J-A18045-16

*Former Justice specially assigned to the Superior Court.

2016 PA Super 166

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA CARLOS OVALLES,

Appellant No. 1585 MDA 2015

Appeal from the Judgment of Sentence August 13, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0002711-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JULY 25, 2016

This is an appeal from the judgment of sentence of life imprisonment 

entered in the Court of Common Pleas of Luzerne County by the Honorable 

Thomas J. Burke on August 13, 2015, following a bench trial and Appellant’s 

conviction of first-degree murder.1 Upon our review of the record, we 

affirm.

The trial court aptly set forth the relevant facts and procedural history 

herein as follows: 

On July 7, 2013 at approximately 1:20 a.m., Wilkes-Barre 

City Police officers were dispatched to the area of 174 South 

Grant Street, Wilkes-Barre, for a fight in progress with gunshots 

fired. Officers on the scene discovered the victim, Vaughn Kemp 

(“Kemp"), lying motionless in the backyard of 174 South Grant 

____________________________________________

1 18 Pa.C.S.A. § 2501.
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Street. Kemp had two gunshot wounds in his lower back area. 

Kemp was transported to Geisinger Wyoming Valley Hospital for 

treatment. On July 7, 2013, at approximately 2:05 a.m., Kemp 

was pronounced dead. After a post mortem examination, the 

cause of death was determined to be multiple gunshot wounds, 

and the manner of death was ruled a homicide.

On July 9, 2013, a number of individuals who were at the 

scene of the homicide were interviewed by police investigators. 

One such individual was Erik Rodriguez ("Rodriguez "), a juvenile 

at that time. Rodriguez identified the shooter as being 

[Appellant], the defendant in the above-captioned case.

[Appellant] was arrested on July 9, 2013 and charged with 

one count of Homicide, 18 Pa.C.S.A. § 2501(a). A preliminary 

hearing was held on August 21, 2013, after which the charge of 

Homicide was forwarded to the Court of Common Pleas of 

Luzerne County. [Appellant] was formally arraigned on October 

11, 2013. After multiple continuances and following an appeal of 

a pretrial determination by the Court, a bench trial commenced 

on Monday, August 10, 2015. Testimony and closing arguments 

concluded on Wednesday, August 12, 2015. On Thursday, 

August 13, 2015, the Court rendered a verdict of guilty of 

Murder of the first degree, and immediately sentenced 

[Appellant] to life in prison without parole. [Appellant] filed a 

Notice of Appeal to the Superior Court of Pennsylvania on August 

28, 2015. As per the Court's direction, [Appellant] filed a Concise 

Statement of Errors Complained of on Appeal ("Concise 

Statement") on October 9, 2015. This Opinion is submitted 

pursuant to the Court's obligation set for in Pa.R.A.P. 1925(a).

***

At trial, Denzel Kemp-McCarthy ("Kemp-McCarthy"), the 

brother of the victim Kemp, testified on behalf of the 

Commonwealth. He stated that he attended a party at 174 South 

Grant Street into the morning hours of July 7, 2013. (N.T. at 

26). He noticed [Appellant], whom he knew as "Jay Crim", in the 

backyard where the party was being held. (N.T[.] at 27 -28). 

During the party, Kemp-McCarthy had a conversation with 

Ramon Duval ("Duval"). (N.T. at 29). After the conversation, 

Kemp-McCart[h]y drove home and picked up his brother, Kemp, 

and his cousin, George Johnson, and brought them to the party. 

(N.T. at 31). Upon returning to the party, Kemp, Duval and a 

person named Moe (Maurice Richardson) had a brief exchange of 

words in the middle of the street, resulting in Kemp attempting 

to throw a punch at Moe, which Kemp-McCarthy prevented. 
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(N.T. at 35). At that point, a crowd began to gather in the street

in front of the residence at 174 South Grant Street and gunshots 

were fired. (N.T. at 36). After retreating back to the car, Kemp 

realized his cousin George was still at the party; Kemp returned 

to get him. (N.T, at 36-37). About ten minutes later, KempMcCarthy heard a few more gunshots, and saw people running 

away from the house. (N.T. at 37). Kemp-McCarthy returned to 

the backyard where the party was being held, and found his 

brother (Kemp) lying face down. He immediately realized 

something was wrong, and called 911. (N.T. at 38).

