J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL PATRICK BAKER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 696 MDA 2022

Appeal from the Judgment of Sentence Entered December 16, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP

- 36

- CR

- 0002938

- 2018,

CP

- 36

- CR

- 0006497

- 2019

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL PATRICK BAKER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 697 MDA 2022

Appeal from the Judgment of Sentence Entered December 16, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP

- 36

- CR

- 0002938

- 2018,

CP

- 36

- CR

- 0006497

- 2019

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J. *

MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 22, 2023

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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-

Michael Patrick Baker (Baker) appeals 1 from the December 16, 2021

judgment s of sentence imposed by the Court of Common Pleas of Lancaster

County (trial court) following his convictions for second

- degree murder, two

counts of burglary, two counts of robbery and two counts of conspiracy. 2 He

challenges the denial of his motion to dismiss pursuant to Rule 600 of the

Rules of Criminal Procedure, the denial of his motions to suppress evidence

and the sufficiency of the evidence to support his convictions. We affirm.

I.

We glean the following facts from the certified record. Dennis Pitch (the

victim) was murdered in his home between the late evening and early morning

hours of December 2 and 3, 2016. The victim’s body was discovered by his

_________________ __________ ______ ____ _______

1 Baker filed identical notices o f appeal at each of the lower court dockets and

we have consolidated the matters sua sponte

. See Commonwealth v.

Johnson , 236 A.3d 1141, 1148, (Pa. Super. 2020) ( en banc ) (approving the filing of separate but identical notices of appeal as compliant with the dictates

of Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018)); s ee Pa. R.A.P.

513 . Baker’s notices of appeal purported to appeal from the denial of his post

sentence m otions. However, notice in a criminal case properly lies from the judgment of sentence. Commonwealth v. Shamberger

, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) ( en banc ).

2 18 Pa.C.S. §§ 2502(b), 3502(a)(1), 3701(a)(1)(i), 3701(a)(1)(iv) & 903(a)(1). Baker was convicted of these offenses at Case 2938

- 2018. At

Case 6497

- 2019, he was convicted of intimidation of a witness and simple assault. 18 Pa.C.S. §§ 4952(a)(3) & 2701(a)(1). The cases were tried together as the intimidation and assault charges were re lated to the murder

case. While he filed a notice of appeal at both dockets, the issues he raises on appeal relate only to Case 2938

- 2018. Because he does not challenge his

convictions in Case 6497

- 2019, we discuss the facts of that case only to the

exte nt they are relevant to the issues he raises in Case 2938

- 2018.J

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-

brother and stepson on Dece mber 4 , 2016

, after they were alerted that the

victim had not shown up for work the day before. He had sustained four

gunshot wounds as well as bruising and abrasions. There were no signs of

forced entry into the home but s everal rooms had been ransacked

. Law

enforcement recovered 9

- millimeter shells from the home as well as BBs that

appeared to be from birdshot.

Through the investigation, law enforcement developed Brandon Bills

(Bills) as a suspect in the murder. Bills lived on the same street as the v ictim.

The Pennsylvania State Police (PSP) recovered cell phone tower data from

three towers in the vicinity of the victim’s home for three days surrounding

the mur der and identified two phone numbers of interest. The first belonged

to Kristopher Smith ( Smith)

, one of Baker’s co

- defendants, who also lived

nearby the victim

. A t the time of the homicide , Smith was working as a

confidential informant

. The other number had interacted with Smith’s phone

at least three times on December 2 , 2016

, and had a n area code from

Delaware. Officers suspected this number belonged to Bills because his

mother lived in Delaware.

Officers spoke to Smith about the phone numbers and he said that the

Delaware phone number belonged to Bills. He also reported tha t he had heard

that the victim was planning to withdraw a large amount of money from his

retirement account to avoid losing it in his divorce. Other witnesses reported

that in the days prior to the murder, the victim had approximately $3,000 inJ

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cash on hi s person, which he showed to several acquaintances. The victim

did not keep money in bank accounts and was known in the small community

to show rolls of cash when he went to stores or the gas station.

After further reviewing phone records for the first tw o weeks in

December, police determined that the Delaware phone number was used in

Philadelphia and Delaware during that time period and was not used near the

murder scene other than on the night of the murder. The phone number was

registered to an individ ual not associated with Bills and he did not live or work

in Philadelphia. Based on this information

, law enforcement believed that the

number did not belong to Bills. They did determine that the registered owner

of the phone number was Baker’s mother.

