J-S71035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARVIN ALSBROOK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1577 EDA 2018

Appeal from the Judgment of Sentence Entered December 15, 2017

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

No(s): CP-51-CR-0006191-2014

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

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 5, 2020

Marvin Alsbrook appeals from his judgment of sentence, imposed on 

December 15, 2017, following a jury trial resulting in convictions for 

aggravated assault, carrying firearms without a license, and carrying firearms 

in public in Philadelphia.

1 Alsbrook was also found guilty of possession of a 

firearm by a prohibited person2in a bifurcated bench trial. Alsbrook challenges 

certain evidentiary rulings and the denial of his motion to suppress. We affirm.

The relevant facts are as follows:

Officer Michael Walker testified that on December 19, 2013, 

he responded to a call concerning shots fired at 3900 

Fairmount Avenue, Philadelphia, Pennsylvania. The call 

came in from a beauty salon where there were 15 to 20 

women waiting for police. Upon arriving at the scene Officer 

____________________________________________

1 18 Pa.C.S.A. § 2702(a), 18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6108, 

respectively.

2 18 Pa.C.S.A. § 6105(a)(1).
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Walker put out a flash for “Marvin and Little Reese” who had 

allegedly been involved in the shooting based on information 

received. Officer Walker stated that he knew the individuals 

in the salon and the suspects due to daily calls. Officer 

Walker wrote in his investigation report that fired cartridge 

casings (FCC’s) were found on the north side of Fairmount 

Avenue along with a video from a nearby camera facing 

Union Street. At this point, Officer Walker also heard from 

Officer DiDomenico that Marvin Alsbrook was seen at Union 

and Mellon Streets. Officer Walker noted that bullet holes 

were found in and around a nearby house on 40th [S]treet. 

Officer Walker testified that he left the scene and went half 

a block to Union and Mellon Streets as he had previously 

observed [Alsbrook] at this location on numerous occasions. 

A number of officers were already at the location when he 

arrived and the house had been secured. Officer Walker 

testified that Detective Zerwick asked the owner if anyone 

had entered the house; she stated that no one had entered 

and gave officers consent to search the house. Officer 

Walker did not conduct the search, but remained on the 

porch to secure the property.

On cross-examination, Officer Walker stated that he did not 

see [Alsbrook] nor a gun when he arrived at the scene, and 

that an individual in the salon who did not give their name 

told him that Marvin Alsbrook was one of the shooters....On 

re-direct examination, Officer Walker explained that no one 

on the street wanted to cooperate with him or provide him 

with information regarding the shooting. 

...

Detective Justin Falcone testified that he knew [Alsbrook] 

through dozens of past encounters and would associate the 

area of Fairmount and Union with him and that Detective 

Antonini requested that Detective Falcone review the video 

to determine if he recognized anyone. Detective Falcone 

said that he recognized [Alsbrook] instantly due to the way 

he runs, which he knew because of his many hours 

conducting surveillance on the 600 block of Union Street.

On cross-examination, Detective Falcone asserted that he 

viewed the video on December 19, 2013 and subsequently 

emailed Detective Antonini that [Alsbrook] was the 

individual in the video on March 29, 2014. 
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Detective Richard Antonini testified that he helped to 

process the crime scene and obtain video footage of the 

crime. He explained that Detective Wilson recovered the 

video from the nearby mini-mart and that six .380 caliber 

FCC’s were recovered from the sidewalk near 3951 and 

3945 Fairmount Avenue. The video was viewed on location 

and then a search warrant for 650 Union Street was 

obtained and executed. Detective Antonini reviewed the 

search warrant to refresh his memory and clarified that the 

address was 659 Union Street. Detective Antonini testified 

that he gave [Alsbrook] Miranda warnings at Southwest 

Detectives Division and that [Alsbrook] gave a statement 

indicating that the incident was in self-defense but that he 

did not wish to “go on paper.” [Alsbrook’s] clothing was then 

collected and submitted to the forensic lab.

