J-A23001-14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

 Appellee :

:

 v. :

:

ABRAHAM MITCHELL, :

:

 Appellant : No. 1309 WDA 2012 

Appeal from the Judgment of Sentence March 19, 2012, 

Court of Common Pleas, Allegheny County, 

Criminal Division at No. CP-02-CR-0016261-2010 

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 09, 2014 

 Abraham Mitchell (“Mitchell”) appeals from the March 19, 2012 

judgment of sentence entered by the Allegheny County Court of Common 

Pleas following his conviction of third-degree murder and carrying a firearm 

without a license.1

 Specifically, Mitchell asserts that the trial court abused 

its discretion by permitting the Commonwealth to admit a photograph that 

depicted the victim’s body after the shooting. Upon review, we affirm. 

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

On November 13, 2010, [Mitchell] and Bradley Smith 

arranged to purchase fifteen bricks of heroin from 

Duerryl Whitaker for $3,750. The purchase was 

facilitated and arranged by Jasmine Howard and 

Clarence White, who were relatives and friends of 

Whitaker. (T.T. 191, 197, 244, 453, 459, 729-733). 

That evening Howard and White drove to the 

Carnegie section of Allegheny County and picked up 

 

1

 18 Pa.C.S.A. §§ 2502(c), 6106(a)(1). 
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[Mitchell] and Smith. They returned to Howard’s 

apartment in the Crafton Heights section of the City 

of Pittsburgh where they awaited Whitaker’s arrival.

(T.T. 41-42, 49, 193-194, 456, 729-730, 732). At 

approximately 7:00 P.M., Whitaker arrived with a 

small cardboard box containing the heroin. (T.T. 

196, 751, 774-775). Whitaker had a brief 

conversation with Howard in her bedroom and then 

went to the living room where he approached 

[Mitchell] and Smith to discuss the heroin purchase. 

T.T. 196-197, 244-245, 247, 458, 750). 

The money and drugs were placed on the couch for 

the transaction, but Smith took back the money 

when he saw that Whitaker had only brought 

approximately thirty bundles of heroin. (733-735, 

747, 751, 753, 780). When Smith took back the 

money, Whitaker stated, ‘No, whoa, whoa, nah,’ and 

a struggle ensued between Smith and Whitaker. 

(T.T. 754). Whitaker managed to get on top of 

Smith, and Smith pulled out a .22 revolver and shot 

it once, not striking Whitaker. Smith and Whitaker 

began to struggle over the gun, and [Mitchell] pulled 

out a .380 semiautomatic and fired a shot into the 

couch. Howard ran into her bedroom to retrieve her 

handgun while Smith and Whitaker continued to 

struggle. [Mitchell] ran over to Whitaker and shot 

him multiple times (‘emptied the gun’), and fled the

apartment. (T.T. 198, 250, 252-255, 735-739, 742-

743, 755, 760, 780). Smith, now freed from the 

struggle as a result of Whitaker being shot by 

[Mitchell], also shot Whitaker, grabbed the heroin, 

and fled the apartment. (T.T. 199, 210, 255-256, 

743, 760). Howard pursued Smith and shot him in 

the leg as he ran down the hallway outside the 

apartment. [Mitchell] and Smith escaped down a 

staircase to the outside of the building. (T.T. 199-

201, 224, 257, 269, 761-763, 789, 793). 

Howard returned to her apartment to find Whitaker 

unresponsive and lying on his face. After turning him 

over, she called 911 and yelled out the window for 

help. (T.T. 201-202). Whitaker was pronounced dead 
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on scene by responding paramedics. (T.T. 43). As a 

result of being shot a total of seven times, Whitaker 

suffered a perforated lung, spleen, stomach, 

pericardium, aorta, and femoral vein, as well as a 

fractured rib and left shoulder. The cause of death 

was multiple gunshot wounds to the trunk, and the 

manner of death was homicide. (T.T. 410, 412-416, 

418-419, 450). 

The gunshots inside Howard’s apartment alerted 

Victory Security guard Ian Clinton, who saw 

[Mitchell] and Smith emerge from the building. 

Clinton drew his weapon and ordered both fleeing 

shooters to stop. (T.T. 383-385, 387). [Mitchell] and 

Smith disregarded Clinton and fled down the fence 

line adjacent to the building, with Clinton in pursuit 

and continuously ordering them to stop. (T.T. 385). 

[Mitchell] jumped down a steep hill to a parking lot 

below, and escaped through a pathway. (T.T. 340-

341, 385). Smith jumped down the hill and fell, 

dropping the box of heroin. He limped to the 

pathway without the heroin. (T.T. 341-342, 349-350,

385, 389). Clinton pursued Smith until Clinton 

tripped at the entrance to the pathway. The pathway 

led to the Crucible Street side of the apartment 

complex and access to a Port Authority busway. (T.T. 