Ramon Duval[2]testified on behalf of the Commonwealth. 

He stated that he arrived to the party at 174 South Grant Street 

between 11:00 and 12:00 on the night of July 6, 2013. (N.T. at

79). He noticed [Appellant], whom he knew as "Jay Crim", at the 

party, sitting in the backyard on a sofa. (N.T. at 80 -81). Duval 

also saw Moe on the couch, and approached him. They then 

went to the front of the house to speak. (N.T. at 82). Kemp 

approached them while they were at the front of the house, and 

encouraged Duval to fight with Moe. (N.T. at 84 -85). Numerous 

people started to fill the street, including [Appellant]. (N.T. at 

86-87). Duval was very close to [Appellant] when he saw him 

fire three or four gunshots toward the sky, causing Duval to run. 

(N.T. at 87). He also testified that he did not see anyone else 

with a gun when he was in the street. (N.T. at 87-88).

Rodriguez was called to testify on behalf of the 

Commonwealth.[3] Rodriguez, who was sixteen in July of 2013, 

remembered arriving early to the party at 174 South Grant 

Street to help set up. (N.T. at 105). He testified that [he] saw 

[Appellant] in the backyard talking with a small group of people. 

(N.T. at 108). Rodriguez overheard [Appellant] state that he 

wanted a gun prior to [Appellant] going to the front of the 

house. (N.T. at 108). Rodriguez testified that he was 

approximately twenty feet away from [Appellant] in the front of 

the house when [Appellant] fired three gunshots in the air. (N.T. 

at 109). Rodriguez testified that he then went to the porch of the 

residence so that he could see better. (N.T. at 109). At that 

point, he witnessed Kemp throw a bottle at [Appellant] that 

____________________________________________

2 Duval, whose native language is Spanish, testified with the assistance of a 

court-certified, Spanish-English interpreter. N.T., 8/10/15, at 77-103. 

3 Rodriguez testified through the use of the same interpreter who assisted 

Duval. N.T., 8/10/15, at 104-139.
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missed, hit a car and broke. (N.T. at 111-112). Kemp then ran 

and tried to duck and hide behind other people. (N.T. at 112 -

113). [Appellant] then took aim at Kemp, and fired two gunshots 

in the direction of Kemp. (N.T. at 113, 136). Kemp ran along the 

side of the residence even after he was shot, and [Appellant]

fled in a car. (N.T. at 113). Rodriguez was subsequently 

interviewed by police two days later, on July 9, 2013. (N.T. at 

116). Rodriguez testified at trial that he had been untruthful with 

the police, telling them that he was inside the residence during 

the shooting. (N.T. at 116). Cross[-]examination of Rodriguez 

revealed a number of other inconsistencies in his testimony, 

including an inconsistent description of the clothing worn by 

[Appellant] on the night of the shooting. (N.T. at 125, 273). 

Upon being confronted with the inconsistencies in his testimony 

regarding the clothing worn by the shooter, Rodriguez admitted 

same, but immediately and confidently stated that it was 

[Appellant] whom he saw with a gun. (N.T. at 127). He also 

confirmed having heard "three (shots) up" and "two when he 

([Appellant]) shot at him (Kemp) ". (N.T. at 128).

