J-S11022-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

KYSHAN BRINKLEY 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 1988 EDA 2023 

Appeal from the Judgment of Sentence Entered January 13, 2022 

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0006413-2019 

BEFORE: BOWES, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 16, 2024

 Kyshan Brinkley appeals from the judgment of sentence entered after a 

jury found him guilty of first-degree murder and conspiracy.1 Brinkley 

challenges evidentiary rulings, the denial of a motion to suppress, and the 

sufficiency and weight of the evidence. We affirm. 

 The trial court set forth the facts from the trial, which we adopt. Trial 

Court Opinion, filed Sept. 21, 2023, at 3-35. The trial court aptly summarized 

the factual history as follows: 

Brinkley’s convictions arose out of a conspiracy with codefendants, Derrick Goins and Jacquan Lee, to murder Keith 

Robinson, a rival drug dealer to the home-grown Pottstown 

gang, Bud Gang Bitch (“BGB”). On March 30, 2019, at about 

10:53 p.m., the victim’s vehicle was sprayed with bullets, 

while the victim was parked at the corner of York and Walnut 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 18 Pa.C.S.A. §§ 2502(a) and 903. 
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Streets, Pottstown. Two of the ten bullets hit the victim and 

killed him. 

Specifically[,] as to Brinkley, earlier in the evening of March 

30, 2019, Brinkley was with his co-defendants Lee and 

Goins at a social gathering at Chestnut and Evans Streets. 

Several witnesses identified Brinkley as being present with 

them at that location. They left that location. Lee and Goins 

were specifically observed to have left in a black minivan 

together, driven by Lee. 

Brinkley, along with Lee and Goins, arrived together in the 

black minivan to an apartment complex at 206 Manatawny 

Street a short time later. In between the time the codefendants left the gathering and arrived at Manatawny 

Street, the victim was murdered. During the time of the 

murder, the black minivan was captured twice on 

surveillance in the vicinity of the victim’s car. After leaving 

206 Manatawny Street in the black minivan, Brinkley and 

his co-defendants traveled to a gas station, and then onto a 

club in Philadelphia. 

Additionally, Brinkley’s cell phone records from the night of 

the murder show that the movements of his cell phone were 

consistent with those of Goins’ cell phone; both cell phone 

records show that the cell phones were in the area of the 

murder at the relevant time, traveled back to 206 

Manatawny Street afterwards, and after a brief amount of 

time the cell phones traveled to a gas station, and then to 

the club in Philadelphia. Surveillance footage corroborated 

that a black van was at the murder scene, at 206 

Manatawny Street, and at a nearby gas station at times that 

match up to the cell phone records. 

Further evidence showed that Brinkley was a member of the 

BGB gang, through rap videos, rap lyrics, social media 

accounts, and a gang expert; and that the gang was 

involved in drug trafficking. 

Finally, Brinkley had confided in another inmate[, Elijah 

Williams,] housed at Montgomery County Correctional 

Facility after his arrest about the details and his involvement 

in the murder. 

Id. at 1-3. 
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 The jury convicted Brinkley of first-degree murder and conspiracy. It 

sentenced him to life imprisonment. Brinkley filed a post-sentence motion, 

which the trial court denied. He filed a notice of appeal.2

 Brinkley raises the following issues: 

(a.) Did the Trial Court err in denying [Brinkley’s] Pretrial 

Motion in Limine to preclude the admission of evidence 

regarding his alleged involvement in and/or affiliation with 

a Gang, known as “BGB” or “Bud Gang Bitches,” during the 

Commonwealth’s case-in-chief? 

(b.) Did the Trial Court err in permitting the Commonwealth 

to introduce the testimony of Detective Echevarria, as an 

Expert Witness in Gang Structure and Organization, 

specifically related to “BGB” or “Bud Gang Bitches” during 

the Commonwealth’s case-in-chief? 

