J. S 0 6 0 44 /20

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

: OMAR TERRELL MASSENBURG
, : No. 82 E DA 20 18

: Appellant :

Appeal from the Judgment of Sentence, July 12, 2017, in the Court of Common Pleas of Montgomery County Criminal Division at No. CP

- 46

- CR

- 0003449

- 2016

BEFORE: LAZARUS , J. , McLAUGHLIN , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 22, 2020

Omar Terrell Massenburg appeals from the July 12, 2017 judgment of

sentence entered by the Court of Common Pleas of Montgomery County

following his conviction of second

- degree murder, firearms not to be carried

without a license, and possession of a firearm with intent to employ it

criminally. 1 After careful review, we affirm.

The relevant facts and procedural history underlying this appeal are as follows. On the evening of Friday, March 18, 2011, a ppellant was a front

- seat passenger in a gray, four

- door 1997 Chevrolet Malibu with tinted windows being driven through the streets of Norristown by his friend, Ryan Stanford Lee when they observed seventeen

- year

- old [D.D.] walking home from his girlfriend ’ s house along Noble Street near West Oak Street in Norristown Borough, Montgomery County.

1 18 Pa.C.S.A. §§ 2502(b), 6106(a)(1), and 907(b).J . S06 0 44 /20

- 2

- Although his girlfriend ’ s mother had offered to give him a ride home, [ D.D. ] told her that he wanted to walk because it was a nice night. His girlfriend gave him a kiss on the cheek and hugged him before he left. [ D.D. ,] a promising high school student, was wearing a red sling backpack with an [iPod,] a handheld Nintendo game player and his cell phone inside, and [was] walking with earbuds in his ears unaware of the impending danger. [ D.D.’s ] girlfriend did not know of anyone that [ D.D. ] had problems with and he had never mentioned appellant ’ s name to her.

Based on the evidence presented at trial, a jury later determined that appellant exited the Malibu with a .32 caliber revolver and approached the [ D.D. ] with the intent of robbing him. A witness walking his dog in that area described the encounter to police. He saw two men struggling, more or less wrestling and kind of on top of each other. He told police, and later the jury, that he heard the younger man ask “ why are you doing this to me? ” [] The witness heard a “ pop ” and observed the young man collapse in the street. Seconds later, he heard footsteps running away, heard a car door slam and observed a lat e ‘ 90s silver or gray four

- door sedan pull away going eastbound on Oak Street toward Stanbridge Street accelerating

“ really fast. ” Another witness who heard the gunshot described a light gray vehicle parked on West Oak Street at Noble Street that “ sped aw ay ” from the area.

At approximately 10:06 p.m. [ D.D. ,] stumbling, dialed 911 on his cell phone before collapsing in the street. At approximately 10:08 p.m., Norristown Borough Police Officers responded to the intersection of Noble Street and West Oak Str eet and found [ D.D. ] unconscious, face down in a large pool of blood, in the roadway still wearing the backpack. Doctors at Montgomery Hospital pronounced [ D.D. ] dead shortly after arrival. Dr. Paul Hoyer, a forensic pathologist, performed an autopsy on [ D.D. ] on March 19, 2011. D r. Hoyer recovered a projectile from the body and opined that the victim died from massive blood loss resulting from a single gunshot wound to his left shoulder. Dr. Hoyer ruled the manner of death aJ . S06 0 44 /20

- 3

- homicide. The evidence sho wed that the bullet that killed [ D.D. ] was a .32 caliber Smith & Wesson fired from a revolver that had entered downward into his left shoulder, pierced both lungs, and rested in the lower part of his chest, from where Dr. Hoyer was able to retrieve it. Of ficers were unable to recover any shell casings from the scene.

While responding to the scene on March 18 th in an unmarked patrol car at approximately 10:08 p.m. with lights and siren activated and traveling on West Elm Street, Corporal Joseph Benson observed a late ‘ 90s model gray four

- door sedan with tinted windows and a dirty front passenger wheel heading north on Stanbridge Street go through the stop sign at Stanbridge and West Elm in f ront of the Corporal

. Corpo ral Benson described the driver as a black male, light to medium skin, looking straight ahead as he went through the stop sign.

Earlier that evening a ppellant, with [Mr.] Lee driving, and another friend, Steven Jackson in the back seat, had also fired sho ts from a handgun out of the gray four

- door Malibu with tinted windows at one Khalil ( “ Batman ” ) Byrd [( “ Mr. Byrd ” )]

.
On March 26, 2011, a ppellant and [Mr.] Lee gave statements to police in which a ppellant eventually admitted that they had been driving aro und Norristown in [Mr.] Lee ’ s sister ’ s 1997 gray, four

- door Chevrolet Malibu with tinted windows on Friday night, March 18, 2011. Both a ppellant and [Mr.] Lee initially gave false statements and were subsequently charged with unsworn falsification to auth orities in addition to recklessly endangering another person, a firearms violation and tampering with physical evidence. Appellant admittedly lied to the detectives in his first statement because “ [he] didn ’ t want to get wrapped up in this murder. ” Appellant identified [Mr.] Lee as the driver of the Malibu. According to a ppellant, he was wearing gloves when he shot at [ Mr. Byrd].

