J-S70011-16

 2016 PA Super 273

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

UNIQUE S. KENNEDY

Appellant No. 680 EDA 2015

Appeal from the Judgment of Sentence February 20, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012026-2013

BEFORE: OLSON, OTT and MUSMANNO, JJ.

OPINION BY OLSON, J.: FILED DECEMBER 06, 2016

Appellant, Unique S. Kennedy, appeals from the judgment of sentence 

entered on February 20, 2015. In this case, we consider whether the trial 

court abused its discretion in admitting lay opinion testimony from a crime 

scene investigator regarding bullet trajectory. After careful consideration, 

we hold that the trial court did not abuse its discretion by admitting the lay 

opinion testimony. We also clarify the interaction between Pennsylvania 

Rules of Evidence 404(a)(2)(A) (defense introduction of evidence of a 

pertinent character trait) and 608(a) (admission of evidence of witness’ 

character for truthfulness to counter attack). Based upon our analysis, we 

conclude that the trial court properly excluded evidence relating to 

Appellant’s truthfulness. As we also find Appellant is not entitled to relief on 

his remaining claims, we affirm.

We have summarized the factual background of this case as follows:
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These charges arose out of a dispute over a woman that both 

[Appellant’s co-defendant, Stephon Harris (“Harris”),] and the 

decedent had an interest in. On July 9, 2013, at approximately 

9:45 p.m., John Anderson (“Anderson”) was shot and killed in 

the entryway of his apartment. The entryway at this location 

had a street entrance door and a second door that led up to the 

single, second floor apartment that Anderson shared with 

Naheem Hines (“Hines”), and Mohamad Khardani (“Khardani”). 

Khardani owned the building that housed the apartment, and a 

pizza shop located below the apartment where Khardani worked. 

Earlier that day, Anderson had exchanged a series of text 

messages and phone calls with [Harris’ girlfriend] when [Harris] 

intercepted his girlfriend’s phone call and spoke directly to 

Anderson. An argument ensued over the phone and Anderson 

said, “I’m at 72nd, do what you gotta do.” [Harris] was visiting 

his friend Davon Kennedy (“Davon”) and Davon’s cousin[, 

Appellant,] when he recounted the argument that he had with 

Anderson over the phone. [Harris] said that “Anderson needed 

to go.” The three men walked to a store then [Harris] and 

[Appellant] told Davon they would catch up with him later, and 

walked away together. 

That evening, Hines was returning to the apartment when he 

saw two males who appeared to be attempting to open the 

apartment’s street level entry door. Though the males were 

unfamiliar to Hines, he was later able to identify [Appellant] as 

one of the males. As Hines approached, the two males drifted 

away from the apartment door and towards the pizza shop. 

Hines asked Khardani, who was working in the pizza shop at the 

time, if he knew the two males. Khardani recognized [Harris] as 

a repeat customer of the pizza shop and greeted him. . . . 

Khardani did not recognize [Appellant]. 

[Appellant] asked Hines whether Anderson was at home and said 

“Ace” was looking for him. Hines replied that he did not know 

but would check when he went upstairs. Upon arriving upstairs, 

Hines learned that Anderson was indeed at home along with 

Tanesha Brooks-Mapp (“Brooks-Mapp”). Hines delivered the 

message that there were two males downstairs who were 

looking for Anderson. Hines, Brooks-Mapp[,] and Anderson went 

downstairs to the main entry of the apartment. Anderson was 

unarmed. As soon as Anderson began to open the interior door, 

five to six gunshots rang out and Anderson fell to the floor in the 
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doorway of the apartment. Hines was able to see that 

[Appellant] was the shooter and saw the two males with whom 

he had spoken earlier running across the street, away from the 

scene of the shooting. Khardani was inside of the pizza shop 

when he heard shots. Khardani looked up to see [Harris] and 

the male he was with running from the scene and Anderson lying 

on the ground. 

Commonwealth v. Harris, 2016 WL 6649244, *1 (Pa. Super. Nov. 10, 

2016) (unpublished memorandum) (internal alterations, ellipses, and 

citation omitted).