(c.) Did the Trial Court err in denying [Brinkley’s] Pretrial 

Motion in Limine to preclude the admission of evidence 

regarding his participation in Rap Music Video(s) attributed 

to “BGB” or “Bud Gang Bitches” during the Commonwealth’s 

case-in-chief? 

(d.) Did the Trial Court err in permitting the Commonwealth 

to introduce the lyrics to Rap Songs attributed to “BGB” or 

“Bud Gang Bitches,” during the Commonwealth’s case-inchief? 

(e.) Did the Trial Court err in denying [Brinkley’s] Pretrial 

Motion to Suppress his testimony taken before the 

Montgomery County Investigating Grand Jury on May 22nd 

and July 10th of 2019? 

(f.) Did the Trial Court err in denying [Brinkley’s] Pretrial 

Motion for the Release of Mental Health Records for the 

Commonwealth’s Witness, Elijah Williams? 

____________________________________________ 

2

 This Court dismissed Brinkley’s original appeal on May 1, 2023 for failure to 

comply with Pennsylvania Rule of Appellate Procedure 2135. Order, 549 EDA 

2022, filed May 1, 2023. Brinkley filed a petition to reinstate his rights nunc 

pro tunc, which the trial court granted. He filed a timely notice of appeal. 
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(g.) Did the Trial Court err in precluding [Brinkley] from 

questioning the Commonwealth’s Witness, Elijah Williams, 

regarding his court ordered Competency Evaluation, during 

cross examination? 

(h.) Did the Trial Court err in precluding [Brinkley] from 

calling a Defense Witness, Semaj Howard, to testify to the 

mental health diagnosis of the Commonwealth’s Witness, 

Elijah Williams, of which he had personal knowledge? 

(i.) Did the Trial Court err in permitting the Commonwealth 

to introduce evidence of [Brinkley’s] Instagram 

conversations and postings, during the Commonwealth's 

case-in-chief, where the Commonwealth failed to provide 

reasonable notice of the same in advance of trial? 

(j.) Did the Trial Court err in denying [Brinkley’s] PostSentence Motion for a Judgment of Acquittal on the charges 

of murder in the First Degree and Criminal Conspiracy to 

commit Murder, for which the evidence introduced at trial 

was legally insufficient to support the jury’s verdict? 

(k.) Did the Trial Court err in denying [Brinkley’s] PostSentence Motion for a New Trial, where the jury’s verdict 

was against the weight of the evidence, which clearly 

established a reasonable doubt as to whether he had 

committed the crimes of Murder in the First Degree and 

Criminal Conspiracy to commit Murder? 

Brinkley’s Br. at 6-8. We will address Brinkley’s claims out of order, for ease 

of discussion. 

A. Admission of Evidence 

Brinkley’s first through fifth and sixth through ninth issues challenge the 

admission of evidence. We review a trial court’s decisions on the admissibility 

of evidence for an abuse of discretion. Commonwealth v. Brown, 212 A.3d 

1076, 1086 (Pa.Super. 2019). “An abuse of discretion exists where there is 

an overriding or misapplication of the law, or the exercise of judgment that is 

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, 
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as shown by the evidence of record.” Commonwealth v. Gross, 241 A.3d 

413, 418 (Pa.Super. 2020) (internal quotation marks and citation omitted). 

 Brinkley first argues the trial court erred in denying his motion to 

preclude the admission of evidence regarding his alleged involvement in BGB. 

He maintains the minimal probative value of the evidence was outweighed by 

the prejudicial impact. Brinkley notes that the discovery materials included 

statements and testimony that attributed to BGB the sale of controlled 

substances, the possession of firearms, and the commission of robberies and 

assaults. Some individuals’ statements included his or her belief that Brinkley 

was a member of BGB. Brinkley contends that the individuals’ beliefs were 

based on hearsay and points out that he had never been arrested, prosecuted, 

or convicted for any offenses allegedly committed as a member of BGB. 

