J-S09009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD HARVEY FOSTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 505 WDA 2018

Appeal from the Judgment of Sentence October 17, 2017

In the Court of Common Pleas of Beaver County 

Criminal Division at No(s): CP-04-CR-0002368-2016

BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 9, 2019

Ronald Harvey Foster appeals from the judgment of sentence imposed 

after a jury verdict found Appellant guilty of two counts of third degree 

murder, see 18 Pa.C.S.A. § 2502(b), one count of conspiracy to commit 

robbery, see 18 Pa.C.S.A. § 903(a)(1), three counts of robbery, see 18 

Pa.C.S.A. § 3701(a)(1)(i) and (ii), and one count of criminal use of a 

communication facility, see 18 Pa.C.S.A. § 7512(a). After careful review, we 

affirm.

This case arises from a drug deal gone bad. Many of the facts are 

undisputed. On several occasions, Appellant sought to purchase marijuana 

from Dane Mathesius, one of the two murder victims. When Mathesius 

appeared at an abandoned building to consummate the transaction, Appellant, 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
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Lawrence Reddick, Deontae Jones, and Rasheid Hicks were waiting. Present 

with Mathesius was sixteen-year-old William Booher and thirteen-year-old 

N.R.

Mathesius stopped his car, and Reddick climbed into the rear passenger 

seat. Reddick brandished a firearm and directed Mathesius to pull over. 

Reddick then robbed Mathesius, Booher, and N.R. At the conclusion of the 

robbery, Reddick fatally shot both Mathesius and Booher.

The primary issue at trial was Appellant’s awareness of Reddick’s intent 

to rob Mathesius. Appellant admitted he set up the drug deal. He also 

admitted he agreed to have Reddick accomplish the transaction, as Appellant 

feared that Booher intended to rob Appellant.

In contrast, the Commonwealth presented testimony that Appellant 

planned the robbery with Reddick. Hicks testified that he heard Appellant plan 

the robbery with Reddick the night before it occurred. Xavier Fisher also 

testified to Appellant’s involvement in planning the robbery the night before. 

Jones testified that Appellant had informed him of his intent to rob Mathesius 

a week prior to the robbery. 

At sentencing, Appellant was sentenced to an aggregate period of thirtyfour to seventy years. While Appellant’s initial counsel did not file a postsentence motion or notice of appeal, on November 14, 2017, the trial court 

granted Appellant permission to file a post-sentence motion nunc pro tunc 

within thirty days of its order. After the trial court allowed for another 
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extension, Appellant ultimately filed his supplemental omnibus post-sentence 

motion on February 2, 2018, raising eighteen discrete issues. 

On March 15, 2018, the trial court denied Appellant’s application for 

relief as to all of his claims with the exception of one relating to restitution. 

On April 10, 2018, Appellant filed a timely notice of appeal to this Court. One 

day later, Appellant was directed by the trial court to file a concise statement 

of matters complained of on appeal, which he timely filed.

In his brief before this Court, Appellant raises seven issues on appeal:

1) Appellant challenges the sufficiency of the evidence used to 

support the jury’s finding of two third-degree murder verdicts, 

three robbery verdicts, and its conspiracy to commit robbery 

verdict.

2) Appellant challenges the weight of the evidence used to 

support the jury’s finding of two third-degree murder verdicts, 

three robbery verdicts, and its conspiracy to commit robbery 

verdict.

3) Appellant contends the trial court erred in permitting the 

Commonwealth to display for the jury a specific text message that 

demonstrated an intent to commit a crime for which he was not 

charged.

4) Appellant suggests the trial court erred when it continually 

forced him to confirm or deny the testimony of Commonwealth 

witnesses, where he was asked to comment on the accuracy and 

veracity of those witnesses.

5) It was error for the jury to have access to cellphone data 

reports containing text messages between Appellant and 

Mathesius, as they amounted to a confession.

6) Appellant challenges the discretionary aspects of his sentence, 

contending that his sentence is violative of both the United States 

Constitution as well as Pennsylvania’s Constitution.
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7) Appellant maintains that the trial court abused its sentencing 

power when it failed to order the total joint costs and restitution 

be paid jointly and severally with co-defendants, as well as when 

it failed to delay the collection of the costs and restitution until 

Appellant’s release from his prison sentence.

See Appellant’s Brief, at 15-16.

First, Appellant asserts that the evidence was insufficient to support the 

third-degree murder verdicts, the robbery verdicts, and the conspiracy to 

commit robbery verdict. 

When reviewing a sufficiency of the evidence claim, we must 

determine whether, when viewed in the light most favorable to 

the verdict winner, the evidence at trial and all reasonable 

inferences therefrom are sufficient for the trier of fact to find that 

each element of the crime charged is established beyond a 

reasonable doubt. The Commonwealth may sustain its burden by 

proving every element of the crime beyond a reasonable doubt by 

means of wholly circumstantial evidence.

