J. S53039/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

SAMMIE CAMPBELL, : No. 996 EDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, February 24, 2016,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0013197-2008

BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2017

Sammie Campbell appeals from the February 24, 2016 judgment of 

sentence entered in the Court of Common Pleas of Philadelphia County after 

a jury convicted him of attempted murder, conspiracy, and possessing 

instruments of crime.1 The trial court imposed an aggregate sentence of 

421⁄2 to 85 years of imprisonment. We affirm.

The trial court summarized the relevant factual and procedural history 

as follows:

The underlying case, which is the subject 

matter of the instant appeal, stems from the arrest 

of [appellant] for his active participation with at least 

two other men in two related shooting battles on 

September 12, 2007 between rivaling “5th Street and 

7

th” Street” gangs in South Philadelphia, which 

resulted in multiple gunshot wounds being inflicted 

 

1 18 Pa.C.S.A. §§ 901, 903(a)(1), and 907, respectively.
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upon complainant Anthony Alonzo Reid. Under 

docketed case number CP-51-CR0013196-2008, 

[appellant] was charged with First Degree Felony 

offenses, including Aggravated Assault and 

Conspiracy, based upon the report of off duty officer 

Christine Valentine that she observed [appellant] fire 

a handgun multiple times at a group of unknown 

males who were also shooting handguns in his 

direction. The shootings occurred on the street and 

sidewalk near where she and another innocent 

bystander had been standing, within the 400 and 

500 residential blocks of Mifflin Street in South 

Philadelphia.

The charges docketed under CP-51-CR0013197, which is currently the subject of the 

instant appeal, included Criminal Attempted Murder 

(H1), Conspiracy-Engaging-Murder (F1) and 

Possession of Criminal Instrument (M1). These 

charges were based upon information that 

[appellant], and at least two co-conspirators 

Marklem Vicks (“Markeem”), and Maurice Wilkerson 

(“Reese”), fired in excess of thirty rounds of 

ammunition from multiple firearms, including an 

AK-47 type assault rifle carried by [appellant], aimed 

at a group of people standing at or near the corner 

of the 500 block of Moore Street at approximately 

9:57 p.m. This shooting incident occurred in 

retaliation for a shooting battle on Mifflin Street that 

occurred a few hours earlier that day as part of an 

ongoing feud between rival gangs. The onslaught of 

assault rifle and semi-automatic weaponry upon the 

500 block of Moore Street resulted in multiple near 

fatal gunshot wounds being inflicted upon 

complainant Anthony Alonzo Reid, also known as 

“Trome.” Mr. Reid was later killed in another 

shooting incident committed by unknown persons. 

No charges were ever filed against [appellant] for 

the homicide of Anthony Reid.

All pending related offenses from both 

captioned matters filed against [appellant] initially 

proceeded to trial before the Honorable Rosalyn 

Robinson, Judge of the Court of Common Pleas First 
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Judicial District of Pennsylvania Criminal Division, 

sitting as fact finder without a jury on March 5, 

2010. [Appellant] was found guilty of all charged 

offenses, and subsequently sentenced by the trial 

court on April 23, 2010. A direct appeal was filed by 

[appellant’s] trial counsel, James Marsh, Esquire and 

discontinued on October 7, 2010. On July 11, 2011, 

[appellant], by and through trial counsel, 

James Marsh, Esquire, filed a timely Petition 

pursuant to the Post Conviction Relief Act 

[(“PCRA”)2] on all related docket numbers.

After several delays, following video and 

recorded evidentiary hearings on February 10, 2012, 

the Honorable Rosalyn Robinson granted 

[appellant’s] PCRA Petition in part, as to both cases 

docketed under CP-51-CR-0013196-2008 and CP-51-

CR-0013197-2008, finding that trial counsel James 

Marsh, Esquire was ineffective for failing to 

investigate a potential witness Erlene Muirhead, who 

surfaced a few years after the arrest of [appellant] 

for the instant charges. The Commonwealth filed a 

Motion for Reconsideration Of the Order, entered on 

February 10, 2012, which was denied by the trial 

court on February 15, 2012. The Commonwealth 

then filed an Appeal to the Superior Court. On 

July 16, 2013, the Superior Court affirmed the trial 

court’s Order entered February 10, 2012, and both 

matters were remanded for new trial. 