Brinkley further claims there was no evidence the shooting was the result of 

or related to gang affiliation or gang violence. He claims the evidence was 

inadmissible under Rule 404(b). He further asserts the Commonwealth failed 

to establish a nexus between BGB and Robinson, such that the jury could find 

his death was related to BGB activity. Brinkley attempts to distinguish the 

cases relied on by the Commonwealth, claiming that in those cases a fellow 

gang member testified about the defendant’s role in the crime, such that the 

evidence was relevant to prove conspiracy and motive. 

 Evidence is admissible if relevant, unless otherwise provided by law. 

Pa.R.Evid. 402. A court may exclude relevant evidence where the probative 

value is outweighed by a danger of unfair prejudice. Pa.R.Evid. 403. Further, 
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Rule 404(b) prohibits evidence of a defendant’s prior bad acts “to prove a 

person’s character” or demonstrate “that on a particular occasion the person 

acted in accordance with the character.” Pa.R.Evid. 404(b)(l). However, prior 

bad acts evidence “may be admissible for another purpose, such as proving 

motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident.” Pa.R.Evid. 404(b)(2). “In a criminal case, this 

evidence is admissible only if the probative value of the evidence outweighs 

its potential for unfair prejudice.” Id. "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.Evid. 403, comment 

(internal quotation marks omitted). 

 In Commonwealth v. Gwaltney, 442 A.2d 236, 241 (Pa. 1982), the 

Pennsylvania Supreme Court held that the trial court properly admitted 

evidence of the defendant’s gang affiliation. There, the evidence included that 

a Commonwealth witness was a member of a gang and the appellant belonged 

to that same gang; the deceased was a member of a rival gang; the 

Philadelphia area is divided into various gang “turfs”; the deceased had stated 

that the appellant’s gang was responsible for his injuries; other witnesses 

were members of various gangs; and the deceased had stabbed a member of 

appellant’s gang. Id. at 240-41. The Court found the evidence was relevant 

circumstantial evidence to establish a conspiracy and to prove motive, intent, 

plan, design, ill will, or malice. Id. at 241. It concluded that “[t]he evidence 

presented concerning the relationship between appellant’s gang and the 
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deceased’s gang, and the alleged stabbing of a member of appellant’s gang 

by the deceased is certainly probative of appellant’s possible motive.” Id. 

 Similarly, in Commonwealth v. Ramos, 532 A.2d 22, 23-24 

(Pa.Super. 1987), this Court found evidence of drug dealing admissible. There, 

witnesses testified that the victim sold drugs, and the Commonwealth 

presented evidence that the appellant shot the victim on the instruction of 

Hawk Pagan, who also was a drug dealer. The evidence also included 

testimony that the appellant and victim had had a physical confrontation, that 

Pagan and others had shot at the victim, and that Pagan had threatened the 

victim with death. This Court found the evidence of the appellant’s drug 

dealing and the prior fighting and shooting incidents were relevant to establish 

his motive for the murder. See id. at 23. We pointed out that the criminal 

activities were “clearly connected to the appellant, the victim and the reason 

for the murder.” Id. at 24. 

 Here, the trial court noted that the Commonwealth’s theory of the case 

was that the co-defendants conspired to murder Robinson, who was a rival 

drug dealer, and that the evidence of gang affiliation was relevant to establish 

conspiracy and motive: 

[G]ang affiliation evidence was comprised of several 

components such as the rap videos, rap lyrics, social media 

accounts, which was all testified to, explained, and tied 

together by Lieutenant Echevarria’s expert testimony. It 

also included the testimony of Detective Long, and 

questioning of Jamar Baird and Jarid Majors. In general, the 

evidence of gang affiliation was properly admitted and 

relevant to show association among the co-defendants to 

establish conspiracy and motive for the murder. Evidence of 
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gang affiliation and gang ethos as testified to by Lieutenant 

Echevarria was relevant to show that these co-defendants 

had the motive, intent, and plan to conspire to murder. 

Therefore, this gang affiliation evidence was properly 

admitted at trial. 

Tr. Ct. Op. at 44. 