On cross-examination, Detective Antonini testified that (1) 

he did not arrive on the scene immediately, (2) a gun nor 

bullets were ever recovered during the search, (3) the only 

evidence related to the shooting found at 659 Union Street 

was [Alsbrook], and (4) [Alsbrook’s] statement was not 

recorded. Detective Antonini also testified that to the best 

of his recollection, the clothing in the case came from 

outside [Alsbrook’s] cell at Southwest Detectives, but that 

he previously testified that Officers McCleod and Walker had 

recovered clothing from 659 Union Street. In any event, the 

clothing, a green polo shirt and an Abercrombie sweatshirt, 

was placed on Property Receipt 3135187 and submitted for 

forensic testing. Detective Antonini asserted that he did not 

test [Alsbrook’s] hands because of the lapse in time 

between the shooting and [Alsbrook’s] appearance at the 

police station. But that, based on his experience, clothing 

would take in the gun shot residue....Detective Antonini also 

clarified that he advised [Alsbrook] of his rights, told him 

the potential charges against him, and asked him if he 

wished to make a statement, to which [Alsbrook] refused 

and replied that he had acted in self-defense. 

...

[T]he Commonwealth called expert witness and forensic 

scientist Gamal Emira, who tested [Alsbrook’s] clothing for 

gunshot residue. He testified that of the eight gunshot 

residue tests that were conducted on [Alsbrook’s] green 
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polo shirt and sweatshirt, all came back positive for gunshot 

residue.

Trial Court Opinion, 2/8/19, at 2-8 (internal citations to the trial transcript 

omitted).

Prior to trial, on November 28, 2016, the trial court denied Alsbrook’s 

motion to suppress his alleged statements that he made to Detective Antonini

after his arrest, stating “it was self-defense.” The matter proceeded to trial 

from October 11 to 17, 2017, after which Alsbrook was found guilty as above.

The court later sentenced Alsbrook to an aggregate term of seven to 14 years 

in prison. Alsbrook filed a motion for reconsideration of sentence, which the 

court denied. This timely appeal followed.

Alsbrook raises three issues for our review:

1. Did the trial court err, abuse its discretion, and/or make 

a mistake of law when it denied Appellant’s objection to 

Detective Falcone’s testimony about the way the 

Appellant ran?

2. Did the trial court err, abuse its discretion, and/or make 

a mistake of law when it allowed the Commonwealth to 

introduce expert testimony from the Commonwealth’s 

gunshot expert after the Commonwealth failed to 

disclose discovery containing this expert’s scientific 

laboratory reports prior to the commencement of trial 

and their case-in-chief which were required disclosures?

3. Did the trial court err, abuse its discretion, and/or make 

a mistake of law when it issued an order and denied 

Appellant’s Motion to Suppress alleged statements made 

to Detective Antonini?

Alsbrook’s Br. at 2.
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Alsbrook first contends that the trial court erred when it allowed 

Detective Falcone to testify about Alsbrook’s running style. Alsbrook’s Br. at 

17. Alsbrook argues that although Detective Falcone identified Alsbrook based 

on his running style after reviewing the surveillance video, “[i]t strains 

credibility, that [Detective Falcone] could immediately know a masked

individual was [Alsbrook] but could not see another person discharging a 

firearm.” Id. at 20. Alsbrook further argues that this testimony prejudiced the 

jury because the “implication is that [Alsbrook] was being surveilled for hours 

in relation to numerous on-going drug sales/distribution investigations.” Id.

According to Alsbrook, Detective Falcone’s statement had no objective basis 

and was used to bias Alsbrook. Id. at 21.

It is well-settled that “[t]he admission of evidence is a matter vested in 

the sound discretion of the trial court, whose decision thereon can only be 

reversed by this Court upon a showing of an abuse of discretion.” 

Commonwealth v. Jones, 683 A.2d 1181, 1193 (Pa. 1996). “The threshold 

inquiry with the admission of evidence is whether the evidence is relevant.” 

