J. S66031/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

RODNEY TALBO SHELTON, : No. 2122 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence Entered June 22, 2018,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0000147-2017

BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: September 10, 2020

Rodney Talbo Shelton appeals from the June 22, 2018 judgment of 

sentence entered by the Court of Common Pleas of Delaware County following 

his conviction in a jury trial of second-degree murder, robbery-inflict serious 

bodily injury, possession of a firearm with manufacturer number altered, 

possession of a firearm by a prohibited person, and firearms not to be carried 

without a license.1 The trial court sentenced appellant to the mandatory 

minimum sentence of life imprisonment without the possibility of parole. After 

careful review, we affirm.

The trial court set forth the following factual and procedural history:

In the early morning of June 9, 2015, Thomas Childs 

arrived to work as a delivery truck driver at Ridgeway

 

1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 6110.2(a), 6105(a)(1), and 

6106(a)(1), respectively.
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Industries at 6250 Baltimore Avenue, Yeadon 

Borough, Delaware County, Pennsylvania. At roughly 

3:30 a.m., [appellant] approached Mr. Childs and 

attempted to rob him using a 9-millimeter high-point 

firearm. A struggle ensued, during which two shots 

were fired. The second shot struck Mr. Childs in the 

back and became lodged in his spine, proving to be a 

fatal injury. [Mr.] Childs died at the crime scene as a 

result of his gunshot wounds. Kevin Knoblauch, a 

coworker of Mr. Childs, was showing up for work 

around the time of the murder and was later able to 

identify [appellant] in a police lineup.

Police found a 9-millimeter high-point gun abandoned 

in a cemetery neighboring the industrial park, along 

with loose cash and Mr. Childs’ cell-phone. 

Ms. Sinoma Smith originally purchased the gun at 

Chauncey’s Pawn & Gun in Elizabeth City, 

North Carolina. Ms. Smith gave the gun to [appellant] 

following her felony charge and subsequent probation 

sentence. [Appellant] has no license to carry the gun. 

Ms. Jerusha Scott, an acquaintance of [appellant], 

testified that she recognized the gun used in the 

murder, and that she had previously seen it at her 

home. Furthermore, Yeadon Police Officers recovered 

bullets lodged into a tree on the property, as well as 

empty casings, after searching Ms. Smith’s residence 

in Camden, North Carolina. Detective Louis Grandizio 

of the Delaware County Criminal Investigation 

Division (“CID”) testified after conducting a forensic 

analysis of these bullets and casings, concluding in his 

report that unique markings matched the bullets that 

were recovered during Mr. Childs’ autopsy. After 

Detective Grandizio tested the gun, it was later sent 

to Katherine Cross at Guardian Forensic Sciences for 

a DNA analysis. Ms. Cross testified her results were 

inconclusive because the gun contained DNA samples 

from two unidentified males. This matched the results 

of DNA testing conducted by agent Lauren Force of 

the Pennsylvania State [P]olice, which were also 

deemed inconclusive.

Following the robbery and the murder of Mr. Childs, 

[appellant] traveled roughly 800 miles south; 
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U.S. Marshals arrested [appellant] in Georgia 

18 months after Mr. Childs’ death. Detectives 

Joseph Houghton and Michael Jay of the Yeadon Police 

Department and CID, respectively, interviewed 

[appellant] on December 12, 2016. After having 

[appellant] sign a Miranda[

2] warning form, the 

[d]etectives spoke with [appellant] off the record for 

about two hours, followed by an interview on the 

record for about thirty minutes. [Appellant] confessed 

to the murder during the recorded portion of their 

conversation. [Appellant] admitted he was “tired of 

running” and to taking significant steps to change his 

appearance—such as growing his hair out, filling in his 

tattoos, and removing his freckles. During the trial, 

the Commonwealth showed the jury a YouTube video 

published by [appellant] 83 days following Mr. Childs’

murder that depicted a similar event, and where 

[appellant] more closely resembles his former 

physical appearance. After his confession, [appellant] 

was transported to the Darby Borough Police 

Department in connection with the murder. While in 

custody at the George Hill Correctional Facility in 

Delaware County, [appellant] was recorded talking on 

the phone with a friend expressing his desire to accept 

a guilty plea, as well as expressing remorse for the 

situation. On April 2, a jury trial commenced where 

[appellant] was accused of first, second, and third 

degree murder. During the process of jury selection, 

the Commonwealth and [d]efense counsel were each 

entitled to 9 peremptory strikes, for a total of 

18 strikes. The Commonwealth used 7 of their 

peremptory strikes against female jurors 4, 31, 35, 

and 36 as well as African-American jurors 7, 18, and 

19, prompting [d]efense counsel to raise a Batson[

3] 

challenge with the trial [court.] After discussion 

wherein the Commonwealth provided race neutral 

reasons for the strikes, the trial [court] allowed the 

peremptory strikes to stand.

 

2 See Miranda v. Arizona, 384 U.S. 436 (1966).

3 See Batson v. Kentucky, 476 U.S. 79 (1986).
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Trial court opinion, 7/22/19 at 1-4 (bolding and italics added).