 The trial court did not abuse its discretion in admitting the evidence of 

Brinkley’s affiliation with BGB. The evidence went to his motive for shooting 

the victim, who was a rival drug dealer, was relevant to establish the 

conspiracy between Brinkley and his co-defendants, and was not unfairly 

prejudicial. 

 Brinkley next maintains the court erred in allowing Detective Echevarria 

to provide expert testimony as to BGB and in gang structure and organization. 

Brinkley claims Detective Echavarria did not possess personal knowledge and 

was not made aware of facts that would constitute a sufficient basis for the 

admission of expert testimony. Brinkley maintains that Detective Echevarria’s 

expert report did not contain his personal knowledge or state that he had been 

made aware of any conflict between BGB and Robinson, any type of “hit” put 

out on Robinson, or that BGB wanted Robinson eliminated. He cites the cross 

examination of Detective Echevarria, claiming it proves he did not have 

personal knowledge that would form a proper basis for an expert opinion on 

the gang structure and organization of BGB, as Detective Echevarria agreed 

Montgomery County does not have a gang problem, many shootings were not 

related to gangs, he did not know how someone became a member of BGB 

and had not interviewed any BGB members, no officer had spent time 
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undercover within BGB, and he did not know who held a rank or gave orders 

with BGB. 

 Pennsylvania Rule of Evidence 702 provides: 

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of 

an opinion or otherwise if: 

(a) the expert’s scientific, technical, or other specialized 

knowledge is beyond that possessed by the average 

layperson; 

(b) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue; and 

(c) the expert’s methodology is generally accepted in the 

relevant field. 

Pa.R.Evid. 702. Further, 

[a]n expert may base an opinion on facts or data in the case 

that the expert has been made aware of or personally 

observed. If experts in the particular field would reasonably 

rely on those kinds of facts or data in forming an opinion on 

the subject, they need not be admissible for the opinion to 

be admitted. 

Id. at 703.3

The trial court did not abuse its discretion in admitting Lieutenant 

Echavarria’s expert testimony. Lieutenant Echavarria’s testimony was based 

____________________________________________ 

3

 At the hearing on the motions in limine, Brinkley argued that Lieutenant 

Echevarria’s report did not mention that he “had actual knowledge of a conflict 

between the alleged members of BGB and Keith Robinson, the victim. There’s 

no evidence that Detective Echevarria can point to in his report that indicates 

that Keith Robinson was the target of a hit that was put out by BGB. There’s 

no evidence to support or that Detective Echevarria points to in his report that 

indicates that BGB wanted Keith Robinson eliminated, if you will, because he 

was a rival drug dealer.” N.T., Nov. 29, 2021, at 23-24. 
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on facts of which he was aware. That he lacked knowledge of other facts does 

not equate to a lack of a factual basis of the opinions that he did express, 

including that BGB was a gang and that Brinkley was a member of that gang. 

The facts and data of which he was aware supported his opinion. 

 In his third and fourth issues, Brinkley maintains the court erred in 

granting the Commonwealth’s motions to admit the lyrics to the rap songs 

attributed to BGB and evidence that Brinkley participated in rap music videos. 

He claims that evidence of Brinkley and his co-defendants lip syncing and 

dancing to words under the BGB moniker is not evidence of a conspiratorial 

relationship to kill Robinson. He claims the admission of the evidence was 

unfairly prejudicial. He notes that during Detective Echeverria’s cross 

examination he admitted he did not know who wrote the rap songs and that 

appearing in a rap video does not mean you are in a gang or you will commit 

violent acts. Brinkley attempts to distinguish the cases relied on by the 

Commonwealth, maintaining the rap music videos and lyrics were irrelevant 

as they did not make specific reference to the killing of Robinson and were 

recorded prior to the shooting, there was no evidence Brinkley wrote the lyrics, 

and he did not present evidence of his good character. 