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa.Super. 2013) (citation

omitted). Generally, “all relevant evidence, i.e., evidence which tends to make 

the existence or non-existence of a material fact more or less probable, is 

admissible, subject to the prejudice/probative value weighing which attends 

all decisions upon admissibility.” Commonwealth v. Dillon, 925 A.2d 131, 

136 (Pa. 2007). In assessing whether certain evidence should be admitted, 

“the trial court must weigh the relevance and probative value of such evidence 
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against the prejudicial impact of that evidence.” Jones, 683 A.2d at 1193. 

“The 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. “‘Unfair prejudice’ means a 

tendency to suggest decision on an improper basis or to divert the jury’s 

attention away from its duty of weighing the evidence impartially.” Pa.R.E. 

403 (comment). “Exclusion is limited to evidence so prejudicial that it would 

inflame the jury to make a decision based upon something other than the legal 

propositions relevant to the case.” Commonwealth v. Page, 965 A.2d 1212, 

1220 (Pa.Super. 2009) (citation omitted).

At trial, Detective Falcone testified that he was asked by Detective 

Antonini to review the surveillance video of the shooting to see if he recognized 

anyone in the video since he frequently did surveillance in the area of the 

shooting. N.T., 10/11/17, at 62-63. Detective Falcone stated that he 

immediately recognized Alsbrook as the person in the video since he had 

previously been in contact with Alsbrook “dozens” of times. Id. at 62-64.

When the Commonwealth asked Detective Falcone if he ever saw Alsbrook run

before, Alsbrook’s counsel objected based on relevance. Id. at 64. The 

prosecutor explained that she was asking the Detective whether he had seen 

Alsbrook run before to see if he could compare him to the individual that was 

running in the video. Id. The trial court overruled the objection and Detective 

Falcone responded as follows:
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[Detective Falcone]: I was in narcotics surveillance, so I did 

surveillances throughout the district and I’ve done hours 

upon hours of surveillance on the 600 block of Union Street 

where I had observed Mr. Alsbrook just goofing around, 

running around with his friend, like, playing basketball and 

stuff. They used to have a basketball net out there. That’s 

the only time that comes to mind where I would have seen 

him run.

[The Commonwealth]: And how does it compare to the 

person in the video?

[Detective Falcone]: Everything about the way he walks, the 

way he ran, everything about it just brings me to who it 

was. It really was no question in my mind. I knew who it 

was.

Id. at 65.

Upon review, we discern no abuse of discretion in the admission of

Detective Falcone’s testimony regarding Alsbrook’s running style. The 

testimony was directly relevant to establishing the identity of the shooter in 

the video. We agree with the trial court that the “subsequent questions asked 

by the Commonwealth regarding whether the Detective had seen [Alsbrook] 

run in the past and how it compared to the individual in the video are relevant

as they make a material fact at issue more or less likely in accordance with 

Rule 403.” Trial Ct. Op., 2/8/19, at 22. Moreover, Alsbrook’s contention goes 

to the weight of the testimony, not its admissibility. It was the province of the 

jury to believe all, part, or none of the evidence presented and the weight to 

afford the evidence. See Commonwealth v. Henkel, 938 A.2d 433, 438 

(Pa.Super. 2007).
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Further, we find that Alsbrook’s argument that Detective Falcone’s 

statement was prejudicial because it implied that Alsbrook was under ongoing 

surveillance for drug-related activities is without merit. The record reflects 

that Detective Falcone never testified that Alsbrook was under surveillance for 

any sort of criminal activity; rather, he stated that he was familiar with 

Alsbrook from frequently working in Alsbrook’s neighborhood. N.T., 10/11/17, 

at 62-63, 65. We agree with the trial court’s conclusion that the testimony’s

probative value significantly outweighed any alleged prejudicial effect. 

Accordingly, we discern no abuse of discretion. 

Alsbrook next argues that the trial court erred when it allowed the 

Commonwealth’s expert witness to testify regarding gunshot residue tests 

that he conducted without first disclosing the contents to Alsbrook during pretrial discovery, in violation of the discovery rules and Brady.

