J-A26004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JOHNNY COLLINS

Appellant No. 1711 MDA 2016

Appeal from the Judgment of Sentence May 23, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0005009-2014

BEFORE: BOWES, OLSON, AND RANSOM, JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 13, 2018

Johnny Collins challenges the judgment of sentence of life 

imprisonment imposed following his convictions for first degree murder and 

carrying a firearm without a license. We affirm.

The trial court thoroughly summarized the facts presented to the jury 

in its Pa.R.A.P. 1925(a) opinion, which we adopt herein.

The Commonwealth’s first witness was India Thompson-Beatty, 

who was living in Hall Manor on June 3, 2014. Ms. ThompsonBeatty heard the gun shots and generally described the scene of 

the crime. Officer Nicholas Ishman, of the Harrisburg Police 

Department was on duty the night of the crime and was called to 

the scene. Officer Ishman rode in the back of the ambulance 

with the victim (later identified as Daylynn Smith)[.] Doctor 

Wayne Ross, a forensic pathologist in the Dauphin County

Coroner’s Office . . . testified that the victim died from the 

gunshot wound to the back. 
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Officer Karen Lyda, a forensic investigator with the Harrisburg 

Police, arrived in Hall Manor to process the scene . . . [she] also 

executed a search warrant at the Defendant’s residence and 

discovered a .9mm [handgun], a rifle, and a shotgun. Finally, 

Officer Lyda testified to the different brands of casings that were 

found inside the .9mm gun. . . . the shell casings found at the 

scene were not fired from the same gun that was found in 

Defendant’s home. 

Alyssa Honaker, who was dating the victim at the time of the 

incident, was with Daylynn the night prior to his murder. Ms. 

Honaker and Daylynn went to a local grocery where a group of 

individuals threatened Daylynn. Two of the younger men came 

over and asked Daylynn why he ripped off their friend and what 

happened to all the money. An argument ensued and one of the 

young men yelled “if they ever seen him [Daylynn] out the south 

again they were going to shoot him.” Ms. Honaker saw them 

again that night, standing outside a white SUV. This SUV 

followed her and Daylynn and continued to honk the horn. Ms. 

Honaker recognized the Defendant as one of the individuals and 

pointed to him in the courtroom.

Ayinda Harper was arrested on July 1, 2014, the same day as 

the Defendant. Mr. Harper and the Defendant shared the same 

booking cell. Mr. Harper testified that the Defendant told him 

that “[t]hey didn’t find the gun that I did it with.” Mr. Harper 

also indicated that the Defendant shot the victim because of 

drug money. Mr. Harper identified the Defendant as the same 

person that he shared a booking cell with.

Satara Dickey was partying with the victim on the night of the 

murder. Daylynn had left to go get food. Shortly thereafter, so 

did Ms. Dickey. While she was out getting food, she ran into 

Daylynn at the Hall Manor play-ground. Ms. Dickey talked to 

Daylynn for a couple of minutes but noticed that Daylynn 

appeared to be in a rush. After she walked away, she heard gun 

shots but did not see the shooter. However, Ms. Dickey did 

notice someone with a gun wearing a hoodie and shorts. In a 

discussion with Detective Neal, Ms. Dickey described the shooter

as someone who had dreads and appeared to be no older than 

21 years of age. The Commonwealth also introduced 

Commonwealth’s Exhibit 25 which was a photo lineup with the 
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Defendant’s picture. This photo lineup showed a picture circled 

of the Defendant that Satara had signed. . . . 

The Commonwealth’s next witness was a minor (hereinafter 

T.R.) who was hanging out in Hall Manor on the day of the 

incident. He noticed an individual ‘hanging out’ with Mi[c]cah 

Green. This individual was short and had braids/dreads. Mi[c]cah 

Green’s testimony was read into the record. Mr. Green was 

leaving his house when he ran into the Defendant. He decided 

to walk with the Defendant and when Mr. Green encountered a 

group of kids, Mr. Green stopped to talk to them about 

basketball. He noticed that the Defendant walked off. Mr.

Green heard the shots fired and noticed that the Defendant was 

the one who fired the shots. Mr. Green also saw Daylynn 

running when he was shot. Mr. Green also saw the Defendant 

put a gun in his pants and leave. A stipulation regarding Mr. 

Green’s medical history was also read into the record.

Trial Court Opinion, 12/29/16, at 4-7 (footnotes and citations to 

transcript omitted). 

No direct appeal was filed, but Appellant’s direct appeal rights were 

reinstated nunc pro tunc through the PCRA on September 27, 2016. 

Appellant filed a timely notice of appeal and a concise statement as ordered. 

The trial court authored a twenty-eight page opinion in response, and the 

matter is now ready for our review. Appellant raises ten claims of error:

1. Whether the trial court abused its discretion when it denied

Appellant's motion to dismiss matter with prejudice pursuant to 

Pa.R.Crim.P. Rule 600?

2. Whether the evidence presented by the Commonwealth at

trial was not sufficient to prove the charge of homicide and

carrying a firearm without a license beyond a reasonable doubt?

3. Whether the trial court abused its discretion when it admitted 

Alyssa Honaker's hearsay testimony pursuant to Pa.R.Evid. Rule 

404?
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4. Did the trial court abuse its discretion when it denied

Appellant's motions for new trial based on the weight of the

evidence for the offenses of homicide and carrying a firearm 

without a license because the verdict was so contrary to the 

evidence to shock one's sense of justice?

5. Whether the trial court erred on its legal conclusions regarding 

the denial of appellant's motion to suppress Satara Carter's 

(a.k.a Satara Dickey) out of court identification of the appellant?

6. Whether the trial court abused its discretion when it 

determined that appellant validly waived Miranda warnings and 

admitted Appellant's statements?

7. Whether the trial court erred when it determined that

Appellant's counsel had a fair and full opportunity to cross 

examine Miccah Green at the preliminary hearing?