Dr. Gary Ross testified on behalf of the Commonwealth. He 

was qualified as an expert in the field of forensic pathology, 

which includes an expertise in bullet trajectory within the human

body. (NT. at 161-165). Dr. Ross testified that he conducted an 

autopsy on the victim which revealed two gunshot wounds to his 

right-lower back. (NJ. at 167). The bullet that was described as 

gunshot wound number one was recovered beneath the skin 

surface of the victim's right chest. (N.T. at 170).1 Dr. Ross 

stated that this particular bullet was shot from a distance, and 

"went from back to front upward through the abdomen and chest 

of the decedent." (N.T. at 172). He further testified that this 

particular gunshot wound was lethal, in that it traveled "through 

his kidney, caused massive bleeding in the abdomen and the 

peritoneum cavity and retroperitoneum and also went through 

his lung which caused significant bleeding within the right chest 

cavity." (N.T. at 173). Dr. Ross stated that gunshot number two 

was also a distant gunshot wound, and was the lower of the two 

wounds on the right-upper buttock or lower back. (N.T. at 174). 

This bullet was removed from the subcutaneous tissue of the 

victim's left shoulder. (N.T. at 176). This particular bullet went 

from back to front, upward slightly towards the left. (N.T. at 

178). Dr. Ross described it as a lethal gunshot wound which 

"went through the soft tissue of the abdomen and chest, 

penetrated the pulmonary artery, which is the main vessel 

leaving the heart, and it also penetrated the right atrium of the 
J-A18045-16

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heart, which is one of the four major chambers of the heart 

itself, causing a massive amount of bleeding within the chest and

resulted in this decedent's death." (N.T. at 177). Dr. Ross 

testified that based upon his examination, it was his opinion that 

the assailant was behind the decedent when he fired the shots. 

(N.T. at 178). He also testified that, based upon the steepness of 

the trajectory of the bullet, the wounds were consistent with 

someone who was ducking. (N.T. at 186). He determined that 

Kemp's cause of the death of was multiple gunshot wounds and 

that the manner of death was homicide. (N.T. at 178-179).

Corporal Joseph Gober of the Pennsylvania State Police 

testified on behalf of the Commonwealth. Corporal Gober is a 

member of the Bureau of Forensic Services, and is a firearm and 

toolmark examiner with that unit. (N.T. at 188). He was 

admitted as an expert in the field of firearm and toolmark 

examination. (N.T. at 191). He testified that he conducted an 

examination comparison of the two bullets that were recovered 

from the victim's body, and concluded that the bullets were 

discharged from the same unknown firearm. (N.T. at 193 -194).

Captain Mark Rockovich testified on behalf of the 

Commonwealth. Captain Rockovich is employed as the Records 

Captain of the Luzerne County Correctional Facility. (N.T. at 

223). Part of his job duty is to keep the recordings of phone calls 

between prisoners and visitors. (N.T. at 224). On July 13, 2013, 

a recording was made between [Appellant] and a visitor. (N.T. at 

225). That recording revealed [Appellant] stating to the effect 

that he could not be charged with murder one, because "murder 

one is when I planned it out in my head." [Appellant] could also 

be heard saying, "... I caused the sixth murder in a year ". (see 

Commonwealth Exhibit #19).

Detective Charles Jensen was called as on cross by the 

Defendant. Detective Jensen interviewed both Rodriguez and 

Duval on July 9, 2013 and prepared reports from the interviews.

Detective Jensen admitted that the report of the Rodriguez 

interview made no mention of Rodriguez's use of alcohol and 

marijuana on the night of the shooting, details that Rodriguez 

testified to at trial. (N.T. at 267). Jensen's report also failed to 

include other details that Rodriguez testified to at trial. For 

instance, there was testimony that at or about the time the 

initial shots were fired into the air, [Appellant] yelled "West 

Side," whereupon one or more other individuals yelled "East Side 

"; that information was not contained in the Jensen report. (N.T. 

at 268). Also, as set forth above, Rodriguez told Jensen that he 
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was inside the residence when the shooting took place, which 

was inconsistent with his trial testimony. (N.T at 269). Detective

Jensen also admitted that the interviews of Rodriguez and Duval 

contained inconsistent accounts as to the clothes being worn by 

the shooter. (N.T. at 273-276). Detective Jensen also testified to 

certain suggested deficiencies in his investigation, like a failure 

to recover the weapon used, failure to find bullets or bullet 

casings, a failure to search phone records of [Appellant], and a 

failure to interview Moe until three days prior to trial. (N.T. at 

278 -287).