In the interim of this lengthy litigation 

involving [appellant], the complainant in the instant 

matter, Anthony Alonzo Reid, was shot and killed by 

unknown persons. Gihad Topping, an acknowledged 

5

th Street gang member and eyewitness to the 

shooting of Mr. Reid in the instant matter, was 

incarcerated for unrelated crimes and experienced 

intimidating interactions with at least one of 

[appellant’s] associates while being transported from 

different prison locations. [Appellant’s] coconspirators, Marklem Vicks, also known as 

Markheem Vicks, and Maurice Wilkerson, entered 

 

2 42 Pa.C.S.A. §§ 9541-9546.
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respective pleas of guilt admitting their participation 

as co-conspirators with [appellant] in the subject 

shooting incident at issue on the 500 block of 

Moore Street that seriously injured Anthony Reid. 

Notably, each co-conspirator has filed various 

appeals of their respective convictions or pursued 

claims under the [PCRA] for various reasons.

On October 31, 2014, Mark Keenheel, Esquire 

entered his appearance as trial counsel on behalf of 

[appellant] in the cases docketed under CP-51-CR0013196-2008 and CP-51-CR-0013197-2008, and 

filed a Motion to Exclude Prior Testimony and a 

Motion for Separate Trials. The Motions in Limine 

was [sic] heard and appropriately denied by the 

Honorable Robert Coleman, after full and fair 

hearings on December 15, 2014 and January 9, 2015 

respectively. Following several defense delays, the 

cases docketed under CP-51-CR-0013196-2008 and 

CP-51-CR-0013197-2008 proceeded again to trial 

before a sworn jury as fact finders and this presiding 

jurist the Honorable Ann Marie B. Coyle Judge of the 

Court of Common Pleas for the First Judicial District 

Criminal Division on December 8, 2015.

On December 15, 2015, the jury entered 

verdicts of guilty to the charges of Attempted 

Murder (H1), Conspiracy (F1), and Possession of 

Instrument of Crime (M1) docketed under CP-51-CR0013197-2008, related to the second shooting 

incident at 5th and Moore Streets and acquitted 

[appellant] of the charges related to the earlier 

shooting incident within the 400 block of Mifflin 

Street docketed at CP-51-CR-0013196-2008. 

Presentence Investigative Reports and Mental Health 

Assessments were ordered. On February 18, 2016, 

[appellant] filed a Pro Se Motion For New Trial 

And/Or Arrest of Judgment. On February 24, 2016, 

this trial court denied the [appellant’s] Pro Se Motion 

For New Trial And/Or Arrest of Judgment and 

formally sentenced [appellant] accordingly.

[Appellant’s] Pro Se Notice of Appeal to the 

Superior Court was filed on March 23, 2016. Carson 
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Blythe Morris, Esquire entered his appearance as 

[appellant’s] appellate counsel on March 24, 2016. 

This trial Court issued the Order Pursuant to 

[Pa.R.A.P.] 1925(b) on April 4, 2016, and the Order 

Granting [appellant’s] Motion for Extension Of Time

on June 16, 2016. [Appellant’s] Statement of 

Matters Complained [of] on Appeal was filed on 

June 30, 2016.

Trial court opinion, 3/17/17 at 1-5.

In its Rule 1925(a) opinion filed on March 17, 2017, the trial court 

incorporated the October 19, 2016 opinion filed by The Honorable Robert 

Coleman who entered pre-trial orders that denied appellant’s motion to 

exclude prior testimony and motion to sever the two related cases.