Commonwealth v. Dix, 207 A.3d 383 (Pa. Super. 2019) (citations and 

quotation marks omitted). In addition, “the finder of fact while passing upon 

the credibility of witnesses and the weight of the evidence produced, is free 

to believe all, part or none of the evidence.” Commonwealth v. Tejada, 

107 A.3d 788, 793 (Pa. Super. 2015) (citation omitted). 

In this case, Appellant’s culpability was based on conspiratorial and 

accomplice liability. While Appellant concedes that Reddick did, in fact, 

commit three acts of robbery and two acts of murder, Appellant contends that 

his apparent renunciation of the events on that date absolves him of the 

conspiratorial and accomplice-based crimes for which he was found guilty.
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Appellant was convicted of and sentenced to one count of conspiracy to 

commit robbery. “A person is a conspirator if the defendant: 1) entered into 

an agreement to commit or aid in an unlawful act with another person or 

persons; 2) with a shared criminal intent; and 3) an overt act was done in 

furtherance of the conspiracy.” Commonwealth v. Mitchell, 135 A.3d 1097, 

1102 (Pa. Super. 2016). “Once the trier of fact finds that there was an 

agreement and the defendant intentionally entered into the agreement, that 

defendant may be liable for the overt acts committed in furtherance of the 

conspiracy regardless of which co-conspirator committed the act.” 

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004). Additionally, 

we have held that “in order for a withdrawal from a conspiracy to be legally 

sufficient, it must occur before the commission of the crime becomes so 

imminent that avoidance is out of the question.” Commonwealth v. Carlitz, 

466 A.2d 696, 698 (Pa. Super. 1983) (quotation marks and citation omitted).

Appellant concedes that he conspired with Reddick to purchase 

marijuana from Mathesius. He further concedes that the testimony of Jones 

and Hicks supports a finding that he initially was involved in a conspiracy to 

rob Mathesius. However, he argues that the evidence of his abandonment of 

the conspiracy was “incontrovertible.” Appellant’s Brief, at 19. He further 

argues the evidence was incapable of supporting any inference that he 

conspired to commit any crimes against N.R., as there was no evidence he 

was aware that N.R. would be present.
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As outlined more fully below, the testimony presented at trial, primarily 

through Jones’s account, demonstrated that, at a minimum, Appellant and 

Reddick entered into an agreement to commit a robbery against Mathesius. 

See N.T., 8/18/17, at 220. The evidence was sufficient to additionally

demonstrate that Appellant had the requisite and shared criminal intent to 

effectuate a robbery and utilized his cell phone to bring Mathesius into the 

area under the guise of a purported drug transaction. 

Appellant was the only one amongst his cohorts who knew any of the 

individuals that would arrive in the vehicle. While Reddick possessed 

Appellant’s cell phone at some point, Appellant directed most of the activity in 

bringing Mathesius, Booher, and N.R. to the area that was agreed upon by 

Reddick and Appellant. It is true that the trajectory of the conspiracy altered 

after its inception, where the target of the robbery changed from Mathesius, 

to both Mathesius and Booher, to what actually occurred: the robbery of

Mathesius, Booher, and N.R. In addition, while it was Reddick who, upon 

Appellant learning of Booher’s presence, approached the victims, it does not 

alter the actions already taken by Appellant to lure the victims to the ambush. 

Not only was Appellant a primary causal point for the commission of the 

robbery because he was the person responsible for bringing the victims to the 

specific area, Appellant was, too, intricately involved in the actual planning of 

the robbery, which occurred primarily between Appellant and Reddick, but 

involved others, too. See, e.g., id., at 210-22. 
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Contrary to Appellant’s assertion, there is no basis to conclude that 

Appellant effectively repudiated his involvement in the conspiracy. While 

there was evidence that Appellant oscillated on whether the robbery should 

occur on the basis that he knew Booher would be present in the vehicle, “for 

an abandonment to be legally sufficient, it must occur before the commission 

of the crime becomes so imminent that avoidance is out of the question.” 

Commonwealth v. Roux, 350 A.2d 867, 871 (Pa. 1971). The evidence of 

record is sufficient to establish that Appellant used his phone to bring 

Mathesius to the area while already having agreed to rob him, gave his phone 

to Reddick after conversing with Mathesius over the course of several days, 

stayed geographically close by while Reddick acted, and then reconvened with 

Reddick after Reddick had murdered two individuals and robbed three. 

Accordingly, the evidence was sufficient to find Appellant guilty of a conspiracy 

to commit a robbery. 

Appellant raises a similar challenge to his convictions pursuant to 

accomplice liability. “The criminal intent necessary to establish accomplice 

liability is identical to the criminal intent necessary to establish conspiracy.” 

Commonwealth v. Hennigan, 753 A.2d 245, 254 (Pa. Super. 2000). Our

Supreme Court has further indicated that “[a]n actor and his accomplice share 

equal responsibility for the criminal act if the accomplice acts with the intent 

of promoting or facilitating the commission of an offense and agrees or aids 

or attempts to aid such other person in either the planning or the commission 
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of the offense.” Commonwealth v. Cox, 686 A.2d 1279, 1286 (Pa. 1996). 

