, we apply the 

due diligence analysis set forth in Rule 600([D]). As we have 

explained, Rule 600[] encompasses a wide variety of 

circumstances under which a period of delay was outside the 

control of the Commonwealth and not the result of the 

Commonwealth’s lack of diligence. Any such period of delay 

results in an extension of the run date. Addition of any Rule 600[] 

extensions to the adjusted run date produces the final Rule 600

run date. If the Commonwealth does not bring the defendant to 

trial on or before the final run date, the trial court must dismiss 

the charges.

Reed, 292 A.3d at 611.
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Here, the complaint was filed on February 22, 2019, so the mechanical 

run date was February 22, 2020. Appellant’s first trial took place 983 days

after the filing of the complaint, on November 1, 2021. The record 

demonstrates that there were 710 days of excludable time in this 983-day 

period, resulting in an adjusted run date of January 31, 2022. Thus, 

Appellant’s first trial took place well within the adjusted run date. 

To elaborate, there is no dispute that the first 223 days (February 22, 

2019 to October 4, 2019) is attributable to the Commonwealth. The trial court 

found that this time was attributable to the Commonwealth, see 

Commonwealth’s Brief at 19 and the Commonwealth does not contest this 

finding in its brief. Id. at 22. 

The next 96 days from October 4, 2019 to January 8, 2020 were 

attributable to Appellant, thus constituting excludable time, because of 

Appellant’s multiple requests to change defense counsel. The relevant facts 

during this time period were as follows:

[In February and March 2019,] Appellant was first represented by 

Deborah Weinman, Esq. of the Bucks County Public Defender’s 

Office. Attorney Weinman had to withdraw as Appellant had 

previously filed a Post Conviction Relief Act (“PCRA”) complaint in 

2010 regarding a matter in which Attorney Weinman had 

represented him in, and in which he alleged there was ineffective 

assistance of counsel. William Penglase, Esq. was then appointed 

as Appellant’s second attorney on March 21, 2019. [On October 

4, 2019, as the] initial trial date of November 18, 2019 

approached, Appellant requested that Attorney Penglase withdraw 

his representation [because] Appellant found his representation 

unsatisfactory. Attorney Penglase’s withdrawal was accepted on 

November 10, 2019 and finalized in an order dated November 26, 

2019, which replaced Attorney Penglase with Harry Cooper, Esq. 
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The matter was then postponed until January 8, 2020 to allow 

Attorney Cooper to become familiar with the case and properly 

prepare.

Trial Court Opinion, 10/21/22, at 18 (cleaned up). 

The time between the filing and resolution of the defendant’s pretrial 

motions is not chargeable against the Commonwealth under Rule 600 if the 

motion delays trial and the Commonwealth exercises due diligence in opposing 

or responding to the motion. Commonwealth v. Hill, 736 A.2d 578, 587 

(Pa. 1999). In addition, delay resulting from the appointment of new defense 

counsel is not chargeable against the Commonwealth under Rule 600. 

Commonwealth v. McLaughlin, 488 A.2d 63, 66 (Pa. Super. 1985). 

Nothing in the record demonstrates that the Commonwealth failed to exercise 

due diligence in responding to Appellant’s October 4, 2019 motion to dismiss 

Attorney Penglase. To the contrary, the Commonwealth promptly filed a 

response to the motion on October 18, 2019, and the court granted this 

motion on November 10, 2019 and appointed Attorney Cooper on November 

29, 2019. Moreover, the delay between November 29, 2019 and January 8, 

2020 took place because Attorney Cooper needed this time to prepare for trial. 

Thus, the delay between October 4, 2019 and January 8, 2020 does not count 

against the Commonwealth under Rule 600. Hill, McLaughlin, supra.

The next time period from January 8, 2020 to March 17, 2020 was 

excludable because this delay arose from a joint request for a continuance. 

Opinion at 19. As we held in Commonwealth v. Reed, 292 A.3d 601 (Pa. 
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Super. 2023), “Rule 600 expressly excludes from computation periods of delay 

resulting from ‘any continuance granted at the request of the defendant or the 

defendant’s attorney.’ Pa.R.Crim.P. 600(C)(3)(b).2 Continuances based on 

joint requests by the Commonwealth and the defendant are excludable time 

under this rule.” Id. at 611. 

