J-S56025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CLAYTON CARTER III 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 429 EDA 2020

Appeal from the Judgment of Sentence Entered August 29, 2019,

in the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0003375-2017.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 23, 2021

Clayton Carter III appeals from the judgment of sentence imposed after 

a jury found him guilty of first-degree murder and other related charges. Upon 

review, we affirm.

The detailed facts are fully set forth in the trial court’s opinion. Briefly, 

this matter arose out of a neighbor dispute gone too far. Some time prior to 

2015, Carter and his family moved into his inlaw’s house next door to the 

victim, George Jennings. Over the years, there was a lot of tension between 

Carter and his neighbors, but especially between him and Jennings. Jennings 

tended to harass, antagonize, call Carter names, and use derogatory language 

towards him. On August 7, 2017, and into the next morning, this dispute 

culminated in Carter shooting and killing Jennings. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Throughout that day, Jennings engaged in various activities to 

antagonize Carter. In the final act, around 11 p.m., Carter returned from the 

store and saw that Jennings moved his vehicle closer to Carter’s house. Carter 

got out of his truck, went into the house, got a loaded gun, and hid it in his 

pocket. Carter went back outside to move his truck, and while he was trying 

to parallel park, Jennings shined a light at him. Carter got out of his truck

and confronted Jennings. At some point, when they were face to face, Carter 

claimed that Jennings pulled out a knife and thought he was going to stab 

him. Carter pulled out his gun and shot Jennings in the head. Jennings fell 

backwards. Carter was not sure if he hit Jennings, and so he shot him in the 

head again. Carter was arrested and charged.

After the shooting, the police searched Carter’s home. Three shotguns 

and two revolvers were found in various places throughout the house, some 

of which were loaded. 

Additionally, a knife was found in the grass at the scene. It had Carter’s 

DNA on it but did not have Jennings’. Jennings’ wife did not recognize the 

knife or ever know her husband to carry or own such a knife. 

Prior to trial, the Commonwealth filed a motion in limine to introduce 

into evidence the five firearms found in his house in addition to the one used 

to shoot Jennings. The defense objected. Following a hearing, the trial court 

granted the Commonwealth’s motion.

On June 13, 2019, a jury found Carter guilty of first degree murder, 

possessing an instrument of crime (“PIC”) (possessing a handgun with intent 
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to employ it criminally), and tampering with or fabrication of physical 

evidence;1 he was acquitted of two other PIC charges. The trial court 

sentenced Carter to life without parole. Carter filed a post-sentence motion, 

which the court denied.

Carter filed this timely appeal. Carter and the trial court complied with 

Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Carter raises the following four issues:

I. Considering the ample evidence of provocation presented, was 

the finding of guilt on the charge of murder of the first degree . . 

. against the weight of the evidence?

II. Did the trial court err in allowing evidence of five firearms 

owned by [Carter] in addition to the firearm used in the shooting?

III. Did the trial court err in allowing hearsay statements made by 

[Jennings] to Detective Edwards on March 26, 2015?

IV. Did the trial court err in allowing Dr. Daniel K. Brown to testify 

regarding stippling and opinions regarding distances from which 

shots must have been fired where [the] opinion testified to was 

not provided to defense prior to trial?

Carter’s Brief at 4 (citations omitted).

In his first issue, Carter claims that the verdict for first degree murder 

was against the weight of the evidence. Specifically, Carter argues that given 

the substantial evidence of provocation, the jury could not have found malice. 

According to Carter, Jennings’ repeated acts of harassment created an intense 

passion which would render a reasonable person incapable of cool reflection. 

____________________________________________

1 18 Pa.C.S.A. §§ 2502(a), 907(a), and 4910.
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Carter’s Brief at 15. Therefore, Carter claims the trial court erred in denying 

his weight claim. 

When reviewing a challenge to the weight of the evidence, our standard 

of review is as follows:

The essence of appellate review for a weight claim appears to lie 

in ensuring that the trial court's decision has record support. 

Where the record adequately supports the trial court, the 

trial court has acted within the limits of its discretion.

* * *

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. Rather, the role of 

the trial judge is to determine that notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny justice.

* * *

An appellate court's standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court. Appellate review of a weight claim 

is a review of the exercise of discretion, not of the 

underlying question of whether the verdict is against the 

weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations 

omitted) (emphasis added). Absent an abuse of discretion, the trial court's 

decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d 

865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in 

judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest 

unreasonableness or a misapplication of the law.” Commonwealth v. West, 
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937 A.2d 516, 521 (Pa. Super. 2007). By contrast, a proper exercise of 

discretion “conforms to the law and is based on the facts of record.” Id.