8. Whether the trial court abused its discretion when it allowed 

the Commonwealth to add a medical conclusion without expert 

testimony regarding appellant's proposed stipulation relating to 

Miccah Green's medical records?

9. Whether the trial court erred in not granting appellant's

motion for a mistrial when the Commonwealth introduced

evidence from the Appellant's other criminal matter for which he 

was already convicted?

10. Whether the trial court abused its discretion when it allowed 

the Commonwealth to present evidence of a .9mm firearm 

recovered by law enforcement in the Appellant's residence at the 

time of the Appellant's arrest and did not sever the offense of 

carrying a firearm without a license from the homicide offense?

Appellant’s brief at 16-17.1

____________________________________________

1

 Appellant’s statement of questions presented calls to mind the view of the 

often quoted Honorable Ruggero J. Aldisert of the United States Court of 

Appeals for the Third Circuit regarding this shotgun approach to appellate 

advocacy:

(Footnote Continued Next Page)
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The Honorable Richard A. Lewis issued a thorough Pa.R.A.P. 1925(a) 

opinion responding to these claims, which we adopt as our own for issues 

two, three, four, five, and seven as indicated in the writing. 

Our standard and scope of review in evaluating Rule 600 issues is wellsettled. We determine

whether the trial court abused its discretion. Judicial discretion 

requires action in conformity with law, upon facts and 

circumstances judicially before the court, after hearing and due 

consideration. An abuse of discretion is not merely an error of 

judgment, but if in reaching a conclusion the law is overridden or 

misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill 

will, as shown by the evidence or the record, discretion is 

abused.

The proper scope of review is limited to the evidence on the 

record of the Rule [600] evidentiary hearing, and the findings of 

the [trial] court. An appellate court must view the facts in the 

light most favorable to the prevailing party.

(Footnote Continued) _______________________

With a decade and a half of federal appellate court experience 

behind me, I can say that even when we reverse a trial court it 

is rare that a brief successfully demonstrates that the trial court 

committed more than one or two reversible errors. I have said in 

open court that when I read an appellant's brief that contains 

ten or twelve points, a presumption arises that there is no merit 

to any of them . . . [and] it is [this] presumption . . . that 

reduces the effectiveness of appellate advocacy.

Commonwealth v. Robinson, 864 A.2d 460, 480, n.28 (Pa. 2004) 

(quoting Aldisert, “The Appellate Bar: Professional Competence and 

Professional Responsibility–A View From the Jaundiced Eye of the Appellate 

Judge,” 11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in original)). 
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Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) 

(citing Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) 

(en banc) (alterations in original due to rule renumbering)). “The proper 

application of discretion requires adherence to the law, and we exercise 

plenary review of legal questions.” Commonwealth v. Baird, 975 A.2d 

1113, 1118 (Pa. 2009) (citing Commonwealth v. Chamberlain, 731 A.2d 

593, 595 (Pa. 1999)). Where the Commonwealth's due diligence is at issue, 

we apply the following principle:

As has been oft stated, “[d]ue diligence is fact-specific, to be 

determined case-by-case; it does not require perfect vigilance 

and punctilious care, but merely a showing the Commonwealth 

has put forth a reasonable effort.”

Commonwealth v. Bradford, 46 A.3d 693, 701–02 (Pa. 2012) 

(quoting Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)).

Rule 600 requires the Commonwealth to try a defendant within one 

year of filing the complaint. Pa.R.Crim.P.600(A)(2)(a) (“Trial in a court case 

in which a written complaint is filed against the defendant shall commence 

within 365 days from the date on which the complaint is filed.”). The written 

complaint was filed on July 1, 2014. Therefore, the Commonwealth was 

required to try Appellant on or before July 1, 2015. The jury trial 

commenced April 18, 2016, which was 657 days after the complaint was 

filed, and 292 days longer than the one-year period allotted by Rule 600. 
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The Rule states that “When a defendant has not been brought to trial 

within the time periods set forth in paragraph (A) . . . [he] may file a written 

motion requesting that the charges be dismissed with prejudice[.]” 

Pa.R.Crim.P 600(D)(1). Of course, the mere fact that more than 365 days 

had elapsed by that point does not settle the matter, as there is a particular 

method for calculating “the time within which trial must commence”:

(C) Computation of Time

(1) For purposes of paragraph (A), periods of delay at any stage 

of the proceedings caused by the Commonwealth when the 

Commonwealth has failed to exercise due diligence shall be 

included in the computation of the time within which trial must 

commence. Any other periods of delay shall be excluded from 

the computation.

Pa.R.Crim.P. 600. “[T]he inquiry for a judge in determining whether there is 

a violation of the time periods in paragraph (A) is whether the delay is 

caused solely by the Commonwealth when the Commonwealth has failed to 

exercise due diligence.” Comment, Pa.R.Crim.P. 600. Additionally, “When 

the defendant or the defense has been instrumental in causing the delay, 

the period of delay will be excluded from computation of time.” Id. (citing 

Ramos, supra). 

The Commonwealth and Appellant alike have not adequately set forth 

the numerous delays, which party caused those delays, and, where the 

delay was caused by the Commonwealth, whether it exercised due diligence.

Appellant sets forth the following argument in his brief:
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On April 18, 2016, undersigned counsel filed a Motion to Dismiss 

the matter pursuant to Pa.R.Crim.P. Rule 600. Undersigned 

counsel outlined in detail the calculation from when the matter 

was initiated by the filing of the criminal complaint . . . . 

Undersigned counsel provided a thorough calculation for the 

record and the trial court to show that the Commonwealth had 

clearly violated Pa.R.Crim.P. Rule 600. 

Appellant’s brief at 27-28.

Unfortunately, the criminal docket fails to reflect this motion and the 

certified electronic record similarly does not contain any Rule 600 motion.

2

 

Therefore, the Rule 600 calculations, which Appellant has apparently 

attempted to incorporate by reference, are simply not before this Court. 