_____

1 The testimony of Dr. Ross was clear that he could not 

determine the order of the wounds, but that “forensic 

pathologists label the wounds one through whatever beginning 

from the top of the head to the bottom of the feet.” (N.T. at 

168). 

Trial Court Opinion, filed 11/19/15, at 1-7. 

In his brief, Appellant presents the following Statement of Questions 

Involved:

A. Whether the [t]rial [c]ourt erred in denying [Appellant’s] 

Motion for a Brady4violation in that the Commonwealth withheld 

evidence that the alleged eyewitness to the crime had admitted 

to them prior to his testimony that he committed perjury at the 

[p]reliminary [h]earing?

B. The Commonwealth committed prosecutorial misconduct in 

intentionally withholding evidence from the [Appellant] that the 

alleged eyewitness to the crime had admitted to them prior to 

his testimony that he committed perjury at the Preliminary 

Hearing and had intentionally not taken notes or made any 

written reports of the witness’ admissions and change of 

statement? 

____________________________________________

4 Appellant is referencing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 

10 L.Ed.2d 215 (1963) (hereinafter “Brady”).
J-A18045-16

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C. Whether the evidence was insufficient to convict 

[Appellant] of First Degree Murder?

Appellant’s Brief at 4. 

Appellant initially avers the Commonwealth violated Brady by failing 

to disclose that prior to his testifying at trial, Rodriguez essentially admitted 

to police he had committed perjury at the preliminary hearing. Specifically 

Appellant contends Rodriguez “indicated prior to trial that he would 

materially testify completely different from his prior testimony at the 

[p]reliminary [h]earing and his statement to the police two days after the 

shooting of Vaughn Kemp.” Appellant’s Brief at 16. Appellant further 

maintains this evidence was material to his case since Rodriguez’s statement 

he “witnessed [Appellant] taking two shots at the victim in the pathway and 

that his description of the shooter’s clothing was completely different were 

material facts that [Appellant] needed in order to investigate Rodriguez’ [sic] 

completely different story.” Id. Appellant avers the Commonwealth’s failure 

to disclose this evidence and Rodriguez’s admission he had been smoking 

marijuana and had drunk five or six beers, which were exculpatory 

statements, entitles him to a new trial. Id. at 16, 29. We disagree.

The law governing Brady violations is well-settled: 

Under Brady and subsequent decisional law, a prosecutor 

has an obligation to disclose all exculpatory information material 

to the guilt or punishment of an accused, including evidence of 

an impeachment nature. See, e.g., Commonwealth v. 

Hutchinson, 611 Pa. 280, 25 A.3d 277, 310 (2011). To 

establish a Brady violation, an appellant must prove three 

elements: (1) the evidence at issue was favorable to the 
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accused, either because it is exculpatory or because it 

impeaches; (2) the evidence was suppressed by the prosecution, 

either willfully or inadvertently; and (3) prejudice ensued. 

Hutchinson, supra (citation omitted). The burden rests with 

the appellant to “prove, by reference to the record, that 

evidence was withheld or suppressed by the prosecution.” Id.

(citation omitted). The evidence at issue must have been 

“material evidence that deprived the defendant of a fair trial.” 

Id. (citation and emphasis omitted). “Favorable evidence is 

material, and constitutional error results from its suppression by 

the government, 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.” Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 

431, 450 (2011) (quoting Kyles v. Whitley, 514 U.S. 419, 433, 

115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

Brady does not require the disclosure of information “that 

is not exculpatory but might merely form the groundwork for 

possible arguments or defenses,” nor does Brady require the 

prosecution to disclose “every fruitless lead” considered during a 

criminal investigation. Id. (citation omitted). The duty to 

disclose is limited to information in the possession of the 

government bringing the prosecution, and the duty does extend 

to exculpatory evidence in the files of police agencies of the 

government bringing the prosecution. Commonwealth v. 