Initially, we note that Carter does not specify how the trial court abused 

its discretion; he merely argues evidence favorable to him and, essentially, 

asks us to reweigh the evidence. Based upon our standard of review for 

weight claims, we cannot do so. Clay, supra. Nonetheless, after a review of 

the record and the trial court's rationale for denying Carter’s weight claim, we 

conclude that the trial court did not abuse its discretion.

In explaining its rationale for denying Carter’s weight claim, the trial 

court noted that critical to a first degree murder conviction is a finding that 

the killing was done with malice, i.e., there was an intent to kill, there were 

no circumstances reducing the killing to voluntary manslaughter, and the 

killing was without lawful justification or excuse. The trial court reviewed the 

evidence and found it supported the jury’s conclusion that Carter acted with 

malice, and was not justified in killing Jennings’, despite the evidence of 

Jennings’ provocation. The court explained:

On cross examination, Ms. Jennings admitted, that in the past, 

her husband had told her that he intended to make [Carter]

"uncomfortable" so that he would move from his father-in law's 

home because [Carter] was not a friendly or good neighbor. There 

was evidence presented of Jennings's poor behavior during the 

day prior to the shooting that was labeled "provocation" by 

[Carter]. However, poor or even rude behavior on the part of 

Jennings certainly didn't warrant or excuse [Carter's] use of 

deadly force. [Carter] made a conscious decision to arm himself 

with a handgun in the absence of any physical or verbal threat. 

He admitted he did not expect a physical threat. Although the act 

of carrying the handgun on his property was not an illegal act, it 
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was circumstantial evidence that [Carter] was prepared to act with 

deadly force absent any physical or verbal threat from the victim, 

or any such threats having made by the victim in the past.

Additionally, we considered the jury's finding, beyond a 

reasonable doubt, that [Carter] fabricated evidence by placing the 

knife at the scene of the shooting. Thus, the jury concluded that

Appellant did not only arm himself with the small handgun he 

concealed, but that he also took the folding knife with him, and 

prior to the police arriving, he placed it at the scene of the 

shooting to create justification for his use of force. 

Moreover, [Carter] fired a second shot at Jennings because he 

indicated he wasn't sure he hit him with the first shot. He told 

detectives that he shot the victim a second time because he saw 

the victim move after the first shot and the knife was in the 

victim's hand. Given that [Carter] planted the knife at the scene 

and Ms. Jennings was watching from her window and indicated 

she did not see her husband move after the first shot, it is most 

likely that [Carter’s] second shot merely confirms his intent to kill 

Jennings. The video evidence from a neighbor's security system 

clearly records the sounds of both shots, emphasizing how long 

the 11-12 second period of silence really was. During that time, 

Appellant did not step back from the alleged threat and assess 

whether Jennings was incapacitated. lnstead he stepped closer to 

the alleged threat and aimed the pistol at Jennings face before 

firing the second shot. As previously noted, the jury determined 

that [Carter] placed the knife at the scene. Hence, we find no 

merit in [Carter's] contention that the second shot was a result of 

his thinking "that [Jennings] was going to get back up and get 

[him] with the knife." 

Trial Court Opinion, 4/23/20, at 12-13 (citations and footnotes omitted). 

Under these facts, the trial court determined that the weight of the evidence 

supported a finding beyond a reasonable doubt that Carter acted with a willful, 

deliberate, and premeditated intent to kill Jennings, and that intent 

outweighed any evidence of justification based upon Jennings’ provocation. 
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The trial court therefore concluded that the verdict for first-degree murder 

was not against the weight of the evidence. 

Accordingly, Carter is not entitled to any relief on this claim. 

In his remaining three issues, Carter claims that the trial court erred in 

admitting certain evidence at trial. Specifically, Carter contends that the trial 

court erred by allowing into evidence: 1) additional firearms he owned, 2) 

hearsay statements the victim made to a police detective about an incident in 

2015; and 3) an expert’s opinion that was not provided to the defense prior 

to trial. As our Supreme Court has explained, “[t]he admissibility of evidence 

is a matter solely within the discretion of the trial court. This Court will reverse 

an evidentiary ruling only where a clear abuse of discretion occurs.” 

Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994) (citation 

omitted). “Generally, an appellate court's standard of review of a trial court's 

evidentiary rulings is whether the trial court abused its discretion; however, 

where the evidentiary ruling turns on a question of law our review is plenary.” 