Appellant raises the following issues for our review:

[1.] Did the trial court violate its duty to remain 

impartial during appellant’s trial when it 

expressed disbelief and disdain towards 

witness Markeem Vicks who provided 

testimony exonerating appellant?[3]

[2.] Did the Commonwealth engage in prosecutorial 

misconduct by knowingly misrepresenting to 

the jury a critical fact in appellant’s case – that 

Erlene Muirhead, an alibi witness who testified 

on appellant’s behalf, only came forward as a 

witness after appellant’s first trial – when the 

assigned prosecutor knew this representation 

to be false?

[3.] Did the trial court abuse its discretion by 

admitting two recorded prison conversations 

allegedly involving Maurice Wilkerson when 

one of these calls was not authenticated and 

 

3 Appellant fails to identify and explain the testimony that he claims that 

Commonwealth witness Marklem Vicks a/k/a Markeem Vicks provided that 

was “exonerating” to appellant.
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both were irrelevant and highly prejudicial to 

appellant’s case?

Appellant’s brief at 3 (capitalization omitted; emphasis in original).

Appellant first complains that “during Markeem Vicks’ testimony, the 

Trial Court engaged in precisely the sort of ‘expression[s] indicative of favor 

or condemnation’ and ‘doubt as to [] witnesses’ credibility’ forbidden in the 

Commonwealth’s courts.” (Appellant’s brief at 29 (brackets and internal 

punctuation in original).) In support of this claim, appellant sets forth a 

select and limited portion of a colloquy that took place during Mr. Vicks’s 

direct examination by the Commonwealth. A review of that portion of the 

colloquy reveals that it took place outside of the jury’s presence. 

Additionally, a review of the transcript demonstrates that prior to excusing 

the jury, the trial court attempted to control the Commonwealth’s direct 

examination of Mr. Vicks because Mr. Vicks was not answering the questions 

posed by the prosecutor and because the prosecutor and Mr. Vicks often 

spoke at the same time, as follows:

THE COURT: Excuse me. Here’s how this is going to 

go, sir --

[MR. VICKS]: Yes, ma’am.

THE COURT: Listen to the question. Answer the 

question. Wait till he finishes the answer to the 

question.

I’m not going to have run-on speaking to the things 

that are not on the table.

Notes of testimony, 12/9/15 at 205.
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The Commonwealth’s direct examination resumed, as follows:

Q. Mr. Vicks, are you now telling us that you 

didn’t have time to think about your decision to 

plead guilty?

A. At the time when they offered and told me that 

it was an open plea or whatever the case may 

be, I came in the court and made an issue that 

I need time to consult with my family.

The girl I was dealing with at the time was 

pregnant. This is things [sic] I wasn’t running 

over with my family; this is a decision you [sic] 

trying to ask me to make (indicating) like this, 

like, let’s go to the store; let’s go to the 

movies. You are trying to give a life-changing 

decision right then and there.

So this is not something we talked about for 

months, and it was just lingering in the air.

They called me from the basement and said, 

this is what’s going on. And I’m like whoa, 

whoa, you know what I’m saying; I need some 

time to think on this. Let me call my dad or let 

me talk to somebody to see if this is the right 

thing to do or you know, whatever the case 

may be. So I go back there and I think, you 

know, for my action. I think about the time, I 

can go ahead and get this time. So I might as 

well go try and get this time --

THE COURT: Excuse me --

[MR. VICKS]: And that’s what was going on.

THE COURT: Excuse me. Hello.

[MR. VICKS]: Yes, ma’am.

THE COURT: Next question.

[THE COMMONWEALTH]: Thank you, Your Honor.
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Id. at 205-207.

At this point, the Commonwealth attempted to resume Mr. Vicks’s 

direct examination when defense counsel objected as follows:

[DEFENSE COUNSEL]: Your Honor, may I have an 

objection, please?

THE COURT: To what?

[DEFENSE COUNSEL]: Can we have a sidebar?