The procedural history of this case is as follows. On September 30, 

2013, the Commonwealth charged Appellant via criminal information with 

first-degree murder,1conspiracy to commit first degree murder,2carrying a 

firearm without a license,3carrying a firearm on the streets of Philadelphia,4

possessing an instrument of crime,5attempted murder,6aggravated 

assault,7and recklessly endangering another person.8 On February 9, 2015, 

Appellant orally moved in limine to exclude the lay opinion testimony of 

 

1 18 Pa.C.S.A. § 2502(a).

2 18 Pa.C.S.A. §§ 903, 2502. 

3 18 Pa.C.S.A. § 6106(a)(1).

4 18 Pa.C.S.A. § 6708.

5 18 Pa.C.S.A. § 907(a).

6 18 Pa.C.S.A. §§ 901, 2502. 

7 18 Pa.C.S.A. § 2702(a).

8 18 Pa.C.S.A. § 2705. 
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Officer Jacqueline Davis, a crime scene investigator, whose proposed 

testimony included her observations regarding the angle of trajectory of 

bullets fired through the door of Anderson’s apartment. The trial court 

denied the motion that same day. 

At trial, Officer Davis opined that, based upon the bullet holes in the 

door and the location of evidence inside the foyer, the apartment door was 

partially open when Appellant opened fire. Appellant testified on his own 

behalf, stating that he shot Anderson in self-defense. Appellant sought to 

call witnesses to testify as to his character trait of truthfulness. The 

Commonwealth objected to this character evidence and the trial court 

sustained the Commonwealth’s objection. On February 20, 2015, a jury 

found Appellant guilty of first-degree murder, conspiracy to commit first 

degree murder, carrying a firearm without a license, possessing an 

instrument of crime, and recklessly endangering another person. The trial 

court immediately sentenced him to an aggregate term of life imprisonment 

without the possibility of parole. This timely appeal followed.9

Appellant presents five issues for our review:

1. Whether the Commonwealth did not prove, by sufficient 

evidence that Appellant acted with the required malice for any of 

 

9 On July 30, 2015, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On September 10, 2015, Appellant filed his concise 

statement. On October 30, 2015, the trial court issued its Rule 1925(a) 

opinion. All issues raised on appeal were included in Appellant’s concise 

statement.
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the charges and, hence, the Commonwealth has failed to prove 

the elements of the crimes[ and hence a]n arrest of judgment 

must be awarded[?]

2. Whether Appellant must be awarded a new trial as the [trial 

c]ourt denied Appellant’s motion in limine to preclude Officer 

Jacqueline Davis from providing an opinion that the front door at 

the crime scene was open at the time of the shooting[?]

3. Whether Appellant must be awarded a new trial as the [trial 

c]ourt precluded the introduction of defense evidence following 

[Hines’ testimony?]

4. Whether Appellant must be awarded a new trial as the [trial 

c]ourt precluded the introduction of character evidence[?]

5. [Whether, i]n the alternative, Appellant must be awarded a new 

trial as the greater weight of the evidence does not support the 

verdict. . . ?

Appellant’s Brief at 3.10

Appellant’s first issue challenges the sufficiency of the evidence.11 

“Whether sufficient evidence exists to support the verdict is a question of 

law; our standard of review is de novo and our scope of review is plenary.” 

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (citation 

omitted). “In assessing Appellant’s sufficiency challenge, we must 

determine whether, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all reasonable inferences 

 

10 We have re-numbered the issues for ease of disposition.

11 Contrary to the trial court contention, there is no need to preserve a 

challenge to the sufficiency of the evidence prior to filing a concise 

statement. See Pa.R.Crim.P. 606 cmt. (“The defendant may also raise [a 

challenge the sufficiency of the evidence] for the first time on appeal under 

[Pennsylvania Rule of Criminal Procedure 606](A)(7).”). 
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therefrom, the trier of fact could have found that the Commonwealth proved 

[each] element of the crime beyond a reasonable doubt.” Commonwealth 

v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted). “The 

evidence need not preclude every possibility of innocence and the fact-finder 

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

Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation 

omitted).

Appellant argues that there was insufficient evidence to convict him of 

first-degree murder. In order to convict a defendant of first-degree murder, 

“the Commonwealth must [] demonstrate[] that[ ] a human being was 

unlawfully killed, the defendant perpetrated the killing, and the defendant 

acted with malice and a specific intent to kill.” Commonwealth v. Ovalles, 

144 A.3d 957, 969 (Pa. Super. 2016) (internal quotation marks and citation 

omitted). 