While we decline to do so, we would be justified in finding this claim waived 

for the failure to develop and support his claim.

Nor is the Commonwealth free from blame. Despite the motion’s 

absence from the docket and certified record, the Commonwealth was aware 

of the Rule 600 motion as the prosecutor informed the trial court, on the day 

of trial, that “[W]e have two outstanding motions. One is the 

Commonwealth’s motion to use the preliminary hearing transcript of Miccah 

Green, and the other is defense counsel's Rule 600 motion.” N.T., 4/18-

____________________________________________

2 “If reference is made to the pleadings, evidence, charge, opinion or order, 

or any other matter appearing in the record, the argument must set forth, in 

immediate connection therewith, or in a footnote thereto, a reference to the 

place in the record where the matter referred to appears[.]” Pa.R.A.P. 

2119(c). Appellant’s failure to follow this Rule is a recurring issue as his 

brief rarely cites to the portions of the record. 
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21/16, at 1. The Commonwealth briefly presented testimony regarding its 

efforts to locate witness Miccah Green. With respect to the Rule 600 issue, 

the Commonwealth argued the following:

We calculated the expiration of Rule 600 to be approximately 

April 12th of this year. It's now April 18th, a difference of six 

days. Essentially the Commonwealth’s argument, Your Honor, is 

that this is delay not attributable to the Commonwealth. The 

Commonwealth has gone above and beyond in showing its due 

diligence in order to locate this very crucial witness. You know, 

obviously, he is one very important witness given that Satara 

Dickey is somebody who is also now going south on us or not 

identifying the Defendant.

It's all been very well detailed in the Commonwealth's motion 

and Detective Neal's testimony. We've been all across the US 

looking for Miccah Green and to this day have been unable to 

find him. But those efforts, Judge, have been ongoing and they 

have been continuous. In other words, the Commonwealth 

hasn't at any point let this case just fall by the wayside.

Id. at 24. The trial court accepted the Commonwealth’s calculations.

THE COURT: . . . I’m going to adopt the Commonwealth's time 

frame that Rule 600, if at all, expired no more than six days ago, 

and in the interest of justice, I'm going to allow the case to 

proceed to trial. So your motion for dismissal based upon speedy 

trial is dismissed.

Id. at 26. 

Appellant states that he is entitled to relief because the 

Commonwealth “conceded they violated Pa.Rule 600 on the record on April 

12, 2016.” Appellant’s brief at 28. He also faults the trial court for “merely 

accept[ing] the Commonwealth’s calculations, even though the 
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Commonwealth provided no insight as to how they arrived at April 12, 

2016.” Id. 

In response, the Commonwealth’s brief sets forth a Rule 600 

calculation that differs from its representation to the trial court, also without 

any citations to the record. 

Collins claims that the Commonwealth conceded a rule 600

violation; however, that is not the case. At argument regarding 

the Rule 600 motion on April 18th, the Commonwealth stated 

that its current calculation had April 12th as the approximate 

expiration of Rule 600, but argued that the delay was not 

attributable to the Commonwealth and that the Commonwealth 

acted with due diligence. The trial court decided that in the 

interest of justice, Collins would proceed to trial. The trial court 

did not abuse its discretion in coming to this conclusion.

Additionally, after further review of the record, it appears that 

the run date did not expire prior to the April 18th, 2016, 

commencement of trial. The criminal information was filed on 

July 1, 2014, making the original run date June 30, 2015. The 

first preliminary hearing was rescheduled by the court from July 

7th to August 28th, causing 48 days of delay and setting the 

new run date to August 17, 2015. Collins requested a 

continuance of his preliminary hearing, from September 5, 2014, 

to September 26, 2014. This 21 day delay set the new run date 

to September 7, 2015. Collins requested a continuance from 

March 2, 2015, to June 1, 2015. This 91–day delay set the new 

run date to December 7, 2015. Starting on June 1, 2015, there 

is a continuance requested by Collins, as well as various motions 

filed by Collins, which were not resolved until December 7, 2015. 

This 189-day delay set the new run date to May 13, 2016. All of 

the above mentioned delay was beyond the control of the 

Commonwealth. The trial commenced on April 18, 2016, which is 

before the new run date of May 13, 2016. There is additional 

delay when the Commonwealth was attempting to locate Green 

which could also affect the run date since the Commonwealth 

acted with due diligence in trying to locate Green.

Commonwealth’s brief at 10-11. 
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We are confused by the Commonwealth’s assertion that the trial court 

did not commit an abuse of discretion by accepting its entirely unsupported 

run date calculation submitted at the Rule 600 hearing, while simultaneously

offering a completely different calculation in its brief. If the true run date 

was no earlier than May 13, 2016, then the trial court by definition erred 

when it concluded otherwise at the Rule 600 hearing. The Commonwealth 

also fails to provide any textual support for its theory that the trial court was 

permitted to proceed “in the interests of justice” despite agreeing that Rule 

600 was violated. Finally, the Commonwealth fails to provide citations to 

the record regarding the delays, nor does it cite any law. 

Turning to the trial court’s opinion, we do not agree with parts of its 

analysis. We agree that the court erred by analyzing whether Appellant was

prejudiced. The trial court opinion cites Commonwealth v. Smalis, 592 

A.2d 669 (Pa. 1991), for the proposition that “Prejudice, of course, should 

be assessed in the light of the interests of defendants which the speedy trial 

right was designed to protect.” Id. at 672 (quoting Barker v. Wingo, 407 

U.S. 514, 532 (1972)). However, Smalis concerned the resumption of trial 

following lengthy delays occasioned by appeals, and the quotation was 

addressing a constitutional claim regarding the right to a speedy trial. In 

contrast, Appellant’s claim herein concerns application of the rule-based 

right to a speedy trial. Excepting the situation in which a timely trial under 

Rule 600 is prevented by the unavailability of a courtroom, See e.g. 
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Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993), a Rule 600 

violation cannot be excused on a de minimis theory. See Commonwealth 

v. Lewis, 804 A.2d 671, 672 (Pa.Super. 2002) (affirming dismissal of 

homicide case pursuant to Rule 600, where trial commenced four days after 

adjusted run date). Indeed, excusing a Rule 600 violation on de minimis

grounds defeats its prophylactic purpose. 