THE COURT: To what?

[DEFENSE COUNSEL]: Can we have a sidebar 

hearing?

THE COURT: No. There’s no need. I specifically 

gave directions, okay? I don’t need run-on 

continuing; I just need question and answer.

Next question.

[DEFENSE COUNSEL]: Well, my objection initially 

was, the DA was the one interrupting his answers, it 

wasn’t him. And I would still like to have a sidebar.

THE COURT: No. Overruled.

[MR. VICKS]: Can I ask for some water, please --

THE COURT: Sir --

[MR. VICKS]: -- my mouth dry [sic], Miss. Please.

Thank you.

THE COURT: We are going to take a break.

Id. at 207-208.
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At this point, the jury exited the courtroom, Mr. Vicks was excused, 

and the following occurred:

THE COURT: What is the nature of your objection?

[DEFENSE COUNSEL]: My objection is you, Your 

Honor. You show the utmost disgust with this 

witness testifying.

THE COURT: Because he’s going on and on past the 

question --

[DEFENSE COUNSEL]: May I finish?

THE COURT: No, you may not. Look, I said three 

times how this is going to go. Nobody seems to be 

listening. She asks a question, you are supposed to 

answer the question. If he doesn’t answer the 

question, somebody raise an objection and move on. 

We are not going to have on and on and on 

discussions, well past the nature of the question.

[DEFENSE COUNSEL]: Your Honor, my objection 

was, counsel for the district attorney was 

interrupting his answers, that was my objection. But 

you are showing utmost disgust for this witness 

testifying, and it’s sending bad signals to the jury.

You are doing all kinds of things up there, where the 

jury --

THE COURT: What kinds of things are you saying 

I’m doing?

[DEFENSE COUNSEL]: You are doing like this, you 

are going like that (indicating). You are doing all 

kinds of stuff.

[THE COMMONWEALTH]: Objection.

THE COURT: Oh, please. Oh, stop it. You know 

what? No.
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The only thing I’m doing, sir, is trying to move this 

case along and trying to move the testimony along 

to the point where it’s supposed to go along. I don’t 

need to have long dissertations about what he thinks 

in life, all right? That’s not why we are here; we’re 

here for relevant questions and answers.

So your objection is noted and it is incorrect and 

overruled, and I take exception to it. I’m taking five.

Id. at 208-210.

In the argument section of his brief on this issue, appellant complains 

that “[b]ecause the [trial] [c]ourt’s conduct violated its duty to remain 

impartial and not interject itself into [a]ppellant’s trial or express disbelief or 

disfavor towards witnesses, the fairness of [a]ppellant’s trial was irreparably 

compromised by the [c]ourt’s actions and [appellant] should be granted a 

new trial.” (Appellant’s brief at 27.) Appellant then argues that because the 

transcript indicates that the trial court did not deny defense counsel’s 

accusation that the trial court was disgusted by Mr. Vicks, this serves as 

some kind of proof that the trial court harbored bias against appellant. From 

this baseless foundation, appellant makes the illogical and unsupported leap 

that “[b]ecause the [trial] [c]ourt communicated to [a]ppellant’s jury, 

through its expressions of disgust and exasperation, that it did not believe 

the testimony of Mr. Vicks, whose testimony was critical to [a]ppellant’s 

defense, it effectively discredited [a]ppellant’s entire defense and prejudiced 

him at trial.” (Appellant’s brief at 35.)
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Appellant failed to preserve this claim for our review because 

appellant's counsel failed to make a request for mistrial or a curative 

instruction. See Commonwealth v. Chimenti, 524 A.2d 913, 921 

(Pa.Super. 1987) (citation omitted) (reiterating that where defense counsel 

objects but fails to request a mistrial or a curative instruction when an 

alleged prejudicial event occurs, the issue is not preserved for appellate 

review). Even if preserved for our review, however, the claim entirely lacks 

merit. There is not one scintilla of record support to demonstrate that the 

trial court conveyed to the jury that it disbelieved Mr. Vicks or that it 

violated its duty of impartiality so as to “effectively discredit[] [a]ppellant’s 

entire defense and prejudice[] him at trial.” To the contrary, the transcript 

reveals that Mr. Vicks continuously failed to answer the questions being 

posed to him and that the trial court properly directed him to answer the 

questions posed in an effort to move the proceedings along.

