J-A08025-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

DARNELL GILLIARD 

 Appellant 

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 853 EDA 2023 

Appeal from the Judgment of Sentence Entered December 16, 2022 

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005937-2019 

BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J. 

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 30, 2024

 Appellant, Darnell Gilliard, appeals from the judgment of sentence 

entered on December 16, 2022, following his jury trial convictions for 

third-degree murder, conspiracy, and related firearms violations.1 After 

careful consideration, we affirm. 

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

On March 19, 2019, [Appellant], along with two co-conspirators, 

killed eighteen-year-old Nikolas Montez, the decedent, during a 

robbery. At approximately[] 11:38 p.m., Akeem Graham drove 

[Appellant] and Jermal Bizzel to the corner of Ontario and “F” 

[S]treets in a black Hyundai Sonata. As the decedent walked east 

on the 600 block of Ontario Street in Philadelphia[, Pennsylvania], 

a mere three houses south of his home, [Appellant] and Bizzel 

robbed the decedent at gunpoint. 

____________________________________________ 

1

 18 Pa.C.S.A. §§ 2502(c) (third-degree murder), 903(a) (conspiracy), 

6106(a) (firearms not to be carried without a license), 6108 (carrying firearms 

on public streets in Philadelphia), and 907 (possessing an instrument of 

crime), respectively. 
J-A08025-24 

- 2 - 

During the robbery, the decedent was on [a cellular tele]phone 

with Gabriella Montanez, his paramour of one year, who heard the 

decedent tell the conspirators, “Take it. You can have it all.” 

Montanez heard scuffling sounds and then gunshots. Montanez[] 

desperately asked the decedent if he was okay but the decedent 

did not respond. Immediately, Montanez ran to her mother and 

told her that she thought the decedent [had been] shot. After 

hearing police sirens, Montanez ended the call, so she could call 

[the] decedent’s mother to tell her what happened. 

As [Appellant] and Bizzel ran back to their waiting getaway car, 

Bizzel collapsed [outside the car] from two gunshot wounds to 

[his] chest[.] [Appellant] instruct[ed the driver,] Graham[,] to 

leave Bizzel at the scene [but] Graham helped the fatally injured 

Bizzel into the car and drove off. [Appellant] refused to go to the 

hospital with his co-conspirators and got out of the car before 

Graham arrived at Temple [University] Hospital with Bizzel. 

After receiving a radio call, Philadelphia police arrived at the scene 

and rushed the decedent to Temple Hospital where they arrived 

mere seconds after the co-conspirators. Both the decedent and 

Bizzel died at the hospital shortly after their arrival. The decedent 

was shot five times at close range in the head, buttocks, left thigh, 

and knee. 

The Philadelphia Police Crime Scene Unit recovered two .38/.357 

caliber bullet jacket fragments, one bullet fragment of 

indeterminate caliber, and one .32 caliber bullet from the scene. 

From the decedent, the Medical Examiner recovered three 

.38/.357 caliber projectiles and four bullet fragments and, from 

Bizzel, he recovered two .32 caliber projectiles. [Hospital staff 

recovered an additional bullet fragment from the decedent.] The 

.32 caliber projectiles were fired from the same firearm. The 

ballistics evidence was inconclusive regarding whether the 

.38/.357 caliber projectiles were fired from the same firearm. 

The day after the incident, [Demina] Johnson[, Bizzel’s 

paramour,] called [Dorothy] Perkins, Graham’s paramour and the 

owner of the black Hyundai Sonata, to learn about the details of 

[Bizzel’s] death. On a three-way call [in which Graham, Johnson, 

and Perkins participated while Graham was in prison,] Graham 

explained that he was in the car when Bizzel was shot [and] that 

[Appellant] said [to] leave [Bizzel behind] after Bizzel collapsed 

outside the car. Graham told Johnson that[,] along with himself 

and Bizzel, [Appellant] was also at Johnson’s home the night 
J-A08025-24 

- 3 - 

before the incident. Perkins gave Johnson [Appellant’s cellular 

tele]phone number, so she could learn more about Bizzel’s death. 