Puksar, 597 Pa. 240, 951 A.2d 267, 283 (2008); 

Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 370 

(2011) (applying Kyles, supra at 438, 115 S.Ct. 1555). Brady

is not violated when the appellant knew or, with reasonable 

diligence, could have uncovered the evidence in question, or 

when the evidence was available to the defense from other 

sources. Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873, 

902–03 (2011); Paddy, supra at 451. Brady sets forth a 

limited duty, not a general rule of discovery for criminal cases. 

Paddy, supra at 451 (citing Weatherford v. Bursey, 429 U.S. 

545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) for the proposition 

that “there is no generalized constitutional right to discovery in a 

criminal case, and Brady did not create one”).

Commonwealth v. Roney, 622 Pa. 1, 22-24, 79 A.3d 595, 607-08 (2013) 

(emphasis in original). 
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In addition, “for a defendant to be entitled to a new trial based on the 

prosecution's failure to disclose information relating to a witness's credibility, 

the defendant must ‘demonstrate that the reliability of the witness may well 

be determinative of his guilt or innocence.’” Commonwealth v. Simpson, 

620 Pa. 60, 82, 66 A.3d 253, 266 (2013) (citations omitted). 

Herein, Appellant made an oral motion for a mid-trial Brady hearing to 

determine “whether or not there [had] been any interviews, notes, 

recordings, transcriptions of interviews with any witnesses pertaining to 

exculpatory evidence, which [Appellant] should have been made aware of 

prior to trial referencing the testimony of Erik Rodriguez but, obviously, not 

limited to him.” N.T., 8/11/15, at 140. At that time, the prosecutor 

represented the Commonwealth had turned over all documents in its 

possession, including a report authored by Captain of Detectives Joseph 

Coffay which it discovered the prior evening had not been provided to the 

defense after a conversation with Detective Blitzer, who had been reviewing 

the case file. Id. at 140-41. In response, Appellant maintained that he 

should have received any notes taken when investigators in the District 

Attorney’s Office spoke to Rodriguez in preparation for trial. Id. at 142-43. 

The prosecutor represented that she questioned Mr. Rodriguez in the 

presence of Detectives Blitzer and Jensen the day before he testified, and 

the only information that was elicited from Rodriguez was his responses to 

the questions the prosecutor posed. The prosecutor further stated she 
J-A18045-16

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heard Rodriguez say for the first time on cross-examination at trial that 

Appellant had been wearing a red and gold jacket at the time of the 

shooting. The Commonwealth had no information in this regard other than 

the report prepared by Detective Jensen on July 9th and Rodriguez’s 

testimony at the preliminary hearing to the contrary, and Appellant 

possessed that evidence. Id. at 143-44. Further argument centered around 

the possible existence of additional written notes ensued, after which the 

trial court permitted Appellant to proceed with a Brady hearing. Id. at 145-

151. Defense counsel clarified that the reason for the hearing “is just to 

ask the affiants on the case and the Detectives if they prepared a report 

subsequent to the July 9th report and subsequent to the August preliminary 

hearing that differed in any way from the materials we received.” Id. at 

150. (emphasis added).