A fter being confronted with the results of the investigation into the

Delaware number, Smith admitted that the number did not belong to Bills. He

said it belonged to a friend named Billions from Delaware County, but he did

not know his real name. PSP Troo per Jonathan Potoka (Trooper Potoka) then

interviewed Baker in September 2017 while he was incarcerated on a different

offense. Baker said that the Delaware phone number belonged to him. He

said that he knew Smith through mutual acquaintances and had vis ited him

in the Lancaster area in the winter of 2016. He denied knowing Bills, the

victim and the victim’s brother and had not heard anything about the murder.

When confronted with his cell phone activity on the night of the murder, Baker

said that must have been the night he visited Smith. He call ed Smith multipleJ

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times when he got lost driving in the area. He denied any involvement in the

murder.

A small

, wooded area separated the back of the victim’s home from the

Gospel Tabernacle Church. Investiga tors recovered surveillance footage of

the church’s parking lot that showed Smith’s vehicle entering the property at

approximately 1:25 AM on December 3, 2016. The vehicle left the view of the

camera and re

- entered while leaving the church property ten mi nutes later.

Investigators also recovered surveillance video from a nearby gas station that

showed Smith’s vehicle in the parking lot at approximately 9:20 PM on

December 2, 2016. Smith left the vehicle for a few minutes and other

individuals could be se en moving in the passenger seat and backseat. Finally,

a neighbor who lived across the street from the victim had a motion

- activated

camera that would record any vehicles driving on the street . The camera did

not activate around the time of the murder.

P SP Trooper Chadwick Roberts (Trooper Roberts) interviewed Bills in

January 2018 while he was incarcerated on unrelated charges. He initially

denied any knowledge of or involvement in the murder

. On further

questioning, he said that on the night of the murder, he was picked up at his

home by Smith

. Two other individuals from Philadelphia were also in theJ

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vehicle, one of whom had dark hair. Bills did not know their names but

identified Baker as one of the individuals in a photo array the following day. 3

Bills testified about the group’s activities that night at trial. He had

known Smith for approximately seven years and they lived near each other in

Narvon. On the night of the murder, Smith picked Bills up at his home t o

dr i v e him to the gas station. When he entered the vehicle, Baker was sitting

in the front passenger seat and Lyles was in the rear passenger seat. They

first went to a hardware store and everyone except Bills exited the vehicle.

Bills stayed in the ca r smoking marijuana and methamphetamine and heard

an alarm buzzer sound coming from the direction of the store. Baker, Smith

and Lyles then returned to the vehicle and they left. Bills testified that the

other three did not have any items with them from the hardware store. The

group proceeded to the gas station where Smith exited the car and went into

the store for a few minutes. They then drove to a second gas station and

Smith again went inside alone before returning to the vehicle.

At that point, th e group proceeded to the Gospel Tabernacle Church and

parked along the side of the building. They got out of the vehicle and Smith

retrieved two sawed

- off shotguns from the trunk and handed one to Baker

.

Baker , Smith and Lyles were wearing black clothes, gloves and masks. Smith

_________________ __________ ______ ____ _______

3 Bills also identified Christopher Lyles (Lyles) and Smith in photo arrays as the individual s who w ere in the car that night.J

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-

told Bills to wait at the vehicle and that they were “going to do a lick.” N.T.,

9/23/21, at 944

- 45. Baker, Smith and Lyles then proceeded into the woods

in the direction of the victim’s home. While waiting at the car, Bills he ard two

or three faint gunshots coming from the direction where the three men had

headed. The men returned to the vehicle quickly after the gunshots after

being gone for between five and ten minutes. Smith and Baker both had their

shotguns with them when they returned to the car. None of the men appeared

to be carrying anything from the house.

The four men got back into the vehicle and left the church. While in the

car , Smith commented that “it didn’t go well as planned.” Id. at 950. Smith

then dropped Bills off at his home and left with Baker and Lyles. Two

individuals were at Bills’ home at the time but he did not tell them what had

happened. 4 Bills later learned that the victim had been murdered but did not

go to the police because he was afraid of retaliation.