Appellant only challenges the sufficiency of the evidence relating to the

elements of malice and specific intent.12 As our Supreme Court has 

 

12 In the argument portion of his brief, Appellant also argues that the 

Commonwealth failed to disprove his self-defense theory beyond a 

reasonable doubt. Cf. Commonwealth v. Rivera, 108 A.3d 779, 791 n.7 

(Pa. 2014) (citation omitted) (“[T]he burden is upon the Commonwealth to 

prove beyond a reasonable doubt that the defendant was not acting in selfdefense.”). This argument is waived because it was not included in the 

statement of questions involved section of his brief. See Pa.R.A.P. 2116(a) 

(“No question will be considered unless it is stated in the statement of 

questions involved or is fairly suggested thereby.”). 

(Footnote Continued Next Page)
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repeatedly held, a jury may properly infer malice and specific intent from the 

fact that a victim was shot multiple times. See Commonwealth v. 

Chamberlain, 30 A.3d 381, 394 (Pa. 2011) (citations omitted) (malice); 

Commonwealth v. Hughes, 865 A.2d 761, 793 (Pa. 2004) (specific 

intent). As noted above, Appellant shot Anderson multiple times. Thus, the 

evidence was sufficient to convict Appellant of first-degree murder.

Appellant’s second, third, and fourth issues challenge the trial court’s 

evidentiary rulings. We review the trial court’s evidentiary rulings for an 

abuse of discretion. Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa. 

Super. 2015) (citation omitted).

In his second issue, Appellant argues that the trial court erred by 

allowing Officer Davis to offer a lay opinion that the door was slightly open 

when Appellant shot Anderson. Officer Davis, a member of the crime scene 

unit of the Philadelphia Police Department, testified that she placed rods in 

the bullet holes of the door. She testified that the only logical conclusion 

based upon the bullet trajectories, as determined by the rods placed in the 

(Footnote Continued) _______________________

Moreover, even if we were to reach the merits of this argument, Appellant 

would not be entitled to relief. Brooks-Mapp and Hines testified that 

Appellant did not shoot Anderson in self-defense. See N.T. 2/11/15, 66-68, 

119; 2/12/15, 11. Furthermore, the circumstances surrounding Anderson’s 

murder weigh heavily against self-defense. Harris threatened to kill 

Anderson earlier in the day. Appellant and Harris then traveled to 

Anderson’s apartment and shot him multiple times while he was standing in 

the foyer of his apartment. This direct and circumstantial evidence was 

sufficient to disprove Appellant’s self-defense theory beyond a reasonable 

doubt. 
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bullet holes, was that the door was slightly ajar when Appellant shot 

Anderson. As the Commonwealth did not designate Officer Davis as an 

expert witness, Appellant moved in limine prior to trial to bar this lay opinion 

testimony. The trial court denied the motion and permitted Officer Davis’ 

testimony during trial. 

Lay opinion testimony is governed by Pennsylvania Rule of Evidence 

701, which provides that: 

If a witness is not testifying as an expert, testimony in the form 

of an opinion is limited to one that is:

(a) rationally based on the witness[’] perception;

(b) helpful to clearly understanding the witness[’] testimony or 

to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized 

knowledge within the scope of Rule 702.

Pa.R.Evid. 701. 

Appellant argues that this case is governed by Commonwealth v. 

Serge, 896 A.2d 1170 (Pa. 2006). According to Appellant, Serge stands for 

the proposition that “[c]rime scene recreation has been thoroughly discussed 

as requiring expert testimony.” Appellant’s Brief at 10. This, however, is a 

misreading of our Supreme Court’s decision. Serge did not discuss whether 

lay opinion testimony regarding crime scene recreation was admissible under 

Rule 701 or whether it required expert testimony under Rule 702. Instead, 

Serge addressed the question of whether an expert was permitted to use a 

computer-generated animation when testifying under Rule 702. See Serge, 
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896 A.2d at 1173. Moreover, Serge examined complex crime scene 

reconstruction using a computer-generated animation. This is different than 

the situation here which involved simple testimony regarding bullet 

trajectory gathered as a result of sticking rods in bullet holes. 