The next 470 days from March 17, 2020 to June 30, 2021 was 

excludable time because the court suspended jury trials during this period due 

to the COVID pandemic, a circumstance beyond the Commonwealth’s control. 

In Commonwealth v. Faison, 297 A.3d 810 (Pa. Super. 2023), we reasoned 

that on March 16, 2020, our Supreme Court declared a general statewide 

judicial emergency due to the COVID pandemic. The Court subsequently 

extended this emergency until June 1, 2020 and explicitly suspended time 

calculations under Rule 600 during this period. When the statewide 

emergency ended on June 1, 2020, the Court provided that any local 

emergencies would remain in effect and empowered local president judges to 

extend the judicial emergency in their own districts based on specific health 

concerns. Thus, in Faison, we held that a 490-day delay in Delaware County 

due to extensions of the judicial emergency by Delaware County’s president 

judge was not chargeable to the Commonwealth. Id. at 823-24. We 

____________________________________________

2 The citation to Rule 600(C)(3)(b) appears to be a typographical error. The 

correct citation is to Rule 600(C)(2), which provides that “periods of delay 

caused by the defendant shall be excluded from the computation of the length 

of time of any pretrial incarceration.”
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explained that it would not further the purpose of Rule 600 “if a defendant 

could demand a jury trial (as is [his] constitutional right) during a time when 

it is impossible for the Commonwealth to hold a jury trial and determine that 

the resulting delay was not excusable under the Rule.” Id. at 824; see also 

Commonwealth v. Lear, 290 A.3d 709, 719 (Pa. Super. 2023) (“[i]f an 

[emergency] order unambiguously suspends Rule 600 without qualification, 

then the period of suspension is added to the run date without considering the 

Commonwealth’s diligence”), appeal granted in part, 305 A.3d 541 (Pa. filed 

October 3, 2023). 

Similarly, in the present case, the record reflects that Bucks County’s 

president judge extended the judicial emergency in Bucks County multiple 

times between June 1, 2020 and June 30, 2021. Nothing in the record 

suggests that Appellant was willing to waive his right to a jury trial during this 

time. Accordingly, this time period is not attributable to the Commonwealth 

under Rule 600. Id.

Next, the trial court held that the 75-day period from June 30, 2021 to 

September 13, 2021 was excludable time, Opinion at 20, and Appellant 

concedes in his brief that this decision was correct. Appellant’s Brief at 26 

(“On June 21, 2021, the trial court offered trial dates of August 30, 2021 or 

September 13, 2021. Before responses from the parties were received, Court 

Administration notified this Court that holding the trial on August 30, 2021 

was not possible. As a result, the 75-day period from June 30, 2021 to 
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September 13, 2021 was beyond the Commonwealth’s control and is not 

applied against [it] under [Rule] 600”). 

Finally, the court held that the Commonwealth was responsible for the 

49-day period from September 13, 2021 to November 1, 2021 because its 

expert witnesses were not available during this time. 

The foregoing analysis shows that 710 days between the filing of the 

complaint on February 22, 2019 and the first trial on November 1, 2021 were 

excludable from Rule 600, while only 273 days were attributable to the 

Commonwealth, leaving an adjusted run date of January 31, 2022. 

Appellant’s first trial took place well within the adjusted run date. 

In addition, Appellant’s second trial began on November 30, 2021, well 

within the adjusted run date of January 31, 2022. 

Appellant contends that Rule 600 requires dismissal of all charges 

because the Commonwealth was tardy in obtaining critical discovery. 

Appellant argues that the Commonwealth (1) failed to contact the 

investigating officer to request Appellant’s GSR results until November 15,

2019; (2) failed to send Appellant’s GSR kit to the Pennsylvania State Police 

for testing until November 18, 2019; (3) failed to obtain Appellant’s GSR 

report until March 4, 2020; and (4) failed to analyze the GSR kit of the victim, 

Hadley, until February 12, 2021. In addition, Appellant asserts that the 

Commonwealth failed to request hospital records pertaining to Hadley until 

January 25, 2021. Furthermore, Appellant argues that the Commonwealth 
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failed to turn over Hadley’s testimony during a bench warrant hearing on 

November 25, 2019 that Appellant was the “wrong guy,” thus forcing 

Appellant to obtain the transcript from this hearing himself. All of these dates, 

however, fell within time periods that are not chargeable to the 

Commonwealth for the reasons discussed above (a defense request for new 

counsel, a joint request for a continuance and the COVID pandemic). 