Appellant next complains that his convictions should be vacated 

because the Commonwealth engaged in prosecutorial misconduct by 

“knowingly present[ing] a falsehood to the jury” during Erlene Muirhead’s 

cross-examination and during the prosecution’s closing argument “that 

Erlene Muirhead only came forward with an alibi defense on [a]ppellant’s 

behalf after his first trial and after Anthony Reid was killed.” (Appellant’s 

brief at 41 (emphasis in original).) In the argument section of his brief on

this issue, appellant once again sets forth only a select and limited portion of 
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the colloquy that took place during Ms. Muirhead’s cross-examination in an 

effort to support his claim, as follows:

Q. So 2011, you start talking to somebody from 

Mr. Perri’s [appellant’s PCRA counsel’s] office?

A. I spoke to one person. I went in to an office 

and gave an affidavit. I haven’t spoken to 

anyone else pertaining to this case at all, after 

that.

Q. And again, that was July 2011 that you went in 

and gave an affidavit about being an alibi?

A. Yes.

Q. We never heard two words about it until then, 

right?

[DEFENSE COUNSEL]: Objection, Your Honor.

[MS. MUIRHEAD]: No, that’s not true. His first 

lawyer --

THE COURT: Rephrase it.

[THE COMMONWEALTH]: I’ll move on.

Appellant’s brief at 40, citing notes of testimony, 12/14/15 at 57.

The relevant colloquy, in its entirety, however, is as follows:

Q. And you certainly, throughout the years, kept 

in contact with [appellant], right?

A. Yes.

Q. You’ve actually seen him quite a few times 

since this incident, right?

A. Yes.

Q. And you’ve talked about what happened?
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A. Yes, but not too much. It’s not too much of a 

focus, because he didn’t commit a crime.

Q. It’s not too much of a focus --

A. Yes.

Q. -- that he’s been charged with attempted 

murder?

A. Yes, because he wasn’t there.

Q. Because he was with you --

A. Yes.

Q. -- not smoking weed, watching the Godfather 

and having sex?

A. No. I said I wasn’t smoking weed.

Q. You visited him in August 2008?

A. Yes. I just turned 18. I was able to see him 

now.

Q. You visited him again later in August 2008?

A. Yes. He was still my boyfriend.

Q. You visited him in September 2008?

A. Yes. 

Q. You were aware that he had court dates all 

during those times, right?

A. Yes.

Q. But you and him [sic] didn’t talk about the 

case, because it wasn’t a focus?
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A. No, it wasn’t really a focus; our relationship 

was. We were going through ups and downs.

Q. You visited him in December of 2008?

A. Okay.

Q. February 2009. Is that a yes?

A. Yes.

Q. March 2009?

A. Yes.

Q. June 2009?

A. If I recall.

Q. You visited him in 2010?

A. Yes.

Q. I don’t want any details; I just want a yes or 

no answer. Were you aware that he had a 

four-day hearing in 2010, just yes or no? Just 

yes or no?

A. I don’t recall.

Q. Well, you never testified in 2010, did you?

A. No. Not that I recall.

Q. But you and [appellant] had been in good 

contact, good terms. You had been visiting 

him quite often, ’08, ’09, 2010?

A. Around the time --

Q. Ma’am, again, not trying to be rude. Just yes 

or no. You had good contact with Mr. --

A. Yes. We didn’t --
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Q. -- [appellant]?

A. Actually, we did not have good contact. 

Sometimes my phone would be off. I may pop 

up at a visit, but he wouldn’t be able to reach 

me on certain occasions.