The other case cited by Appellant is likewise factually dissimilar from 

the case at bar. In Commonwealth v Duffey, 548 A.2d 1178 (Pa. 1988), 

a non-expert former police officer

testified that he was able to detect ‘high speed splatter’ of blood 

when a victim is stabbed in a frenzy; and that the absence of 

blood stains above a certain height on the bathroom wall where 

the victim was stabbed indicated the absence of ‘high speed 

splatter.’ From this he concluded that the victim was stabbed in 

a slow and deliberate manner.

Id. at 1186. The defendant objected to this testimony and the trial court 

overruled the objection. On appeal, our Supreme Court held that this was 

an error as the officer’s testimony exceeded the permissible scope of lay 

opinion testimony under Rule 701 and fell within the domain of expert 

testimony under Rule 702. See id.

Opinions regarding blood spatter and the specific height that blood 

would reach during a violent attack are not easily reached based the witness’ 

perception. See Pa.R.Evid. 701(a). Instead, technical and scientific 

knowledge about physiological parameters and the mechanics of blood 

spatter are required for such testimony. See Pa.R.Evid. 701(c). 

Furthermore, such blood spatter testimony required the officer to know what 

type of stab wounds are capable of causing blood to exit the body at those 
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velocities. See id. Contrast that to the type of bullet trajectory testimony 

offered by Officer Davis in this case. Any individual could place a rod in a 

bullet hole and discern which direction the bullet traveled. Thus, the blood 

spatter testimony in Duffey is factually dissimilar to the type of bullet 

trajectory testimony offered by Officer Davis in the case sub judice. 

As to the question presented in this appeal, we are unaware of any 

Pennsylvania cases that address whether bullet trajectory testimony is 

admissible under Rule 701 or requires expert testimony under Rule 702. We 

thus examine how courts in other jurisdictions have treated such bullet 

trajectory evidence under similar (if not identical) rules of evidence. Cf. 

In re N.M., 141 A.3d 539, 544 (Pa. Super. 2016) (decisions from other 

jurisdictions are persuasive).

 We find persuasive the United States Court of Appeals for the Fourth 

Circuit’s decision in United States v. Beckford, 211 F.3d 1266 (table), 

2000 WL 376155 (4th Cir. 2000) (per curiam). Similar to the case at bar, in 

Beckford “one of the investigating detectives inserted a pencil into bullet 

holes found in the [] apartment to ascertain the angle of the bullet path. 

From this and crime scene photographs, the government created a 

computer-generated diagram which utilized red lines to trace the bullet path 

suggested by the pencil angle.” Id. at *6. The defendant objected to this 

evidence arguing that the detective’s use of a pencil in the bullet holes and 

photographs of the crime scene required specialized knowledge within the 
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scope of Federal Rule of Evidence 702. The district court overruled the 

defendant’s objection and the Fourth Circuit affirmed, holding that “the 

district court reasonably concluded that the detective’s testimony concerning 

his findings, as aided by the diagram, was rationally based on his 

perceptions and helpful to a clear understanding of his investigation and 

observations.” Id. 

The case at bar is similar in that a police officer with the crime scene 

unit used rods through the bullet holes in the door and evidence inside the 

foyer to opine that the door was partially ajar when Appellant shot 

Anderson. In other words, in both Beckford and the case at bar, the crime 

scene officers used rod-like objects inserted into the bullet holes to estimate 

bullet trajectory. Although in Beckford the prosecution supplemented this 

testimony with a computer-generated diagram, this diagram was based 

solely upon the pencil placed in the bullet holes and photographs of the 

crime scene. In other words, the diagrams were just aids for the jury to 

visualize the officer’s testimony. The Fourth Circuit concluded that such 

reliance, by a crime scene officer, was “rationally based on the witness’[] 

perception.” Fed.R.Evid. 701(a); see Pa.R.Evid. 701(a). We ascertain no 

reason why the use of virtually identical perceptions in the present case 

should lead to a different result.

The Colorado Court of Appeals, Division II confronted a similar issue in 

Colorado v. Caldwell, 43 P.3d 663 (Colo. App. 2001). In that case,
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a former police officer, employed as a crime scene technician at 

the time of the shooting, testified that after the shooting, he 

photographed and collected evidence from the deputy’s patrol 

car. He also testified about the appearance and location of the 

two bullet holes on the outside of the car, the hole inside the 

car, and the dimpling of the metal inside the car. From his own 

observations and the use of a dowel and string, the technician 

testified that he tracked the paths of the two bullets[.]