 The trial court concluded the lyrics were relevant to establish conspiracy 

and motive. It pointed out the lyrics and videos demonstrate gang affiliation 

and association through lyrics, tags, graffiti, and filming locations: 

The Commonwealth sought to introduce the rap videos and 

lyrics in order to establish conspiracy and motive. The 

Commonwealth argued that the rap videos demonstrate 
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gang activity and association, which went to the conspiracy 

to commit murder. (N.T., Pre-Trial Motions, 6/23/21, p. 12 

- 13). More specifically, the Commonwealth stated that the 

rap videos are associated with the BGB, with numerous BGB 

tags and graffiti, and were filmed in locations significant to 

BGB, including 206 Mantawny Street. Id. at 16. The videos 

and lyrics contained references to always carrying firearms 

and specific references to not cooperating with police. Id.

at 56. Finally, the Commonwealth suggested that Lieutenant 

Echevarria would testify that only close associates would 

appear in these sorts of videos. Id. at 43. As to motive, the 

rap videos and lyrics contained an emphasis on the 

importance of drug dealing and making money, with many 

drug dealing references as explained through Lieutenant 

Echevarria’s interpretation of drug dealing jargon and drug 

references. Id. at 43. On December 20, 2021, an order was 

issued denying the motion in limine to exclude the rap 

videos and lyrics. 

The rap videos and lyrics were properly admitted to show 

that there was an association among the co-defendants, 

i.e., that they belonged to a gang, BGB, and that as a gang 

there were a set of ethos, as testified to by gang expert 

Lieutenant Echevarria, which . . . gave rise to their collective 

conspiratorial motive, to murder the victim. In other words, 

the rap videos and lyrics were evidence of association and 

of BGB’s drug dealing, which went to both the conspiracy 

and motive to kill the victim. 

Tr. Ct. Op. at 45-46. 

 The trial court did not abuse its discretion in admitting the rap videos 

and lyrics. Rap lyrics that tend to show a conspiratorial agreement are 

relevant. Commonwealth v. Flamer, 53 A.3d 82, 89 (Pa.Super. 2012) 

(finding rap lyrics relevant where they tended to prove a conspiratorial 

agreement). Further, as discussed above, the evidence of gang affiliation, 

which included the rap lyrics and videos, was admissible as evidence of 

conspiracy and motive. 
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 In issues, six, seven, and eight, Brinkley challenges the trial court’s 

rulings regarding his cross-examination of the inmate who testified that 

Brinkley told him details of the crime, Elijah Williams. Brinkley claims the court 

erred in denying his motion for release of Williams’ mental health records, 

pursuant to the Mental Health Procedures Act (“MHPA”) and by precluding 

Brinkley from cross-examining Williams about a competency examination he 

underwent in Williams’ own prosecution and any mental health diagnosis 

rendered during that examination. He further challenges the court’s 

determination that he could not call a rebuttal witness who would allegedly 

have testified that Williams had told him he suffered from schizophrenia and 

drug-induced psychosis. He claims the court’s ruling denied the jury an 

opportunity to weigh Williams’ credibility. 

 The MHPA provides that “[a]ll documents concerning persons in 

treatment shall be kept confidential and, without the person’s written consent, 

may not be released or their contents disclosed to anyone except” to those 

engaged in providing treatment to the person, the county administrator 

pursuant to section 110, a court “in the course of legal proceedings authorized 

by this act,” pursuant to a federal rule, statute, or regulation governing 

disclosure, or a covered entity. 50 P.S. § 7111(a). 

 “When a witness suffers from a mental disability relevant to his or her 

ability to accurately observe, recall or report events, the jury must be 

informed of the disability in order to assist it in properly assessing the weight 

and credibility of the witness’s testimony.” Commonwealth v. Davido, 106 
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A.3d 611, 637 (Pa. 2014) (citation omitted). “The evidence can be said to 

affect credibility when it shows that the witness’s mental disorganization 

impaired his or her capacity to observe an event at the time of its occurrence, 

to maintain a clear recollection of it, or to communicate the observation 

accurately and truthfully at trial.” Id.