On April 6, 2018, a jury convicted appellant of the aforementioned 

offenses. The trial court sentenced appellant to a mandatory minimum term 

of life imprisonment without possibility of parole for the second-degree murder 

charge pursuant to 18 Pa.C.S.A. § 1102(b) on June 22, 2018. 

Appellant filed a timely notice of appeal on July 16, 2018. The trial court 

ordered appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court 

subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a) on July 22, 2019.

Appellant presents the following issues for our review:

1. Whether the verdict of guilty of Second Degree 

(Felony) Murder, Possession of a Firearm with 

Obliterated Manufacturer’s Number, Persons not 

to Posses [sic] Firearms and Firearms not to be 

Carried without a License, are based upon 

insufficient evidence?

2. Whether the trial court committed error of law 

and abuse of its discretion in overruling 

[a]ppellant [sic] challenge under Batson vs. 

Kentucky, to strikes of seven African American 

and female jurors?

3. Whether [a]ppellant’s confession was obtained 

in violation of his right to due process of law and 

against self[-]incrimination, guaranteed 

[a]ppellant by the Fourth, Fifth, Sixth and 

Fourteenth Amendments to the United States 

Constitution and Article [I] Sections 8 and 9 of 

the Pennsylvania Constitution, where, under the 

totality of the circumstances, the confession 

was involuntary in that it was not the product of 

[a]ppellant’s free will and unconstrained choice, 

but, instead, was the result of manipulative, 
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coercive and overreaching interrogation by 

police[?]

4. Whether the trial court committed error of law 

and abuse of its discretion in admitting into 

evidence the recording and transcript of a 

telephone call of [a]ppellant wherein [a]ppellant 

speaks of a potential sentence he might agree 

to?

5. Whether the trial court committed error of law 

and abuse of its discretion in admitting into 

evidence a video depicting [a]ppellant being 

shot while running from an automobile?

6. Whether the trial court committed error of law 

and abuse of its discretion, in allowing the 

Commonwealth’s DNA expert to testify to 

matters not contained within her report?

Appellant’s brief at 5-6.

I.

In his first issue, appellant contends that the Commonwealth failed to 

produce sufficient evidence to warrant his convictions of second-degree 

murder, possession of a firearm with an obliterated manufacturer’s number, 

persons not to possess firearms, and firearms not to be carried without a 

license.

As a general matter, our standard of 

review of sufficiency claims requires that 

we evaluate the record in the light most 

favorable to the verdict winner giving the 

prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. 

Evidence will be deemed sufficient to 

support the verdict when it establishes 

each material element of the crime 

charged and the commission thereof by 
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the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need 

not establish guilt to a mathematical 

certainty. Any doubt about the 

defendant’s guilt is to be resolved by the 

fact finder unless the evidence is so weak 

and inconclusive that, as a matter of law, 

no probability of fact can be drawn from 

the combined circumstances.

The Commonwealth may sustain its 

burden by means of wholly circumstantial 

evidence. Accordingly, [t]he fact that the 

evidence establishing a defendant’s 

participation in a crime is circumstantial 

does not preclude a conviction where the 

evidence coupled with the reasonable 

inferences drawn therefrom overcomes 

the presumption of innocence. 

Significantly, we may not substitute our 

judgment for that of the fact finder; thus, 

so long as the evidence adduced, 

accepted in the light most favorable to the 

Commonwealth, demonstrates the 

respective elements of a defendant’s 

crimes beyond a reasonable doubt, the 

appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 

(Pa. Super. 2013) (internal quotations and citations 

omitted). Importantly, “the jury, which passes upon 

the weight and credibility of each witness’s testimony, 

is free to believe all, part, or none of the evidence.” 

Commonwealth v. Ramtahal, [], 33 A.3d 602, 607 

([Pa.] 2011).

Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).

In his brief, the overarching focus of appellant’s sufficiency claim is on 

the jury’s credibility determinations as it relates to testimony from Kevin 

Knoblauch, Jerusha Scott, and Sinoma Smith. (See id. at 34-42.) It is well 
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settled that challenges to the credibility of the evidence are actually challenges 

to the weight of the evidence. Commonwealth v. Mbewe, 203 A.3d 983, 

987 (Pa.Super. 2019), citing Commonwealth v. Griffin, 65 A.3d 932, 935 

(Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013). Credibility 

determinations are within the sole purview of the jury, and appellate courts 

will not substitute their credibility determinations for that of the jury. 

Commonwealth v. Izurieta, 171 A.3d 803, 809 (Pa.Super. 2017), citing 

Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998). Accordingly, 

appellant’s first issue is without merit.

II.

Appellant next argues that the trial court erred when it sustained the 

Commonwealth’s peremptory strikes of seven members of the jury pool. 

(Appellant’s brief at 42.) In the instant case, the record reflects that the final 

jury panel consisted of two African Americans; additionally, one of the 

alternates seated was African American. (Notes of testimony, 4/3/18 at 

20-21.) Appellant is African American. (Id. at 8.) This court has set forth 

the following standard of review for Batson challenges:

A Batson claim presents mixed questions of law and 

fact. Therefore, our standard of review is whether the 

trial court’s legal conclusions are correct and whether 

its factual findings are clearly erroneous.