Id. at 667. The defendant objected to this testimony arguing that the 

former police officer’s testimony required an expert opinion and was not 

admissible as lay opinion testimony. The trial court overruled the objection 

and the defendant appealed.

The appellate court held that the trial court did not abuse its discretion 

by permitting the former police officer to offer lay opinion testimony under 

Colorado Rule of Evidence 701. It reasoned that the former police officer’s 

testimony 

included only his observations about the entry locations of the 

bullets and the path they traveled inside the vehicle. Such 

observations could just as easily have been made by the jury 

from the photographs. No special expertise is required to look at 

the hole made by the bullet and realize that it followed a 

straight-line path.

Id. (citation omitted).

Although the former police officer’s testimony in Caldwell dealt with 

bullet trajectory inside of a vehicle instead of through a door, we again see 

no reason that the same rationale should not apply in the case at bar. As in 

Caldwell, Officer Davis used rods to determine the path of the bullets 

through the door and opined, based upon the bullets’ trajectory and physical 
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evidence she found inside of the foyer, whether the door was open or closed 

at the time Appellant shot Anderson. 

The Special Court of Appeals of Maryland has reached the same 

conclusion. In Prince v. Maryland, 85 A.3d 334 (Md. Ct. Spec. App. 2014), 

a police officer “examined [the victim’s] car . . . and, as part of his 

examination, placed ‘trajectory rods’ through the bullet holes in the car and 

photographed the rods in place.” Id. at 339. At trial, the officer then 

testified regarding the trajectory of the bullets as shown by the trajectory 

rods in the pictures. On appeal, the defendant argued that this testimony 

was inadmissible under Maryland’s version of Rule 701. The defendant 

argued the evidence was solely within the purview of expert witnesses. The 

appellate court rejected this argument. It reasoned that “[a] police officer 

who does nothing more than observe the path of the bullet and place 

trajectory rods (in the same manner as any layman could) need not qualify 

as an expert to describe that process.” Id. at 348 (emphasis removed). 

The situation in Prince is once again similar to the case sub judice. 

Although Prince dealt with trajectory rods placed in a vehicle instead of a 

door, the essence of Officer Davis’ testimony and the officer’s testimony in 

Prince is the same. In both cases, the officers used rods placed in bullet 

holes to determine the trajectory of the bullets – the same action a layman 

would take if examining the scene of a shooting. The officers in both Prince
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and this case then relayed their findings, and opinions based thereon, to the 

jury.

The idea of lay opinion testimony regarding bullet trajectory is not 

new. In United States v. Pierson, 503 F.2d 173 (D.C. Cir. 1974), the 

United States Court of Appeals for the District of Columbia Circuit was 

presented with the question of “whether the district court abused its 

discretion in permitting [a police officer] to testify regarding the direction 

from which the bullet hole in the wall was fired.” Id. at 175. The defendant 

objected to the admission of this lay opinion testimony and the district court 

overruled the objection. The District of Columbia Circuit “agree[d] with the 

district [court] that a layman, under certain circumstances can look at a 

bullet hole in a wall and see whether it appears to come from one direction 

or another. No special expertise is required.” Id. at 176 (internal quotation 

marks omitted). The court further reasoned that:

In giving his opinion, [the officer] was merely relating 

impressions resulting from his observation of the hole in the 

wall. By indicating the direction from which he thought the 

bullet was fired, he probably gave the jurors a clearer conception 

of the nature of the bullet hole than had he attempted to 

describe the features of the hole. Having observed the bullet 

hole itself, he would be better qualified than the jury to draw a 

conclusion regarding the direction from which the bullet was 

fired.

Id. at 176-177.

The testimony by the officer in Pierson was more questionable than 

Officer Davis’ testimony in this case. The officer in Pierson did not insert 
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rods into the bullet holes to determine the trajectory of the bullets. Instead, 

he merely used the contour of the bullet holes to determine the bullets’ 

trajectory. This requires more specialized knowledge than placing a rod in a 

hole and then looking at the location the rod points. Thus, we ascertain no 

reason why, if the officer’s testimony in Pierson was admissible under the 

common law predecessor to Federal Rule of Evidence 701, Officer Davis’ 

testimony should be inadmissible in this case.13 

We acknowledge prior case law from other jurisdictions that appears to 

require expert testimony to establish bullet trajectory. Careful examination 

of these cases, however, shows that they are factually and/or legally distinct 

from the situations presented in Beckford, Caldwell, Prince, Pierson, and 

the case sub judice. We therefore decline to hold that they are persuasive 

with respect to the issue raised herein.