During h is subsequent statement to the detectives,

a ppellant agreed to show them where he hadJ . S06 0 44 /20

- 4

- discarded the gun. Appell ant described the gun as an

“ oldish looking ” , small caliber, black revolver. Approximately ten (10) law enforcement officers combed Martin Luther King Park on the east side of Norristown for three (3) to four (4) hours searchi ng for the firearm to no avai l. Law enforcement officer s also conducted a search with a ppellant ’ s consent of his residence on March 27, 2011. Although officers recovered a black holster, a box of Remington 12

- guage shotgun shells, a .25

- caliber single unfired bullet, and a black pla stic box containing five .22

- caliber unfired bullets, they recovered no firearms of any kind

. Various witnesses later gave statements to law enforcement and testified at trial that a ppellant had assured them that others had successfully disposed o f the gu n. Law enforcement officers never r ecovered the weapon used to kill [D.D.]

Appellant and [Mr.] Lee both entered guilty pleas to charges related to providing false statements to law enforcement as well as to the shooting incident involving Khalil Byrd in 2011 and 2012, respectively.

The Montgomery County Detective Bureau and the Norristown Borough Police Department worked as a team to investigate the [D.D.] homicide , led by Detective Todd Richard of the Homicide Unit of the Montgomery County Detective Bureau and Detective Adam Schurr of the Norrist own Borough Police Department. Following years of diligent police work, officers arrested a ppellant on March 16, 2016, and [Mr.] Lee on July 15, 2016, for the murder of [D.D.]

Francis Genovese, Esquire filed several pretrial motions on behalf of a ppellant. The Commonwealth also filed several pretrial motions. The [trial court] heard argument on those motions on March 29, 2017. Specifically, [appellant] sought to preclude the admission of statements, testimony or any other evidence in the Commonwealth ’ s case in chief 1) regarding his alleged involvement in or affiliation with the “ Oak and Smith ” gang, 2) regarding his conviction for offenses charged in connection with theJ . S06 0 44 /20

- 5

- shoo ting of [Mr. Byrd] as other crimes, wrongs or acts, 3) regarding his recorded statements to confidential informants concerning the shooting of [Mr.] Byrd and 4) regarding the written statement made by Defendant ’ s co

- conspirator, [Mr.] Lee, to detectives on March 26, 2011.

ADA Lauren Heron argued that the admission of the statements and consensual wire transcripts regarding the shooting at [Mr.] Byrd was necessary and relevant to show identity, opportunity and context for the Commonwealth ’ s theory of the ki ll ing of Dawkins. Additionally, c ounsel for the Commonwealth asserted[] [Mr.] Lee ’ s lies in his original statement support a conspiracy between the two, an agreement to lie about what they were doing that night.

Attorney Genovese successfully argued for the preclusion of reference to any alleged gang activity. This court determined that the evidence regarding the shooting at [Mr. Byrd] that night was relevant and, after conducting the required balancing test, admissible under, inter alia
, the “ identity ’’ and

“ opportunity ” exceptions under Pa.R.E. 404(b)(2). The [trial] court issued its orders on the pretrial

m otions and scheduled a ppellant ’ s trial to begin on Monday, April 10, 2017.

Trial court opinion, 4/23/19 at 2

- 8 (extraneous capitalization and cit ations to

the record omitted).

Following [its] deliberations

. . . , the jury convicted

a ppellant of second

- d egree murder and other offenses as noted above on Friday, April 14, 2017. The [trial] court deferred sentencing and directed that a presentenc e in vestigation report and a PPI evaluation report be obtained

. The [trial] court sentenced

a ppellant to life imprisonment without parole on Count 2, second degree murder, and on Count 4, firearms not to be carried without a license and Count 5, possession of a firearm with intent to employ it criminally, a determination of guilt without further penalty.J . S06 0 44 /20

- 6

- Attorney Genovese timely filed a ppellant ’ s post

- sentence motion for relief on July 21, 2017. The [trial] court heard argument on the motion and the Commonwealth ’ s response thereto on November 29, 2017. [Footnote 4] Appellant ’ s c ounsel argued that the Commonwealth offered insufficient evidence to support the underlying felony of robbery to sustain the second degree murder verdict as no item of value ha d been taken from the victim, and there was no testimony or other evidence that the struggle one witness described as “ wrestling ” between [D.D.] and another man was anything more than a mutual fight. That witness did not testify, in fact, no witness testif ied about what precipitated that struggle at the corner of Noble and Oak Stre ets that night. [The trial] court denied a ppellant ’ s post

- sentence motion for relief by order entered on December 6, 2017. Appellant filed a timely notice of appeal on December 29, 2017. The [trial court] directed

a ppellant to file a concise statement of the errors complain ed of on appeal (“s tatement ” ), pursuant to Pa.R.A.P. 1925(b) by order entered on January 5, 2018. Appellant filed his s tatement on January 26, 2018

[ Footnote 4 ] T he argument on a ppellant ’ s po st

- trial motions was originally scheduled on October 1 0, 2017

. However, it w as continued at the request of appellant ’ s c ounsel because of an attachment to a capital case in Bucks County.