For these reasons, the trial court properly denied Appellant’s Rule 600

argument. 

Next, Appellant contends that the trial court erred in failing to dismiss 

his case under Rule 600 because it failed to follow Pa.R.Crim.P. 106 following 

each continuance request. We disagree. 

Rule 106(c) provides:

When the matter is in the court of common pleas, the judge shall 

on the record identify the moving party and state of record the 

reasons for granting or denying the continuance. The judge also 

shall indicate on the record to which party the period of delay 

caused by the continuance shall be attributed and whether the 

time will be included in or excluded from the computation of the 

time within which trial must commence in accordance with Rule 

600.

Id. Appellant appears to claim that during pretrial hearings, the court failed

to state, on the record, the identity of the party responsible for delays caused 

by continuances and whether these delays were included in or excluded from 

Rule 600 computations.

Appellant arguably has waived this issue because his brief fails to 

identify where he raised Rule 106(c) in the trial court. Even if Appellant raised 
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this issue below, he fails to cite any case, nor can we find any, in which the 

court’s failure to comply with Rule 106(c) required attribution of the 

continuance to the Commonwealth under Rule 600. Finally, the Rule 1925 

opinion in this case thoroughly explained its reasons for granting each 

continuance and for determining the party responsible for each continuance. 

Thus, even if the court failed to comply with Rule 106(c) during pretrial 

hearings, it remedied this error by providing a satisfactory explanation in its 

Rule 1925 opinion. 

Next, Appellant argues that during his first trial for persons not to 

possess firearms, the court erred by denying his motion in limine to preclude 

evidence of the fact that the victim, Hadley, was shot. According to Appellant,

the Commonwealth did not need to prove that Hadley was shot in order to 

prove that Appellant was unlawfully in possession of a firearm, so therefore 

evidence of the shooting ran afoul of Pa.R.E. 403. We disagree.

“The court may exclude relevant evidence if its probative value is 

outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” Pa.R.E. 403. “Unfair prejudice 

means a tendency to suggest decision on an improper basis or to divert the 

jury’s attention away from its duty of weighing the evidence impartially.” Rule 

403, Comment. “This balancing of intangibles—probative values against 

positive damages—is so much a matter where wise judges in particular 
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situations may differ that a leeway of discretion is generally recognized.”

Commonwealth v. Boyle, 447 A.2d 250, 254 (Pa. 1982). “Evidence will not 

be prohibited merely because it is harmful to the defendant.”

Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007). “[E]xclusion is 

limited to evidence so prejudicial that it would inflame the jury to make a 

decision based upon something other than the legal propositions relevant to 

the case.” Commonwealth v. Owens, 929 A.2d 1187, 1191 (Pa. Super.

2007). “The court is not ... required to sanitize the trial to eliminate all 

unpleasant facts from the jury’s consideration where those facts are relevant 

to the issues at hand and form part of the history and natural development of 

the events and offenses for which the defendant is charged[.]”

Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988). We review the trial 

court’s decision to admit or preclude evidence for abuse of discretion. 

Commonwealth v. Hairston, 84 A.3d 657, 664 (Pa. 2014).

The Crimes Code defines the offense of persons not to possess firearms

as follows:

A person who has been convicted of an offense enumerated in 

subsection (b),3 within or without this Commonwealth, regardless 

of the length of sentence, or whose conduct meets the criteria in 

subsection (c) shall not possess, use, control, sell, transfer or 

manufacture or obtain a license to possess, use, control, sell, 

transfer or manufacture a firearm in this Commonwealth. 

____________________________________________

3 The parties stipulated that Appellant pled guilty to burglary and theft by 

unlawful taking in 2006, both of which are enumerated offenses under Section 

6105(b). 
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18 Pa.C.S.A. § 6105(a)(1). In our view, evidence that Appellant shot the 

victim was relevant to demonstrate that he “possess[ed], use[d] [or] 

control[led]” a firearm. Id. In addition, the trial court acted within its 

discretion by concluding that this evidence was not more prejudicial than 

probative. The trial court correctly observed that “there [was] no obligation 

to sanitize the record, and the Commonwealth is entitled to tell its story, 

including the natural development of the events.” Opinion at 26 (cleaned up). 