Bills admitted what he knew about the murder when he was interviewed

over a year later while incarcerated on unrelated charges. He testified he was

not o ffered anything by the Commonwealth or law enforcement in exchange

for the information at the initial interview

. He said he decided to speak to

police because he knew the victim and th ought he was a nice person and he

_________________ __________ ______ ____ _______

4 One of the individuals testified at trial that on the night of the murder

, Bills returned to his home looking very agitated and shaken.J

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felt safer while incarcerated. A few months later , Baker, Smith, Lyles and Bills

were charged with homicide and related offenses for the victim’s murder. By

the time of Baker’s trial

, Bills had reached an agreement with the

Commonwealth that it would withdraw the homicide charge in exchange for

his testimony.

In August 2018, the PSP obtained and executed a search warrant for

Baker’s phone records signed by magisterial district judge Raymond Sheller

(MDJ Sheller). Eighteen months earlier

, when the initial investigation was

underway, MDJ Shel ler, who lived on the same street as the victim at the time

of the murder, had been interviewed by police canvassing the area. The

following day, he provided the PSP with video from his home surveillance

system. One of his cameras recorded the street but investigators did not find

any relevant information on the video. The video was disclosed to Baker in

discovery. Alleging a conflict of interest, Baker filed a motion to suppress the

phone records seized pursuant to the warrant signed by MDJ Sheller. After

hearing argument, the trial court denied the motion. The video provided by

MDJ Sheller was not admitted into evidence or referenced at Baker’s trial.

Detective Anthony Vega (Detective Vega) , who was working with the

FBI as part of the Cellular Analysis Survey Team, testified as an expert in

historical cell phone anal ysis. He analyzed the call detail records from Baker’s

phone number and mapped the data onto the towers that the number

connected with to determine the geographical area where the phone wasJ

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located around the time of the victim’s murder. The cell tower u sage indicated

that Baker’s phone travelled from Philadelphia to Narvon on December 2,

2016

, between 5:43 PM and 7:37 PM. Between approximately 8:30 PM and

9:15 PM, the phone connected to towers in the vicinity of the victim’s street

and the area where th e hardware store was located. Baker’s phone connected

with Smith’s phone multiple times before 9:15 PM , which was also located in

the Narvon area. It did not connect to any towers between 9:15 PM and 3:29

AM the following day , when it began connecting ag ain to towers in the

Ph iladelphia area. Finally, Lyles’ cell phone usage data also showed travel

from Philadelphia to Narvon and connections with Smith’s phone during the se

same time period s

.

At trial, the Commonwealth presented testimony from Brandin

Dev onshire (Devonshire) , who had been incarcerated with Baker and Smith in

2019. At that time, Baker told Devonshire that he was angry with Smith

because he did not corroborate Baker’s story when speaking with police.

Baker had told officers that he was in Narvon on the night of the murder but

Smith had said Baker was not in town that night. Devonshire reported this

information to the police but was not promised anything by the

Commonwealth regarding his own criminal cases in return for the proffer.

Later that year

, Devonshire was re

- incarcerated on an unrelated charge. One

day when he entered his cell, Baker was inside with two other inmates. Baker

told Devonshire that he should not have given his statement to police and thatJ

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he should tell them that he lied and refuse to testify. All three inmates then

assaulted Devonshire.

Following a jury trial, Baker was convicted of the above

- mentioned

charges. The trial court sentenced him to an aggregate term of life in prison

with a consecutive term of 23.5 to 60 years’ incarceration. Baker filed a timely

post

- sentence motion which was denied. He timely appealed and he and the

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

II.

Baker presents four issues on appeal: whether the trial court abused

its discretion in denying his motion to suppress evidence seized pursuant to a

search warrant signed by MDJ Sheller; whether the trial court abused its

discretion in denying his motion to dismiss the charges pursuant to Rule 600;

wh ether the trial court abused its discretion in denying his motion to suppress

Bills’ identification of him in an overly suggestive photo lineup; and whether

the evidence was sufficient to support his convictions when no direct evidence

established that he had entered the victim’s home.

A.