Buckman v. Verazin, 54 A.3d 956, 960 (Pa. Super. 2012) (citations 

omitted). 

In his second issue, Carter claims that the trial court erred in allowing 

the Commonwealth to introduce into evidence five firearms he owned in 

addition to the firearm he used during the shooting. Carter’s Brief at 22. 

According to Carter, evidence of these other firearms was unfairly prejudicial 

because none of them were used during the murder. Id. at 25-26. He 

maintains that evidence of two incidents where Carter used larger guns to 
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ward off Jennings, which the defense introduced to show the animosity and 

antagonism between Carter and Jennings, was sufficient for the 

Commonwealth to show that he owned other guns. Carter’s Brief at 26.

The threshold inquiry regarding the admission of evidence is whether 

the evidence is relevant. “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 the existence of 

a material fact.” Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa. 

1992). In addition, evidence is only admissible where the probative value of 

the evidence outweighs its prejudicial impact. Commonwealth v. Story, 383 

A.2d 155, 160 (Pa. 1978). 

Generally, as Carter argues, where a weapon cannot be specifically 

linked to a crime, that weapon is not admissible as evidence. 

Commonwealth v. Robinson, 721 A.2d 344, 351 (Pa. 1998). However, 

here, the Commonwealth offered evidence of the other firearms to show that 

Carter had a premeditated plan to kill Jennings. The Commonwealth argued 

that, during prior incidents, Carter threatened Jennings with other larger guns 

he owned.2 But this time, he intentionally chose his Ruger handgun, the barrel

of which was only 2.75 inches, so he could conceal it and kill Jennings, rather 

than just defend himself. In explaining its rationale for granting the 

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2 Carter owned and had access to other weapons not conducive to 

concealment, specifically, three long barrel firearms and two additional 

handguns, both bigger in size than the handguns used on the night of the 

shooting.
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Commonwealth’s motion allowing Carter’s other guns into evidence, the trial 

court stated:

ln this case, [Carter’s] intent was a material issue of fact the jury 

was required to decide in their deliberations. They were charged 

in determining whether [Carter] acted with malice and 

premeditation when he killed the victim. The firearm [Carter] 

selected to put into his pocket and take with him while he engaged 

with the victim, in light of the variety of firearms of various sizes 

owned by [Carter], was directly related to this material issue. 

[Carter] chose to take the Ruger .380, a handgun small enough 

to hide in his sweat jacket pocket, instead of a variety of larger 

firearms that could not be easily hidden from view. By choosing 

the Ruger, [Carter] was able to approach Jennings without making 

him aware that [he] was armed with a deadly weapon. This fact 

makes the presence of malice more probable and supports a 

reasonable inference or presumption that [Carter] acted with 

premeditation. This is particularly true in light of [Carter’s] 

statement to police that prior to the night of the shooting, he had 

brandished a long barrel firearm or shotgun when Jennings 

confronted [him] at his front door and Jennings had backed down 

and left. 

[During argument on the Commonwealth's motion in limine,] 

[d]efense counsel indicated that he was going to be eliciting 

testimony regarding the 2015 incidents between Carter and 

Jennings to show Jennings's prior antagonistic conduct related to 

[Carter]. He agreed that those incidents were relevant to show 

the history of the relationship between the two. Both of those 

confrontations ended when [Carter] displayed a firearm to 

Jennings and he backed down and left [Carter's] property . . . . 

The court gave careful consideration as to whether the probative 

value of the evidence that [Carter] had access to additional 

firearms would unfairly prejudice [Carter]. ln the present climate, 

where mass shootings are no longer uncommon in our 

communities, the fact that [Carter] owned multiple firearms may 

have the potential to inflame the jury. After weighing all the 

factors, we determined the probative value outweighed any 

potential prejudice for the following reasons: (1) all the weapons 

in question were legally owned by [Carter]; (2) there was going 

to be evidence of [Carter’s] ownership of other firearms admitted 

through his videotaped interview with detectives; (3) the agreed 
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upon relevance of evidence of the 2015 altercations with Jennings 

and defense counsel's representation that he was going to be 

seeking admission of evidence of at least one of the 2015 

incidents; and (4) as noted above, evidence of additional, larger 

firearms previously employed by [Carter] to warn off Jennings, 

goes directly to the material issue of intent and malice in [Carter’s] 

choice of the small, easily concealed firearm.