Evidence of the shooting, while unpleasant, clearly fit within the natural 

development of the events in this case. See Commonwealth v. Antidormi, 

84 A.3d 736, 752 (Pa. Super. 2014) (in prosecution for persons not to possess 

firearms, evidence that firearms were discharged from vehicle occupied by 

defendant and others and damaged a home and signage was admissible; 

probative value of evidence outweighed its prejudice because it formed part 

of natural history of case, established that firearm existed and that defendant 

possessed it, and did not invite jury to convict on improper basis).

The court further neutralized the prejudicial impact of this evidence by 

instructing the jury that they should not consider whether the evidence 

indicated that Appellant was guilty of other crimes. At the start of trial, the 

court gave the following instruction:

I want you to know that I expect that in the trial there may very 

well be testimony that’s presented which might lead you to believe 

that [Appellant] might be guilty of another crime or two in terms 

of the Commonwealth’s allegations against him as to when if he 

did in fact possess a firearm or used a firearm or controlled a 

firearm. You might hear testimony that might lead you to believe 
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that he was involved in some other activity. And when we get to 

that, you’ll understand what I mean. But what I want to convey 

to you is this, it’s very important that you realize we’re only 

dealing with one crime here, one charge. And so, whether or not 

you hear things that make you think, oh, that sounds like that 

might be another crime or that might be another crime, they are 

of no moment or importance to you. To the extent that those 

matters ever have to be dealt with, they’ll be dealt with separately 

in a different forum.

N.T. 11/01/2021, p. 27. The court gave a similar instruction following the 

close of evidence. N.T. 11/04/2021, at 258-59 (similar instruction). Juries 

are presumed to follow the court’s instructions, Commonwealth v. Tyson, 

119 A.3d 353, 360 (Pa. Super. 2015), and nothing in this record rebuts the 

presumption. Accordingly, we conclude that this instruction prevented the 

jury from finding Appellant guilty of persons not to possess firearms because 

it believed Appellant committed other crimes.

Next, Appellant argues that the court erred during his first trial by 

refusing to admit a transcript from Hadley’s bench warrant hearing in which 

Hadley testified that “[Appellant] is not the guy who shot me.” Appellant 

claims that the trial court should have admitted this testimony as an admission 

against interest under Pa.R.E. 804 because Hadley did not attend Appellant’s 

first trial.

4

 We review this decision for abuse of discretion, Hairston, supra, 

and we conclude that the court properly excluded this testimony. 

____________________________________________

4 Hadley testified during Appellant’s second trial, and his bench warrant 

hearing testimony was introduced into evidence during his testimony. 
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The hearsay exception that Appellant seek to invoke, Pa.R.E. 804(b)(3), 

provides:

(b) Hearsay Exceptions. The following statements, as hereinafter

defined, are not excluded by the hearsay rule if the declarant is 

unavailable as a witness:

***

(3) Statement against interest. A statement which was at the 

time of its making so far contrary to the declarant’s pecuniary or 

proprietary interest, or so far tended to subject the declarant to 

civil or criminal liability, or to render invalid a claim by the 

declarant against another, that a reasonable person in the 

declarant’s position would not have made the statement unless 

believing it to be true. In a criminal case, a statement tending to 

expose the declarant to criminal liability is not admissible unless 

corroborating circumstances clearly indicate the trustworthiness 

of the statement.

Id. The plain language of this rule requires not only that the statement be 

against the declarant’s interest but that the declarant be unavailable as a 

witness and that corroborating circumstances clearly indicate that the 

statement is trustworthy. A declarant is “unavailable as a witness” under Rule 

804 when the declarant “is absent from the trial or hearing and the 

statement’s proponent has not been able, by process or other reasonable 

means, to procure ... the declarant’s attendance or testimony, in the case of a 

hearsay exception under Rule 804(b)[(3)].” Pa.R.E. 804(a)(5)(B). 

Although Hadley was absent during Appellant’s first trial, Appellant fails

to demonstrate that he was unable to procure Hadley’s attendance or 

testimony. To the contrary, when the court asked defense counsel where 

Hadley was, counsel stated “I don’t know,” N.T. 11/4/21, at 118, and failed 
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to demonstrate that he attempted to subpoena Hadley or otherwise obtain his 

attendance or testimony, even though Hadley was equally available to both 

parties as a witness. Thus, there was no proof that Hadley was “unavailable 

as a witness.”