The next day, Johnson called [Appellant] and arranged a meeting 

at Sugar[H]ouse Casino [on North] Delaware Avenue. Between 

9:00 p.m. and 10:00 p.m., Johnson and her aunt met with 

[Appellant] in a car in the parking lot of the casino[. Appellant [] 

was in the front passenger seat and an unknown male [was] in 

the driver’s seat. Johnson unintentionally set her [cellular 

tele]phone to record the audio of the meeting. 

Johnson confronted [Appellant] and asked for answers about what 

happened that night. [Appellant] confirmed that he was one of 

the individuals at Johnson’s home the night before the incident 

and told her that she would know him by the nickname “D.” 

[Appellant] further [confirmed that he was present during the 

incident. Appellant] confessed to Johnson that the robbery “just 

went bad” and the decedent and Bizzel shot each other. 

[Appellant] claimed that he took Bizzel’s gun from the scene to 

protect him. When asked whether he or Graham was the driver, 

[Appellant denied driving.] [Appellant] confirmed that the police 

found a fake gun in the [escape] vehicle and that he instructed 

Graham to erase all of his communications when Graham called 

him from the back of [a] police car [after he was arrested]. 

Cell[ular telephone] site analysis of the co-conspirators’ [] 

locations confirmed their movements [on] the day of the incident. 

All three [telephones belonging to the co-conspirators] were 

connected to the same close range Distributed Antenna System 

cell[ular] site covering the area of the crime scene at the time of 

the shooting [and their subsequent movements after the 

shooting.] After the shooting, [Appellant’s] cell[ular tele]phone 

location diverges from his co-conspirators’ [location] as they 

rush[ed] to Temple Hospital. After arriving at Temple Hospital, 

Graham’s cell[ular tele]phone location [showed] when he was 

taken to police headquarters. On March 21, 2019, from 

approximately 9:12 p.m. to 9:36 p.m., [Appellant’s] cell[ular 

tele]phone was connected to the cell site which covers 

Sugar[H]ouse Casino. 

Graham’s fingerprints were found on the front and rear passenger 

side doors of the black Hyundai and on two different beverage 

containers found in the vehicle. Bizzel’s fingerprints were found 

on the back of the cell[ular tele]phone from the vehicle[’s] glove 
J-A08025-24 

- 4 - 

box. In addition[,] police also recovered a bb-gun from the black 

Hyundai. 

On April 12, 2019, [Appellant] was arrested and, from his 

residence, police recovered a cell[ular tele]phone and a 

Sugar[H]ouse [C]asino receipt. 

[Appellant] was not licensed to carry a firearm at the time of the 

incident. 

Trial Court Opinion, 5/12/2023, at 2-5 (footnotes omitted or incorporated). 

 The case proceeded as follows: 

On April 12, 2019, [Appellant] was arrested and charged with 

murder and related offenses. On October 18, 2022, [Appellant] 

elected to be tried by a jury. On October 24, 2022, a jury 

convicted [Appellant of the aforementioned crimes, but found him 

not guilty of robbery and conspiracy to commit robbery]. On 

December 16, 2022, [the trial] court sentenced [Appellant] to [10 

to 20] years of incarceration for third-degree murder with 

consecutive sentences of six to [12] years for conspiracy to 

commit third-degree murder and one to two years of incarceration 

for [carrying a firearm without a license], for a total [aggregate] 

sentence of [17 to 34] years of incarceration. [The trial court 

imposed no further penalty for carrying a firearm in public in 

Philadelphia or possessing an instrument of crime.] On December 

27, 2022, [Appellant] filed a post-sentence motion, which [the 

trial] court denied on March 3, 2023. 

Id. at 1-2 (superfluous capitalization omitted; original footnotes omitted or 

incorporated). This timely appeal resulted.2

 On appeal, Appellant presents two issues for our review: 

I. Whether the trial court erred in denying [Appellant’s] motion 

to suppress the recording made by Johnson of [] Appellant’s 

statements about the crime, as [] Appellant did not consent 

to the recording and had an expectation of privacy? 