For example, in McGrath v. Tavares, 757 F.3d 20 (1st Cir. 2014), the 

United States Court of Appeals for the First Circuit held that photographs of 

bullet holes in a windshield were insufficient, without expert testimony, to 

prove that police shot through the windshield at an angle. See id. at 26-27. 

 

13 Federal Rule of Evidence 701 was proposed in 1972 and that proposal was 

pending before Congress when Pierson was decided. See Federal Rules of 

Evidence, H.R. 5463, 93rd Cong. (as passed by House, Feb. 6, 1974). Thus, 

although Pierson was decided based upon federal common law, the pending 

rules proposal played a role in the District of Columbia Circuit’s 

interpretation of that common law. This is evidenced by its citation to 

McCormick on Evidence, § 11 (1972). In that section, McCormick de facto

cited to proposed Rule 701. See id. at p.25, n.32. 
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Noticeably absent from McGrath is any discussion of whether lay opinion 

testimony from a crime scene officer is admissible under Federal Rule of 

Evidence 701. Instead, in McGrath the plaintiff relied solely upon 

photographs of the bullet riddled windshield. Furthermore, the photographs 

did not include rods through the bullet holes to show their trajectory. The 

only testimony in McGrath was from a defense expert witness who stated 

that the bullet trajectories could not be determined based upon the 

photographic evidence. See id. at 27. Thus, although McGrath held that 

expert testimony is required for proof of bullet trajectory, it did so in a factspecific context not present in the instant case.

Also, in Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007), the 

United States Court of Appeals for the Fifth Circuit held that a police officer’s 

assurances that his law enforcement experience rendered him capable of 

offering an expert opinion regarding bullet trajectory were insufficient under 

Federal Rule of Evidence 702. Id. at 318. Again, as in McGrath, 

Hathaway did not discuss whether a crime scene unit member can offer lay 

opinion testimony under Federal Rule of Evidence 701. Instead, because of 

the procedural posture of the case, the Fifth Circuit in Hathaway focused on 

whether the police officer’s methodology was sufficient to satisfy the expert 

witness requirements of Rule 702. Moreover, in Hathaway the bullet holes 

in question were not in a door or windshield, instead they were in a human 

body. See id. The main focus of the police officer’s testimony was on the 
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location of the shell casings and the lack of bullet holes in certain parts of 

the subject vehicle. See id. Finally, like in McGrath, there were no rods or 

sticks placed through the bullet holes in Hathaway. Thus, Hathaway is 

both legally and factually dissimilar to the case sub judice. 

The four cases most factually and legally similar to the case at bar, 

Beckford, Caldwell, Prince, and Pierson, held that the lay opinion 

testimony as to bullet trajectory was admissible under analogues to 

Pennsylvania Rule of Evidence 701. We find the rationale in these four cases 

all compelling for the reasons set forth above. Moreover, as discussed 

above, McGrath and Hathaway are legally and factually distinguishable 

from the situation presented in this case. 

Appellant points to various testimony and evidence that an expert 

could have provided if called at trial and why that testimony and evidence is 

superior to that provided by Officer Davis. For example, he avers that an 

expert witness from the Philadelphia Police Department’s Firearms 

Identification Unit could have used the EVI-PAQ Laser Trajectory Kit in order 

to offer more precise trajectory testimony. These arguments, however, do 

not go to the admissibility of Officer Davis’ testimony. Instead, they go to 

the weight of the evidence. Cf. Commonwealth v. Blasioli, 713 A.2d 

1117, 1123 n.15 (Pa. 1998) (argument that Pennsylvania State Police could 

have used a larger database when conducting DNA testing goes to the 

weight of the evidence and not to its admissibility). Accordingly, we hold 
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that the trial court did not abuse its discretion in admitting Officer Davis’ lay 

opinion testimony over Appellant’s objection. 