Detectives testified that no written notes or audio recordings were 

prepared pertaining to Rodriguez’s anticipated trial testimony following July 

9, 2013. Id. at 152-158. Detective Jenson explained that he typed an 

official report based upon his handwritten notes following the initial interview 

with Rodriguez on July 9, 2013, but did not take notes or prepare a 

supplemental report after speaking with him on Friday August 7, 2015. Id. 

at 152-154. On cross-examination, Detective Jenson acknowledged he and 

the prosecutor met with Rodriguez during a lunch break on August 10, 2015, 

the first day of trial, and no written notes or audio recording were prepared 
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at that time. Id. at 154-55. Detective Noone informed the trial court his 

presence during Rodriguez’s trial preparation was only intermittent, and he 

did not prepare any notes at that time, nor was he aware that anyone else 

did. In fact, he was not in possession of any supplemental report regarding 

Rodriguez’s testimony that may have been prepared after July 9, 2013. Id. 

at 157. Similarly, Detective Bitzer explained that while he had been present 

for Rodriguez’s interview on August 7, 2015, he neither took notes nor 

prepared a report memorializing the same and was not in possession of any 

reports subsequent to that prepared on July 9, 2013. Id. at 158-59. 

Following the Brady hearing, the trial court found no violation had occurred 

and in doing so stated the following on the record:

THE COURT: On the basis of the testimony presented today, it 

appears to be confirmatory of the Commonwealth’s assertion 

that there were no additional reports compiled, nor any 

additional notes taken beyond those previously furnished to the 

Defense Counsel; and, moreover, the [c]ourt notes that it 

specifically continued to hold the witness in question, Mr. Erik 

Rodriguez, subject to the arrangements under which he was 

subpoenaed and presented for trial, such that [Appellant] will 

have the opportunity to pursue that further as it sees fit. 

Moreover, clearly, [Appellant] had an opportunity to 

cross[-]examine the witness during the course of the 

Commonwealth having called Mr. Rodriguez. 

N.T., 8/11/15, at 159-160. 

In light of the foregoing, we agree with the trial court’s finding that 

Appellant failed to establish the Commonwealth withheld any exculpatory 

information with respect to Rodriguez. The Commonwealth represented and 

the Detectives testified that other than the report prepared on July 9, 2013, 
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of which Appellant had possession, no subsequent written or oral recording 

memorialized Rodriguez’s responses to the prosecution’s queries posed in 

preparation for trial. The prosecutor herself learned for the first time on 

cross-examination of Rodriguez’s inconsistent description of the clothing 

Appellant wore on the night of the shooting; indeed, the Commonwealth 

could not have been sure of Rodriguez’s trial testimony until he took the 

witness stand. Importantly, defense counsel admitted he could have 

interviewed Rodriguez in preparation for trial. N.T., 8/11/15, at 150.

Even assuming, arguendo, the Commonwealth did not disclose 

information that Rodriguez’s testimony at trial would likely vary from his 

representation of what he initially said he had observed on the night of the 

shooting, Appellant is not entitled to relief. Appellant has not established he 

was prejudiced by any nondisclosure in this regard and, thus, Appellant has 

not met his burden for relief under Brady. Arguably, such testimony was 

not exculpatory for the inconsistencies in Rodriguez’s account of the 

shooting, which the trial court acknowledged and discussed in its Opinion 

pursuant to Pa.R.A.P. 1925(a), called into question the veracity of the 

Commonwealth’s only eyewitness to the crime, and Appellant took 

advantage of the opportunity to illuminate this fact through his crossexamination of Rodriguez. Moreover, despite Appellant’s bald assertions to 

the contrary, Rodriguez’s verbal responses to the Commonwealth’s queries 

in preparation for trial could not have led to the uncovering of any additional 
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evidence or potential witnesses other than those of which Appellant had 

been aware since July of 2013 and whose testimony he would have been 

free to present at trial. Significantly, despite inconsistencies in his 

description of Appellant’s clothing and his vantage point at the time of the 

shooting, Rodriguez never wavered in his identification of Appellant as the 

only individual brandishing and shooting a firearm before Kemp was fatally 

shot, and the defense presented no contradictory testimony in this regard. 

Accordingly, we conclude the trial court did not err in finding the 

Commonwealth did not violate Brady, for Appellant has failed to 

demonstrate that the alleged Brady violation so undermined the truth 

determining process that no reliable adjudication of guilt or innocence could 

have occurred. See Commonwealth v. Cam Ly, 602 Pa. 268, 298, 980 

A.2d 61, 78 (2009).