In Batson, the [Supreme Court of the United States] 

held that a prosecutor’s challenge to potential jurors 

solely on the basis of race violates the Equal 

Protection Clause of the United States Constitution. 
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When a defendant makes a Batson challenge during 

jury selection:

First, the defendant must make a prima 

facie showing that the circumstances give 

rise to an inference that the prosecutor 

struck one or more prospective jurors on 

account of race; second, if the 

prima facie showing is made, the burden 

shifts to the prosecutor to articulate a 

race-neutral explanation for striking the 

juror(s) at issue; and third, the trial court 

must then make the ultimate 

determination of whether the defense has 

carried its burden of proving purposeful 

discrimination.

Commonwealth v. Edwards, 177 A.3d 963, 971 

(Pa.Super. 2018) (citations and quotation marks 

omitted). “The trial court should consider the totality 

of circumstances when determining whether the 

prosecutor acted with discriminatory intent or 

engaged in purposeful discrimination.” 

Commonwealth v. Towles, [] 106 A.3d 591, 602 

([Pa.] 2014) (citation omitted). This Court must give 

great deference to a trial court’s determination that 

peremptory challenges were free of discriminatory 

intent, and we will not overturn the determination 

unless it was clearly erroneous. See id.

Commonwealth v. Scott, 212 A.3d 1094, 1105-1106 (Pa.Super. 2019), 

appeal denied, 222 A.3d 383 (Pa. 2019).

Here, appellant contends that the Commonwealth improperly struck 

seven jurors—three African Americans and six women.4 (Notes of testimony, 

4/2/18 at 241.) Specifically, appellant argues that the trial court erred when 

 

4 The record reflects that two of the African American jurors on whom the 

Commonwealth used a peremptory strike were women. (Notes of testimony, 

4/2/18 at 241.)
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it sustained the Commonwealth’s peremptory strikes of Juror Nos. 4, 7, 18, 

19, 31, 35, and 36.5 (Appellant’s brief at 42.) We shall address each juror 

individually.

Juror No. 4:

Appellant first contends that Juror No. 4 was improperly struck by the 

Commonwealth because she previously served on a hung jury. (Appellant’s 

brief at 44, citing notes of testimony, 4/2/18 at 247-248.) The record reflects 

that Juror No. 4 served on a hung jury in a driving under the influence (“DUI”)

case in Delaware County in 2008. (Id. at 49.) Juror No. 4 also indicated that 

there was nothing about her previous jury experience that would have caused 

her to not be able to serve as a juror again or render any bias toward or 

against either the Commonwealth or appellant. (Id. at 49-50.) The 

Commonwealth explained that it used a peremptory strike on Juror No. 4 

based on concern that “based upon her past experiences as a juror[, she may 

be] unable to make a decision.” (Id. at 247.)

 

5 Appellant does not provide any discussion in his brief as to the peremptory 

strikes used by the Commonwealth on Juror Nos. 7 and 36. (See appellant’s 

brief at 43-45.) Accordingly, appellant waives any Batson claim as to Juror 

Nos. 7 and 36. See Commonwealth v. Charleston, 94 A.3d 1012, 1022 

(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014), quoting 

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007), 

appeal denied, 982 A.2d 509 (Pa. 2009) (“We shall not develop an argument 

for [the appellant], nor shall we scour the record to find evidence to support 

an argument; consequently, we deem this issue waived.” (brackets in 

original)).
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Juror No. 18:

Next, appellant argues that the Commonwealth improperly used a 

peremptory strike on Juror No. 18, an African American man. (Appellant’s 

brief at 44; see also notes of testimony, 4/2/18 at 242-244.) The 

Commonwealth provided the following reasoning for using a peremptory strike 

on Juror No. 18:

[S]o when he initially was voir dired he indicated that 

he was less likely to believe a police officer. When 

questioned upon it he hesitated. I wrote that in my 

notes. Then he also checked off yes for do you have 

any religious, moral or any other beliefs that would 

allow you to sit in judgment of somebody. I believe 

that is what the wording was. And he indicated he 

couldn’t remember and he was kind of hesitant with a 

lot of his responses which concerns me that he will be 

indecisive when deliberating. But I do remember him 

like I said he clearly hesitated [when answering the]

less likely [to believe a] police officer [question].

Notes of testimony, 4/2/18 at 244.

Appellant’s argument pertaining to Juror No. 18 is limited to an 

allegation that the trial court “failed to note whether [Juror No. 18] exhibited 

the behavior ascribed by the Commonwealth.” (Appellant’s brief at 44, citing 

notes of testimony, 4/2/18 at 244.) 

Juror No. 19:

Appellant then avers that the Commonwealth improperly used a 

peremptory strike on Juror No. 19, an African American woman. (Appellant’s 

brief at 44, see also notes of testimony, 4/2/18 at 242-245.) The 
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Commonwealth noted the following reasons for exercising a peremptory 

strike:

So this was a juror that was absent for a significant 

period of time. I have concerns that she doesn’t have 

the ability to follow instructions. There was also I 

think somewhat of a language barrier when we were 

speaking with her. She had a very, very heavy 

accent. Additionally she lives in Yeadon and she said 

she had heard nothing about this case which I find 

highly unlikely being that this was in the press for 

quite some time. 