____________________________________________ 

2

 Appellant filed a timely notice of appeal on March 31, 2023. On April 24, 

2023, Appellant filed a timely, court-ordered concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed 

an opinion pursuant to Pa.R.A.P. 1925(a) on May 12, 2023. 
J-A08025-24 

- 5 - 

II. Whether the trial court err[ed] in permitting Demina 

Johnson to testify [at trial] as to what Akeem Graham, a 

non-testifying defendant, told her about who was involved 

and how the robbery was committed days after the crime as 

Graham’s statements to Johnson were hearsay, not in 

furtherance of or during a conspiracy? 

Appellant’s Brief at viii (numerals supplied).3

 In the first issue we examine, Appellant argues that pursuant to the 

Wiretapping and Electronic Surveillance Act (Wiretap Act),4 the trial court 

erred by denying suppression of an audio recording of a conversation between 

Demina Johnson and Appellant. Id. at 25-35. As recounted by Appellant: 

Not long after the subject shooting, Johnson contacted [] 

Appellant to uncover what happened to Boozy [(a nickname for 

the co-conspirator named Bizzel who sustained fatal gunshot 

wounds during the incident.)] Johnson and [] Appellant arranged 

to meet in a car at the SugarHouse Casino in Philadelphia. The [] 

vehicle’s occupants included Johnson, her aunt, [] Appellant, and 

an unidentified second male, each of whom were aware of the 

meeting’s topic beforehand. Johnson recorded the conversation, 

in which Appellant admitted that he was with [both 

co-conspirators,] Graham and Boozy[,] during the subject 

shooting[, but] did not admit to participating in the shooting. 

Id. at 27. Appellant claims that he did not consent to the recording and had 

an expectation of privacy in the vehicle where the conversation took place. 

Id. at 25. Appellant argues that the meeting was “pre-planned[,]” that 

“Appellant purposefully chose an isolated vehicle to eliminate others from 

hearing the conversation[,]” and that “the contained car was transformed into 

____________________________________________ 

3

 We have reordered Appellant’s issues for ease of discussion and disposition. 

4

 18 Pa.C.S.A. §§ 5701-5782. 
J-A08025-24 

- 6 - 

a private forum.” Id. at 27 and 30. Appellant suggests that “whether [] 

Appellant owned the vehicle or where he sat during the conversation is [] 

irrelevant.” Id. at 34. Appellant also contends that under the Wiretap Act, 

he was permitted to move to suppress the contents of the recording because 

Johnson unlawfully obtained the communications by intentionally intercepting, 

recording, and disclosing the information despite Appellant’s expectation of 

privacy and, otherwise, without Appellant’s consent. Id. at 29. “In sum, 

[Appellant argues that] because [he] took affirmative and reasonable steps 

showing an expectation that his conversation would not be overheard or 

recorded, an expectation that society is prepared to recognize, and Johnson 

failed to obtain consent from not just [] Appellant but all three of the car’s 

occupants, a clear violation of the Wiretap Act occurred.” Id. at 35. As such, 

Appellant asks “this Court to strike Johnson’s recording from the evidence and 

grant Appellant a new trial.” Id. at 36. 

 Our review of the denial of suppression 

is limited to determining whether the factual findings are 

supported by the record and whether the legal conclusions drawn 

from those facts are correct. We are bound by the suppression 

court's factual findings so long as they are supported by the 

record; our standard of review on questions of law is de novo. 

Where, as here, the defendant is appealing the ruling of the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted. Our scope of review of suppression 

rulings includes only the suppression hearing record and excludes 

evidence elicited at trial. 
J-A08025-24 

- 7 - 

Commonwealth v. McMahon, 280 A.3d 1069, 1071 (Pa. Super. 2022) 

(internal citation omitted). 

 Additionally, our Supreme Court has 

note[d] that in the suppression context, appellate courts do not 

simply comb through the record to find evidence favorable to a 

particular ruling. Rather, appellate courts look to the specific 

findings of fact made by the suppression court. 

Those findings are dependent on the suppression court's 

credibility determinations. A suppression court may find some 

evidence favorable to the Commonwealth to be credible, and other 

evidence favorable to the Commonwealth to be incredible. Only 

after the court assesses and weighs all of the facts may the court 

issue conclusions of law specifically relating to those findings of 

fact. There is no mechanism for that special evaluative process 

to take place during a trial, especially when the case is being tried 

to a jury as the finder of fact. 