341, 385-386). Unable to continue the pursuit, 

Clinton returned to the apartment building and gave

a detailed description of what Smith was wearing 

and his direction of flight to City of Pittsburgh Police 

on scene. Officers Aaron Loughran and Vincent 

Pacheco began to search for [Mitchell] and Smith in 

their respective marked police vehicles. (T.T. 370, 

387, 390, 514). After a brief chase, officers Pacheco 

and Loughran apprehended Smith, and Clinton 

identified Smith as one of the individuals he chased 

from the apartment building complex. (T.T. 374-375, 

386-387, 515-516). Smith was transported to the 

hospital for a gunshot wound to the leg. (T.T. 379, 

517). Howard identified [Mitchell] in a photo array as 

one of the two individuals who shot Whitaker and he 

was later arrested and charged as noted 
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hereinabove. (T.T. 204-205). Smith was charged as 

a co-defendant. 

Police recovered one .22 caliber bullet, four .380 

cartridge casings, and one .380 caliber bullet 

fragment from inside the apartment. The medical 

examiner’s office removed one .22 caliber bullet and 

two .380 caliber bullets from Whitaker during the 

autopsy. The crime lab was able to determine that 

the .380 caliber bullets and fragment matched each 

other and were discharged from the same firearm, 

and that Howard’s .380 pistol was excluded as a 

match. It was determined that three .380 cartridge 

casings, one .380 caliber bullet, and two .380 caliber

bullet fragments recovered from the hallway 

matched Howard’s .380 pistol. (T.T. 637, 639, 641-

642, 644-646). 

Trial Court Opinion, 1/10/14, at 4-7 (footnotes omitted). 

 A jury trial took place from December 13 through December 19, 2011. 

The jury convicted Mitchell of the above-listed offenses and acquitted him of 

robbery and criminal conspiracy.2 The trial court sentenced him on March 

19, 2012 to an aggregate term of 20 to 40 years of imprisonment. 

 Mitchell filed timely post-sentence motions on March 22, 2012, 

requesting reconsideration of his sentence and challenging the weight of the 

evidence to support his conviction of third-degree murder, asserting that the 

jury instead should have convicted him of voluntary manslaughter. Trial 

counsel also filed a motion seeking leave to withdraw. The trial court 

granted trial counsel permission to withdraw and appointed new counsel to 

represent Mitchell. Prior to the trial court disposing of Mitchell’s post-

 

2

 18 Pa.C.S.A. §§ 3701(a)(1), 903(a)(1). 
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sentence motions, new counsel prematurely filed a notice of appeal on April 

18, 2012. On July 27, 2012, the post-sentence motions were denied by 

operation of law. On August 8, 2012, new counsel filed a praecipe to 

withdraw the original appeal filed and subsequently filed a timely notice of 

appeal on August 27, 2012.3

 The trial court issued an order for counsel to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). Counsel requested, and the trial court granted, 

numerous continuances because of the unavailability of several volumes of 

the notes of testimony from trial.4 Counsel ultimately complied with the trial 

court’s request, and the trial court filed its written opinion pursuant to 

Pa.R.A.P. 1925(a). 

 Mitchell raises one issue for our review: “Whether the trial court 

abused its discretion in allowing Exhibit 8 (a photograph) into evidence?” 

 

3

 Although Mitchell filed his notice of appeal 31 days after the denial of postsentence motions, the thirtieth day fell on a Sunday, and thus the notice of 

appeal was timely filed the following Monday. See Pa.R.A.P. 903(a) 

(appeals from the lower courts must be filed within 30 days of the entry of 

the order appealed from); Pa.R.C.P. 106(b) (“Whenever the last day of any 

such period shall fall on Saturday or Sunday, or on any day made a legal 

holiday by the laws of this Commonwealth or of the United States, such day 

shall be omitted from the computation.”). 

4

 According to the trial court, on May 9, 2013, it issued a Rule to Show 

Cause why the court reporter should not be held in contempt based upon the 

court reporter’s failure to produce all notes of testimony from trial. Trial 

Court Opinion, 1/10/14, at 3 n.5. The court held a contempt hearing, and in 

June, the court reporter produced the notes of testimony. Id.
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Mitchell’s Brief at 5. We review this issue according to the following wellsettled standard: 

Traditionally, in reviewing trial court decision making 

regarding the admissibility of evidence, an appellate 

court determines whether the lower tribunal abused 

its discretion. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the 

law is over ridden 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. 

Commonwealth v. Walker, 92 A.3d 766, 772-73 (Pa. 2014) (internal 

citations and quotations omitted). This is also true for our review of the 

admission of photographic evidence, which we will likewise affirm absent an 

abuse of discretion. Commonwealth v. Spell, 28 A.3d 1274, 1279 (Pa. 

2011). 