Furthermore, “[t]he least degree of concert of collusion is sufficient to sustain 

a finding of responsibility as an accomplice.” Commonwealth v. Coccioletti, 

425 A.2d 387, 390 (Pa. 1981).

Appellant largely restates his argument that he effectively repudiated 

his involvement in any conspiracy. Appellant contends that Reddick acted 

unilaterally on September 29, and even if Appellant knew Reddick were to 

commit a crime, that is not enough to designate him as an accomplice. See 

Commonwealth v. Rega, 933 A.2d 997, 1015 (Pa. 2007) (establishing that 

“a person cannot be an accomplice simply based on evidence that he knew 

about the crime or was present at the crime scene”). In addition, Appellant 

argues that merely introducing the buyer and seller to each other does not 

inherently make one an accomplice. See Commonwealth v. Flowers, 387 

A.2d 1268, 1270 (Pa. 1978) (indicating that “a test of partnership or concert 

of action to determine guilt as an accessory” is the proper analysis for 

accomplice liability rather than a “but-for” test). 

Appellant also suggests that he cannot be an accomplice to the robbery 

of N.R. because the uncontroverted evidence at trial indicated that those 

outside of the vehicle were not aware of N.R.’s presence. Finally, Appellant 

states that the crime of murder was not in progress and even less imminent

when he allegedly renounced his intent to participate in Reddick’s scheme.
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Thus, the question remains whether it was sufficient for the trier of fact 

to find that each element of every crime for which Appellant was convicted

was established beyond a reasonable doubt. “An accomplice is equally 

criminally liable for the acts of another if he acts with the intent of promoting 

or facilitating the commission of an offense and agrees or aids or attempts to 

aid such other person in either planning or committing the criminal offense.” 

Commonwealth v. Potts, 566 A.2d 287, 291 (Pa. Super. 1989) (citation and 

quotation marks omitted). However, an “offense-specific analysis of intent 

and conduct is required” to ascertain whether Appellant had the requisite 

intent to promote or facilitate the offense and thereafter solicited or aided, 

agreed to, or attempted to aid the other person in planning or committing the 

offense. Commonwealth v. Knox, 105 A.3d 1194, 1196-97 (Pa. 2014) 

(rejecting the notion that “an accomplice [is] liable for all of natural and 

probable consequences of the principal’s actions in the commission of a target 

offense”); see also 18 Pa.C.S.A. § 306(c).

Here, there was ample evidence tending to demonstrate Appellant’s 

intentional involvement, and therefore culpability, in the planning of the 

underlying robbery. First, Appellant’s actions, via text messages sent to

Mathesius over the course of several days, set into motion the chain of events 

that led to the robberies and murders. No one else affiliated with Appellant 

knew any of the people who arrived by vehicle to participate in the drug deal. 
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See N.T., 8/28/17, at 156-57 (Appellant stating that he was the only one who 

knew Mathesius and Booher). 

Reddick’s use of Appellant’s phone does not change the fact that 

Appellant provided the framework for Mathesius, Booher, and N.R. to travel

to Aliquippa under the pretense of a drug deal. In addition, these series of 

text messages provided the impetus for Reddick, who had no prior knowledge 

of any of these individuals, to ultimately enter Mathesius’s vehicle. 

Second, beyond merely being the causal point for the events of 

September 29, testimony established that Appellant had the requisite intent 

to commit a robbery. Hicks, Jones, and Fisher all testified, to varying degrees, 

to Appellant’s desire to, at least conceptually, rob Mathesius. While it is true 

that Fisher heard Appellant state “[w]e can’t do this with [Booher] in the car,” 

Fisher also indicated that he heard Appellant use the word “lick,” which was 

known to Fisher to mean a robbery. N.T., 8/18/17, at 76-77. 

It is also noteworthy that Appellant never left the scene upon expressing 

his concerns with Booher’s presence. Hicks corroborated Fisher’s account of 

hearing Appellant use the word “lick” and knew it to mean a robbery. See 

id., 8/22/17, at 116. In addition, Hicks stated that he had heard Appellant 

identify that he did not have a weapon, but that Reddick would give Appellant 

his. See id. Hicks also testified that Appellant suggested Jones could use

Appellant’s mask. See id., at 117. 
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Most notable was the testimony of Jones. At trial, Jones testified that 

Appellant “told [him] he had a lick” a week prior to when the robbery 

happened. See id., 8/18/17, at 210-11. Jones conveyed that it was 

Appellant’s cousin who told Appellant that he could rob Mathesius. See id., 

at 212. Jones recalled that Appellant told him it was going to be someone 

from Beaver that would come to Aliquippa. See id., at 213. Jones further 

stated that “[t]he plan was for [Appellant and Reddick] to put the money 

together and act like they were going to buy it and then rob them.” Id., at 

220. Moreover, Appellant wanted to use Reddick’s gun and sought to use 

Jones as a diversion. See id., at 220-22. 