3 Alsbrook’s Br. 

at 21-22. Prior to trial, the Commonwealth’s gunshot residue expert submitted 

a two-page expert report to the Commonwealth, and the Commonwealth then 

turned it over to Alsbrook. However, on the day the expert was expected to 

testify, which was a Thursday, the Commonwealth produced the expert’s 

notes, which appear to have contained the raw data upon which the expert 

based his opinion. See N.T., 10/12/17, at 65-66.4 Defense counsel objected 

that his strategy would have been different and he would have obtained an 

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3 Brady v. Maryland, 373 U.S. 83 (1963).

4 See also N.T., 10/16/17, at 11. 
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expert if he had known about the notes. He asked the court to delay the 

expert’s testimony until the following week, so that counsel could review the 

materials, and to grant him leave to move to preclude the expert’s testimony 

following that review. Id. at 73-74. The court granted the requests. See id.

at 77. 

On the following Monday, before the expert testified, the prosecutor put 

on the record an agreement between counsel to “cure” the “issue” of the 

prosecution providing the notes to the defense on the preceding Thursday. 

N.T., 10/16/17, at 9. The parties agreed that the prosecutor could call the 

expert to the stand, but the expert could not refer to his notes during his direct 

testimony and the prosecutor would not ask any questions on direct about the 

notes. Id. The prosecutor also agreed to instruct the expert not to mention 

the notes during his testimony. Id. However, the parties further agreed that 

if defense counsel asked questions on cross that required the expert to refer 

to the notes, he would then be able to refer to them. Id. Defense counsel 

stated he would not ask any questions requiring the expert to do so. Id. at 

10. Notably, he did not at any time dispute the prosecutor’s statement that 

the parties had entered into the agreement in order to “cure” any alleged 

violation. Nor did he ever say that he had had insufficient time to review the 

notes or obtain an expert, or that Alsbrook sustained prejudice in any way. 

Alsbrook now argues that the Commonwealth had access to these 

additional documents, or at least could have obtained them, and failed to 

provide them to Alsbrook until after the trial had commenced, despite 
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Alsbrook’s requests in discovery. Alsbrook’s Br. at 17, 24. According to 

Alsbrook, not having these materials prejudiced him, as he was unable to 

obtain an expert on such short notice and present any alternate theory, 

including cross-contamination, since two detectives testified during trial that 

they handled Alsbrook’s clothing without wearing protective gloves. Id. at 17, 

24-25. 

The Commonwealth counters that it did not receive the expert’s 

additional materials until after the trial had commenced and it immediately 

provided them to Alsbrook as soon as it received them. Commonwealth’s Br. 

at 12-13. The Commonwealth further argues that the trial court granted 

defense counsel additional time over the weekend to review the additional 

documents. Id. at 13. Moreover, the Commonwealth contends that the issue 

was cured by the parties’ agreement not to mention the notes unless defense 

counsel opened the door on cross-examination of the expert witness. Id.

Pennsylvania Rule of Criminal Procedure 573(B)(1)(a) requires the 

Commonwealth to disclose to the defense “[a]ny evidence favorable to the 

accused that is material either to guilt or to punishment, and is within the 

possession or control of the attorney for the Commonwealth.” Pa.R.Crim.P. 

573(B)(1)(a). “The Commonwealth does not violate Rule 573 when it fails to 

disclose to the defense evidence that it does not possess and of which it is 

unaware.” Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008).

Brady held that a due process violation occurs when the prosecution 

willfully or inadvertently withholds evidence favorable to a defendant. 
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Commonwealth v. Dennis, 17 A.3d 297, 308 (Pa. 2011). In order to prove 

a Brady violation, “a defendant is required to demonstrate: (1) evidence was 

suppressed by the Commonwealth, either willfully or inadvertently; (2) the 

evidence was favorable to the defendant; and (3) the evidence was material, 

in that its omission resulted in prejudice to the defendant.” Id. Prejudice 

occurs in the Brady context if “the evidence suppressed [is] material to guilt 

or punishment.” Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa. 

2008).

We do not find any reversible error. Even assuming the materials were 

in the Commonwealth’s possession and control,5 Alsbrook has not shown that 

they were exculpatory, and moreover, he entered into an agreement with the 

prosecution to “cure” the alleged violation. He never once objected that he 

ultimately had had insufficient time to prepare, and we do not see how he 

could have done so, given his agreement. Further, as the trial court pointed 

out, the allegedly late provision of the notes did not prevent him from 

obtaining an expert. Alsbrook could have sought to obtain his own expert once 

he obtained the expert’s two-page report in discovery, well in advance of trial. 