 The trial court concluded that under the MHPA’s plain language, it was 

proper to deny the request for Williams’ mental health records, as the records 

were confidential and could not be released to anyone without Williams’ 

consent. Tr. Ct. Op. at 58. It further concluded that the evidence of Williams’ 

alleged mental health condition was not admissible because no evidence 

suggested Williams was unable to coherently explain the conversations to the 

detectives or that he was unable to understand his conversations with Brinkley 

at the time those conversations occurred. This was not an abuse of discretion. 

Following review of the certified record, briefs, relevant case law, and the wellreasoned trial court opinion of the Honorable William R. Carpenter, we affirm 

on the basis of the trial court opinion. See id. at 55-60. 

Brinkley claims the court erred when it allowed the Commonwealth to 

introduce evidence of his Instagram conversations and postings where the 

Commonwealth did not provide reasonable notice. He claims the record is 

“devoid of the Commonwealth setting forth any such good cause and/or the 

Trial Court excusing the Commonwealth for the same.” Brinkley’s Br. at 17. 

Brinkley maintains the Commonwealth must provide notice of its intent to seek 

admission of evidence of other crimes, wrongs, or acts. He claims the 
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Commonwealth never provided notice of its intent to seek the admission of 

the Instagram posts and conversations admitted at trial. The trial court 

overruled Brinkley’s objection. 

The version of Pennsylvania Rule of Evidence 404(b)(3) in effect at the 

time of trial provided that “the prosecutor must provide reasonable notice in 

advance of trial, or during trial if the court excuses pretrial notice on good 

cause shown, of the general nature of any such evidence the prosecutor 

intends to introduce at trial.” See Rule 404(b)(3).4 “The purpose of this rule 

is to prevent unfair surprise, and to give the defendant reasonable time to 

prepare an objection to, or ready a rebuttal for, such evidence.” 

Commonwealth v. Lynch, 57 A.3d 120, 125-26 (Pa.Super. 2012) (internal 

quotation marks and citation omitted). At the time of Brinkley’s trial, the 

Commonwealth did not need to provide written notice for the evidence to be 

admissible. Pa.R.Evid. 404(b)(4), amended Dec. 2, 2021. Pennsylvania courts 

had held that sufficient notice existed where the prior bad acts evidence was 

discussed during a pre-trial conference or where the defense received the 

evidence in discovery. Commonwealth v. Stallworth, 781 A.2d 110, 118 

____________________________________________ 

4

 Effective April 1, 2022, the Rule now provides for written notice: “(3) Notice 

in a Criminal Case. In a criminal case the prosecutor must provide reasonable 

written notice in advance of trial so that the defendant has a fair opportunity 

to meet it, or during trial if the court excuses pretrial notice on good cause 

shown, of the specific nature, permitted use, and reasoning for the use of any 

such evidence the prosecutor intends to introduce at trial.” Pa.R.Evid. 

404(b)(3). 
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n.2 (Pa. 2001); Commonwealth v. Mawhinney, 915 A.2d 107, 110 

(Pa.Super. 2006). 

 Here, the trial court concluded the Commonwealth provided reasonable 

notice. It pointed out that the discovery items Brinkley challenged in his 

motion in limine included social media posts related to BGB and Brinkley; the 

Commonwealth had noted Brinkley’s Instagram handle referred to RMO, which 

was associated with and a foundation for BGB; and his Instagram account 

referenced “Long Live Bud Savage.” The court noted that defense counsel had 

argued the Commonwealth could not authenticate the posts and, at two pretrial hearings, the Commonwealth stated that it intended to use the social 

media accounts as evidence. The court found the discovery provided, the 

Commonwealth’s responses to Brinkley pre-trial motion, and its arguments at 

the hearings, meant that there was no surprise and that Brinkley had sufficient 

time to prepare. It found the claim failed. After review of the certified record, 

the parties’ briefs, the relevant case law, and the well-reasoned trial court 

opinion, we affirm on the basis of the trial court opinion. See Tr. Ct. Op. at 

46-50. 