Jones admitted that the surveillance video showed Appellant, Reddick, 

and himself at Reddick’s house, which is when Reddick and Appellant obtained 

Reddick’s gun. See id., 8/21/17, at 10-11, 20-21. When Appellant, Jones, 

and Reddick reconvened shortly thereafter, Appellant and Reddick had a 

disagreement over where they wanted the robbery to occur. See id., at 15, 

17-18. While Appellant stated his reservations about going through with the 

robbery in light of Booher’s presence, ultimately Appellant and Reddick 

decided upon a general location for the robbery. See id., at 17-19. 

While waiting for Mathesius’s vehicle to arrive at the scene of the crime, 

Appellant gave Reddick his phone to continue relaying the location of the deal 

to the victims. See id., at 31-32. Reddick waited for the vehicle on the side 

street, while Jones and Appellant waited in an alley, and Hicks waited in front 
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of a house and under an alcove. See id., at 35-36. After Reddick got into 

the vehicle, Appellant, Jones, and Hicks heard gunshots. See id., at 42. Then, 

Reddick, Appellant, Hicks, and Jones all had a rendezvous after the robberies 

and shootings before they went their separate ways. See id., at 43-44. 

Clearly, there was sufficient evidence to support a finding that Appellant 

acted as an accomplice to Reddick’s actions. Through his interactions with 

others in addition to cell phone records, the testimonial and physical evidence

was sufficient to establish that Appellant had the intent to promote or facilitate 

the robbery. Moreover, the record contains evidence both that Appellant

solicited others, including Reddick, to aid in the commission of the robbery

and that Appellant subsequently aided Reddick in the planning and 

commission of the robbery. Accordingly, when viewed in the light most 

favorable to the Commonwealth, there is sufficient evidence to conclude that 

Appellant was an accomplice to Reddick’s robberies.

Undoubtedly, even if we were to conclude, as Appellant suggests, that 

Appellant terminated his complicity prior to the robberies and murder, neither 

of the relevant exceptions would apply. Appellant did not “wholly deprive[] 

[the offenses] of effectiveness” nor did he “give[] timely warning to law 

enforcement authorities or otherwise make[] [a] proper effort to prevent the 

commission of the offense.” 18 Pa.C.S.A. § 306(f)(3)(i-ii); see also 

Commonwealth v. Howard, 517 A.2d 192, 197 (Pa. Super. 1986) 

(establishing that an accomplice’s duty under the law is “not only [to] 
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terminate his complicity, but to otherwise take steps to prevent the 

commission of the crime”).

Appellant further contends that the evidence was insufficient to convict 

Appellant of two counts of murder of the third degree. In Pennsylvania, a 

third-degree murder is defined as “[a]ll other kinds of murder” that are not an 

intentional killing nor committed “while defendant was engaged as a principal 

or an accomplice in the perpetration of a felony.” 18 Pa.C.S.A. § 2502(a)-(c). 

Third degree murder requires malice, which may include an intent 

to cause serious bodily injury that results in death, but third 

degree murder does not require such intent because malice can 

also be established by a wickedness of disposition, hardness of 

heart, cruelty, recklessness of consequences and a mind 

regardless of social duty, which indicates an unjustified disregard 

for the likelihood of death or great bodily harm, and an extreme 

indifference to the value of human life.

Commonwealth v. Williams, 980 A.2d 510, 524 (Pa. 2009) (citation 

omitted). In the domain of accomplice liability, “a conviction for murder of 

the third degree is supportable under complicity theory where the 

Commonwealth proves the accomplice acted with the culpable mental state 

required of a principal actor, namely, malice.” Commonwealth v. Roebuck, 

32 A.3d 613, 624 (Pa. 2011). Moreover, “accomplice liability does not require 

the defendant to have the conscious objective to cause a particular result 

when such an outcome is an element of the offense.” Id., at 623. 

While in Knox, our Supreme Court rejected the “natural and probable 

consequence” theory to accomplice liability and concluded that accomplice 

liability is offense-specific, 105 A.3d 1194, 1196-97 (Pa. 2014), there is ample 
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evidence of record indicating that Appellant knew and in fact encouraged the 

use of a deadly weapon, either to use himself or for use by Reddick, which 

unquestionably carries a significantly greater risk of harm in comparison to an 

unarmed robbery. See Commonwealth v. Roebuck, 32 A.3d at 615 n. 4 

(affirming Superior Court’s conclusion that“[a]ppellant demonstrated the 

requisite malice by participating in a scheme designed, at a minimum, to stage 

an armed confrontation with the victim”). Therefore, the evidence was 

sufficient to support a finding of malice. As a result, the evidence was 

sufficient for the jury to find Appellant guilty as an accomplice to third-degree 

murder. 

Next, Appellant challenges the weight of the evidence supporting his 

convictions. A weight of the evidence challenge “concedes that there is 

sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153 

A.3d 1049, 1054 (Pa. Super. 2016) (citation omitted). Our standard of review 

for a claim that the verdict was against the weight of the evidence is as 

follows:

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

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

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

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

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

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

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

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

It has often been stated that a new trial should be awarded 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.
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An appellate court’s standard of review when presented with a 

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

applied by the trial court:

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question 

of whether the verdict is against the weight of the 

evidence. Because the trial judge has had the 

opportunity to hear and see the evidence presented, 

an appellate court will give the gravest consideration 

to the findings and reasons advanced by the trial 

judge when reviewing a trial court’s determination 

that the verdict is against the weight of the evidence. 