Notes of testimony, 4/2/18 at 244-245.

Appellant argues that “the record is devoid of any information as to what 

exactly the juror was absent from, nor does it appear that either the 

Commonwealth or the trial court assessed whether the juror was possessed 

with an adequate understanding of the English language so as to be able to 

serve[.]” (Appellant’s brief at 44, citing notes of testimony, 4/2/18 at 

244-245.)

Juror No. 31:

Next, appellant argues that the Commonwealth improperly used a 

peremptory strike on Juror No. 31, a woman. (Appellant’s brief at 44; 

see also notes of testimony, 4/2/18 at 246.) The Commonwealth averred 

that it exercised a peremptory strike on Juror No. 31 because:

[Juror No.] 31 is a law clerk. I have concerns with 

having somebody that has somewhat of a 

sophisticated legal background on the jury. She also 

indicated that her husband had a DUI. I have a little 

bit of a concern about that as well. But it wasn’t 

strictly on her being female.
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Notes of testimony, 4/2/18 at 246-247.

Appellant specifically argues that Juror No. 31 was not asked whether 

her contact with the criminal justice system might color her assessment of the 

evidence. (Appellant’s brief at 44, citing notes of testimony, 4/2/18 at 

246-247.)

Juror No. 35:

Finally, appellant contends that the Commonwealth improperly struck 

Juror No. 35, a woman. (Appellant’s brief at 44; see also notes of testimony, 

4/2/18 at 246.) The Commonwealth stated that the decision to exercise a 

peremptory strike on Juror No. 35 “was based upon her profession. I tend to 

not put engineers on my jury panel in light of their thought processes.” (Notes 

of testimony, 4/2/18 at 246.) 

Appellant argues that “one is hard pressed to understand what it is 

about an engineer’s ‘thought processes’ that would deem any such 

professional unfit to serve on a jury[.]” (Appellant’s brief at 44 (emphasis in 

original).)

The trial court denied appellant’s Batson motion, finding that the 

Commonwealth gave a non-biased reason for exercising its peremptory 

strikes. (Notes of testimony, 4/2/18 at 248.) In its Rule 1925(a) opinion, the 

trial court concluded that, “[t]he Commonwealth met its evidentiary burden 

[under Batson] because none of the reasons [it] provided were merely a 

rebuttal or claim of good faith, but rather cited individual and specific reasons 
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for striking each juror.” (Trial court opinion, 7/22/19 at 8, citing Batson, 476 

U.S. at 97-98, Alexander v. Louisiana, 405 U.S. 625, 629-631 (1972).) 

Based on our review of the record, we can discern no legal error on the part 

of the trial court. Accordingly, we find that appellant’s second issue is without 

merit. 

III.

Appellant next argues that the trial court erred when it denied his 

pre-trial motion to suppress evidence of his confession on the grounds that 

his confession was not voluntary. (Appellant’s brief at 46.)

We review the denial of a motion to suppress using the following 

standard of review:

[An appellate court’s] standard of review in 

addressing a challenge to the denial of a suppression 

motion is limited to determining whether the 

suppression court’s factual findings are supported by 

the record and whether the legal conclusions drawn 

from those facts are correct. Because the 

Commonwealth prevailed before the suppression 

court, we may consider only the evidence of the 

Commonwealth 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 

suppression court’s factual findings are supported by 

the record, [the appellate court is] bound by [those] 

findings and may reverse only if the court’s legal 

conclusions are erroneous. Where . . . the appeal of 

the determination of the suppression court turns on 

allegations of legal error, the suppression court’s legal 

conclusions are not binding on an appellate court, 

whose duty it is to determine if the suppression court 

properly applied the law to the facts. Thus, the 

conclusions of law of the courts below are subject to [ 

] plenary review.
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Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015), appeal 

denied, 135 A.3d 584 (Pa. 2016), quoting Commonwealth v. Jones, 988 

A.2d 649, 654 (Pa. 2010) (internal citations and quotation marks omitted).

A confession obtained during 

a custodial interrogation is 

admissible where the 

accused’s right to remain 

silent and right to counsel 

have been explained and the 

accused has knowingly and 

voluntarily waived those 

rights. The test for 

determining the voluntariness 

of a confession and whether 

an accused knowingly waived 

his or her rights looks to the 

totality of the circumstances 

surrounding the giving of the 

confession.

Commonwealth v. Jones, [] 170, 683 

A.2d 1181, 1189 ([Pa.] 1996) (citations 

omitted). []The Commonwealth bears the 

burden of establishing whether a 

defendant knowingly and voluntarily 

waived his Miranda ‘rights.’[Footnote 3] 

Commonwealth v. Bronshtein, [] 691 

A.2d 907, 913 ([Pa.] 1997) (citation 

omitted).

[Footnote 3] Miranda v. 

Arizona, 384 U.S. 436 [] 

(1966).

Commonwealth v. Davis, 861 A.2d 310, 317 

(Pa.Super. 2004), appeal denied, [] 872 A.2d 171 

([Pa.] 2005).

When deciding a motion to suppress a 

confession, the touchstone inquiry is 
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whether the confession was voluntary.