B. Motion to Suppress Grand Jury Testimony 

In his fifth issue, Brinkley claims the court erred in denying his motion 

to suppress his grand jury testimony. He claims the testimony was taken in 

violation of his right against self-incrimination. Brinkley maintains the 

Commonwealth informed the trial court at the grand jury hearing that Brinkley 

was not a target of investigation, even though he was a target at that time. 
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Brinkley notes that prior to the testimony, the police had interviewed 

witnesses regarding Brinkley’s whereabouts on the night of the murder, 

reviewed surveillance footage of Brinkley’s whereabouts, interrogated 

witnesses before the grand jury regarding his whereabouts, and obtained and 

executed search warrants for his DNA. He claims the court read him his rights 

as a witness. 

 In Commonwealth v. Williams, 565 A.2d 160, 165 (Pa.Super. 1989), 

this Court rejected the appellant’s contention that it was improper for the 

Commonwealth to permit him to testify before a grand jury without counsel 

and without immunization where he was a “target” of the investigation, not 

merely a witness. There, the trial court had advised the appellant of his rights, 

including his right to counsel and right to refuse to answer a question if his 

answer would result in self-incrimination. We stated that, if he was a target, 

the Commonwealth was not required to advise him of this fact. Id. at 166. 

We cited United States v. Washington, 431 U.S. 181 (1977), which stated 

that “[b]ecause target witness status neither enlarges nor diminishes the 

constitutional protection against compelled self-incrimination, potential 

defendant warnings add nothing of value to protection of Fifth Amendment 

rights.” Williams, 565 A.2d at 166 (quoting Washington, 431 U.S. at 1820). 

 Here, before testifying at the grand jury, the court read Brinkley his 

rights, including his right to counsel and his right against self-incrimination. 

After his first appearance, shortly after questioning commenced, Brinkley 

stated he wanted to speak with an attorney and the questioning stopped. 
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Brinkley appeared before the grand jury a second time, with the assistance of 

counsel. The trial court concluded his grand jury testimony was admissible 

because whether he was a target did not affect his rights: 

Whether Brinkley was identified as a target rather than a 

witness, the rights given to him would have been the same. 

As having been identified as a witness, he was advised of 

his right to secure legal representation, that if he could not 

afford an attorney one would be appointed, that he may 

consult with that attorney during his testimony. He was 

further advised of his right to refuse to answer any 

questions. Brinkley stated that he understood his rights, and 

in fact exercised his right to stop questioning and to retain 

an attorney before he provided testimony. Had he been 

identified as a suspect, the rights given to him would have 

remained the same. See[] Commonwealth v. Williams, 

565 A.2d 160, 164-165 (Pa.Super. 1989) (even if defendant 

was a “target” of grand jury investigation, the 

Commonwealth was not required to advise him of that fact 

and therefore it was not improper for Commonwealth to 

allow defendant, who was given option of acquiring services 

of an attorney as well as refusing to answer any questions 

which might incriminate him but who chose to offer perjured 

testimony, to testify without counsel and without 

immunity). 

Tr. Ct. Op. at 54-55. 

The trial court did not abuse its discretion. Here, even if Brinkley was a 

target at the time of his grand jury testimony, he would have been afforded 

the same rights as he was afforded as a witness. This claim lacks merit.

C. Sufficiency of the Evidence 

Brinkley claims the court erred in denying his motion for a judgment of 

acquittal and/or new trial where the Commonwealth failed to establish the 

elements of murder in the first degree and conspiracy to commit murder 
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beyond a reasonable doubt. He maintains the Commonwealth failed to 

establish that Brinkley killed Robinson and therefore failed to establish firstdegree murder. He further contends the Commonwealth did not prove that he 

agreed with other persons to engage in murder and therefore failed to prove 

conspiracy. 

 When reviewing a sufficiency challenge, 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.” Commonwealth 

v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019) (citation omitted). 