One of the least assailable reasons for granting or 

denying a new trial is the lower court’s conviction that 

the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the 

interest of justice.

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

quotation marks omitted) (emphasis in original). “Discretion is abused where 

the course pursued [by the trial court] represents not merely an error of 

judgment, but where the judgment is manifestly unreasonable or where the 

law is not applied or where the record shows that the action is a result of 

partiality, prejudice, bias or ill-will.” Commonwealth v. Widmer, 744 A.2d 

745, 753 (Pa. 2000).

Appellant advances the argument that Appellant’s murder, robbery, and 

conspiracy verdicts “shock[] the conscience” because Appellant “took all 

action necessary to (A) announce his intention to abandon any further 

continuation of the conspiracy to rob anyone and (B) renounce his intention 

to continue aiding Reddick in the robbery of anyone and terminated his 
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involvement and aid in it as soon as he learned Booher would be present.” 

Appellant’s Brief, at 26. Appellant claims that when he gave his cell phone to 

Reddick, it eliminated his “culpability as to all robbery and murder counts,” 

which occurred “prior to any meeting between Reddick and the persons in the 

car.” Id.

The trial court disagreed:

The Commonwealth presented twenty different witnesses, some 

of whom testified multiple times, and introduced numerous items 

of documentary and physical evidence. The Commonwealth 

presented the testimony of N.R., who was present during the 

shooting, and the testimony of Jones, Hicks, and Fisher, who were 

present during, and heard discussions related to, the planning of 

the robbery. The Commonwealth further presented evidence of 

the surveillance footage ..., showing the meeting of the coconspirators, and evidence of the extraction of Mathesius’ 

cellphone, showing text messages sent back and forth between 

Mathesius and [Appellant].

Trial Court Opinion, 5/23/18, at 32. 

In light of all the evidence that was presented, we cannot conclude that 

the judgment demonstrated by the trial court was manifestly unreasonable or 

that a misapplication of the law has occurred. Accordingly, the trial court did 

not abuse its discretion in determining that any of the verdicts were against 

the weight of the evidence. 

In his third issue, Appellant avers the trial court erred in admitting a 

text message he sent to Mathesius. This text message outlined a “future plan 

to sell the marijuana once he bought it from Mathesius, a non-charged crime 
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or bad act[.]” Appellant’s Brief, at 27. Appellant claims this text message 

painted him as a drug dealer and unfairly prejudiced him. 

When considering the admission of evidence, our standard of review is 

very narrow. Our review of a trial court's evidentiary ruling is limited to 

determining whether the trial court abused its discretion. See 

Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005). “An abuse of 

discretion may not be found merely because an appellate court might have 

reached a different conclusion, but requires a result of manifest 

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

support so as to be clearly erroneous.” Id. (citation omitted). Finally, “[t]o 

constitute reversible error, an evidentiary ruling must not only be erroneous, 

but also harmful or prejudicial to the complaining party.” Commonwealth v. 

Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted).

The trial court admitted the text message as evidence of Appellant’s 

motive and a res gestae (course of conduct) statement. Further, the court 

indicated that it would provide a cautionary instruction advising the jury to 

consider the message only for the motive of Appellant to commit the charged 

crimes.

Delivery of a controlled substance is against the law in Pennsylvania. 

See 35 P.S. § 780-113(a)(30). “Evidence of a crime, wrong, or other act is 

not admissible to prove a person’s character in order to show that on a 

particular occasion he person acted in accordance with the character.” Pa.R.E. 
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404(b)(1). However, “evidence may be admissible for another purpose, such 

as motive” or “intent.” Id., at 404(b)(2). But such evidence in a criminal 

case is “admissible only if the probative value of the evidence outweighs its 

potential for unfair prejudice.” Id. 

Appellant asserts that “[t]he Commonwealth ha[d] no need to introduce 

the additional reference to future intent to sell the purchased drugs to others.” 

Appellant’s Brief, at 29. Appellant believes that his plans for the marijuana 

had no bearing on his motive to commit the robbery. He also argues that his 

plans could not possibly be construed as a res gestae statement, as they were

wholly irrelevant to anything occurring on the date the text was sent. See id. 

As such, he contends the probative value of the text message was outweighed 

by the unfair prejudice incurred by Appellant at trial. 

Moreover, Appellant contends the Commonwealth violated Pa.R.E. 

404(b)(3) when it did not provide advance notice of the fact that it intended 

to use the text message at trial. Finally, Appellant claims the trial court’s jury 

instruction was “woefully inadequate” as it did not “mention the objectionable 

portion of the text” nor militate against a finding that Appellant is a bad person 

as a result of this activity. Appellant’s Brief, at 30-31. 