Appellant admits his second claim of prosecutorial misconduct 

coalesces with his Brady claim. Nevertheless, he avers the Commonwealth 

committed prosecutorial misconduct for its intentional withholding of 

evidence that Rodriguez admitted prior to testifying that he had committed 

perjury at the preliminary hearing and for failing to take notes or prepare a 

written report of Rodriguez’s admissions and inconsistent statements. 

Appellant’s Brief at 20-21. Appellant maintains that while Brady relates to 

the failure of the Commonwealth to provide the defense with exculpatory 

evidence, the Commonwealth also is required to disclose any oral inculpatory 
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statements under Pa.R.Crim.P. 573(B)(1)(b).5 He further suggests, without 

citation to any authority in support of his claim, that district attorneys and 

members of law enforcement are under an affirmative duty to memorialize 

in statements a witness makes in preparation for trial in either written 

notations or reports. In support of this position, Appellant speculates in his 

two-paragraph argument that on August 7, 2015, that:

Rodriguez now told the Commonwealth that he had lied 

when he said he ran upstairs after he heard the first shots made 

by [Appellant] up in the air and did not see [Appellant] shooting 

at Kemp if his trial testimony is to be believed. His trial 

testimony that he only ran to the front porch and saw 

[Appellant] point his gun at Kemp and shoot is highly inculpatory 

in that it is the only evidence of anyone seeing [Appellant] shoot

at Kemp. Lastly, the Commonwealth was clearly in possession 

____________________________________________

5 This statute provides:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant, 

and subject to any protective order which the Commonwealth 

might obtain under this rule, the Commonwealth shall disclose to 

the defendant's attorney all of the following requested items or 

information, provided they are material to the instant case. The 

Commonwealth shall, when applicable, permit the defendant's 

attorney to inspect and copy or photograph such items.

***

(b) any written confession or inculpatory statement, or the 

substance of any oral confession or inculpatory statement, and 

the identity of the person to whom the confession or inculpatory 

statement was made that is in the possession or control of the 

attorney for the Commonwealth;

Pa. R. Crim. P. 573(b)(1)(b). 
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of the oral statement, though, apparently, no one deemed it 

relevant to take notes regarding the new statement that 

Rodriguez had made.

Appellant’s Brief at 21-22. 

As was discussed supra, contrary to Appellant’s claims, the prosecutor 

indicated that prior to cross-examination, she was unaware Rodriguez was to 

offer a different description of the clothing Appellant wore at the time of the 

murder than that which he had provided at the preliminary hearing, and no 

documents were prepared thereafter concerning Rodriguez’s trial 

preparation. The prosecutor’s representations were corroborated by the 

testimony of three detectives during a mid-trial Brady hearing. In addition, 

the trial court, as the fact-finder, was well aware of the inconsistences in 

Rodriguez’s preliminary hearing and trial testimony, and Appellant 

thoroughly questioned him on cross-examination. As such, this claim merits 

no relief. 

Finally, Appellant asserts the evidence was insufficient to convict him 

of first-degree murder. In this regard, Appellant reasons that only 

Rodriguez’s previously undisclosed testimony at trial was presented that he 

shot the victim, and that “the only uncontradicted evidence was that 

[Appellant] shot a gun in the air three times at the location where Kemp and 

Richardson were arguing.” Appellant’s Brief at 25-26. 

The standard we apply when 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 
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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 beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier 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. Furthermore, when reviewing a 

sufficiency claim, our Court is required to give the prosecution 

the benefit of all reasonable inferences to be drawn from the 

evidence.

However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such volume 

and quality as to overcome the presumption of innocence and 

satisfy the jury of an accused's guilt beyond a reasonable doubt. 

The trier of fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion will fail 

even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014) 

(quotation and citations omitted). 