Evidence is sufficient where the Commonwealth has proven each element of 

the crime beyond a reasonable doubt. Id. at 337 (citation omitted). The 

Commonwealth may meet its burden “by means of wholly circumstantial 

evidence.” Id. (citation omitted). Additionally, the fact finder “is free to believe 

all, part, or none of the evidence.” Commonwealth v. Ramtahal, 33 A.3d 

602, 607 (Pa. 2011). 

First degree murder is a criminal homicide committed by an “intentional 

killing.” 18 Pa.C.S.A. § 2502(a). “Intentional killing” is defined as “[k]illing by 

means of poison, or by lying in wait, or by any other kind of willful, deliberate 

and premeditated killing.” 18 Pa.C.S.A. § 2502(d). The elements of firstdegree murder are: (1) a human being was unlawfully killed; (2) the 

defendant was responsible for the killing; and (3) the defendant acted with 

malice and a specific intent to kill. Commonwealth v. Houser, 18 A.3d 1128, 

1133 (Pa. 2011). 
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To convict a defendant of criminal conspiracy, the Commonwealth must 

establish that: “(1) [he] entered into an agreement to commit or aid in the 

commission of a crime; (2) he shared the criminal intent with that other 

person; and (3) an overt act was committed in furtherance of the conspiracy.” 

Commonwealth v. Knox, 50 A.3d 749, 755 (Pa.Super. 2012) (citation 

omitted). “This overt act need not be committed by the defendant; it need 

only be committed by a co-conspirator.” Id. “[E]ach member of a conspiracy 

to commit homicide can be convicted of first-degree murder regardless of who 

inflicted the fatal wound.” Commonwealth v. Montalvo, 956 A.2d 926, 932 

(Pa. 2008). 

 Here, the trial court concluded the Commonwealth presented sufficient 

evidence to prove first-degree murder and conspiracy. The court noted 

Brinkley was seen with Lee and Goins before the murder and shortly after the 

murder, the cell phone records place him and Goins in the area of the murder 

at the relevant time, he and Lee were members of the BGB gang and Goins 

was associated with BGB, BGB was linked with drug dealing in Pottstown, and 

Brinkley confided in another inmate the details of his involvement in the 

murder. We agree with the trial court and, after review of the record, the 

parties’ briefs, and the relevant case law, we affirm on the basis of the trial 

court opinion. See Tr. Ct. Op. at 63-67. 

D. The Verdict Was Not Against the Weight of the Evidence 

 Finally, Brinkley claims the court erred in denying his motion for a new 

trial because the verdict was against the weight of the evidence. He claims 
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the Commonwealth presented no evidence that proved the existence of a 

conspiracy to commit the killing of Robinson. He further claims there was no 

evidence Brinkley was engaged in the trafficking of controlled substances such 

that he would have a motive to kill Robinson. 

A weight claim is for the trial court in the first instance. See 

Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa.Super. 2016). The trial 

court may sustain a weight challenge and grant a new trial only “when the 

jury’s verdict is so contrary to the evidence as to shock one’s sense of justice 

and the award of a new trial is imperative so that right may be given another 

opportunity to prevail.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 

2013) (citation omitted). “The weight of the evidence is exclusively for the 

finder of fact who is free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses.” Commonwealth v. Champney, 

832 A.2d 403, 408 (Pa. 2003) (quoting Commonwealth v. Small, 741 A.2d 

666, 672 (Pa. 1999)). We review the trial court’s rejection of a challenge to 

the weight of the evidence for an abuse of discretion. Commonwealth v. 

Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017). 

The trial court concluded that Brinkley’s Rule 1925(b) statement and 

post-sentence motion failed to explain why the evidence was unreliable or 

explain whose testimony was not credible and concluded that “without more 

specificity [it was] unable to address th[e] issue on appeal.” Tr. Ct. Op. at 69. 

This was not an abuse of discretion. Brinkley merely alleged the verdict was 

against the weight of the evidence, without presenting argument or 
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explanation in support of the claim. He therefore did not properly raise the 

issue in the trial court and cannot raise it now. See Pa.R.A.P. 302(a). 

 Judgment of sentence affirmed. 

Date: 7/16/2024