Q. Then in 2011 -- well, first of all, did you know 

Trome, Anthony Reid?

A. No.

Q. You didn’t find out that he got killed in 2011? 

July 2011?

A. No.

Q. You didn’t know that?

A. No. I don’t -- I’m not --

Q. But suddenly in July 2011, you come forward 

with an affidavit that says [appellant] was with 

you at the time of the shooting?

A. Is that the young man that supposedly got 

shot that night?

Q. Yes.

A. That’s what I said, I don’t know him. I don’t. 

I never [sic] heard of him.

Q. Is it fair to say, July 2011, you did not know 

that Anthony Reid had been killed, but that’s 

when your affidavit pops up, saying that you 

are actually an alibi witness?

A. Yes.

Q. And here we are, 2015.

A. Yes.
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Q. Do you know Reese? Maurice Wilkerson?

A. I don’t know these people by their full names, I 

just know them by -- I think I know Reese.

Is he from my neighborhood? From down 

South Philadelphia?

Q. Right. Like from 7th Street?

A. Oh. Yes.

Q. If I showed you a picture of Reese, would you 

recognize it? And I’ll just show you a paper 

copy so you don’t have to lean too far forward.

[] I’m showing you the third page of C-24. Do 

you know this guy?

A. Yes. Yes, I do.

Q. This is Reese?

A. Yes.

Q. He hangs out with [appellant], doesn’t he? 

That’s one of his friends from the 

neighborhood?

A. Well yes, but I wouldn’t -- I didn’t meet a lot of 

his guy friends, because I stayed to myself. I 

was at work a lot.

Q. Where were you working at the time?

A. Burger King.

Q. After school?

A. Yes.

Q. But you didn’t work on this day?
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A. No.

Q. You had that date off?

A. Yes.

Q. Do you know this guy, Markeem?

A. Yes.

Q. Showing the 4th page of C-25 --

A. Yes, I do know Markeem.

Q. I’m sorry, that was C-24.

You know Markeem too, right?

A. Yes.

Q. From the neighborhood?

A. Yes.

Q. From 7th Street?

A. Yes.

Q. Do you know -- did you ever talk to Maurice’s 

lawyer --

A. No.

Q. -- Mr. Perri?

A. No.

Q. But there did come a time when you spoke 

with, not [defense counsel] Mr. Keenheel, but 

a new lawyer from Mr. Perri’s office, right, 

about [appellant’s] case? Just yes and no?

A. Yes.
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Q. So Reese had Mr. Perri, and then?

[DEFENSE COUNSEL]: Objection, Your Honor. 

She’s testifying.

THE COURT: What’s your question? Ask a 

question, please?

[BY THE COMMONWEALTH]:

Q. If, and maybe you don’t know, but if Reese 

had been represented by Mr. Perri --

[DEFENSE COUNSEL]: Again, objection, Your 

Honor --

[THE COMMONWEALTH]: --pertaining to this 

case --

THE COURT: Can I hear the question, please? 

Thank you. What is the question?

[BY THE COMMONWEALTH]:

Q. If Reese had been represented by Mr. Perri’s 

office and then you had contact with a lawyer 

from Mr. Perri’s office, that’s the same law 

firm, right?

A. I guess.

Q. So 2011, you start talking to somebody from 

Mr. Perri’s office?

A. I spoke to one person. I went in to an office 

and gave an affidavit. I haven’t spoken to 

anyone else pertaining to this case at all, after 

that.

Q. And again, that was July 2011 that you went in 

and gave an affidavit about being an alibi?

A. Yes.
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Q. We never heard two words about it until then, 

right?

[DEFENSE COUNSEL]: Objection, Your Honor.

[MS. MUIRHEAD]: No, that’s not true. His 

first lawyer --

THE COURT: Rephrase it.

[THE COMMONWEALTH]: I’ll move on.

Id. at 50-57.