When considering the admissibility of photographs of 

a homicide victim, which by their very nature can be 

unpleasant, disturbing, and even brutal, the trial 

court must engage in a two-step analysis: 

First a [trial] court must determine whether the 

photograph is inflammatory. If not, it may be 

admitted if it has relevance and can assist the jury’s 

understanding of the facts. If the photograph is 

inflammatory, the trial court must decide whether or 

not the photographs are of such essential evidentiary 

value that their need clearly outweighs the likelihood 

of inflaming the minds and passions of the jurors. 

Id. 

 Mitchell contends that Commonwealth’s Exhibit 8 – a color photograph 

of the victim, lying as police found him, with blood on the floor beneath and 
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next to his left arm – was inadmissible because its probative value was 

outweighed by the danger of unfair prejudice, and its admission warrants the 

grant of a new trial. Mitchell’s Brief at 17-21. The trial court found that 

Mitchell waived consideration of the inflammatory nature of the photograph 

because of his failure to include it in the certified record. Trial Court 

Opinion, 1/10/14, at 11. Nonetheless, the trial court found that the 

photograph was relevant and admissible, as it aided the jury in 

understanding the crime scene and witness testimony. Id. at 11-12. 

 We begin by addressing the trial court’s finding of waiver. We believe 

the trial court misconstrues waiver involving the certified record. It is true 

that “appellate courts are limited to considering those facts that have been 

duly certified in the record on appeal.” Commonwealth v. Williams, 715 

A.2d 1101, 1103 (Pa. 1998) (emphasis added). It is also true that an 

appellant’s failure to ensure the record certified for appeal contains 

information needed for this Court to conduct a review results in waiver of the 

issue(s) raised. Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. 

Super. 2007). These statements of the law, however, are not applicable to 

trial courts, as the record is not “certified” prior to its transmission to this 

Court on appeal. Rather, pursuant to Rule 1931(c) of the Pennsylvania 

Rules of Appellate Procedure, the clerk of the lower court transmits the 

complete record to this Court for review, certifying at that time that it is the 

entire record. See Pa.R.A.P. 1931(c). In this case, the record reflects that 
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Kate Barkman, the Allegheny County Clerk of Courts certified for 

transmission to this Court the entire record on January 13, 2014. See

Certificate and Transmittal of Record to Appellate Court, 1/13/14. 

Furthermore, once the record is transmitted to this Court, parties still 

have an avenue to supplement the record that has been certified for appeal. 

Pursuant to Rule 1926, a party may seek to correct or modify the record: 

(a) If any difference arises as to whether the record 

truly discloses what occurred in the trial court, the 

difference shall be submitted to and settled by that 

court after notice to the parties and opportunity for 

objection, and the record made to conform to the 

truth. 

(b) If anything material to a party is omitted from

the record by error, breakdown in processes of the 

court, or accident or is misstated therein, the 

omission or misstatement may be corrected by the 

following means: 

(1) by the trial court or the appellate court upon 

application or on its own initiative at any time; in the 

event of correction or modification by the trial court,

that court shall direct that a supplemental record be 

certified and transmitted if necessary; or 

(2) by the parties by stipulation filed in the trial

court, in which case, if the trial court clerk has 

already certified the record, the parties shall file in

the appellate court a copy of any stipulation filed 

pursuant to this rule, and the trial court clerk shall 

certify and transmit as a supplemental record the 

materials described in the stipulation. 

(c) The trial court clerk shall transmit any 

supplemental record required by this rule within 14 

days of the order or stipulation that requires it. 
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(d) All other questions as to the form and content of 

the record shall be presented to the appellate court. 

Pa.R.A.P. 1926. 

In the case at bar, the record reflects that on February 7, 2014, 

pursuant to Rule 1926, the parties stipulated that Exhibit 8 “was admitted 

into evidence” at trial but “was not transmitted to the Superior Court” in the 

certified record, and that the exhibit “should be transmitted to the Superior 

Court.” Stipulation, 2/7/14, at ¶¶ 1, 3, 4. The trial court signed the order 

attached to the stipulation, requiring the clerk of courts “to promptly forward 

[Exhibit 8] to the Prothonotary of the Superior Court of Pennsylvania to be 

made part of the official record[.]” Trial Court Order, 2/7/14. We therefore 

have Exhibit 8 before us and there is no basis for us to find waiver of the 

issue relative to the certified record. 

We note that Pennsylvania Rule of Criminal Procedure 113(B) requires 

that the clerk of courts maintain a list of docket entries, defined as “a 

chronological list, in electronic or written form, of documents and entries in 

the criminal case file and of all proceedings in the case.” Pa.R.Crim.P. 

113(B). The docket entries in a criminal case must include, inter alia, “the 

location of exhibits made part of the record during the proceedings[.]” 