We begin with Baker’s argument that the trial court should have

suppressed evidence seized b ased on a warrant signed by MDJ Sheller. 5 Baker

_________________ __________ ______ ____ _______

5

An appellate court’s standard of review in addressing a challenge

to a trial court’s denial of a suppression motion is limited to
(Footnote Continued Next Page)J

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argues that MDJ Sheller was a potential witness in the case because he lived

on the victim’s street and provided his home surveillance footage to police

while they were engaged in routine canvassing in the days following the

murder

. Over a year

- and

- a

- half later, MDJ Sheller sign ed search warrants

authorizing the Commonwealth to obtain cell phone subscriber information

from Sprint and Verizon Wireless

. Baker contends that MDJ Sheller should

have recused himself based on a conflict of interest from his earlier

participation in the case , and his failure to recuse warrant ed suppression of

the evidence seized pursuant to the warrants. 6

_________________ __________ ______ ____ _______

determining whether the factual findings are supported by the

record and whether the legal conclusions drawn from those facts

are correct. [Because] the prosecution prevailed in the suppression court, we may consider only the evidence of the

pr osecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as

a whole. Where the record supports the factual findings of the

trial court, we are bound by those facts and may reverse only if

the l egal conclusions drawn therefrom are in error.

Commonwealth v. Postie

, 110 A.3d 1034, 1039 (Pa. Super. 2015) (citation omitted).

6 T he search warrants and supporting affidavits are not contained in the certified record on appeal. “Our law is unequivocal that the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty.” Commonwealth v. Holston , 211 A.3d 1264, 1276 (Pa. Super. 2019) (citation omitted). However, Baker conceded at the suppression hearing that his argument does not implicate the four corners of the warrants and whether sufficient facts to establish probable cause were set forth therein. N.T., 10/24/19, at 19

- 24 . Accordingly, we decline to find waiver

based on their exclusion from the record.J

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-

It is well

- established that a search warrant must be supported by

probable cause as determined by a neutral and detached magistrate. See

,

e.g. , Commonwealth v. Leed

, 186 A.3d 405, 413 (Pa. 2018) ; Pa.R.Crim.P.

203(B). The Rules of Conduct for Magisterial District Judges require MDJs to

recuse when their “impartiality might be reasonably questioned,” in cluding in

cases in which the MDJ has “personal knowledge of facts that are in dispute

in the proceeding” or is “likely to be a material witness in the proceeding.”

Pa. St. Mag. Dist. J. 2.11(A)(1) , (A)(2)(d) & (A)(6)(c).

In Commonwealth v. Sharp

, 683 A. 2d 1219 (Pa. Super. 1996)

, which

Baker relies on in support of his argument, we addressed whether the fruits

of a warrant should be suppressed when the MDJ who issued the warrant was

married to one of the officers involved in the investigation. The lead o pinion

began by acknowledging that the S tandards of C onduct for D istrict J udges

require rec usal in instances where the MDJ’s “impartiality might be reasonably

questioned,” including instances where the MDJ’s spouse is an offi cer involved

in the proceedings. Id. at 355. While it agreed that there may be an

appearance of impartiality warranting recusal, the lead opinion found that

suppression was an extreme remedy and not warranted when there was no

actual prejudice resulting from the MDJ’s involvement in the matter. Id. at

356 n.3. Further, it opined that the absence of probable cause to support the

warrant was not per se evidence of bias

.J

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However, the Sharp court was divided on the issue of whether the MDJ

should have recu sed herself by reason of actual or apparent conflict of

interest. In a concurring statement, one jurist stated that the MDJ should

have recused herself but believed that she acted in good faith and did not

conclude that there was any actual bias on her pa rt. Id. at 361 (Saylor, J.,

concurring). The other member of the panel would have held that the MDJ

violated the Standards of Conduct by failing to recuse herself

, and that her

involvement in the case created, at minimum, an appearance of impropriety.

I d. at 362 (Popovich, J., concurring in part and dissenting in part). Moreover,

he would have found that the MDJ was actually biased based on her approval

of the warrant on a deficient affidavit of probable cause. Id. at 363 (Popovich,

J., concurring in part and dissenting in part). The division on the issue of

recusal was ultimately moot because all members of the panel agreed that the

warrant was not suppor ted by probable cause and suppressed the fruits of the

search on that basis.