In re L.J., 79 A.3d 1073, 1085 (Pa. 2013). “If there is sufficient evidence of 

record to support the suppression court's ruling and that court has not 

misapplied the law, we will not substitute our credibility determination for that 

of the suppression court judge.” Commonwealth v. Smith, 808 A.2d 215, 

220 (Pa. Super. 2002). 

Appellant’s opening claim rests on his contention that the Wiretap Act 

precluded the introduction at trial of a recorded conversation between himself 

and Johnson. Our Supreme Court has determined: 

In general, the Wiretap Act prohibits the interception, disclosure 

or use of any wire, electronic or oral communication. 

*** 

If a criminal defendant [] believes that evidence in the form of an 

“oral communication” was intercepted in violation of the Wiretap 
J-A08025-24 

- 8 - 

Act, the Act permits [him] to make such a claim in a “motion to 

exclude.” 18 Pa.C.S.A. § 5721.1(b). [...T]he Wiretap Act provides 

the following base definition of “oral communication:” “Any oral 

communication uttered by a person possessing an expectation 

that such communication is not subject to interception under 

circumstances justifying such expectation.” 18 Pa.C.S.A. § 5702. 

[Moreover, our Supreme] Court has held that, to establish a 

violation of the Wiretap Act, the claimant carries the burden to 

demonstrate, inter alia, that []he possessed an expectation that 

the communication would not be intercepted and that [his] 

expectation was justifiable under the circumstances. [Agnew v. 

Dupler], 717 A.2d [512,] 522 [(Pa. 1998)] (explaining that “to 

establish a prima facie case under the Wiretap Act for interception 

of an oral communication, a claimant must demonstrate: (1) that 

he engaged in a communication; (2) that he possessed an 

expectation that the communication would not be intercepted; (3) 

that his expectation was justifiable under the circumstances; and 

(4) that the [alleged intercepting party] attempted to, or 

successfully intercepted the communication, or encouraged 

another to do so”); see also [Pennsylvania State Police v.] 

Grove, 161 A.3d at 901-02 (citing Agnew, supra, for the 

proposition that a “claimant alleging [a] Wiretap Act violation 

must show[,]” inter alia, “that he possessed an expectation that 

the communication would not be intercepted [and] that his 

expectation was justifiable under the circumstances”). Placing this 

burden on [the party aggrieved by an interception] is consistent 

with the plain language of the Wiretap Act and comports with 

common sense, as the Commonwealth would have no incentive to 

demonstrate that a defendant has a justifiable expectation that 

[his] oral communication would not be intercepted, and the 

Wiretap Act does not require the Commonwealth or any other 

party to prove a negative, i.e., that the claimant did not have a 

justified expectation that [his] oral communication would not be 

intercepted under the circumstances of the case. 

Commonwealth v. Mason, 247 A.3d 1070, 1080–1081 (Pa. 2021) (original 

brackets and some case citations omitted). 

Additionally, this Court has “[e]xpressly [found] that there is a 

distinction between the [general] expectation of privacy and the expectation 

of non[-]interception” under the Wiretap Act. See Commonwealth v. 
J-A08025-24 

- 9 - 

Myers, 676 A.2d 662, 664 (Pa. Super. 1996). We have previously 

determined: 

It is interesting to note that in varying situations this analysis can 

yield differing results as to whether there is either an expectation 

of privacy or an expectation of non-interception. Generally, where 

there is an expectation of privacy there is also an expectation of 

non-interception. Such is not always the case, however. For 

instance, if one is being examined by his or her physician and 

knows from past experience that the doctor often carries a small 

tape recorder in a pocket to record patient interviews, one's 

expectation of non-interception is nearly non-existent, but the 

expectation of privacy is still extremely high. On the other hand, 

if one is speaking with the town gossip at a public swimming pool 

under circumstances insuring that the gossip is not wearing a body 

wire, one's expectation of non-interception is very high, but the 

expectation of privacy is very low. Thus, an expectation of privacy 

does not always carry a concomitant expectation of non[-] 

interception, and vice versa. 