Section 2502 of the Crimes Code, 18 Pa.C.S.A. § 2502, defines murder 

of the first degree as follows: (a) Murder of the first degree.--A criminal 

homicide constitutes murder of the first degree when it is committed by an 

intentional killing. 18 Pa.C.S.A. § 2502 (a). As such, to obtain a conviction 

of first-degree murder, the Commonwealth must have demonstrated that:

a human being was unlawfully killed, the defendant perpetrated 

the killing, and the defendant acted with malice and a specific 

intent to kill.” Commonwealth v. Montalvo, M., 604 Pa. 386, 
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986 A.2d 84, 92 (2009) (quoting Commonwealth v. Kennedy,

598 Pa. 621, 959 A.2d 916, 921 (2008)); accord 18 Pa.C.S. § 

2502(a) & (d) (defining first degree murder as an “intentional 

killing,” which is further defined as a “[k]illing by means of 

poison, or by lying in wait, or by any other kind of willful, 

deliberate and premeditated killing.”). The Commonwealth may 

prove the specific intent to kill necessary for first[-]degree 

murder wholly through circumstantial evidence. 

Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1009–10 

(2007).

Commonwealth v. Murray, 623 Pa. 506, 528-29, 83 A.3d 137, 151 

(2013).

As indicated supra, Appellant’s argument is specific in nature. Rather 

than challenge the sufficiency of the evidence to support any of the 

applicable elements of the offense, Appellant contends the evidence was 

insufficient to prove that he was the shooter. As such, we need not conduct 

a thorough review of the evidence to determine whether it can support a 

finding that all of the elements of the offense have been met. Rather, we 

will focus on the specific sufficiency issue raised by Appellant: whether the 

evidence was sufficient to establish that Appellant was the perpetrator. 

This Court has recognized that:

[E]vidence of identification need not be positive and certain to 

sustain a conviction. Commonwealth v. S. Jones, 954 A.2d 

1194, 1197 (Pa.Super. 2008)[.] Although common items of 

clothing and general physical characteristics are usually 

insufficient to support a conviction, such evidence can be used 

as other circumstances to establish the identity of a perpetrator. 

Commonwealth v. Minnis, 458 A.2d 231, 233–34 (Pa.Super. 

1983). Out-of-court identifications are relevant to our review of 

sufficiency of the evidence claims, particularly when they are 

given without hesitation shortly after the crime while memories 

were fresh. Id. at 234. Given additional evidentiary 
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circumstances, “any indefiniteness and uncertainty in the 

identification testimony goes to its weight.” Id. at 233.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super. 2011) (en banc) 

(quotation marks omitted). 

In finding no merit to Appellant’s sufficiency of the evidence claim in 

its Pa.R.A.P. 1925(a) Opinion, the trial court reasoned as follows: 

Viewing the totality of the evidence presented in light of 

the sufficiency standard set forth above, the [c]ourt holds that 

the Commonwealth put forth sufficient evidence to prove beyond 

a reasonable doubt that Kemp was unlawfully killed by 

[Appellant] and that the killing was intentional based upon his 

use of a gun on a vital part of the victim’s body. The Court 

specifically points to the testimony of witnesses Kemp-McCarthy 

and Duval, who place [Appellant] at the scene, Duval who 

observed [Appellant] fire gunshots toward the sky, Rodriguez 

who both witnessed [Appellant] shoot toward the sky and 

thereafter shoot toward the victim, Dr. Ross who testified that 

each shot was lethal unto itself, Corporal Gober who testified 

that both bullets came from the same gun, and [Appellant’s] 

self[-]incriminating statements uttered during a phone 

conversation as referenced in Commonwealth Exhibit #19. 

Trial Court Opinion, filed 11/19/15, at 7-8. Upon our review of the record, 

we agree with the trial court’s reasoning and find no error in this regard; 

therefore, this claim merits no relief. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2016