The facts regarding MDJ Sheller’s involvement in this matter are

undisputed. MDJ Sheller lived on the same street as the victim

, and during

routine canvassing of the area after discovering the body, officers spoke to

him at his home. He informed them that he did not know the victim and had

not seen or heard anything suspicious. The next day, MDJ Sheller provided

law enforcement with footage of the street from his personal surve illance

system . Officers did not find anything relevant to the investigation in thisJ

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footage, though it was turned over to the defense in discovery

. Over a year

and

- a

- half later, MDJ Sheller signed search warrants for phone records related

to numbers of interest in the investigation. Based on his earlier involvement

in the case, Baker argued that there was at least an appearance of impropriety

that required MDJ Sheller to recuse himself from considering the warrant

applications. 7

Under these unique cir cumstances, the trial court did not abuse its

discretion in denying the motion to suppress. MDJ Sheller’s involvement in

the case was exceedingly brief and predated the search warrants by over a

year. He was interviewed by law enforcement during routine canvassing and

did not have any personal knowledge of the crime or relationship to the victim.

While he provided surveillance footage from his home, the footage did not

reveal anything of relevance to the investigation. Put simply, MDJ Sheller did

not co ntribute any information to the investigation that required him to serve

as a witness in the case , let alone as a “material witness,” and he had no

personal knowledge of any disputed facts in the case. See Pa. St. Mag. Dist.

J. 2.11(A)(1), (A)(2)(d) & (A)(6)(c). Further, there is no evidence of either

an actual or apparent conflict of interest that affected his ability to assess the

probable cause supporting the warrants. See Sharp

, supra

. Finally , by

_________________ __________ ______ ____ _______

7 Baker subpoenaed MDJ Sheller to testify at the suppression hearing but the subpoena was quashed prior to the hearing.J

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fai ling to challenge whether the warrant’s affidavit established probable cause,

Baker concedes that no prejudice resulted from MDJ Sheller’s involvement in

this case. For all these reasons, no relief is due.

B.

Next, we consider whether the trial court err ed in denying Baker’s

motion to dismiss the charges under Rule 600. 8 The instant case was initiated

by Baker’s arrest on April 23, 2018

, and was set for trial on September 19,

2019. At that time, Baker had not received the full discovery from the

Common wealth and the matter was continued. He argues that Rule 600’s

time limitations had expired by the initial trial date and that the trial court

abused its discretion in refusing to dismiss the charges. 9

Under Rule 600, a case must be called to trial or a plea must be tendered

within 365 days from the date on which the criminal complaint was filed.

_________________ __________ ______ ____ _______

8

Our standard of review in a R ule 600 issue is whether the trial

court abused its discretion. Our scope of review when determining

the propriety of the trial court is limited to the evidence in the record, the trial court s Rule 600 evidentiary hearing, and the trial

court s findings. We must also view the facts in the light most
favorable to the prevailing party.

. . .

Commonwealth v. Lewis

, 804 A.2d 671, 673 (Pa. Super. 2002) (citations omitted).

9 Baker proceeded to trial in September 2021 after lengthy delays resulting

from judi cial emergencies declared in response to the covid

- 19 pandemic. He does not contend that any delay after the initial trial date in 2019 caused a

violation of Rule 600.J

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Pa.R.Crim.P. 600(A)(2)(a). 10 When computing the time that has elapsed,

“periods of delay caused by the defendant,” also known as excludable time,

are excluded from the length of time that has elapsed from when the

complaint was filed. Pa.R.Crim.P. 600(C)(2) ; Commonwealth v. Maddrey

,

205 A.3d 323, 327 (Pa. Super. 2019) (“ When computing the number of

pretrial days attributable to the Commonwealth under this rule

, certain delays

are excluded, such as those occasioned by defense postponements, by

express defense waivers of Rule 600, by the unavailability of the defendant or

defense counsel, and an inability to locate and apprehend the defendant. ”).

Excusable time, or periods of Commonwealth delay during which the

Commonwealth exercised due diligence, is also not counted in the Rule 600

calculation. Commonwealth v. Moore

, 214 A.3d 244, 248

- 49 (Pa. Super.