Accordingly, we conclude that the trial court did not abuse its discretion.

Lastly, Alsbrook contends the trial court erred when it denied his motion 

to suppress his alleged statements made to Detective Antonini after he was 

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5 See Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008) (explaining 

that materials exclusively in the possession of the police are deemed to be in 

the Commonwealth’s possession for purposes of Brady but not Rule 573).
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arrested. Our standard of review of a denial of a motion to suppress evidence 

is well settled:

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.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation and 

brackets omitted). Further, “[i]t is within the suppression court’s sole province 

as factfinder to pass on the credibility of witnesses and the weight to be given 

their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 

(Pa.Super. 2006) (citation omitted).

At the suppression hearing, Detective Antonini testified that on 

December 19, 2013, he arrested Alsbrook on an outstanding armed robbery 

warrant. N.T., 1/12/17, at 53-54. Detective Antonini stated that he read 

Alsbrook his Miranda6rights and informed him of his right to remain silent, 

his right to an attorney, and the fact that anything he said could be used 

against him. Id. at 53, 55. Detective Antonini testified that Alsbrook did not 

____________________________________________

6 Miranda v. Arizona, 384 U.S. 436 (1966).
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wish to provide a written statement. Id. at 55-56. He further stated that after 

he read Alsbrook his Miranda rights, Alsbrook spontaneously stated that “it 

was self-defense” but he “did not want to go on paper.” Id. at 56-57, 62.

Detective Antonini said that Alsbrook did not make these statements in 

response to any question that he asked him. Id. at 56-57, 62-63. The 

detective also testified that another detective, Detective Fife, was present 

when he gave Alsbrook his Miranda rights. Id. at 60-62.

Alsbrook argues that there is no evidence that Alsbrook understood his 

Miranda warnings since they were not recorded by audio or video and 

Alsbrook did not sign a Miranda waiver card. Alsbrook’s Br. at 26. Alsbrook 

further asserts that Detective Antonini’s testimony about his alleged 

statements was completely self-serving and was not credible because, by 

Detective Antonini claiming that Alsbrook said that “it was self-defense,” it 

appeared that Alsbrook implicitly admitted that he was on the scene of the 

crime and involved in the shooting. Id. 26-27. As such, Alsbrook argues that 

the court should have suppressed the statements. Id. at 27. 

The Commonwealth responds that there is no requirement that a 

specific format must be used to effectuate the valid waiver of a suspect’s 

Miranda rights. Commonwealth’s Br. at 17. The Commonwealth further 

contends that Detective Antonini did not elicit Alsbrook’s statements; thus, 

suppression was unwarranted. Id. at 16-17.

Statements made during custodial interrogation are presumptively 

involuntary, unless the accused is first advised of Miranda rights.
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Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008) (en banc).

However, “[v]olunteered or spontaneous utterances by an individual are 

admissible even without Miranda warnings.” Id. Indeed, unsolicited remarks, 

not the result of custodial interrogation, are “spontaneous, voluntary 

statements not subject to suppression.” Commonwealth v. Fisher, 769 A.2d 

1116, 1125 (Pa. 2001); see also Commonwealth v. Johnson, 42 A.3d 

1017, 1029 (Pa. 2012) (stating that “Miranda does not preclude the 

admission of spontaneous utterances”).

Detective Antonini testified that Alsbrook spontaneously volunteered 

these statements of his own free will, and not in response to any police 

conduct or questioning. The suppression court was free to determine the 

credibility of Detective Antonini and presumably found him to be credible. 

Gallagher, 896 A.2d at 585. Indeed, Alsbrook fails to identify any police 

conduct that elicited these statements. Thus, the remarks constitute mere

voluntary utterances and were properly admissible. Accordingly, the court 

properly did not suppress Alsbrook’s statements to Detective Antonini. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/05/2020
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