Nevertheless, we find that Appellant is not entitled to relief. We set

forth the following. The magisterial docket sheet states that Appellant’s 

preliminary hearing was postponed at his request from July 11, 2014, to 

August 28, 2014, a total of forty-eight days. On the latter date the hearing 

was again postponed but the docketing sheet lists the reason as “other” and 

we therefore will not count that delay against Appellant. Next, on 

September 5, 2014, Appellant requested a postponement to September 26, 

2014. This delay of twenty-one days, when added to the earlier delay, 

equals sixty-nine days. 

Once the matter was in the Court of Common Pleas, the record 

demonstrates several postponements which were requested by, and 

therefore count against, Appellant. The first was February 13, 2015, to June 

1, 2015, followed by a separate postponement request on June 1, 2015, to 

August 10, 2015. This is a total of 178 days. Added to the earlier period of 

delay, Appellant caused 247 days of delay, which is not included in the Rule 

600(A)(1) calculation.
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Therefore, as of August 10, 2015, a total of 405 days had elapsed 

from the complaint date of July 1, 2014, with Appellant causing 247 days of 

delay. Thus, the remaining 158 days are all attributable to the 

Commonwealth. See Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017)

(normal progression of criminal case does not ordinarily constitute delay for 

purposes of Rule 600). Subtracting those 158 days from 365, the 

Commonwealth had 207 days from August 10, 2015 to try Appellant, or until 

March 4, 2016. 

Trial did not commence until April 18, 2016, which is forty-five days 

after March 4, 2016. Therefore, Appellant’s Rule 600 rights were violated 

unless some other block of time is not included in the calculation. 

We now return to the trial court’s opinion, which held that the 

Commonwealth exercised due diligence in attempting to locate a witness, 

thereby excusing some of the delay. Trial Court Opinion, 12/29/16, at 17 

(“The Commonwealth requested a continuance to locate a material witness 

that was necessary to accurately testify to the events of the murder. The 

Commonwealth, at a pretrial hearing, also put on evidence of its due 

diligence in trying to locate that witness.”). On this point, we agree. 

The trial court opinion does not parse out the precise number of days 

included in these calculations, but we are satisfied that its ultimate

conclusion is sound. It is well-settled that the Commonwealth does not cause 

periods of delays when a necessary witness becomes unavailable. See 
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Commonwealth v. Hyland, 875 A.2d 1175, 1191–92 (Pa.Super. 2005) 

(“The Commonwealth cannot be held to be acting without due diligence 

when a witness becomes unavailable due to circumstances beyond its 

control.”). Additionally, the certified record shows that the Commonwealth 

filed a motion on August 7, 2015, three days before the August 10, 2015 

trial date, seeking an arrest warrant for Miccah Green as a material witness. 

On March 25, 2016, the Commonwealth filed a motion representing that it 

could not locate Mr. Green, and sought permission to introduce the 

preliminary hearing transcript due to his unavailability. At the Rule 600 

hearing, Detective Ryan Neal testified to his efforts in locating Mr. Green, 

including visiting Mr. Green’s mother, multiple addresses where Mr. Green 

might be, showed pictures to his neighbors, and contacted the Federal 

Marshals for assistance in the search. The trial court credited his testimony,

and found that the Commonwealth exercised due diligence. We agree. 

Hence, for purposes of due diligence as a matter of law, the time during 

which the Commonwealth attempted to locate Mr. Green is not included in 

the Rule 600 calculation.

3

 Thus, at minimum, the time period from August 

____________________________________________

3 Appellant argued at the Rule 600 hearing that this period of time should 

count against the Commonwealth, since it ultimately filed a motion seeking 

to introduce his preliminary hearing testimony. In light of the fact that 

Appellant now alleges it was reversible error to introduce Mr. Green’s 

testimony, we can hardly fault the Commonwealth for trying to locate its 

witness. Furthermore, it would be difficult for the Commonwealth to 

(Footnote Continued Next Page)
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10, 2015, when the case was postponed, to March 25, 2016, when the 

Commonwealth asserted Mr. Green was unavailable as a matter of law due 

to its inability to locate him, is not included in the Rule 600 calculation. 

Accordingly, Appellant’s Rule 600 rights were not violated. 

The second issue attacks the sufficiency of the evidence supporting the 

convictions. We fully adopt the trial court’s discussion of this issue, which 

correctly sets forth the standard of review, the elements of the crimes, and 

carefully reviews the evidence presented to the jury and the inferences that 

could be drawn from that testimony. See Trial Court Opinion, 12/29/16, at 

8-11. 

Issue three relates to the admission of Alyssa Honaker’s testimony.

This claim assails the trial court’s decision to admit hearsay testimony from 

Alyssa Honaker, who testified that a group of men, which included Appellant, 

asked the victim “why he ripped off their friend and what happened to all the 

money and everything.” N.T., 4/18-21/16, at 125. The victim argued with 

the group, and in response one of the men “yelled from the back that if they 

ever seen him out the south again they were going to shoot him.” Id. The 

trial court permitted this testimony over Appellant’s hearsay objection. 

(Footnote Continued) _______________________

establish Mr. Green’s unavailability if it took no efforts to secure his 

presence. 
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Our review of a trial court’s evidentiary ruling applies the following 

standard.

The admissibility of evidence is solely within the discretion of the 

trial court and will be reversed only if the trial court has abused 

its discretion. An abuse of discretion is not merely an error of 

judgment, but is rather the overriding or misapplication of the 

law, or the exercise of judgment that is manifestly unreasonable, 

or the result of bias, prejudice, ill-will or partiality, as shown by 

the evidence of record.

Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016).

Appellant insists that this evidence fell under Pa.R.E. 404(b) as 

evidence of a prior bad act. Such challenges are subject to these principles.

Under the Pennsylvania Rules of Evidence, evidence of other bad 

acts or crimes that are not currently being prosecuted against 

the defendant are not admissible against the defendant to show 

his bad character or propensity to commit criminal acts. 

However, evidence of other [acts] may be admissible where 

that evidence is used for some other purpose. Such purposes 

explicitly include “proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident.

Commonwealth v. Diehl, 140 A.3d 34, 41 (Pa.Super. 2016) (citations 

omitted).

Assuming arguendo that Appellant is correct that the statement in 

question can accurately be characterized as falling under Pa.R.E. 404(b), we 

agree with the trial court that the evidence was admissible as tending to 

show motive or intent, or, in the alternative, that the evidence 

“demonstrates the sequence of events and the natural history of the murder 
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as res gestae.”

4

 We adopt the analysis set forth in the opinion. See Trial 

Court Opinion, 12/29/16, at 11-12.5

Next we address Appellant’s challenge to the weight of the evidence.

We have reviewed the trial court’s analysis of this issue, and find no error. 

See Trial Court Opinion, 12/29/16, at 14-15. Additionally: “When we review 

a weight-of-the-evidence challenge, we do not actually examine 

the underlying question; instead, we examine the trial court's exercise of 

discretion in resolving the challenge.” Commonwealth v. Leatherby, 116 

A.3d 73, 82 (Pa.Super. 2015). We find no cause to disturb the trial court’s 

conclusion.

Appellant’s fifth issue concerns the admissibility of an out-of-court 

identification by Satara Dickey, which took place in the kitchen of Sharae 

Badgett’s home. Ms. Dickey tapped her finger on Appellant’s picture a few 

times, whereupon Ms. Badgett stated, “[T]hat’s him right there.” Trial Court 

____________________________________________

4

 Appellant also maintains that the hearsay statement was testimonial in 

nature. We disagree. See e.g. Crawford v. Washington, 541 U.S. 36, 51

(2004) (defining the core of testimonial statements as “in-court testimony or 

its functional equivalent”). The instant statement is clearly not one that the 

declarant would reasonably believe would be for use at a later trial. Id. at 

52.

5

 Appellant’s argument emphasizes that someone in the group of men other 

than Appellant made the threat. Assuming that the trial court erred in 

admitting this evidence, Appellant has failed to explain how he was 

prejudiced by evidence of a threat made by someone else towards the 

victim.
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Opinion, 12/29/16, at 19 (citing transcript). Evidence of that identification 

was introduced at trial. 

Appellant raised a due process challenge concerning the manner of 

presentation. The trial court’s analysis aptly illustrates why this claim fails.

Id. at 18-21. Additionally, we note that in Perry v. New Hampshire, 132 

S.Ct. 716 (2012), the Supreme Court discussed the right to challenge photo 

arrays based on suggestiveness under a due process theory:

In our system of justice, fair trial for persons charged with 

criminal offenses is secured by the Sixth Amendment, which 

guarantees to defendants the right to counsel, compulsory 

process to obtain defense witnesses, and the opportunity to 

cross-examine witnesses for the prosecution. Those safeguards 

apart, admission of evidence in state trials is ordinarily governed 

by state law, and the reliability of relevant testimony typically 

falls within the province of the jury to determine. This Court has 

recognized, in addition, a due process check on the admission of 

eyewitness identification, applicable when the police have 

arranged suggestive circumstances leading the witness to 

identify a particular person as the perpetrator of a crime.

Id. at 720. In the normal case, due process does not require “a trial court 

to screen such evidence for reliability before allowing the jury to assess its 

creditworthiness.” Id. at 728. The trial court’s opinion correctly concludes 

that the detective’s method of presentation herein did not amount to 

“arranged suggestive circumstances.”

The sixth issue involves Appellant’s attempt to exclude his statements

based on a violation of Miranda. The trial court concluded that Appellant’s 

claim was waived due to vagueness. 
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We agree, and additionally note that Appellant is not entitled to relief 

even if the issue were properly developed. Appellant claims that 

suppression was required 

because there is ambiguity as to the circumstances in which 

Appellant was interrogated. The Appellant was charged with 

Unlawful Possession of a Controlled Substance with the Intent to 

Deliver, Criminal Conspiracy of Unlawful Possession of Controlled 

Substance With the Intent to Deliver, and Prohibited Offensive 

Weapons docketed at 3468 CR 2014 based on evidence seized 

by law enforcement from Appellant's residence at the same time 

the Appellant was arrested for the above-captioned matter. The 

Appellant did not validly waive his Miranda rights because the 

Appellant did not have an awareness of the general nature of the 

transaction giving rise to the investigation.

Appellant was interrogated by Detective Neal. The execution of 

the search warrant of Appellant's residence resulted in the 

discovery of marijuana and a .12 gauge shotgun. Appellant was 

subsequently charged with 3468 CR 2014 as a result of the 

search warrant. At the time of the execution of the search 

warrant, Appellant waived his Miranda warnings according to 

Detective Neal. However, Detective Neal was not sure if the

Appellant knew why the Detective was interrogating him. Was 

the Appellant waiving his Miranda rights regarding the 

firearms and marijuana in his residence or for a separate 

incident? That question was not definitively answered by 

the Commonwealth. 

Appellant's statements should have been suppressed because 

the Detective was not clear as to why they were interrogating 

the Appellant and Appellant did not adequately waive his

Miranda warnings.

Appellant’s brief at 30-31 (footnotes and citations to transcript omitted, 

emphasis added). 