2019); Pa.R.Crim.P. 600(C)(1). Thus, when a continuance is granted, the

subsequent order should “record to which party the period of delay caused by

the continuance shall be attributed, and whether the time will be included in

_________________ __________ ______ ____ _______

10 Rule 600 was formerly numbered as Rule 1100 and was amended and renumbered on April 1, 2001. “However, because much of the rule’s substance remained consistent throughout the amendment, [Pennsylvania courts have] continued to apply our precedents interpre ting former Rule 1100 to the analogous provisions of Rule 600, sometimes employing Rule 600 nomenclature to facilitate discussion of Rule 1100 precedents.”

Commonwealth v. Barbour , 189 A.3d 944, 946 n.1 (Pa. 2018). For consistency, we refer to Rule 600 in our discussion of earlier precedents.J

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or excluded from the computation of the time within which trial must

c ommence in accordance with this rule.” Pa.R.Crim.P. 600(C)(3)(a)(ii).

Our review of the certified record and docket sheet reveals the following.

514 days elapsed between the filing of the complaint and September 19, 2019,

the trial date at issue. The c ase proceeded through the preliminary hearing

and formal arraignment stages and an informal status conference was held on

October 16, 2018. At that time, the trial court issued an order scheduling a

second status conference for December 7, 2018, an d, cons istent with the Rule,

included a finding that “[t]he time between the date of this Order and

December 7, 2018, shall run against the Defendant for purposes of Rule

600.

. . .” See Order, 10/16/1 8

.

On the date of the second status conference, Baker filed a motion for

continuance that included language explicitly waiving his right to be tried

within 365 days of the case’s initiation. See Motion for Trial Continuance and

Waiver, 12/7/18. T he trial court then scheduled Baker’s trial for two weeks

beginning on Monday, September 9, 2019. The scheduling order stated :

“Upon agreement of counsel, and the proper continuance forms having

already been filed, all time is attributable to the Defendant.” Scheduling

Order, 12/14/1 8

. Baker filed his omnibus pretrial motion on April 1, 2019.

Finally, on September 9, 2019, the trial court scheduled a hearing on Baker’s

omnibus pretrial motion for October 25, 2019

, and continued the trial date to

March 2020. Scheduling Order, 9/9/19.J

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-

At the hearing on his Rule 600 motion, Baker acknowledged the above

mentioned orders specifically attributed lengthy periods of delay to the

defense. Nevertheless, he argued that under Commonwealth v. Mills

, 162

A.3d 323 (Pa. 2017)

, the Commonwealth’s fai lure to provide discovery prior

to the initial trial date resulted in non

- excusable delay notwithstanding his

continuance requests and waiver. He further argues that Commonwealth v.

Edwards

, 595 A.2d 52 (Pa. 1991), compels dismissal based on the

Commonwea lth’s willful or negligent failure to pass discovery prior to

September 19, 2019.

In Mills

, our Supreme Court held tha t “time attributable to the normal

progression of a case simply is not ‘delay’ for the purposes of Rule 600.” Mills

,

supra , at 325. The re, the court was concerned with a 174

- day period

between the filing of the complaint and a status conference, during which

neither party was prepared to proceed to trial. It concluded that this period

of “normal progression” was not excludable from the R ule 600 calculation. In

Edwards

, the Commonwealth had not provided discovery by the scheduled

trial date despite the defense’s timely request and the trial was continued.

Because the sole reason for the delay was the Commonwealth’s uncontested

failure to pass discovery it already had in its possession, the court concluded

that it had not acted with due diligence to bring the defendant to trial

.

Edwards

, supra , at 55.J

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-

Crucially, the defendants in Mills and Edwards did not request the

continuan ces at issue or explicitly waive their rights to be tried within the time

limitations of Rule 600. This is plainly not the case here, where Baker

requested two continuances

, explicitly waived his right to be tried with 365

days, and the trial court noted in its orders that the relevant time periods were

excludable. Regardless of the Commonwealth’s due diligence, delay s

requested by Baker cannot be included in the time calculation for Rule 600

purposes. Pa.R.Crim.P. 600(C)(2). As a result

, the 338 days b etween October

16, 201 8

, and September 19, 2019

, is delay attributable to Baker. With the

exclusion of these continuances requested by the defense, only 176 days not

attributable to delay by Baker passed before his initial trial date. Thus, the

trial cou rt did not abuse its discretion in denying his motion to dismiss

pursuant to Rule 600.

C.