Voluntariness is determined from the 

totality of the circumstances surrounding 

the confession. The question of 

voluntariness is not whether the 

defendant would have confessed without 

interrogation, but whether the 

interrogation was so manipulative or 

coercive that it deprived the defendant of 

his ability to make a free and 

unconstrained decision to confess. The 

Commonwealth has the burden of proving 

by a preponderance of the evidence that 

the defendant confessed voluntarily.

Commonwealth v. Nester, [] 709 A.2d 879, 882 

([Pa.] 1998) (citations and footnote omitted).

When assessing voluntariness pursuant to 

the totality of the circumstances, a court 

should look at the following factors: the 

duration and means of the interrogation; 

the physical and psychological state of the 

accused; the conditions attendant to the 

detention; the attitude of the 

interrogator; and any and all other factors 

that could drain a person’s ability to 

withstand suggestion and coercion.

Id. at [] 882 (citations omitted).

Commonwealth v. Harrell, 65 A.3d 420, 433-434 (Pa.Super. 2013), appeal 

denied, 101 A.3d 785 (Pa. 2014).

Here, appellant admits that while he was given Miranda warnings, “the 

warnings did not serve their purpose, and [a]ppellant’s rights against 

self[-]incrimination and to counsel[] were not voluntarily waived.” 

(Appellant’s brief at 52.) Specifically, appellant contends that his confession 
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“was not the product of his own free will but, instead, was involuntarily 

induced by the interrogation tactics of [the] police.” (Id. at 49.) 

In denying appellant’s suppression motion, the trial court concluded as 

follows:

Here, the will of [appellant] was not overborne by any 

coercive or overreaching police conduct. [Appellant] 

told detectives, “[I] didn’t mean to shoot [Mr. Childs]. 

. . . but obviously you know I know I pulled the trigger 

and then I just [ran off].” [(Notes of testimony, 

12/12/16 at 2.) Appellant] went on to say, “[At] that 

moment I wanted to say something to somebody and 

actually stand there like a fool knowing that I just did 

this crime and say something [about] what I had 

done.” [(Id.)] This interview was conducted on 

December 12, 2016, at the Dekalb County Sheriff’s 

Office — about 18 months following Mr. Childs’

murder — because [appellant] fled the 

[Commonwealth] of Pennsylvania and evaded the law 

in the intervening months. [Appellant] told the 

Yeadon Borough Police Department, after apologizing 

to Mr. Childs and his family, that he was “tired of 

running.” [(Id. at 22.)]

The detectives conducted a pre-interview off the 

record for approximately two hours before recording 

their interview with [appellant] because it is not 

standard police practice to go immediately on the 

record with a suspect. [Appellant] verbally indicated 

to the detectives that he understood the Miranda

warning recited to him, and [appellant] initialed a 

form waiving his right against self[-]incrimination and 

his right to counsel before speaking on the record. 

[(Id.)]

Trial court opinion, 7/22/19 at 6 (some brackets in original, bolding and italics 

added); see also trial court order denying appellant’s motion to suppress, 

7/11/17 at 1-5.
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After a careful review of the record, viewing the totality of the 

circumstances of appellant’s statements to police, the record supports the trial 

court’s factual findings and legal conclusions. Therefore, appellant’s third 

issue is without merit.

IV.

In his next three issues, appellant raises challenges to evidentiary 

rulings by the trial court. When reviewing evidentiary rulings by the trial court 

on appeal, we use the following standard of review:

“When reviewing the denial of a motion in limine, 

[appellate courts] appl[y] an evidentiary abuse of 

discretion standard of review. . . . It is 

well-established that the admissibility of evidence is 

within the discretion of the trial court, and such rulings 

will not form the basis for appellate relief absent an 

abuse of discretion.” [Commonwealth v.] Rivera, 

983 A.2d [1211,] 1228 [(Pa. 2009)] (citation and 

quotation marks omitted). Thus, the Superior Court 

may reverse an evidentiary ruling only upon a 

showing that the trial court abused that discretion.

Commonwealth v. Laird, [] 988 A.2d 618, 636 

([Pa.] 2010). A determination that a trial court 

abused its discretion in making an evidentiary ruling 

“may not be made ‘merely because an appellate court 

might have reached a different conclusion, but 

requires a result of manifest unreasonableness, or 

partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.’” Id. (quoting 

Commonwealth v. Sherwood, [] 982 A.2d 483, 495 

([Pa.] 2009)). Further, discretion is abused when the 

law is either overridden or misapplied.

Commonwealth v. Randolph, [] 873 A.2d 1277, 

1281 ([Pa.] 2005).

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014).
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In his fourth issue, appellant avers that the trial court committed an 

abuse of discretion when it admitted into evidence a portion of a recorded 

telephone call during which appellant discussed accepting a potential plea 

deal. (Appellant’s brief at 52.) Specifically, appellant alleges that the trial 

court erred when it admitted a recording of the following statement into 

evidence that was recorded while appellant was incarcerated at the 

George H. Hill Correctional Facility:

. . . if I could swing that s**t down to like 10 or 

something like that, then I can pull that man. I ain’t 

gonna (sic) sit here and say, you know, but if I can 

get the jawn[

6] down to 10 then I’ll be alright on that 

man.