Moreover, the trial court properly determined that there were no 

corroborating circumstances that clearly indicated the trustworthiness of 

Hadley’s bench warrant hearing testimony. The trial court observed that the 

bench warrant hearing testimony directly contradicted Hadley’s prior sworn 

testimony during Appellant’s preliminary hearing, and there was no 

opportunity or reason for the Commonwealth to cross-examine Hadley during 

the bench warrant hearing. The court reasoned that Hadley’s testimony was 

simply a disingenuous excuse for why he refused to appear in court under 

subpoena for Appellant’s trial. Opinion at 29 (citing N.T. 11/4/21, at 115-17). 

Finally, the court noted that Hadley and Appellant knew each other well, thus 

undermining any notion that this was a case of mistaken identity. Id. 

Since Appellant failed to demonstrate that Hadley’s bench warrant 

hearing testimony met all requisites for admissibility under Rule 804(b)(3), 

the court properly declined to admit this evidence.

Next, Appellant argues that the trial court erred by giving the following 

instruction during his second trial, “If you believe that [Appellant] intentionally 

used a deadly weapon on a vital part of the victim’s body, you may regard 

that as an item of circumstantial evidence from which, if you choose, you could 
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infer that [Appellant] had the specific intent to kill.” N.T. 12/2/21, at 48. 

Appellant shot Hadley in his ear. He contends that the jury instruction was 

erroneous because the ear is not a vital part of the body. We disagree.

Our review of a challenge to the court’s jury instructions is well-settled. 

We review the charge as a whole to determine if it is fair and complete. 

Commonwealth v. Lake, 281 A.3d 341, 347 (Pa. Super. 2022). “The trial 

court commits an abuse of discretion only when there is an inaccurate 

statement of the law. A charge is considered adequate unless the jury was 

palpably misled by what the trial judge said or there is an omission which is 

tantamount to fundamental error.” Id. 

Appellant was charged with attempted murder, a crime that requires the 

Commonwealth to prove that he took a substantial step towards the 

commission of a killing with the specific intent in mind to commit such an act. 

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008). In 

accordance with this principle, the trial court instructed that the jury had to 

find that Appellant did an act—specifically, he “fired his gun at the victim”—

he had the specific intent to kill Hadley at the time of this act, and the act 

constituted a substantial step towards the commission of the killing. N.T.

12/2/21, at 45-46. The court then instructed that it could infer specific intent 

if Appellant intentionally used a deadly weapon on a vital part of Hadley’s 

body. Id. at 48. 
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Viewed as a whole, this instruction was fair and complete. The only 

objection Appellant raises Hadley’s ear did not constitute a vital part of his 

body. We reject this argument for the reason given by the trial court:

Appellant’s issue seems to contend that using the phrasing “a vital 

part of the victim’s body” was in error as the victim, Kevin Hadley, 

was injured in the ear — therefore [Appellant takes] the position 

that an ear is not a vital part of the body. Of course this argument 

ignores the idea that the ear is attached to the head, and certainly, 

it would seem, the head is a vital part of the body. 

Trial Court Opinion, 10/21/22, at 33. The evidence shows that Appellant 

aimed toward Hadley and shot him in the ear. Under these circumstances, it 

was reasonable to instruct the jury that (1) it could conclude that Appellant 

was aiming not just towards Hadley’s ear but towards his head—obviously a 

vital part of his body—and (2) it could infer from this detail that Appellant had 

the specific intent to kill Hadley. 

Next, Appellant argues that the evidence was insufficient to sustain his 

convictions in both trials. The trial court held that Appellant waived this issue 

to the vagueness of his concise statement of matters complained of on appeal. 

For the same reason, the Commonwealth contends in its appellate brief that 

Appellant has waived this issue. We agree that this issue is waived.

Appellant asserts in his concise statement of matters complained of on 

appeal, “The evidence produced by the Commonwealth was insufficient to 

sustain guilty verdicts beyond a reasonable doubt against Appellant in both 

trials.” Concise Statement, 9/6/22, at ¶ 7. 
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To preserve a challenge to the sufficiency of the evidence, “the Rule 

1925(b) statement must specify the element or elements upon which the 

evidence was insufficient.” Commonwealth v. Widger, 237 A.3d 1151, 

1156 (Pa. Super. 2020). The failure to do so waives the claim for appellate 

review, even if the trial court correctly guesses which issues the appellant 

wanted to raise. Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. 