In his third issue, Appellant argues that the trial court erred by 

sustaining the Commonwealth’s objection to the admission of photographs of 

buildings surrounding the crime scene. This argument is waived. The 

photographs Appellant argues were improperly excluded by the trial court 

are not included in the certified record. The only description of the 

photographs is in Appellant’s brief before this Court. It is well-settled, 

however, that “this Court may consider only the facts that have been duly 

certified in the record when deciding an appeal.” PHH Mortgage Corp. v. 

Powell, 100 A.3d 611, 614 (Pa. Super. 2014), citing Pa.R.A.P. 1921 Note. 

Moreover, “it is Appellant’s responsibility to ensure that this Court has the 

complete record necessary to properly review a claim.” Commonwealth v. 

Tucker, 143 A.3d 955, 963 (Pa. Super. 2016) (internal quotation marks and 

citation omitted).

In Commonwealth v. Petroll, 696 A.2d 817 (Pa. Super. 1997), aff’d, 

738 A.2d 993 (Pa. 1999), the defendant argued that the trial court erred by 

failing to sustain his objection to the admission of photographs. This Court 

found the issue waived because of the defendant’s failure to ensure the 

photographs were included in the certified record. See id. at 836. 

Similarly, in Commonwealth v. Lassen, 659 A.2d 999 (Pa. Super. 1995), 

abrogated on other grounds, Commonwealth v. Stultz, 114 A.3d 865, 882 
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(Pa. Super. 2015), the defendant argued that the trial court erred by 

admitting photographs of the victim’s injuries. This Court found the issue 

waived because the defendant failed to include the photographs in the 

certified record. See id. at 1008. “In this case, Appellant has failed to 

provide the necessary [photographs] for review. Because our review of the 

issue is dependent upon materials that are not provided in the certified 

record, we cannot consider this claim. Thus, this claim is waived.” 

Commonwealth v. Scassera, 965 A.2d 247, 249 (Pa. Super. 2009), 

appeal denied, 985 A.2d 219 (Pa. 2009).14

In his fourth issue, Appellant argues that the trial court erred by 

precluding testimony regarding his character trait of honesty. Appellant 

argues that his trait of being honest was admissible pursuant to 

Pennsylvania Rule of Evidence 404(a)(2)(A), which provides that “a 

defendant may offer evidence of the defendant’s pertinent trait[.]” 

Pa.R.Evid. 404(A)(2)(A). Appellant argues that evidence of honesty was 

 

14 To the extent that Appellant argues that the actual photographs are 

unnecessary for our review of his claim, we reject this argument. It is wellsettled that this Court may affirm a trial court’s ruling on any basis. See In 

re A.G.C., 142 A.3d 102, 110 n.6 (Pa. Super. 2016) (citation omitted). It is 

impossible to determine if the photographs were inadmissible under another 

rule without the photographs in question. Appellant’s omission of the 

photographs from the certified record thereby hampers appellate review. 

Thus, even if the trial court sustained the Commonwealth’s objection under 

Pennsylvania Rule of Criminal Procedure 573, and it is unclear from the 

record if that was the basis for the trial court’s ruling, N.T., 2/11/15, at 154, 

Appellant was required to ensure the photographs were included in the 

certified record. 
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pertinent because the case against him essentially tested whether his selfdefense testimony was truthful or whether Hines’ and Brooks-Mapp’s 

testimony was truthful. The Commonwealth, on the other hand, argues that 

Appellant’s character evidence was barred by Pennsylvania Rule of Evidence 

608, which provides that “evidence of [a witness’] truthful character is 

admissible only after the witness[’] character for truthfulness has been 

attacked.” Pa.R.Evid. 608(a). 

In support of his argument, Appellant cites Commonwealth v. 

Harris, 785 A.2d 998 (Pa. Super. 2001). In Harris, this Court stated that 

“in a case where there are only two direct witnesses involved, credibility of 

the witnesses is of paramount importance, and character evidence is critical 

to the jury’s determination of credibility.” Id. at 1000, citing

Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992). Appellant 

argues that Harris and Weiss apply in this case because there were only 

three witnesses to Anderson’s murder – Hines, Brooks-Mapp, and himself. 