Id., quoting Exhibit C-100 at unnumbered page 1.

Appellant contends that the recording is not relevant. (Appellant’s brief 

at 56.) Specifically, he argues that he “only speaks of the length of a prison 

sentence; he doesn’t admit to the crime, nor does he commit to bringing about 

such a sentence in any particular fashion[.]” (Id.) Appellant further argues 

that it is not clear in the recording that he’s even considering accepting a guilty 

plea; rather he could be considering a sentence after a guilty verdict or a plea 

of nolo contendere. (Id.)

Relevance is the threshold for admissibility of 

evidence; evidence that is not relevant is not 

admissible. Commonwealth v. Cook, [] 952 A.2d 

 

6 The Oxford Dictionary defines “jawn” as dialect chiefly used in eastern 

Pennsylvania to “refer to a thing, place, person, or event that one need not or 

cannot give a specific name to.” Jawn Definition, lexico.com, 

https://www.lexico.com/en/definition/jawn (last visited July 8, 2020).
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594, 612 ([Pa.] 2008); Pa.R.E. 402. “Evidence is 

relevant if it logically tends to establish a material fact 

in the case, tends to make a fact at issue more or less 

probable or supports a reasonable inference or 

presumption regarding a material fact.” 

Commonwealth v. Drumheller, [] 808 A.2d 893, 

904 ([Pa.] 2002) (citation omitted). Our Rules of 

Evidence provide the test for relevance: evidence is 

relevant if “(a) it has any tendency to make a fact 

more or less probable than it would be without the 

evidence; and (b) the fact is of consequence in 

determining the action.” Pa.R.E. 401. Further, “[t]he 

court may exclude relevant evidence if its probative 

value is outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” 

Pa.R.E. 403.

Commonwealth v. Leap, 222 A.3d 386, 390 (Pa.Super. 2019), appeal 

denied, A.3d , 2020 WL 2465050 (Pa. May 13, 2020).

Here, the trial court concluded as follows:

[Appellant’s] call from prison is relevant evidence

because it addresses the issue of fact as to whether 

or not [appellant] was coerced into giving a 

confession. [Appellant] talks openly regarding his 

willingness to negotiate a deal with the 

[Commonwealth], as well as statements such as, 

“that was the last straw man. That’s what it took to 

make my hard-headed ass stop.” [(Notes of 

testimony, 4/6/18 at 173-184.)] These statements 

were used to show [appellant’s] feelings of guilt and 

culpability, and helped the Commonwealth to refute 

[appellant’s] claims of being coerced into a confession 

during cross[-]examination.

Trial court opinion, 7/22/19 at 18.

Based on our review of the record, we find that the trial court did not 

abuse its discretion when it admitted evidence of a portion of a recorded 
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telephone call during which appellant discussed accepting a potential plea deal

on the basis of relevance.

Our inquiry, however, cannot end here. Appellant also contends that 

the record was admitted into evidence in violation of Pa.R.E. 410, which 

excludes “any statement made in the course of plea discussions with an 

attorney for the prosecuting authority which does not result in a plea of guilty 

or which results in a plea of guilty later withdrawn.” (Appellant’s brief at 54, 

citing Pa.R.E. 410(a)(4).) Appellant admits that at the time the recording at 

issue was made, appellant was not speaking with an attorney for the 

Commonwealth, which, therefore, would not bar the recording’s admission 

into evidence under Rule 410; however, appellant argues that because he had 

an expectation of negotiating a plea deal with the Commonwealth at the time 

of the recording, the recording was admitted in error. (Appellant’s brief at 

54-55.)

Our supreme court has held the following:

Not every statement making reference to a deal or 

omission of jail time is necessarily a plea discussion 

for purposes of this rule. Hutto v. Ross, 429 U.S. 28 

[] (1976). First, the accused must exhibit an actual 

subjective expectation to negotiate a plea at the time 

of the discussion; and second, the accused’s 

expectation must be reasonable given the totality of 

the circumstances. Commonwealth v. Calloway, [] 

459 A.2d 795, 800-801 ([Pa.Super.] 1983) (adopting 

the Fifth Circuit’s two-tiered analysis in United 

States v. Robertson, 582 F.2d 1356 (5th Cir. 1978), 

for determining whether plea negotiations are 

underway). In Commonwealth v. Vandivner, [] 

962 A.2d 1170, 1181 ([Pa.] 2009), [our supreme 
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court] observed that “the very word negotiation posits 

the participation of two parties and not unilateral 

conduct,” and specifically declared that:

Of primary importance in assessing an 

accused’s subjective expectation of 

negotiating a plea is whether the 

Commonwealth showed an interest in 

participating in such discussions. In line 

with this reasoning, voluntary, unsolicited 

statements uttered by an accused to 

authorities cannot be said to be made in 

furtherance of striking a plea bargain.

Id. at 1181. Vandivner provides an example of an 

accused’s statement that was not protected by 

Pa.R.E. 410 because there was no evidence that the 

Commonwealth showed an interest in participating in 

plea discussions at the time the accused gave his 

inculpatory statement.

Commonwealth v. Burno, 154 A.3d 764, 784 (Pa. 2017).