We are guided by the principle that extremely prejudicial 

evidence, including prior crimes or wrongs, may be admissible 

when relevant for a purpose other than to show bad character, 

i.e. motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake. The courts also permit the 

admission of prejudicial evidence to tell the complete story, 

finding that when the probative value outweighs any unfair 

prejudice it is admissible. In this matter, the legal ownership of 

additional firearms is not a bad act and is therefore less prejudicial 

than a prior crime or bad act. Moreover, the evidence of other 

accessible firearms goes directly to show a material fact, 

[Carter’s] intent and malice, and provides a more complete picture 

of what [his] choices were on the night of the shooting. Under 

these circumstances, we found the probative value outweighed 

any possible unfair prejudice[.]

Trial Court Opinion, 4/23/20, at 14-17 (quotations and citations omitted).

Based upon the trial court’s thorough consideration and explanation for 

allowing information regarding Carter’s other firearms into evidence, we 

conclude that the trial court did not abuse its discretion or commit an error of 

law. Carter is entitled to no relief on this issue.

In his third issue, Carter claims that the trial court erred by allowing a 

detective to testify to statements Jennings gave about an incident on March 

26, 2015, involving Carter and Jennings. These statements indicated that 

Carter followed a neighbor, Theresa Lyons, and her two young children down 

the street. Because he thought this was odd, Jennings confronted Carter. 
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Carter maintains that these hearsay statements depicted him as an aggressor,

and were prejudicial. Carter’s Brief at 28. 

Furthermore, Carter claims that, although the trial court acknowledged 

in its 1925(a) opinion that Jennings’ statements were hearsay, its conclusion 

that their admission was harmless as cumulative evidence was also error. 

Carter’s Brief at 31. According to Carter, Kelly Jo Blasé’s statements about 

the incident differed from Jennings’, and therefore were not cumulative. Id.

As acknowledged by the trial court, this evidence was hearsay, and was 

improperly admitted into evidence. However, as also noted by the trial court, 

the same incident was described by another witness to the incident who 

testified at trial. Trial Court Opinion, 4/23/20, at 18. Blasé testified that she 

noticed her neighbor, Theresa Lyons, and her two young boys in the street, 

and that she was verbally engaged with Carter. Blasé saw Lyons grab the 

boys’ hands and quickly start walking home. Blasé and Jennings walked over 

to Lyons and Carter and followed her home. As Blasé and Jennings were 

coming back, they saw Carter walking slowly with a gun, watching them. This 

behavior caused Blasé to feel shaken and scared. She called the police. N.T., 

6/10/19, at 217-220.

Based upon our review of the record, we agree that Blasé did not state 

that Carter followed Lyons and her children. However, as the trial court noted, 

Blasé’s rendition of the incident was substantially similar to the statements 

Jennings gave to the detective. It is evident from her testimony that the 

atmosphere created by Carter’s behavior was threatening and caused the 
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Lyons to feel sufficiently uncomfortable that she quickly needed to return 

home and be escorted by Blasé and Jennings. Erroneously admitted evidence 

that is cumulative of other, untainted evidence is harmless error.” 

Commonwealth v. May, 656 A.2d 1335, 1343 (Pa. 1995). 

Furthermore, even if this were not cumulative evidence, we observe that 

“[n]ot all errors at trial, however, entitle an appellant to a new trial, and [t]he 

harmless error doctrine, as adopted in Pennsylvania, reflects the reality that 

the accused is entitled to a fair trial, not a perfect trial . . . .” Commonwealth 

v. West, 834 A.2d 625, 634 (Pa. Super. 2003), appeal denied, 586 Pa. 712, 

889 A.2d 1216 (2005) (quoting Commonwealth v. Drummond, 775 A.2d 

849, 853 (Pa. Super. 2001), appeal denied, 790 A.2d 1013 (2001) (internal 

citations and quotations omitted)). “An error may be deemed harmless, inter 

alia, where the properly admitted and uncontradicted evidence of guilt was so 

overwhelming and the prejudicial effect of the error was so insignificant by 

comparison that the error could not have contributed to the verdict.” See

Commonwealth v. Young, 748 A.2d 166, 193 (1999). 

Considering the circumstances of this incident as discussed above, the 

jury was presented with overwhelming evidence of Carter’s guilt. Any 

prejudicial effect from the admission of this evidence was so insignificant by 

comparison that it could not have contributed to the verdict in this case. 

Therefore, we find that the trial court’s admission of these statements, 

although hearsay, constituted harmless error. Carter is entitled to no relief 

on this issue. 
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In his last issue, Carter claims that the trial court erred in allowing Dr. 