As such, Appellant’s three arguments as to the admissibility of this text 

message can be distilled down to: 1) lack of notice provided by the 

Commonwealth; 2) the trial court’s inadequate limiting instruction; and 3) the 

relevancy of and prejudice suffered from the message itself. All three 
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concerns deal with the whether the trial court made an erroneous evidentiary 

ruling. 

As set forth in our standard of review, Appellant must demonstrate that 

he suffered prejudice from at least one of these alleged errors. We conclude 

he cannot do this. This text message was one of many inculpating Appellant 

in the plan to rob Mathesius. Further, he cannot explain how this evidence 

besmirched his character more than the evidence that he planned an armed 

robbery that ultimately resulted in two deaths. Accordingly, even assuming 

that the Commonwealth should have provided the notice that Appellant sought 

or that the trial court’s limiting instruction suffered from some sort of 

deficiency, the trial court’s admission of this one specific text message in a 

string of hundreds of other text messages constitutes harmless error. 

Appellant’s fourth issue contests the appropriateness of the trial court

allowing the Appellant to be repeatedly asked whether individual 

Commonwealth witnesses lied during their testimonies. See Appellant’s Brief, 

at 31-32. Appellant contends that asking Appellant to confirm or deny other 

testimony invaded the province of the jury, as it is within its exclusive purview 

to make credibility determinations. See id., at 33. 

While we have held that “were they lying” questions are generally 

prohibited in Pennsylvania, we have also held that asking such questions are 

held to a harmless error standard. See Commonwealth v. Yockey, 158 

A.3d 1246, 1256 (Pa. Super. 2017). Appellant claims that he has been 
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prejudiced through the trial court allowing this type of questioning, other than 

merely making bald assertions, he has not cited to any specific instance in the 

record that could lead to such a finding. Even through our independent review 

of the record, we were only able to find one instance that featured an objection 

to an alleged “were they lying” question. See N.T., 8/29/17, at 59. The trial 

court resolved this objection by directing the Commonwealth to rephrase that 

specific question, and if the Commonwealth thereafter asked about the truth 

of other people’s assertions, the trial court would “sustain the objection.” Id., 

at 60. Therefore, because the trial court did not adversely rule on Appellant’s 

objection nor did he place any further contemporaneous objection on the 

record, Appellant’s issue is waived. See Commonwealth v. Leaner, 202 

A.3d 749, 771 (Pa. Super. 2019) (finding waiver of issue where appellant 

failed to object at trial); see also Epstein v. Saul Ewing, LLP, 7 A.3d 303, 

314 (Pa. Super. 2010) (declining to address an issue where trial ruling 

benefitted appellant) . Waiver notwithstanding, we are not convinced that 

any of the Commonwealth’s questions led to anything materially prejudicial to 

Appellant’s defense.

Next, Appellant asserts the jury should not have been allowed to take 

the cell phone records containing text messages between Appellant and 

Mathesius into the deliberation room. Appellant frames the text messages as 

a “recorded admission[] of his involvement in setting up an illegal drug sale.” 

Appellant’s Brief, at 35. Appellant cites Pa.R.Crim.P. 646(C)(2) in support of 
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his argument that during deliberations, “the jury shall not be permitted to 

have a copy of any written or otherwise recorded confession by the 

defendant.” Appellant’s Brief, at 36. Appellant’s concern stems from the 

“prejudice that the physical presence of the recorded confession in the jury 

room would lead to overemphasis of that document by the jury at the expense

of evidence presented only upon the witness stand.” Id. This argument is 

subject to a harmless error analysis. See Commonwealth v. Strong, 836 

A.2d 884, 888 (Pa. 2003).

Arguably, this issue is waived because Appellant failed to timely object

to the text messages going out to the jury. See Leaner, supra. However, 

even addressing the issue on its merits, a confession is “an admission 

consisting of a direct assertion, by the accused in a criminal case, of the main 

fact charged against him or of some fact essential to the charge.” 

Commonwealth v. Maloney, 73 A.2d 707, 711 (Pa. 1950) (citation and 

quotation marks omitted). Here, Appellant does not demonstrate how any of 

the text messages at issue constituted an admission of any element relevant 

to the charges for which he was being tried. In fact, a thorough reading of 

the messages leads us to conclude that none of them could possibly be 

construed as admitting material facts germane to the robbery or any of the 

other charges. Accordingly, as the text messages were not a “recorded 

confession” within the meaning of Pa.R.Crim.P. 646(C)(2), this issue, even if 

preserved, fails.
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In Appellant’s sixth issue, he challenges the discretionary aspects of his 

sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to an appeal as of right. Prior to reaching the 

merits of a discretionary sentencing issue[, w]e conduct a fourpart analysis to determine: (1) whether appellant has filed a 

timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether 

the issue was properly preserved at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) 

whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018) 

(some citations omitted; formatting altered).