Super. 2020). 

In his first trial, Appellant was found guilty of persons not to possess 

firearms. His concise statement failed to specify which element of this offense 

the Commonwealth failed to prove. In his second trial, he was found guilty of 

attempted murder, aggravated assault (graded as a first degree felony), 

aggravated assault (graded as a second degree felony), carrying a firearm 

without a license, reckless endangerment, terroristic threats and possession 

of an instrument of a crime. Once again, his concise statement failed to 

specify which offense or which element the Commonwealth failed to prove. 

Thus, he waived his challenge to the sufficiency of the evidence.

Appellant next argues that the verdict in his first trial for persons not to 

possess firearms was against the weight of the evidence, because the only 

reason why he was in possession of a firearm was because he took a firearm 

from his girlfriend when she threatened to harm herself. The trial court 

properly rejected this argument.

A motion seeking a new trial based on the weight of the evidence is
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addressed to the discretion of the trial court. 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. Rather, the role of the trial judge is to 

determine that notwithstanding all the facts, certain facts are so 

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

weight with all the facts is to deny justice. 

It has often been stated that a new trial should be awarded when 

the jury’s verdict is so contrary to the evidence as to shock one’s 

sense of justice and the award of a new trial is imperative so that 

right may be given another opportunity to prevail.

An appellate court’s standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court:

Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence. Because the trial judge has 

had the opportunity to hear and see the evidence presented, an 

appellate court will give the gravest consideration to the findings 

and reasons advanced by the trial judge when reviewing a trial 

court’s determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for granting or 

denying a new trial is the lower court’s conviction that the verdict 

was or was not against the weight of the evidence and that a new

trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).

As discussed above, Appellant stipulated that he was prohibited from 

possessing a firearm due to prior convictions for enumerated offenses under 

18 Pa.C.S.A. § 6105. Therefore, the only issue for the jury was whether 

Appellant “possessed” the gun. The Commonwealth produced evidence that 

at the scene of the shooting, the police encountered the victim, who had been 

shot in the ear. Based on information from the victim, the police located 

Appellant’s girlfriend’s car, which Appellant was driving, and arrested him. 
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Police officers testified that they found a gun in the passenger door map 

pocket of the car, a gun holster in the center console compartment, and a 

loaded magazine for the gun in between the driver and passenger seat. N.T. 

11/03/2021, at 163—72. The police tested the gun and found that it 

functioned normally. The Commonwealth produced expert witnesses who 

testified that Appellant was the primary DNA contributor on the gun and had

“characteristic” GSR particles on his person. N.T. 11/03/2021, at 201—21; 

N.T. 11/04/2021, at 70—84. Given this substantial evidence of possession, 

the court acted within its discretion by denying Appellant’s challenge to the 

weight of the evidence.

Appellant next contends that the verdict in his second trial was against 

the weight of the evidence. Appellant suggests that there was insubstantial 

evidence that any gun was fired, pointing to the fact that the police failed to 

find a spent cartridge. Appellant also claims that Hadley was a drug addict,

had two convictions for crimen falsi, and did not attend Appellant’s trial 

voluntarily.

5

 

The trial court properly rejected Appellant’s argument. To begin with, 

police recovered a live 9mm round at the crime scene. N.T. 11/30/2021, at 

164—66. Detective Coffman testified that it is not uncommon in firearm 

investigations for police not to recover a shell casing or projectile. Id. at

____________________________________________

5 The Commonwealth procured Hadley’s attendance and testimony through a 

material witness warrant.
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167—68. Furthermore, there was evidence that a shooting took place. 

Detective Coffman testified that she spoke with Hadley in the ambulance at 

the crime scene. He was bleeding from his ear, yelling and crying. Id. at

162—63. The Commonwealth presented expert testimony, based on GSR and 

DNA evidence, that Appellant possessed and discharged the firearm that was 

involved in Hadley’s shooting. Moreover, police found the firearm in a car that 

Appellant was driving at the time of his arrest. Lastly, Detective Coffman also

conducted a recorded interview with Appellant that was admitted into 

evidence and played for the jury. Exhibit C-26. During the interview,

Appellant admitted taking the gun from his girlfriend due to alleged fear that 

she would harm herself. Id. While Appellant first expressed surprise that 

Hadley had been shot, he later stated that it was all an accident. Id. Given 

this substantial body of evidence, the trial court acted within its discretion by 

denying Appellant’s challenge to the weight of the evidence.