Next, Baker argues that the trial court abused its discretion by denying

his motion to suppress Bills’ identification of him in the photo array

. When he

initially s poke with police, Bills informed them that the person in the vehicle

on the night of the murder had black hair. L aw enforcement then showed Bills

a photo array in which Baker was bald with a long black beard. After viewing

the array, Bills began referring to Baker as the person with the black beard.

Additionally, Baker argues that the other individuals in the photo array did not

have beards of similar length and that he was the only individual whoJ

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appeared to not be wearing a shirt. Baker also highlights that the lineup

process was not recorded and suggests the troopers involved could have

influenced Bills’ identification. Based on these circumstances, he contends

that the photo array process was unduly suggestive and Bill s’ identification of

him should have been suppressed.

Suppression of an identification is proper only when the procedure is

“ so impermissibly suggestive as to give rise to a very substantial likelihood

of irreparable misidentification.” Id. at 900 (citation omitted, emphasis in

original). Not all variances between photos in an array are grounds for

suppression. “ Photographs used in line

- ups are not und uly suggestive if the

suspect ’ s picture does not stand out more than the others, and the people

depicted all exhibit similar facial characteristics. ” Commonwealth v.

Mbewe

, 203 A.3d 983, 986

- 87 ( Pa. Super. 2019) (citation omitted); see

Commonwealth v. Dav is

, 17 A.3d 390, 394 (Pa. Super. 2011) (holding that

photo array was suggestive when it contained three photos, one of which was

a third party already known to the witness, and the other an individual who

appeared markedly different from the defendant). W hile “[e]ach person in

the array does not have to be identical in appearance,” the photos “should all

be the same size and should be shot against similar backgrounds.”

Commonwealth v. Kendricks

, 30 A.3d 499, 504 (Pa. Super. 2011)

(citations omitted). How ever, incidental variances in the photos areJ

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insufficient to establish undue suggestiveness. Commonwealth v. Kearney

,

92 A.3d 51, 66 (Pa. Super. 2014).

Baker argues that the photo array was overly suggestive because (1)

his photo was not consistent with Bills’ initial description of the dark

- haired

perpetrator

, as he was bald; (2) he appears to be the only individual in the

array who is not wearing a shirt; and (3) the other subjects in the array do

not have sufficiently similar facial characteristics and beards to Baker, making

his own photo stand out among the different subjects. 11 However, even

though the photo array in question was entered as an exhibit at the

suppression hearing, he has not ensured that it was included in the certified

record. 12 It is well

- established that an appellant bears the burden of ensuring

that all documents necessary to appellate review are contained in the certified

record. See note 6

, supra (citing Commonwealth v. Holston

, 211 A.3d

1264, 1276 (Pa. Super. 2019) ). Without examining the photos in question,

we are unable to determine whether the compilation of photos was unduly

_________________ __________ ______ ____ _______

11 Trooper Roberts’ testimony at the suppression hearing established that all eight individuals in the array had beards and the trial court, after viewing the array, determined that it was not suggestive. See N .T. , 10/24/19, at 37; Opinion, 3/31/22, at 12. Baker’s argument centers on whether the other individuals’ beards were sufficiently similar such that he did not stand out among the others.

12 This Court took the additional step of contacting the trial cour t prothonotary

to see if the photos had been lodged with the record. It did not have copies of the array.J

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suggestive or whether Baker’s photo stood out compared to the others.

Accordingly, this issue is waived. 13 Commonwealth v. Stiles

, 143 A.3 d 968,

978 (Pa. Super. 2016) (quoting Commonwealth v. Manley

, 985 A.2d 256,

263

- 64 (Pa. Super. 2009) (finding suppression issue related to photo array

waived when the photos were not included in the certified record)).

D.

Finally, Baker challenges the suf ficiency of the evidence to support his

convictions, arguing that the Commonwealth failed to establish beyond a

reasonable doubt that he entered the victim’s home on the night in question. 14

_________________ __________ ______ ____ _______

13 To the extent that Baker attempts to cast suspicion on the procedure

because the array was not audio or video recorded

, the trial court considered these arguments after Trooper Roberts was cross

- examined at length at the suppression hearing. Based on Trooper Roberts’ testimony, i t was satisfied

that the interview and procedure used was not suggestive

. Opinion, 3/31/22,

at 11

- 12. This Court may not disturb these factual and credibility findings on appellate review, as they are supported by the transcript of the suppression hearing. See Postie

, supra. Finally, while Baker refers to Bills’ trial testimony in support of his conclu sion that he was coached during the photo array, this testimony is outside our scope of review , which is confined to the evidence adduced at the suppression hearing. Commonwealth v. Way , 238

A.3d 515 , 518 (Pa. Super. 2020).