As emphasized, the essence of this argument is that Appellant may 

have been confused as to whether the detectives intended to ask him 
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questions about the instant homicide, or the entirely separate charges 

regarding drugs and weapons. However, the validity of a Miranda waiver 

does not depend upon whether the suspect knows the precise topics the 

police intend to raise. The United States Supreme Court made that point 

plain in Colorado v. Spring, 479 U.S. 564 (1987). Therein, Spring was 

arrested for firearms violations and given Miranda warnings. Agents 

questioned him about the weapons incident. However, the agents had 

information that Spring was involved in a murder, and began questioning 

him about that topic. The High Court rejected the precise claim Appellant 

now makes:

Spring argues that his March 30 statement was in effect 

compelled in violation of his Fifth Amendment privilege because 

he signed the waiver form without being aware that he would be 

questioned about the Colorado homicide. Spring's argument 

strains the meaning of compulsion past the breaking point.

. . . . 

Spring's waiver of his Fifth Amendment privilege was knowingly 

and intelligently made: that is, that Spring understood that he 

had the right to remain silent and that anything he said could be 

used as evidence against him. The Constitution does not require 

that a criminal suspect know and understand every possible 

consequence of a waiver of the Fifth Amendment privilege. The 

Fifth Amendment's guarantee is both simpler and more 

fundamental: A defendant may not be compelled to be a witness 

against himself in any respect. The Miranda warnings protect 

this privilege by ensuring that a suspect knows that he may 

choose not to talk to law enforcement officers, to talk only with 

counsel present, or to discontinue talking at any time. 

Id. at 573-74. 
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Issue seven is related to the Rule 600 claim. As previously described, 

the Commonwealth introduced the preliminary hearing testimony of Miccah 

Green, who was an eyewitness to the homicide, as substantive evidence. 

The trial court granted the Commonwealth’s motion seeking to introduce

that testimony due to his unavailability, which Appellant states is reversible 

error. 

We agree with the trial court’s analysis of this issue. See Trial Court 

Opinion, 12/29/16, at 21-23. The opinion analyzes Commonwealth v. 

Bazemore, 614 A.2d 684 (Pa. 1992), which held that an unavailable 

witness’s preliminary hearing testimony was not admissible due to the fact 

the Commonwealth failed to disclose a prior inconsistent statement that 

related a different version of events. The trial court opinion concludes that

Appellant had a full and fair opportunity to cross-examine Mr. Green, as 

explained in Bazemore, and thus the introduction of his prior testimony did 

not offend constitutional norms. We therefore adopt its analysis as our own.

Appellant attempts to undercut the trial court’s resolution by claiming 

that he did not have a full and fair opportunity as contemplated by 

Bazemore because Mr. Green gave two statements to the police, only one 

of which was recorded and transcribed. However, Appellant does not claim 

that he was unaware of the substance of the statements, and the transcript 

from the preliminary hearing reveals that counsel knew of both:
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Q. How many statements did you give to the police? Did you 

give two statements?

A. Yes. I gave.-- well, at the time because I was like 

traumatized that it was like crazy. So I wasn’t being like I wasn't 

being like I wasn't being up and out and saying the right things 

because I was afraid like.

N.T., Preliminary Hearing, 9/26/14, at 26. Additionally, Appellant does not 

discuss the purported inconsistencies between his statements. 

Furthermore, Appellant claims that he did not possess Mr. Green’s 

criminal history at the time of the hearing, but he does not allege that Mr. 

Green was convicted of any offenses that could be introduced as crimen 

falsi. Finally, Appellant complains that he was not able to cross-examine Mr. 

Green “on how his medical condition could have affected his ability to 

recollect[.]” Appellant’s brief at 43. As noted in our discussion of the next 

issue, there is no evidence that Mr. Green’s medical condition actually 

affected his ability to recall, nor is there any indication the Commonwealth 

was aware of Mr. Green’s medical condition at the time of the hearing. See 

Bazemore, supra at 688 (“[W]here, as here, the Commonwealth knows, 

but does not disclose . . . “) (emphasis added). 

This claim addresses the following stipulation read by the trial judge to 

the jury:

[T]his regards the testimony of Miccah Green, the missing 

witness. On August 21, 2014, Miccah Green suffered numerous 

seizures. This caused Miccah to be hospitalized for four days. 

During the hospital stay, it was determined that Miccah had a 

right posterior temporal lobe lesion, I'm sorry, on his brain. At 
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that time, Miccah was placed on psychotropic medications for his

medical condition.

On October 9, 2014, Miccah suffered from two seizures and was 

again hospitalized. On October 14, 2014, Miccah underwent a 

right temporal Stealth craniotomy for tumor resection. On 

October 21, 2014, Miccah sought treatment for a post-operative 

craniotomy headache. Miccah has received follow-up care and 

was placed on numerous medications for his medical condition. 

Nothing in these medical records indicates any difficulty 

or abnormality with memory, perception, or cognition.

N.T., 4/18-21/16, at 236-37 (emphasis added).

Appellant supplied all of the language in this stipulation with the 

exception of the emphasized language, which was written by the 

Commonwealth. Despite stipulating to the emphasized language, Appellant 

complains that the trial court committed reversible error by “imposing an 

ultimatum . . . that the trial court would only enter the stipulation if the 

Commonwealth’s unfounded expert opinion could be included.” Appellant’s 

brief at 44. We find this claim waived. 

Briefly stated, Appellant’s proposed stipulation represented an attempt 

to address his inability to cross-examine Mr. Green. The Commonwealth 

refused, highlighting possible confusion. The prosecutor argued that if the 

jury was told Mr. Green “had a brain tumor without any kind of explanation 

or any kind of context, that’s just going to lead to more jury confusion[.]” 

Id. at 224. “I went through [the records], I didn’t see anything in there 

about how his memory was affected, his cognition was affected, or anything 
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along those lines. I think we’re just kind of opening up a can of worms if we 

just put in that information about the medical records without any kind of

explanation.” Id. at 224-225.