Next, Appellant argues that the Commonwealth committed a Brady6

violation during his second trial by failing to inform Appellant and trial counsel 

that Hadley recanted his original story during his November 25, 2019 bench 

warrant hearing and by failing to inform Appellant that Hadley had an active 

warrant for his arrest as of November 11, 2021 for the charge of theft of 

____________________________________________

6 Brady v. Maryland, 373 U.S. 83 (1963).
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services, which, if known, would have been used to impeach Hadley during 

his testimony in Appellant’s second trial.

To establish a Brady violation, Appellant had to show that “(1) evidence 

was suppressed by the state, either willfully or inadvertently; (2) the evidence 

was favorable to the defendant, either because it was exculpatory or because 

it could have been used for impeachment; and (3) the evidence was material, 

in that its omission resulted in prejudice to the defendant.” Commonwealth 

v. Willis, 46 A.3d 648, 656 (Pa. 2012).

During his bench warrant hearing in November 2019, Hadley testified 

that Appellant was the “wrong guy.” The trial court correctly determined that 

this testimony was not suppressed, since defense counsel referred to this 

testimony during pretrial proceedings in June 2021, months before Appellant’s 

second trial, N.T. 11/4/21, at 119, and Appellant received a copy of the bench 

warrant transcript during both of his trials.7 

The other alleged Brady violation concerns the Commonwealth’s failure 

to notify Appellant of Hadley’s alleged theft of services for failing to pay cab 

fare. The parties litigated this subject during a post-sentence hearing on May 

20, 2022. The evidence adduced during this hearing demonstrates that 

sometime in November 2021, a cab driver notified the police that Hadley failed 

____________________________________________

7 As discussed above, the court precluded this evidence during Appellant’s first 

trial, but Appellant does not contend that any Brady violation took place 

during his first trial. 
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to pay a sixty-dollar cab fare on November 11, 2021. On November 30, 2021, 

during Appellant’s second trial, Hadley explained to an investigating police 

officer that he had taken the cab either to or from the hospital and thought 

the hospital would cover the charge as part of transportation. The officer gave 

Hadley the phone number of the cab company and instructed Hadley to pay 

the bill, but Hadley failed to pay. On December 7, 2021, after the conclusion 

of Appellant’s second trial, Hadley was charged with theft of services. Based 

on these facts, Appellant argues that the Commonwealth concealed evidence 

of Hadley’s theft in violation of Brady, and had this evidence been disclosed, 

Appellant could have used it to impeach Hadley during his testimony in 

Appellant’s second trial. 

We agree with the trial court that this argument lacks substance. The 

court determined that Appellant met the first Brady prong because the police 

inadvertently suppressed this evidence. Opinion at 47 (“although this Court 

notes that the entire circumstances surrounding a $60 cab fare non-payment 

was not likely to call much attention inside a busy police department, 

especially when there was an opportunity for a simple and anticipated solution 

to just pay the outstanding debt, the Court is constrained to find that the 

Commonwealth did inadvertently fail to disclose this evidence to [Appellant], 

thus satisfying the first prong of the Brady test”). The court also determined 

that Appellant satisfied the second Brady prong because Appellant could have 

used this evidence to impeach Hadley during his testimony. 
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Nevertheless, the court reasoned that Appellant failed to satisfy the third 

Brady prong:

[I]t is important to note that “the mere possibility that an item of 

undisclosed information might have helped the defense, or might 

have affected the outcome of the trial, does not establish 

materiality in the constitutional sense.” Commonwealth v. 

Chambers, 807 A.2d 872, 887 (Pa. 2002). “[E]vidence is 

material only if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different. A reasonable probability is 

a probability sufficient to undermine confidence in the outcome.”

United States v. Bagley, 473 U.S. 667, 682 (1985). Moreover, 

and particularly relevant to the instant motion, “Brady evidence 

may not be cumulative of other evidence.” See Commonwealth 

v. Simpson, 66 A.3d 253, 264 (Pa. 2013).