Appellant filed a timely notice of appeal, properly preserved his issue by 

way of post-sentence motion, and included a concise statement of the reasons 

relied upon for allowance of appeal with respect to the discretionary aspects 

of his sentence in a separate section of his brief to this Court pursuant to 

Pa.R.A.P. 2119(f). Therefore, we must evaluate whether the question raised 

by Appellant is a substantial question warranting our discretionary review. “A 

substantial question will be found where the defendant advances a colorable 

argument that the sentence imposed is either inconsistent with a specific 

provision of the [Sentencing] Code or is contrary to the fundamental norms 

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d 

1128, 1133 (Pa. Super. 2009). 
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In his Rule 2119(f) statement, Appellant argues that this case presents 

a substantial question because “the minimum sentence imposed was 

excessive due to the [t]rial [c]ourt relying on impermissible factors, mischaracterizing permissible factors, and ignoring appropriate permissible 

factors under the Sentencing Guidelines.” Appellant’s Brief, at 39. Appellant 

declares that the trial court “purported to sentence within the sentencing 

guidelines but applied the guidelines erroneously.” Appellant’s Brief, at 39. 

For example, Appellant unambiguously asserts, inter alia, that “no 

aggravating factors existed,” id., but Appellant was still sentenced at the top 

of the aggravated range for some offenses. Clearly, these averments, in the 

aggregate, raise substantial questions that the sentence imposed was 

inconsistent with specific provisions of the Sentencing Code or violated the 

fundamental norms of the sentencing process. See Commonwealth v. 

Riggs, 63 A.3d 780 (Pa. Super. 2012) (indicating that an alleged failure “to 

consider relevant sentencing criteria, including the protection of the public, 

the gravity of the underlying offense, and the rehabilitative needs of 

[a]ppellant” was a substantial question. Accordingly, we proceed to address 

the merits of Appellant’s claims. 

“Sentencing is a matter vested in the sound discretion of the sentencing 

judge, and a sentence will not be disturbed on appeal absent a manifest abuse 

of discretion.” Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001). “An abuse of discretion is more than just an error in judgment and, 
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on appeal, the trial court will not be found to have abused its discretion unless 

the record discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will.” 

Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996). Furthermore, the 

“sentencing court has broad discretion in choosing the range of permissible 

confinements which best suits a particular defendant and the circumstances 

surrounding his crime.” Commonwealth v. Moore, 617 A.2d 8, 12 (Pa. 

Super. 1992). Thus, “our standard when reviewing the merits of the 

discretionary aspects of a judgment of sentence is very narrow; this court will 

reverse only where an appellant can demonstrate a manifest abuse of 

discretion on the part of the sentencing judge.” Commonwealth v. Koren, 

646 A.2d 1205, 1208 (Pa. Super. 1994) (emphasis added). 

“Sentencing in Pennsylvania is individualized, and requires the trial court 

to fashion a sentence that is consistent with the protection of the public, the 

gravity of the offense as it relates to the impact on the life of the victim and 

on the community, and the rehabilitative needs of the defendant.” 

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (quotation 

marks and citation omitted). “When a sentencing court has reviewed a 

presentence investigation report, we presume that the court properly 

considered and weighed all relevant factors in fashioning the defendant’s 

sentence.” Id.
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Appellant faults the trial court’s determination that Appellant’s “actions 

established a high level of criminal sophistication.” Appellant’s Brief, at 40. 

He contends that this was the exclusive basis for the court’s imposition of an

aggravated sentence and therefore constitutes error. See id. Instead, 

Appellant contends the situation was merely “an everyday robbery gone bad.” 

Id. Building on this assertion, Appellant argues that his involvement in 

planning the robbery, withholding information, and providing false information 

to police in the post-robbery investigation do not warrant enhanced 

sentencing. 

Appellant also declares, albeit without authority, that the trial court 

“failed to expressly analyze” how its findings “warranted sentences at the top 

of the Aggravated Range for some offenses and near the top of the Standard 

Range for others.” Id. at 42. Moreover, Appellant mentions that he had 

strong familial support, was a minor student-athlete at the time of the 

incident, no severe mental illness history, and that, implicitly, the impact on 

the surrounding community where the event specifically occurred was 

minimal, give the area’s propensity for violence. See id., at 43-44. 

Further, Appellant suggests that he, as a minor when the crimes were 

perpetrated, should have been treated differently at sentencing in accordance 

with Miller v. Alabama. 567 U.S. 460 (2012) (holding that minors cannot 

be held for a term of mandatory life imprisonment without the possibility of 

parole). Appellant extends the holding of Miller to contend that his “status 
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as a juvenile alone requires [him] be treated less harshly than [an] adult[]” 

by way of finding that his crimes fall into the mitigated range of sentencing. 

Appellant’s Brief, at 50. 

Appellant also avers that the trial court failed to acknowledge many 

elements contained within the pre-sentence report and fixated too much on 

victim impact statements of figures only tangentially related to the victims. 

See Appellant’s Brief, at 43-45. Finally, he asserts the trial court failed to 

incorporate the jury’s “expressly stated request for leniency.” Id., at 45. 

Thus, to Appellant, there is enough mitigating evidence to demonstrate that 

his sentence should be reduced from where it currently stands.