Pa.R.Crim.P. 113(C)(7). Thus, the trial court should always be able to 

ascertain the location of the exhibits entered and obtain them if necessary. 

Our review of the record reveals that, in contravention to Rule 113, there 
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are no notations in the docket to indicate the location of the exhibits.5

 Thus, 

if the trial court was hampered by the inability to locate Exhibit 8, the issue 

was an administrative one more appropriately directed to the clerk of courts 

or her designee and not the basis for finding waiver by the Appellant. 

Turning now to the substantive issue before us, we agree with the trial 

court that it did not abuse its discretion by admitting Exhibit 8 into evidence. 

The cases cited by Mitchell in support of his argument all pertain to 

photographs of autopsies or of the wounds sustained by the victim. See 

Mitchell’s Brief at 19-20 (citing Commonwealth v. Eckhart, 242 A.2d 271, 

274 (Pa. 1968) (granting a new trial based on the trial court’s admission of a 

photograph of the murder victim’s skull, which included her “gruesome scalp 

and bloody web of tangled hair,” which were irrelevant and could easily have 

been excised from the picture); Commonwealth v. Powell, 241 A.2d 119, 

121 (Pa. 1968) (granting a new trial based on the trial court’s admission of 

color photographs of the victim’s autopsy, as “[w]hatever aid these 

photographs may have been, their use was clearly outweighed by the 

emotional impact it would undoubtedly have on the jury”); Commonwealth 

 

5

 In his appellate brief, counsel for Mitchell indicates that it is local practice 

in Allegheny County for admitted trial exhibits to be returned to counsel for 

the party that presented them for admission. Mitchell’s Brief at 16 n.4. If 

that is in fact what occurred in this case, the trial court could have contacted 

the Commonwealth to obtain Exhibit 8 for its review prior to authoring its 

1925(a) opinion. There is no indication that the trial court made any 

overture to the Commonwealth in order to obtain Exhibit 8 prior to authoring 

its 1925(a) opinion. 
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v. LeGares, 709 A.2d 922, 924-25 (Pa. Super. 1998) (granting a new trial 

based on the trial court’s admission of a “gruesome” and “gory” color picture 

of the victim’s skull from the homicide by shotgun, including the depiction of 

“flesh flayed from the skull and folded back, the fractured skull wired 

together to reveal the gaping entry wound, and the victim’s brain 

removed”)). In the case at bar, on the other hand, the only objectionable 

feature of the photograph in question is the presence of blood. It is not an 

autopsy photo, no gunshot wounds are visible in the photograph, and there 

is nothing particularly gruesome or gory. See Commonwealth’s Exhibit 8. 

In Commonwealth v. Spell, our Supreme Court stated that a finding 

that a color photograph is inflammatory “is not [required] by the mere 

depiction of blood. Although the presence of blood on the victim depicted in 

the photographs is unpleasant, it is not in and of itself inflammatory. Murder 

evidence is not often agreeable, but sanguinity does not equal 

inadmissibility.” Spell, 28 A.2d at 1279. The Court in Spell found no abuse 

of discretion in the admission of photographs of the victim’s bloody face 

because they “aided the jury in understanding witness testimony regarding 

the body’s condition and location.” Id. at 1280. 

 In Commonwealth v. Woodward, 394 A.2d 508 (Pa. 1978), the trial 

court permitted the Commonwealth to enter into evidence black and white 

photographs of the bloodied body of the victim at the scene of the murder. 

Id. at 511. Our Supreme Court found no abuse of discretion in the trial 
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court’s finding that the photographs were relevant “not only to corroborate 

the testimony of the medical pathologist, but also for the additional purpose 

of aiding and providing the jury with an overall view of the scene of the 

crime and the position of the body in relation to it.” Id.

 Here, as in Woodward, the contested photograph was of the victim at 

the scene of the murder, lying in a pool of blood, which the trial court 

admitted “for the purpose of allowing [the jury] to view the scene as it [was] 

being described by [Detective Boose].” N.T., 12/13/11, at 64. The trial 

court further issued a cautionary instruction to the jury, informing it of the 

purpose of the admission of the photograph and warning that the jury 

“should not let it stir up any motion to the prejudice of either defendant,” 

again stating that the photograph was being admitted for a “limited 

purpose.” Id. The trial court reiterated this cautionary instruction during its 

closing charge to the jury. N.T., 12/19/11, at 875-76. 

 The trial court found the photograph in question was not inflammatory 

and was relevant and assisted the jury’s understanding of the crime scene 

and testimony concerning the crime scene. Trial Court Opinion, 1/10/14, at 

11-12. Based upon our Supreme Court’s holdings in Spell and Woodward, 

we find no abuse of discretion in this decision. See Spell, 28 A.3d at 1279;

Woodward, 394 A.2d at 511. 

 Judgment of sentence affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/9/2014