Here, we find that Rule 410 does not protect the statement at issue. 

Unlike the defendants in Burno and Vandivner, appellant did not make the 

statement at issue to a police officer or an attorney for the Commonwealth. 

See id. at 783 (statement at issue was made to an attorney for the 

Commonwealth); Vandivner, 962 A.2d at 1180 (statement at issue was made 

to police officers). Rather, appellant’s statements at issue were made to a 

friend during a telephone call. Accordingly, such statements are not afforded 

protection under Pa.R.E. 410(a)(4). Therefore, the trial court did not abuse 

its discretion when it admitted evidence of a portion of a recorded telephone 

call during which appellant discussed accepting a potential plea deal.
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V.

Fifth, appellant contends that the trial court abused its discretion when 

it admitted a YouTube video posted by appellant into evidence. (Appellant’s 

brief at 56.) The trial court provided the following description of the video at 

issue:

Here, [appellant] published a music video to YouTube 

that includes a scenario closely aligned with the facts 

of the murder of Mr. Childs. In the video, entitled “I 

Shouldn’t Be Here,” [appellant] portrays the victim of 

a violent robbery and homicide. [(Notes of testimony, 

4/6/18 at 198, 202-203.) Appellant] is sitting in a 

vehicle when he is approached by a gunman, who 

pulls [appellant] out of the vehicle and shoots him in 

the back — mirroring the untimely demise of 

Mr. Childs in the Yeadon Industrial Park early on 

June 9, 2015, when police say someone shot him [at] 

point-blank range during a robbery. [(Id.)]

On [September] 1, 2015, [Sinoma] Smith received a 

promotional text message from [appellant] asking her 

to watch the newly published “I Shouldn’t Be Here”

video. [(Notes of testimony, 4/3/18 at 169-170.)] 

Ms. Smith testified that she had “never known 

[appellant] to have hair on his head,” and that his 

physical appearance in the rap video — notably, 

[appellant] has a shaved head — matched his typical 

appearance prior to the murder of Mr. Childs. [(Id.) 

Appellant,] who fled Pennsylvania and was found 

18 months later in Georgia, altered his physical 

appearance subsequent to the murder of Mr. Childs, 

including removing freckles from his face and growing 

out his hair. [(Notes of testimony, 4/5/18 at 48-49.)]

Trial court opinion, 7/22/19 at 14-15.

This court’s decision in Commonwealth v. Talbert, 129 A.3d 536 

(Pa.Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016), governs here. The 
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defendant in Talbert was charged with two counts of first-degree murder and 

other related charges following a shooting in which the victims died of multiple 

gunshot wounds. Id. at 537. During the trial, the trial court admitted a music 

video “that allegedly contained lyrics describing a crime similar to the murders 

at issue in [the] case.” Id. at 538 (citation omitted). The defendant appealed, 

claiming that “it was impossible to conclude that the rap specifically referred 

to the murders in question,” and that the video was “irrelevant and unfairly 

prejudicial,” thereby entitling the defendant to a new trial. Id. (citations 

omitted).

This court affirmed the defendant’s judgment of sentence, holding as 

follows:

To expect rap lyrics, which are a form of artistic 

expression, to communicate a criminal event in 

precise detail would be wholly unreasonable. See, 

e.g., Holmes v. State, 306 P.3d 415, 419 (Nev.

2013) (stating that “defendant-authored rap lyrics 

may employ metaphor, exaggeration, and other 

artistic devices, and can involve abstract 

representations of events or ubiquitous storylines. 

But these features do not exempt such writings from 

jury consideration where [] the lyrics describe details 

that mirror the crime charged.”) (citations and 

quotations omitted). Taken as a whole, we conclude 

that [the defendant’s] rap video is relevant to show 

his involvement in these murders. See

[Commonwealth v.] Flamer, 53 A.3d [82,] 89 

[(Pa.Super. 2012)] (holding that the trial court 

abused its discretion by finding defendant’s rap lyrics 

to be irrelevant and prejudicial, where lyrics about 

people “keeping their mouths shut,” sending friends 

to kill for him, and “popping shells” in people that “run 

their mouth” had a tendency to show a conspiratorial 

agreement.); see also United States v. Stuckey, 
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253 Fed.Appx. 468, 482 (6th Cir. 2007) (concluding 

that rap lyrics were relevant because the lyrics 

concerning the killing of government witnesses was 

precisely what the government accused the defendant 

of doing).

Id. at 541.

In its Rule 1925(a) opinion, the trial court noted the similarities between 

the instant case and the evidence considered by this court in Talbert, the 

United States Court of Appeals for the Sixth Circuit in Stuckey, and the 

Supreme Court of Nevada in Holmes.

[Appellant] is free to express himself artistically, but 

he cannot argue that his expression is irrelevant to 

the present legal propositions when he is accused of 

the very crime his expression depicts. Like in 

Talbert, where the defendant’s rap lyrics specifically 

referenced the neighborhood of the scene of the 

crime, the escape vehicle reflected in the record, and 

phrases that closely aligned with the injuries 

sustained by the victim of the crime, [appellant’s] 

video includes specifics to the known facts of the 

murder of Mr. Childs, including the removal of the 

victim from a vehicle and the shooting of the victim in 

the back. And like in Stuckey, where a defendant’s 

rap lyrics described precisely what the government 

accused [him] of doing, [appellant’s] music video 

depicts a scene closely aligning to the facts of the 

murder of Mr. Childs.