The record reflects that the Commonwealth elicited a fair amount of 

testimony from Ms. Muirhead -- without objection by appellant -- that cast 

doubt on Ms. Muirhead’s provision of an alibi for appellant. Moreover, when 

defense counsel did object to a question posed by the Commonwealth, the 

specific objection was that the Commonwealth was testifying for the witness. 

The select and limited portion of the colloquy that appellant sets forth in his 

brief occurred immediately after defense counsel’s objection that the 

Commonwealth was testifying for Ms. Muirhead. A review of the relevant 

colloquy in its entirety supports the conclusion that the objection set forth in 

the select and limited portion of the colloquy that appellant relies on was 

another objection that the Commonwealth was testifying for Ms. Muirhead. 

Nevertheless, at no time did appellant move for a mistrial or request a 

curative instruction or any other relief at the time of the alleged prejudicial 

prosecutorial misconduct during the Commonwealth’s cross-examination of 
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Ms. Muirhead or during its closing argument. Therefore, appellant waives 

this issue on appeal. See Chimenti, 524 A.2d at 921.

Appellant finally complains that the trial court abused its discretion 

when it admitted into evidence recordings of two prison conversations during 

Maurice Wilkerson’s direct examination because the voice on one of the 

recordings was not authenticated by Mr. Wilkerson as being his voice and 

both recordings were irrelevant and prejudicial to appellant.

The record reflects that the Commonwealth sought to play recordings 

of a June 19, 2008 prison call, as well as an April 16, 2010 prison call, 

during Maurice Wilkerson’s direct examination. Defense counsel first 

objected on the basis that the recordings were not on the Commonwealth’s 

exhibit list. (Notes of testimony, 12/9/15 at 227-230.) Although appellant 

abandons this claim on appeal,4 he seizes upon defense counsel’s statement 

during the colloquy on that particular objection that “[it] has nothing to do 

with [appellant]” in a seeming attempt to convince this court that he 

preserved his claim that the recording was irrelevant. Additionally, although 

appellant seizes upon another objection that he made that “[it] has nothing 

to do with [appellant,]” a review of the record reveals that that objection 

occurred prior to the recordings being played to the jury and as a direct 

result of the Commonwealth asking Mr. Wilkerson how he felt about the 

victim, Anthony Reid, making a statement to law enforcement. (Appellant’s 

 

4 Appellant’s brief at 50 n.12.
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brief at 54-55; notes of testimony, 12/9/15 at 259.) We admonish counsel 

for repeatedly misrepresenting the record in his brief to this court.

That being said, we will now dispose of appellant’s final complaint. 

The record reflects that following defense counsel’s objection regarding the 

exhibit list, the following then took place:

THE COURT: Aside from the objection previously 

noted, is there any other objection to the call[?]

[DEFENSE COUNSEL]: Yes, Your Honor. I mean, 

there has to be some foundation or something to 

introduce that it was his call.

I mean, normally someone from the prison would 

come in and say, this is his number, this is his call, 

whatever. There’s [sic] no voice experts here. We 

don’t know who he’s talking to. I haven’t heard it. 

We have hundreds of those calls. I haven’t even 

heard the call she’s talking about. If she had given 

us –

THE COURT: Excuse me.

Can I see you at sidebar, please.

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(Discussion held at sidebar as follows:)

- - -

THE COURT: In terms of the objections as to not 

being on the witness list, I’ve already addressed that 

and overruled that, but in terms of the objection as 

to authenticity of the phone calls, my understanding 

is, Commonwealth is going to ask him, does he 

recognize his voice, right?

[THE COMMONWEALTH]: Yes.
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[DEFENSE COUNSEL]: I don’t know.

[THE COMMONWEALTH]: Yes.

THE COURT: Well, I can’t rule on that until he says 

yes or no, right?

[DEFENSE COUNSEL]: Well, I think you should hear 

his voice outside the jury’s presence then.