He contends that this case depended upon whether the jury believed Hines’ 

and Brooks-Mapp’s account of the shooting, in which Appellant did not act in 

self-defense, or believed Appellant’s account of the shooting, in which he 

acted in self-defense. 

We reject this argument because Harris and Weis did not address the 

right of an accused, who testifies on his or her own behalf, to call witnesses 

to testify as to his or her truthfulness. Instead, this Court has stated that, 
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when truthfulness is not relevant to the underlying criminal offense, a 

defendant may only call witnesses to testify as to his or her truthfulness 

when (a) he or she chooses to testify on his or her own behalf, and (b) the 

Commonwealth attacks the defendant’s truthfulness through either crossexamination or by other witness’ testimony. See Commonwealth v. 

Minich, 4 A.3d 1063, 1070 (Pa. Super. 2010) (citation omitted). Thus, this 

Court has held that “where the prosecution has merely introduced evidence 

denying or contradicting the facts to which the defendant testified, but has 

not assailed the defendant’s community reputation for truthfulness 

generally, evidence of the defendant’s alleged reputation for truthfulness is 

not admissible.” Commonwealth v. Constant, 925 A.2d 810, 823 (Pa. 

Super. 2007), overruled on other grounds, Commonwealth v. Minnis, 83 

A.3d 1047 (Pa. Super. 2014) (en banc) (citation omitted) (citation omitted). 

In other words, Rule 608(a) permits a testifying defendant to call 

witnesses to testify as to his or her truthful character whenever the 

Commonwealth attacks his or her general reputation for truthfulness during 

trial. Conversely, Rule 404(A)(2)(a) permits a defendant (testifying or nontestifying) to call witnesses to testify as to his or her truthful character when 

the defendant’s reputation for truthfulness is pertinent to the underlying 

criminal offense, e.g, perjury. In this case, Appellant does not argue that 

the Commonwealth attacked his general reputation for truthfulness and our 

review of the record reveals no such attack on his general reputation for 
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honesty. Thus, Appellant was not entitled to call witnesses to testify to his 

truthfulness under Rule 608(a). 

As Appellant was not entitled to call witnesses to testify as to his 

truthfulness under Rule 608(a), we turn to whether Appellant was entitled to 

call witnesses to testify as to his truthfulness under Rule 404(a)(2)(A). In 

that respect, we find instructive our Supreme Court’s decision in 

Commonwealth v. Puksar, 951 A.2d 267 (Pa. 2008). In that case, the 

defendant argued that his trial counsel was ineffective for failing to call a 

character witness to testify regarding his trait of honesty. Our Supreme 

Court stated that “evidence of one’s reputation for honesty would have been 

irrelevant in a murder prosecution, since murder does not implicate the 

character trait of honesty.” Id. at 281 n.7. Similarly, this Court has stated 

that, “[i]t is irrelevant to show the defendant’s reputation . . . for honesty 

and integrity in a murder prosecution[.]” Commonwealth v. Fawcett, 443 

A.2d 1172, 1175 n.3 (Pa. Super. 1982) (internal quotation marks and 

citation omitted). Appellant was therefore not entitled to call witnesses to 

testify as to his character under Rule 404(a)(2)(A). Accordingly, the trial 

court did not err by sustaining the Commonwealth’s objection to this 

character evidence. 

In his final issue, Appellant challenges the weight of the evidence. 

This argument is waived. “A weight of the evidence claim must be 

preserved either in a post-sentence motion, by a written motion before 
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sentencing, or orally prior to sentencing.” Commonwealth v. Thompson, 

93 A.3d 478, 490 (Pa. Super. 2014) (internal alteration and citations 

omitted). In this case, Appellant did not file a post-sentence motion or a 

written motion prior to sentencing. Moreover, Appellant did not preserve the 

issue orally prior to sentencing. See N.T., 2/20/15, at 11-13. Accordingly, 

Appellant has waived his challenge to the weight of the evidence. 

In sum, we hold that the trial court did not abuse its discretion in 

admitting Officer Davis’ lay opinion testimony as it related to bullet 

trajectory. The trial court properly sustained the Commonwealth’s objection 

to witnesses testifying about Appellant’s truthfulness as Appellant was not 

entitled to call such witnesses under Rule 404(a)(2)(A) or Rule 608(a). As 

we also conclude Appellant is not entitled to relief on his remaining claims of 

error, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016