In contrast, the Commonwealth argues that Appellant’s disposition, 

including favorable factors, were all methodically considered by the trial court, 

and each of the sentences received by Appellant were “in conformity with the 

sentencing code as well as the sentencing guidelines” and were justified in 

light of the facts of this matter. Appellee’s Brief, at 31, 33. 

First, while Miller is sympathetic to the proposition that “children are 

constitutionally different from adults for purposes of sentencing,” 567 U.S. at 

471, the opinion concludes by stating that “a judge or jury must have the 

opportunity to consider mitigating circumstances before imposing the harshest 

possible penalty for juveniles.” Id., at 489. Miller’s holding is exclusively 

limited to a finding that a minor receiving a sentence of lifetime incarceration 

without the possibility of parole violates the Eighth Amendment’s ban on cruel 
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and unusual punishment. See id. Without more, we cannot conclude that 

Appellant’s sentences ran afoul of any of the principles espoused in Miller, 

especially in light of the fact that Appellant was not sentenced to a term of life 

imprisonment and, perhaps more importantly, the trial court did consider the 

Appellant’s age and characteristics in its sentencing decision. See N.T., 

10/17/17, at 55, 58, 63. 

Second, the trial court spoke at length as to its rationale behind its 

sentencing decisions. See id., at 51-70. The trial court, after reviewing the 

record before it, including the pre-sentence report and sentencing guidelines, 

found that Appellant demonstrated “a record of a high level of criminal 

sophistication in planning and the commission of the robberies. The facts 

show that these robberies ... were the product of concerted effort, planning 

and afterward concealment.” Id., at 59-64. From its findings, the trial court 

sentenced Appellant to incarceration periods “within the standard range on 

each of his charges, except for the charges of conspiracy to commit robbery 

and the robbery of N.R., where he was sentenced within the aggravated 

range.” Trial Court Opinion, 5/23/18, at 92. The trial court’s findings are well 

supported by the record and we find no abuse of discretion in its reasoning.

Third, neither the inclusion of victim impact statements, which were 

submitted without objection from Appellant, see Commonwealth v. Ali, 149 

A.3d 29, 38 (Pa. 2016) (indicating that if the crime is logically connected to a 

community impact suffered by specific individuals, such an impact is a 
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relevant consideration at sentencing), nor the jury’s request for leniency, see 

Pennsylvania Suggested Criminal Jury Instructions § 2.08 (identifying the 

bifurcated nature of an adjudication of guilt and an ascertainment of 

punishment), warrant relief on this issue.

Accordingly, through a careful review of the trial court’s findings made 

on the record during sentencing in addition to the facts that were adduced at 

trial, this Court can find no manifest abuse of discretion in the trial court’s 

sentencing decisions. 

Appellant’s seventh issue proclaims reversible error in the trial court’s 

decision to: 1) not order the total joint costs and restitution be paid jointly 

and severally with Appellant’s co-defendants; and 2) not delay the collection 

of monetary fines, costs, and restitution until Appellant’s release from his 

prison sentence. See Appellant’s Brief, at 51. In short, Appellant “is indigent 

with no assets and no source of income and is required to serve a minimum 

of 34 years and a maximum of 70 years imprisonment under the sentence 

order; he will never be able to repay the total of restitution from earnings in 

the State Correctional Institution prior to parole.” Id., at 53. In effect, given 

the fact that the Department of Corrections will deduct an amount of money 

with every deposit made into his account, Appellant will not receive much 

financial support from his family, knowing that a deduction will take place. 

See id., at 53-54. Appellant contends these two actions were an abuse of 

discretion, but has cited to no direct authority in support of either proposition.
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The law regarding restitution is clear. “The court shall order full 

restitution: [r]egardless of the current financial resources of the defendant, 

so as to provide the victim with the fullest compensation for the loss.” 18 

Pa.C.S.A. § 1106(c)(1)(i) (formatting altered). And further, as to the actual 

collection of restitution, the Department of Corrections “shall be authorized to 

make monetary deductions from inmate personal accounts for the purpose of 

collecting restitution.” 42 Pa.C.S.A. § 9728(b)(5). 

In addition, the trial court was not required to impose restitution jointly 

and severally with Reddick or Jones. Pennsylvania law already prevents a 

double recovery while requiring the fullest compensation possible. See 18 

Pa.C.S.A. § 1106(c), (g); Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa. 

Super. 2007) (“A restitution award must not exceed the victim’s losses.”). 

Also, even if the trial court had imposed the restitution as joint and several 

with Appellant’s co-defendants, Appellant would still be liable for the full 

amount if his co-defendants were unable to pay. See Sehl v. Neff, 26 A.3d 

1130, 1133-1134 (Pa. Super. 2011). Therefore, Appellant’s joint and 

severable restitution argument fails. Additionally, given the explicit 

opportunity for the Department of Corrections to make monetary deductions 

from an inmate’s account and without any evidence that the trial court 

somehow deviated from this statutory precept, this argument, too, fails.

As such, in finding Appellant due no relief as to any of his seven issues 

raised on appeal, we affirm the trial court’s judgment of sentence.
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Judgment of sentence affirmed.

Judge Lazarus joins the memorandum.

Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2019