The trial court agreed that the jury would not understand the 

significance of the stipulation, as indicated by the following exchange:

[APPELLANT] . . . All I would like for to be introduced — Again, 

not expert. I'm not asking for an expert to be here. I do not 

want them to review the records. There's no need for that. I just 

– I am at such a disadvantage to be able to cross-examine or 

have Miccah answer questions, as the Commonwealth is.

THE COURT: Even with these records, the stipulation you 

propose, how do we explain to the jury what a right temporal 

Stealth craniotomy for tumor resection is? What's that?

[APPELLANT]: I don't know. That's what the medical records say 

and –

. . . . 

THE COURT: In another section, you say he had a right posterior 

temporal lobe lesion.

[APPELLANT]: Yes. 

THE COURT: What the heck is that? 

[APPELLANT]: Judge, again –

THE COURT: We don't have any medical testimony to describe 

this. If you're the proponent, I think you need to call someone to 

explain what the heck this is, someone who has reviewed the 

records and says, well, this is what a temporal lobe lesion is, this 

is what a craniotomy is, a stealth craniotomy.
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Id. at 229-30. Shortly thereafter, Appellant stated that he’d like an 

opportunity to have an expert review the records, which led to the 

stipulation.

[COMMONWEALTH]: [W]e would be okay with the stipulation as 

long as our proposed amendment were made part of it because I 

think that helps eliminate some of the confusion.

It’s not a medical conclusion that we propose. It’s simply a 

statement of what the medical records do not include. You know, 

we're listing several things that they do include for the purpose 

of raising the inference that he must have had some kind of 

cognitive impairment, but the records don't say that. So I think 

in fairness, if the medical terminology is going to be introduced, 

it should be introduced in conjunction with a statement that says 

nowhere in the medical records does it indicate that he — that 

this – these conditions that are being described had an impact 

on his memory or cognition.

THE COURT: All right. So you're okay with the stipulation as long 

as that final sentence is added?

[COMMONWEALTH]: Yes, Your Honor.

THE COURT: The addenda.

[APPELLANT]: Judge, if in the Court's discretion that would allow 

the stipulation to come in, I don't concede that, I would object 

to that, but that would be acceptable and that would be 

okay just as far as my stipulation.

Id. at 231-32 (emphasis added).

The trial court opinion holds that Appellant is not entitled to relief 

because the inserted language simply informed the jury there was no 

indication of any cognitive impairment or inability to recall, as opposed to an 

opinion definitively stating Mr. Green did not suffer from those afflictions.
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We agree with that analysis; however, we find that Appellant waived 

his claim by accepting the stipulation. His statement, “I would object to 

that, but that would be acceptable” is legal and logical nonsense. Appellant 

had the option of refusing the Commonwealth’s language, thereby

preserving a claim that he was legally entitled to introduce his own language

as evidence. By stating that the Commonwealth’s language was acceptable, 

he abandoned any objection. 

Relatedly, Appellant fails to recognize that the medical records 

themselves were subject to the Rules of Evidence, and, as the trial court

correctly pointed out in the quoted discussion, Appellant was the proponent 

of that evidence. He was free to ignore the Commonwealth’s conditional

stipulation and attempt to introduce the evidence in a manner consistent 

with the Rules of Evidence. He elected to forego that opportunity, thereby 

waiving this claim. 

The ninth issue relates to the following statement by Police Officer 

Karen Lyda during her testimony regarding the execution of a search 

warrant at Appellant’s residence:

Q. Were there any items of interest found during the execution 

of the search warrant?

A. Yes. There was a .9 mm handgun, a .22 caliber rifle, a .12 

gauge shotgun. 

[COMMONWEALTH]: If I may approach the witness.

[APPELLANT]: Judge, may we approach?
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THE COURT: Sure.

(A discussion was held off the record at sidebar).

N.T., 4/18-21/16, at 94.

Shortly thereafter, the jury was excused for the day. Appellant then

stated that he “moved for a mistrial based on evidence in a previous 

conviction” at the sidebar, apparently referring to the fact that Appellant was 

charged and separately convicted for possessing those firearms. Id. at 99-

100. The Commonwealth stated that a limiting instruction could be issued if 

Appellant desired. Appellant rejected that alternative, stating it would 

simply highlight the information. He then requested a mistrial, which was 

denied. We begin by noting our standard of review.

It is well-settled that the review of a trial court's denial of a 

motion for a mistrial is limited to determining whether the trial 

court abused its discretion. An abuse of discretion is not merely 

an error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will . . . discretion is abused. A trial court may grant 

a mistrial only where the incident upon which the motion is 

based is of such a nature that its unavoidable effect is to deprive 

the defendant of a fair trial by preventing the jury from weighing 

and rendering a true verdict. A mistrial is not necessary where 

cautionary instructions are adequate to overcome prejudice.

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014). 

We find no abuse of discretion. In the context of mistrials based on 

references to prior criminal activity, we have observed:
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The admission of testimony from which a jury could infer past 

criminal conduct has been held to be reversible error. Reversal is 

not warranted, however, unless the record indicates that 

prejudice resulted from the testimony. Mere “passing references” 

to criminal activity do not necessitate the granting of 

a mistrial unless prejudice results from the reference.

Commonwealth v. Bruner, 564 A.2d 1277, 1287 (Pa.Super. 1989) 

(citations omitted). 

Herein, Appellant analogizes the reference to the shotgun to “past 

criminal conduct”, due to the fact Appellant was convicted of crimes relating 

to his possession of the shotgun. We disagree. The officer’s remarks did 

not inform the jury of “past criminal conduct,” as nothing in her response 

referred to a conviction. Furthermore, the reference was fleeting, and, as 

the trial court noted, possession of a shotgun is not per se illegal. We find 

no inherent prejudice in the remark, and, as a result, the trial court had no 

basis to grant a mistrial. 