Commonwealth v. McIvor, 670 A.2d 697, 700 (Pa. Super. 1996) (en banc). 

Here, the trial court determined that Appellant did not have an 

expectation of privacy in the vehicle where the recording took place. More 

specifically, the trial court determined that Appellant “had no expectation of 

privacy in someone else’s vehicle, especially when [Appellant] voluntarily 

invited Johnson into the car and chose to disclose his crimes.” Trial Court 

Opinion, 5/12/2023, at 7. The trial court opined that there were a total of 

four people in the automobile, so “two other people were [also] present for 

the conversation.” Id.; see also N.T., 10/19/2022, at 14. As such, the trial 

court determined that Appellant did not have an expectation of privacy in the 

subject vehicle, when he voluntarily spoke to Johnson and her aunt, who were 
J-A08025-24 

- 10 - 

practically strangers to him. See N.T., 10/19/2022, at 21 (Johnson did not 

know Appellant before this meeting). 

Upon review, we conclude that the trial court did not err in finding that 

Appellant failed to meet his burden of proving an expectation of privacy or 

non-interception under the circumstances presented herein. In this case, 

Appellant bore the burden of proof to show he had an expectation of privacy 

or non-interception in the vehicle in question and he did not do so. Johnson 

was the only witness to testify at the suppression hearing; Appellant did not 

present any evidence. As set forth above, Appellant agreed to meet with 

Johnson two days after the incident at issue. He did not meet with her alone. 

Instead, Appellant met with Johnson, with two other people present, in an 

unidentified man’s vehicle. See N.T., 10/19/2022, at 11-14 and 32-33. As 

the trial court properly determined, Appellant spoke in front of two women 

whom he did not know and, therefore, he did not establish that he had an 

expectation of privacy inside the vehicle. Moreover, although Johnson did not 

obtain Appellant’s consent to record the conversation, there is also no 

evidence that Appellant asked if his statements would be recorded or that he 

attempted to discover or secure recording devices possessed by Johnson or 

her aunt. Id. at 29. Appellant failed to make these inquiries and undertake 

such efforts despite his awareness that the meeting with Johnson and the 

others had been mutually arranged to assist Johnson in uncovering how her 
J-A08025-24 

- 11 - 

paramour received fatal wounds during the recent robbery attempt.5 

Accordingly, there was no evidence presented that Appellant had a reasonable 

expectation that his statements would remain private or that his 

communications would not be recorded or intercepted. As such, Appellant did 

not prove that he possessed an expectation that the oral communication would 

not be intercepted and that his expectation was justifiable under the 

circumstances. For all of the foregoing reasons, we conclude that the trial 

court did not abuse its discretion or err as a matter of law in denying 

suppression of Johnson’s recording. Accordingly, this issue does not merit 

relief. 

 In his second issue presented, Appellant argues that the trial court erred 

by permitting Johnson to testify about statements Akeem Graham, a 

non-testifying co-defendant, made to her regarding the conspiracy plot and 

the parties involved. Id. at 5. Appellant asserts that “Graham’s statements 

to Johnson were inadmissible hearsay, failing to meet any hearsay 

exception[,] lacked indicum of reliability[,] and prejudiced [] Appellant by 

permitting and endorsing a non-testifying co-conspirator’s inadmissible, 

incriminating, unredacted, [statement without] a limit[ing] jury instruction[.]” 

Id. (hyphens omitted). Appellant maintains that Graham’s statements were 

not made during or in furtherance of a conspiracy, because his statements 

____________________________________________ 

5

 Owing to the prevalence of smartphone technology within our society, one 

of the circumstances we bear in mind in our analysis is that a substantial 

segment of the population maintains, within its possession at all times, a 

device capable of recording oral communications. 
J-A08025-24 

- 12 - 

were made “after the subject shooting while he was incarcerated.” Id. at 9 

and 11. Appellant argues that “[w]hen Graham and Johnson spoke, ... the 

robbery, the shooting, and [] flight” from the scene had already concluded 

and Graham’s statements “related to past events[.]” Id. at 11. Appellant 

states that Graham’s statements were not used to show Johnson’s course of 

conduct. Id. at 6. Instead, Appellant asserts that Johnson was not a part of 

the conspiracy, she merely had a romantic relationship with a co-conspirator. 