14 Our standard of review is we ll

- settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence

to enable the fact

- finder to find every el ement of the crime beyond a reasonable doubt. In applying [this] 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
(Footnote Continued Next Page)J

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Relying on the “incontrovertible physical facts rule,” he argues that the version

of events posited by the Commonwealth at trial was logically impossible

.

Baker’s Brief at 21 (citing Commonwealth v. Newman , 470 A.2d 976 (Pa.

Super. 1984)). He contends th at the victim could not have been killed and

his house ransacked during the ten

- minute period when Smith’s car was

parked at the Gospel Tabernacle Church . He argues that the perpetrator was

likely someone known to the victim based on the positioning of th e victim’s

body in the home and the lack of forced entry. Because he believes this

version of events is equally likely , he argues that the evidence did not support

his guilt beyond a reasonable doubt.

We have explained the incontrovertible physical facts rule as follows:

[W] here the testimony of a witness is contradicted by incontrovertible physical facts, the testimony of such witness cannot be accepted, it being either mistaken or false, and a verdict

based on it will not be sustained

. Courts are not r equired to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible

. However, the incontrovertible physical facts rule can be applied only where the facts are positive, clear, indisputable a nd certain

.

Newman

, supra , at 979 (citations omitted , emphasis added ). “Where the

evidence offered to support the verdict is in contradiction to the physical facts,

_________________ __________ ______ ____ _______

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.

Commo nwealth v. Lopez , 57 A.3d 74, 79 (Pa. Super. 2012) (citation omitted).J

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-

in contravention to human experience and the laws of nature, then the

evidence is insuffi cient as a matter of law.” Commonwealth v. Widmer

,

744 A.2d 745, 751 (Pa. 2000).

Additionally, we note that “ [t] he Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means

of wholly circumstantial eviden ce.” Commonwealth v. Gause , 164 A.3d

532, 541 (Pa. Super. 2017) (citation omitted). “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. ” Id. On appeal,

this court evaluates the full record to determine whether sufficiency evidence

was presented to support each element of the crime charged; however, we do

not second

- guess the jury’s factual determinations.

Here, Baker’s convictions are well

- supported by the evidence adduced

at trial. Bills’ testimony placed Baker at the crime scene around the time of

the victim’s death and he heard multiple gunshots coming from the victim’s

home while Baker and his co

- conspirators were i n that area. His testimony

was corroborated by cell phone data placing Baker in Narvon on the night of

the crime, even though he lived in Philadelphia

, and Baker’s admission to

being in Narvon on the night in question. Baker’s phone communicated with

Smi th’s and was in the same area as Lyles’ phone on the night of the murder

.

Surveillance video from the gas station and church further supported Bills’

description of the group’s activity on the night in question and a neighbor’sJ

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-

home surveillance video est ablished that no vehicles approached the victim’s

home from the front at the time of the murder. BBs or birdshot consistent

with a shotgun were recovered from the home

, and Baker was carrying a

shotgun when he walked into the woods and returned ten minute s later.

The Commonwealth introduced aerial photos of the victim’s home and

the Gospel Tabernacle Church that showed only a small, wooded area

separating the two properties. The crime scene investigator tasked with

photographing the area testified that sh e walked from the church to the house

within a minute or two. Thus, it was not “contrary to human experience and

the laws of nature” for the jury to conclude that the perpetrators could cross

that distance twice and ransack the home within ten minutes, pa rticularly

when they were attempting to speedily commit the crimes and avoid

detection. Newman

, supra

. Viewing all evidence in the light most favorable

to the Commonwealth, the jury was entitled to conclude that Baker and his

co

- conspirators believed the victim had a significant amount of cash in his

home, entered the home in search of the money, and killed the victim in the

process. The record amply supports Baker’s convictions.J

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-

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/ 22 /2023