We now address Appellant’s last issue, which involves the trial court’s 

denial of Appellant’s pre-trial motion in limine to exclude introduction of a 

.9mm firearm found at Appellant’s residence.6 While a .9mm firearm was 

____________________________________________

6 Appellant’s brief refers to the testimony at trial, naturally suggesting that 

the matter came up during the trial itself. At no point does Appellant 

mention the suppression hearing held on June 15, 2015, regarding this 

claim. We again direct appellate counsel to Pa.R.A.P. 2119(c). 
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used to kill the victim, it is undisputed that the firearm recovered was not 

the murder weapon.

At the pre-trial hearing, the parties discussed the applicability of 

Commonwealth v. Broaster, 863 A2d 588 (Pa.Super. 2004), which the 

Commonwealth continues to rely on in its brief. The trial court, in contrast, 

held that the .9mm was admissible pursuant to Commonwealth v. 

Williams, 640 A.2d 1251 (Pa. 1994). 

Before discussing those precedents, we add the following facts. At 

trial, Officer Lyda testified that she recovered evidence at the scene, which 

included “Remington brand .9mm casings, [Exhibit] 14 was a .9mm 

TulAmmo casing; and [Exhibit] 16 were two casings there, one was a Blazer 

and one was a Federal, both .9mm.” N.T., 4/18-21/16, at 82. At 

Appellant’s residence, Officer Lyda testified that the .9mm handgun had the 

following brands of ammunition inside: “[F]ive Remington, two Federal, and 

one Winchester.” Id. at 96. The Commonwealth then introduced the .9mm 

handgun into evidence.

The trial court held that the weapon was admissible pursuant to 

Williams, which states:

A weapon shown to have been in a defendant's possession may 

properly be admitted into evidence, even though it cannot 

positively be identified as the weapon used in the commission of 

a particular crime, if it tends to prove that the defendant had a 

weapon similar to the one used in the perpetration of the crime. 

Any uncertainty that the weapon is the actual weapon used in 

the crime goes to the weight of such evidence.
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Id. at 1260. However, our Supreme Court subsequently disapproved of that 

expansive holding in Commonwealth v. Christine, 125 A.3d 394 (Pa.

2015). The Christine Court said that a weapon not specifically linked to the 

crime may be admitted if the prosecution “lay[s] a foundation that would 

justify an inference by the finder of fact of the likelihood that the weapon 

was used in the commission of the crime.” Id. at 400 (citation omitted). 

However, the Court limited that principle when it was certain that the 

weapon was not used in the crime: 

The cases cited deal with weapons that might have been used. 

Possession of a handgun may be relevant even if the particular 

gun possessed cannot be proven to be the one used in the 

crime. That it was possessed may allow the inference it could 

have been used. Here, however, the exception is not in 

play, as the shank was admittedly not used in the 

pertinent assault. The theory of the exception is that the 

weapon possessed could have been the weapon used—that 

simply is not the case here, and admission under the similarweapon exception was error. To the extent that cases affirm use 

of this exception strictly on the basis of similarity, without an 

inference they were the weapons used, we reject them.

Of course, admission on other grounds remains possible. . . . 

Id. at 400-01 (emphasis added, footnote omitted). Accordingly, we do not 

agree with the trial court’s analysis.7

____________________________________________

7 Chief Justice Saylor filed a dissenting opinion, as he would have reversed 

on an alternative ground. However, with respect to the weapons issue, the 

Chief Justice noted that there is a distinction between illegal and legal 

weapons, as the former category is subject to Pa.R.E. 404(b). 

(Footnote Continued Next Page)
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Christine did not cite Broaster, which the Commonwealth relies on 

herein and which involved the admission of a handgun that, like the instant 

weapon, was not the murder weapon. In Broaster, a murder was 

committed with a .45 caliber firearm. Broaster was identified as a suspect 

and, during a vehicular pursuit, Broaster discarded a .45 caliber firearm. 

Forensic testing ruled out the discarded firearm as the murder weapon. Id. 

at 591. However: 

the tests also revealed that this gun had been loaded in the

same signature style as had the .45 semi-automatic used to kill 

Kenneth Kemp. Specifically, both guns had been loaded with 

three bullets manufactured from the Federal Company, and 

three bullets from various other makers.

Id. at 591. We held that the trial court did not abuse its discretion in 

admitting the firearm, because the gun was relevant to connect Broaster to 

the murder. 

Specifically, the gun tended to prove that (1) Appellant readily 

obtained handguns of the same caliber used in the murder, (2) 

readily discarded handguns, (3) preferred to load his gun with 

the same number of bullets used on the victim, and (4) 

preferred the same distinctive combination of bullets fired at the 

victim.

Id. at 592–93.

(Footnote Continued) _______________________

Simultaneously, the Chief Justice reiterated his belief that “the presentation 

of other-weapons evidence is attended by a fairly high risk of undue 

prejudice, and, therefore, courts should refrain from sanctioning admission 

absent a strong and legitimate probative purpose justifying its introduction.” 

Id. at 408, n.2 (citation omitted) (Saylor, C.J., dissenting). 
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Broaster therefore did not apply the “similar weapon” rule disavowed 

in Christine. The present case is not fully aligned with Broaster, in that 

the .9mm handgun herein contained three different types of ammunition, 

two of which were found at the crime scene. However, the use of several 

different types of casings was deemed relevant in Broaster, and we find it 

relevant here, too. 

Finally, as in Broaster, the jury was informed that the weapon was 

not the murder weapon, as the trial court issued this instruction in closing:

[T]here was evidence about a .9 mm firearm found in the 

Defendant's home. The Commonwealth had a purpose of — their 

argument was that shows he might have access to a weapon and 

so forth, but that particular weapon in question is not the 

murder weapon, everyone concedes that, and it's not to be 

considered as such. So there's no crime in him having a firearm 

in his home. That's not a crime in Pennsylvania. It was 

introduced for that certain purpose and that purpose alone.

N.T., 4/18-21/16, at 343-44. Thus, to the extent the trial court erred in 

admitting the evidence, Broaster suggests any prejudicial effect was 

significantly diminished by this instruction. No relief is due.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/13/2018