Id. Because no exception to hearsay applies, Appellant contends that the 

admission of Graham’s statements to Johnson violated the Sixth Amendment’s 

Confrontation Clause. Id. at 16. Finally, Appellant argues that the error in 

admitting Graham’s statements prejudiced him and did not amount to 

harmless error. Id. at 16-25. 

 We adhere to the following standards: 

An appellate court's standard of review of a trial court's 

evidentiary rulings, which include rulings on the admission of 

hearsay, is abuse of discretion. However, whether a defendant 

has been denied his right to confront a witness under the 

Confrontation Clause of the Sixth Amendment to the United States 

Constitution, made applicable to the States via the Fourteenth 

Amendment, is a question of law, for which our standard of review 

is de novo and our scope of review is plenary. 

Hearsay is an out-of-court statement offered for the truth of the 

matter asserted. Hearsay generally is inadmissible unless it falls 

within one of the exceptions to the hearsay rule delineated in the 

Pennsylvania Rules of Evidence. 

Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. Super. 2020) (internal 

citations and original brackets omitted). 
J-A08025-24 

- 13 - 

 Out-of-court statements may be offered as an exception to hearsay 

when the statement “was made by the party’s coconspirator during and in 

furtherance of the conspiracy.” Pa.R.E. 803(25)(e). This Court has stated: 

To lay a foundation for the co-conspirator exception to the hearsay 

rule, the Commonwealth must prove that: (1) a conspiracy existed 

between declarant and the person against whom the evidence is 

offered and (2) the statement sought to be admitted was made 

during the course of the conspiracy. In addition, there must be 

evidence other than the statement of the co-conspirator to prove 

that a conspiracy existed. 

Commonwealth v. Feliciano, 67 A.3d 19, 27 (Pa. Super. 2013) (internal 

citations omitted). 

Moreover, 

[u]nder this exception, the out of court declarations of a 

co-conspirator may be introduced against another co-conspirator 

provided three requirements are satisfied. The prosecution must 

prove the existence of a conspiracy between the declarant and the 

defendant against whom the evidence is being offered. Once this 

requirement is satisfied the Commonwealth must show that the 

statements were made during the course of the conspiracy, and 

finally that the statements were made in furtherance of the 

common design. 

Commonwealth v. Mayhue, 639 A.2d 421, 431 (Pa. 1994) (citation 

omitted). 

 Furthermore, the Pennsylvania Supreme Court has also determined: 

Generally, it has been held that, in order to satisfy the 

in-furtherance-of requirement of the coconspirator hearsay 

exception, it is sufficient for the government to establish an intent 

to promote the conspiratorial objective. See, e.g., United States 

v. McCullah, 76 F.3d 1087, 1103 (10th Cir.1996). In a number 

of circumstances, however, where [] the inculpatory statements 

are narrative declarations of past activity made to a 

non-participant in the asserted conspiracy, courts have found the 
J-A08025-24 

- 14 - 

essential in-furtherance-of attribute absent. Cf. United States v. 

Johnson, 200 F.3d 529, 533 (7th Cir. 2000) (citing cases 

distinguishing statements made in furtherance of a conspiracy 

from, inter alia, narrative declarations); United States v. 

Provenzano, 620 F.2d 985, 1001 (3d Cir.1980) (distinguishing 

statements made to third parties from those made to 

coconspirators); accord United States v. Gibbs, 739 F.2d 838, 

845 (3d Cir. 1984) (observing that “statements made to those who 

are not involved in the conspiracy are not ‘in furtherance’ of it”). 

See generally 23 C.J.S. CRIMINAL LAW § 990 (2002) (“Generally 

speaking, unauthorized admissions or confessions, or casual 

admissions of guilt, cannot be considered in furtherance of the 

conspiracy or enterprise and are inadmissible.” (footnotes 

omitted)). 