To be sure, [the trial] court does not expect rap music, 

which is a form of artistic expression, to communicate 

a criminal event in precise detail. It is understood that 

music of all varieties commonly involves abstract 

representations of events or ubiquitous storylines. 

However, as in Holmes, minor differences between 

the actual crime committed and the crime depicted in 

the art does not exempt the art from jury 

consideration where the details mirror the crime 

charged. Therefore, [the trial] court found that there 
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was sufficient probative value to admit the YouTube 

video as evidence.

Trial court opinion, 7/22/19 at 16.

Based on our review of the record, we find that the trial court did not 

abuse its discretion when it admitted the YouTube video at issue into evidence. 

Accordingly, appellant’s fifth issue is without merit.

VI.

In his final issue, appellant argues that the trial court erred when it 

permitted the Commonwealth’s DNA expert, Katherine Cross (“Cross”), to 

“testify that had she known Detective Louis Grandizio had handled the firearm 

before she could test it, she would have cautioned against the DNA testing.” 

(Appellant’s brief at 58-59.) As a means of brief background, the 

Commonwealth called Ms. Cross to testify as an expert witness.7 Ms. Cross 

testified that she conducted a DNA test on the firearm recovered from the 

crime scene. (Notes of testimony, 4/4/18 at 144-145.) She testified that 

neither appellant nor the victim, Mr. Childs, were the source of the male DNA 

recovered from the grips and trigger of the firearm. (Id.) Cross further 

testified, however, that after hearing Detective Grandizio testify that he 

handled the firearm prior to Ms. Cross’s conducting a DNA test, she would 

have, “cautioned that the results may or may not have any significance 

 

7 Cross is a DNA analyst, serologist, and DNA technical leader at Guardian 

Forensic Sciences. (Notes of testimony, 4/4/18 at 135.)
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because of the way -- the processing and things that happened to that weapon 

prior to [her] getting it.” (Id. at 157-158.)

Expert testimony in a criminal trial is governed by Pennsylvania Rule of 

Criminal Procedure 573, which provides, in relevant part:

If an expert whom the attorney for the 

Commonwealth intends to call in any proceeding has 

not prepared a report of examination or tests, the 

court, upon motion, may order that the expert 

prepare, and that the attorney for the Commonwealth 

disclose, a report stating the subject matter on which 

the expert is expected to testify; the substance of the 

facts to which the expert is expected to testify; and a 

summary of the expert’s opinions and the grounds for 

each opinion.

Pa.R.Crim.P. 573(B)(2)(b). As noted by appellant, our supreme court has 

held the following:

Expert testimony is admissible in all cases, civil and 

criminal alike, “when it involves explanations and 

inferences not within the range of ordinary training 

knowledge, intelligence and experience.”

[Commonwealth v. Walker, 92 A.3d 766, 788 (Pa. 

2014)] (quoting Commonwealth v. Leslie, [] 227 

A.2d 900, 903 ([Pa.] 1967)). Even where an expert’s 

testimony arguably went beyond the scope of his or 

her report, the defendant still bears the burden of 

proving he suffered prejudice from the admission of 

the testimony. See Commonwealth v. Henry, [], 

706 A.2d 313, 326–327 ([Pa.] 1997).

Commonwealth v. Poplawski, 130 A.3d 697, 718 (Pa. 2015), cert. denied 

sub nom. Poplawski v. Pennsylvania, 137 S.Ct. 89 (2016).

Appellant contends that he suffered prejudice,

in that he was unable to have [Ms.] Cross’[s] 

conclusions reviewed by his own expert, as to 
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whether they are correct or subject to 

cross[-]examination, or have his expert obtain and 

analyze Detective Grandizio’s DNA sample. Instead, 

[a]ppellant’s counsel was left only to question

[Ms.] Cross about other ways that “touch DNA” is 

deposited on an item and lost[.]

Appellant’s brief at 61, citing notes of testimony, 4/4/18 at 162-163 (emphasis 

in original).

The trial court concluded that Ms. Cross’s testimony did not have an 

appreciable effect on the outcome of the trial. Indeed, the trial court noted 

that her testimony had a: 

null effect on the outcome of the trial. It is important 

to recognize that her forensic report and testimony 

ultimately came back as inconclusive, due to the 

presence of multiple samples. Ms. Cross goes no 

further toward implicating [appellant] or misleading 

the jury in [its] interpretation of the evidence. 

Instead, she merely suggests that Detective Grandizio 

may have been the cause of the contamination which 

led to the inconclusive result.

Trial court opinion, 7/22/19 at 22.

Based on our review of the record, we can discern no abuse of discretion 

on the part of the trial court when it permitted Ms. Cross to testify pertaining 

to potential DNA contamination on the firearm. Accordingly, appellant’s sixth 

issue is without merit.

Judgment of sentence affirmed.

Stabile, J. joins this Memorandum.

Nichols, J. concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/10/20