Daniel Brown3to testify at trial regarding specific distances from which the 

shots were fired because the details were not included in his expert report. 

Carter’s Brief at 33. Specifically, he claims that Dr. Brown’s expert report only

stated that there was “evidence of intermediate-range firing” but did not 

define what was meant by this phrase and the specific distances encompassed 

by it. As a result, Dr. Brown’s opinion as to how far away Carter was when 

he shot Jennings both times was a surprise to the defense. Carter’s Brief at 

41.

Essentially, Carter argues that Dr. Brown’s testimony exceeded the 

scope of his report. Generally, an expert may not testify to matters beyond 

the fair scope of the expert report. To determine whether the testimony goes 

beyond the fair scope of the report, we must examine the facts and 

circumstances of the particular case. We are guided by the following:

[I]n determining whether an expert's trial testimony falls within 

the fair scope of his pre-trial report, the trial court must determine 

whether the report provides sufficient notice of the expert's theory 

to enable the opposing party to prepare a rebuttal witness. In 

other words, in deciding whether an expert's trial testimony is 

within the fair scope of his report, the accent is on the word “fair.” 

The question to be answered is whether, under the particular facts 

and circumstances of the case, the discrepancy between the 

expert's pre-trial report and his trial testimony is of a nature which 

would prevent the adversary from making a meaningful response, 

____________________________________________

3 Dr. Brown is an associate medical examiner for the City of Philadelphia. He 

conducted the autopsy on Jennings after the shooting and prepared a report 

and testified as to his findings. 
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or which would mislead the adversary as to the nature of the 

appropriate response.

Woodard v. Chatterjee, 827 A.2d 433, 442 (Pa. Super. 2003) (citations and 

quotation marks omitted) (emphasis in original). 

Here, the trial court concluded that Dr. Brown’s testimony did not go 

beyond the fair scope of his report. In reaching this decision, the trial court 

explained:

[Carter] was in possession of the expert report for almost two 

years. During that time, [Carter] had an opportunity to inquire 

and investigate what Dr. Brown, a forensic pathologist, meant by 

the term "intermediate-range". lt is self-evident that the fact 

finder would need to have that term explained as it was not 

defined in the report itself. Thus, [Carter] was aware that further 

investigation was warranted upon his review of the expert report.

We find that Mr. Green [defense counsel] completed such an 

investigation given the content of his cross-examination of Dr. 

Brown and his statements to the court. During Dr. Brown's crossexamination, Mr. Green referenced a recognized expert in the field 

of forensic pathology and gunshot wounds, Dr. DiMaio, and 

questioned Dr. Brown as to his familiarity with "any authorities 

who note stippling up to thirty-six inches from shaft barrel guns." 

Mr. Green also stated to the court that he reviewed "substantial 

authoritative publications, both the Dr. DiMaio manuscript and the 

authoritative articles . . . that contradict what Dr. Brown said 

about eighteen to twenty-four inches." The record shows that 

prior to trial Mr. Green prepared his challenge to Dr. Brown's 

opinions as to distance in inches should they differ from his own 

investigation. Furthermore, the most telling statement by Mr. 

Green to the court is his admission that "[he knew that] this 

stippling question [as it relates to distance] was a potential issue 

in the case forever, it's always been a gunshot case.” In 

consideration of the materials available to Mr. Green prior to trial 

that were used in the cross-examination of Dr. Brown, we 

overruled [Carter's] objection as follows:

So [the court] took a look at Commonwealth Exhibit 16, 

which is the autopsy report. And what the report does say 
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on both gunshot wound "A" and "B" is 'evidence of 

intermediate range firing'. I Googled it. lt came up with six 

inches to thirty inches. I think, Mr. Green, given your 

experience as a trial attorney, that's pretty clear what that 

means. And it's easily found, if it's not. So given the fact 

that you had the information regarding the fact that it was 

intermediate range, you used it in your cross-examination 

with the article that you pulled up, I'm going to overrule 

your objection.

Trial Court Opinion, 4/23/20, at 25-27. Under these circumstances, the trial 

court found that Carter was not prevented from making a meaningful response 

to Dr. Brown’s opinion and was not mislead as to the nature of an appropriate 

response.

Given the trial court’s explanation, we conclude that the court did not 

abuse its discretion or commit an error of law in allowing Dr. Brown to testify 

regarding the specific distances from which Carter shot Jennings. Accordingly, 

Carter is not entitled to any relief on this claim. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/21
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