Commonwealth v. Johnson, 838 A.2d 663, 675–676 (Pa. 2003). 

 Here, Johnson was not a member of the conspiracy at issue and 

Graham’s statements were not made during or in furtherance of the 

conspiracy. Instead, Graham made the statements at issue inculpating 

Appellant while imprisoned following the crimes discussed herein. Those 

statements were narrative declarations of past activity made to Johnson, a 

non-participant in the asserted conspiracy, and, as such, could not be 

considered in furtherance of the conspiracy. Accordingly, Graham’s 

statements were hearsay, not subject to the co-conspirator exception under 

Rule 803(25)(e). Hence, the trial court erred by admitting Graham’s 

statements as hearsay exceptions. 

 We turn now to determine whether the error was harmless. Our 

Supreme Court has opined: 

In Bruton [v. United States, 391 U.S. 123 (1968)], the United 

States Supreme Court held that a defendant is deprived of his 

rights under the Confrontation Clause of the Sixth Amendment 

when his non-testifying codefendant's confession implicates 
J-A08025-24 

- 15 - 

defendant as a coparticipant in the crime. Bruton was tempered 

by Schneble v. Florida, 405 U.S. 427, (1972), where the Court 

held that the harmless error doctrine applies to Bruton violations. 

The Schneble harmless error doctrine states that where the 

evidence of guilt is so overwhelming, and the prejudicial effect of 

the codefendant's admission is so insignificant by comparison, 

reversal is not required. Id.; see also Commonwealth v. 

Williams, 573 A.2d 536 (Pa. 1990). 

Commonwealth v. Travaglia, 661 A.2d 352, 359 (Pa. 1995). 

Our Supreme Court has further found that “[a]n error is harmless if it 

could not have contributed to the verdict.” Commonwealth v. Wright, 961 

A.2d 119, 143 (Pa. 2008) (citation omitted). “In other words, an error cannot 

be harmless if there is a reasonable possibility the error might have 

contributed to the conviction.” Id. (citation omitted). More specifically, our 

Supreme Court has “found harmless error where: (1) the error did prejudice 

the defendant or the prejudice was de minimis; (2) the erroneously admitted 

evidence was merely cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; or (3) the properly 

admitted and uncontradicted evidence of guilt was so overwhelming and the 

prejudicial effect of the error was so insignificant by comparison that the error 

could not have contributed to the verdict.” Id. (citation omitted). 

Here, the trial court determined: 

Even if Graham’s statements were not admissible, any potential 

error would be harmless because it could not have contributed to 

the verdict. [] Graham’s statements to Johnson were cumulative 

of [Appellant’s] own recorded statement to Johnson. [Appellant] 

described how ‘it just went bad’ and the [victim] and Bizzel shot 

each other. [Appellant] confirmed that he was not the driver of 

the get-away vehicle and claimed that he tried to help Bizzel into 

the vehicle. [...] Furthermore, the prejudicial effect of any error 
J-A08025-24 

- 16 - 

was so insignificant to the overwhelming evidence presented in 

this case that the error could not have contributed to the verdict 

given [Appellant’s] lengthy confession to Johnson [coupled with] 

the cell site locations of the co-conspirators’ cell[ular tele]phones 

during the incident. 

Trial Court Opinion, 5/12/2023, at 10. 

 Upon review of the record and applicable law, we agree with the trial 

court’s assessment and deem the admission of Graham’s statements harmless 

in light of the cumulative and overwhelming evidence of guilt presented at 

trial. The prejudicial effect of Graham’s statements was so insignificant by 

comparison where, as here, the jury heard Appellant’s own recorded 

confession which was properly admitted into the record as previously 

determined. As such, Graham’s erroneously admitted hearsay statements to 

Johnson were merely cumulative of Appellant’s own, properly admitted 

statements. Moreover, there was corroborating evidence of all of the 

co-defendants’ locations via cellular telephone data before and after the 

crimes, including Appellant’s location at the SugarHouse Casino on the day he 

was recorded by Johnson. For all of the foregoing reasons, we conclude that 

Appellant is not entitled to relief. 

 Judgment of sentence affirmed. 

Date: 9/30/2024