THE COURT: No. That doesn’t need to happen. He 

can authenticate it.

So your objection is noted and overruled.

Notes of testimony, 12/9/15 at 255-256.

The record then reflects that Mr. Wilkerson confirmed his voice as 

being a participant in the June 19, 2008 recorded telephone call. (Id. at 

257.) Mr. Wilkerson then denied that he participated in the April 16, 2010 

call, as follows:

Q. . . . Do [you] recognize the voice on this call?

A. Not at all.

Q. Do you recognize your voice?

A. No.

Q. That’s not your voice? Let me continue and 

see if you recognize that.

- - -

(Prison tape being played.)

- - -

[BY THE COMMONWEALTH]:
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Q. Who’s there saying they are trying to get me 

to take a deal and all that?

A. I don’t recognize neither [sic] voice. I know 

my voice when I hear it.

Q. Well I know it’s a little hard to hear. Sorry 

about that.

- - -

(Prison call played to the jury.)

- - -

[MR. WILKERSON]: That’s not me.

[BY THE COMMONWEALTH]:

Q. Let’s just listen a little longer.

[DEFENSE COUNSEL]: I’m going to object, 

Your Honor. He said it’s not him.

[THE COMMONWEALTH]: May I forward it to 

another section and ask if he recognizes the 

voice, Your Honor?

THE COURT: Is this a different day?

[THE COMMONWEALTH]: It’s later in the call, 

Your Honor. 

[DEFENSE COUNSEL]: I’m going to object, 

Your Honor.

[THE COURT]: We’ll see.

- - -

(Prison call played to the jury.)

- - -
J. S53039/17

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[BY THE COMMONWEALTH]:

Q. “They [sic] going to bury the rat and you are 

all going to get off.”

Do you know who said that?

A. I don’t know who that is.

Q. You don’t?

A. No, I really don’t.

Q. You don’t know who that caller was on the 

other end of the prison call?

A. That don’t [sic] even sound like me. I don’t 

know it [sic] either voice. Either voice.

Q. So you don’t know who said they are going to 

bury the rat and you all are going to get off?

A. No. Did he get buried?

[THE COMMONWEALTH]: Does someone find 

that funny in the gallery?

I have nothing further for Mr. Wilkinson [sic].

Notes of testimony, 12/9/15 at 261-262.

A review of the relevant colloquy demonstrates that Mr. Wilkerson 

authenticated his own voice with respect to the June 19, 2008 recording. 

Although Mr. Wilkerson then denied being a participant in the April 16, 2010 

recorded telephone call, Pennsylvania Rule of Evidence 901(b)(3) permits 

the trier of fact to compare authenticated evidence with other evidence in 

order to satisfy the authentication requirement with respect to the latter. 

See Pa.R.E. 901(a) and (b)(3) (“[t]o satisfy the requirement of 
J. S53039/17

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authenticating or identifying an item of evidence, the proponent must 

produce evidence sufficient to support a finding that the item is what the 

proponent claims[,]” an example of which includes a “comparison with an 

authenticated specimen by . . . the trier of fact.”). Therefore, the jury, as 

fact finder, was free to conclude that the voice on the April 16, 2010 

recording was or was not that of Mr. Wilkerson by comparison to the June 

19, 2008 authenticated recording.

With respect to the objection that defense counsel made during Mr. 

Wilkerson’s testimony that concerned the second recording, a review of the 

record demonstrates that defense counsel made an asked and answered 

objection. Moreover, at no time during Mr. Wilkerson’s testimony or during 

the Commonwealth’s closing argument did appellant move for a mistrial or 

request a curative instruction or any other relief based on the prejudicial 

nature of the admission of the recorded evidence which appellant now claims 

was “highly inflammatory and prejudicial” so as to entitle him to a new trial. 

(Appellant’s brief at 57-58.) Therefore, appellant waives this issue on 

appeal. See Chimenti, 524 A.2d at 921. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2017