Furthermore, to be entitled to a new trial based on the 

Commonwealth’s failure to disclose information relating to witness 

credibility (i.e. impeachment evidence) a defendant must

“demonstrate that the reliability of the witness may well be 

determinative of his guilt or innocence.” See Simpson, 66 A.3d 

at 266. The Pennsylvania Supreme Court has explained that 

where there is evidence that the Commonwealth has made an 

agreement or promise to a witness of leniency, facing charges or

investigation, such evidence is relevant to that witness’s credibility 

and the Commonwealth’s failure to disclose this evidence may be 

a Brady violation. See Commonwealth v. Strong, 761 A.2d 

1167, 1172 (Pa. 2000). However, a “mere assumption that 

something such as a promise to assist in reducing” a witness’s 

sentence does not establish a Brady violation. See Champney, 

832 A.2d at 412. Here there is no evidence, nor has the defense 

made any allegation that such a promise of leniency in return for 

testifying had been extended to Hadley. In fact, it was not until 

November 30, 2021—day one of Appellant’s second trial—that 

[the investigating police officer] even became aware that Hadley 

had not paid back the $60. Thus, at the time trial started, Falls 

Township police were just then undertaking a formal criminal 

investigation. 

Furthermore, the addition of cross-examination of Hadley 

regarding this theft of services incident would have been merely 

cumulative of other impeachment evidence presented at trial.
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During Hadley’s testimony, defense counsel impeached Hadley

with prior crimen falsi convictions for shoplifting and burglary 

tools. N.T. 12/01/2021, at 128—30; see also, D-6. Defense 

counsel also extensively cross-examined and impeached Hadley

with his recantation under oath at the November 25, 2019 bench 

warrant hearing, which was inconsistent with his testimony in 

court on December 1, 2021. Id. at 131-147. As such, Hadley’s 

credibility was impeached with two crimen falsi convictions and 

with a prior inconsistent statement made under oath. Moreover, 

in this Court’s instructions to the jury, this Court gave the 

instruction of “false in one false in all”, explaining to the jury that 

if they found a witness deliberately testified falsely about a 

material element or point in the case, then the jury was entitled 

to disbelieve the rest of that witness’s testimony. N.T. 

12/02/2021, pp. 41-42.

The issue of Hadley’s credibility and whether to believe his 

statements at the November 25, 2019 hearing or his testimony on 

December 1, 2021, were issues for the jury to decide. See 

Crawford, 718 A.2d at 772 (“The determination of the credibility 

of a witness is within the exclusive province of the jury).

Ultimately, the jury found Hadley’s testimony credible and 

convicted Appellant of all counts. Therefore, this Court finds that 

whatever impeachment value the addition of cross-examination 

on a pending of theft of services charge would have had, it cannot 

be construed as to have created a reasonable probability that the 

outcome of trial would have been different.

Trial Court Opinion, 10/21/22, at 48-49. We agree with this analysis and 

conclude that Appellant’s Brady argument does not warrant relief.

In his final argument, Appellant contends that the court abused its 

discretion by (1) sentencing him to a total of 18-40 years’ imprisonment, a 

total that Appellant calls manifestly excessive, (2) failing to consider all 

relevant factors, (3) failing to state adequate reasons for this sentence, and 

(4) taking improper factors into account.

“A challenge to the discretionary aspects of sentencing does not entitle
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[Appellant] to review as of right.” Commonwealth v. Bynum-Hamilton, 

135 A.3d 179, 184 (Pa. Super. 2016). To establish this Court’s jurisdiction to 

address such a challenge, Appellant must satisfy a four-part test: (1) he 

preserved the issue by raising it at sentencing or in a post-sentence motion, 

(2) he filed a timely notice of appeal, (3) he set forth a concise statement of 

reasons relied upon for allowance of appeal, and (4) he raised a substantial 

question for this Court’s review. Id.

Here, as the Commonwealth points out, Appellant failed to challenge the 

discretionary aspects of his sentence either at the time of sentencing or in his 

post-sentence motion. Accordingly, he has waived this argument. 

Commonwealth v. Bradley, 237 A.3d 1131, 1138-39 (Pa. Super. 2020). 

For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Date: 6/14/2024