Id. 14

- 15 (extraneous cap italization and citations to the record omitted)

. The

trial court subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a) on

April 23, 2019

. Appellant raises the following issues for our review:

(a.) Did the trial court err by denying appellant ’ s pretrial motion in limine to preclude theJ . S06 0 44 /20

- 7

- admission of evidence regarding appellant ’ s conviction(s) for the offenses charged in connection with the unrelated shooting of Khalil Byrd, during the Commonwealth ’ s
case

- in

- chief?

(b.) Did the trial court err by denying appellant ’ s pretrial motion in limine to preclude the admission of evidence regarding appellant ’ s statements to a confidential informant regarding the shooting of Khalil Byrd, during the Commonwealth ’ s case

- in

- chief?

(c.) Did the trial court err by granting the Commonwealth ’ s pretrial motion in limine to allow the admission of portions of a written statement, made by appellant ’ s
non

- cooperating, non

- testifying co

- defendant, Ryan Lee, during the Commonwealth ’ s
case

- in

- chief?

(d.) Did the trial court err by denying [appellant ’ s] post

- sentence motion for a judgment of acquittal on the charge of murder in the second degree, for which the jury returned a guilty verdict?

Appellant ’ s brief at 4 (extraneous capitalization omitted ; bolding and italics

added ).

In his first three issues, appellant raises allegations of trial court error

in evidentiary rulings. Appellate review of evidentiary rulings are governed

by the following standard of review:

Appellate courts review evidentiary decisions for an

a buse of discretion. Commonwealth v. Walker , [] 92 A.3d 766, 772 ([Pa.] 2014) (citations omitted).

“ An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised i s manifestly unreasonable, or the result of partiality,J . S06 0 44 /20

- 8

- prejudice, bias or ill

- will, as shown by the evidence of record, discretion is abused. ” Id. at 772

- 773 (internal quotation marks and citations omitted).

Commonwealth v. Jacoby , 170 A.3d 1065, 1090 ( Pa. 2017), cert. denied

sub nom. Jacoby v. Pennsylvania , 139 S.Ct. 58 (2018).

In his first and second issues, appellant contends that the trial court

erred when it admitted evidence of appellant ’ s prior bad acts. (Appellant ’ s

brief at 11 , 15 .)

The partic ular Pennsylvania Rule of Evidence governing the admission of “ prior bad acts ” is Pa.R.E. 404(b) which provides, in relevant part:

(b) Other crimes, wrongs, or acts.

. . . .
(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice.

Pa.R.E. 404(b)(1)

- (3). Under this rule, the admission of prior “ bad acts ” is inadmissible for the sole purpose of proving the defendant has a bad character, or aJ . S06 0 44 /20

- 9

- “ criminal propensity

. ” Commonwealth v. Powell , [] 956 A.2d 406, 419 ([Pa.] 2008). Nevertheless, this rule permits the admissibility of such evidence for other relevant purposes, such as:

showing the defendant ’ s motive in committing the crime on trial, the absence of mistake or accident, a common scheme or design, .

. . to establish identity[,] [or] where the acts were part of a chain or sequence of events that formed the history of the case and were part of its natural development.

Id. However, admission for these purposes is allowable only whenever the probative value of the evidence exceeds its potential for prejudice. Pa.R.E. 404(b)(3).

Commonwealth v. Briggs , 12 A.3d 291, 336

- 337 (Pa. 2011), cert. denied

sub nom Briggs v. Pen nsylvania , 565 U.S. 889 (2011). Our supreme court

further noted that “ [w]hen the trial court admits evidence of a defendant ’ s

other bad acts, ‘ the defendant is entitled to a jury instruction that the evidence

is admissible only for a limited purpose. ’” C ommonwealth v. Crispell , 193

A.3d 919, 937 (Pa. 2018), quoting Commonwealth v. Solano , 129 A.3d

1156, 1178 (Pa. 20 15). It is well settled that juries are presumed to follow

the trial court ’ s instructions. Commonwealth v. Aikens , 168 A.3d 137, 143

(Pa. 20 17), citing Commonwealth v. Bullock , 913 A.2d 207, 218 (Pa. 2006),

cert. denied sub nom. Bullock v. Pennsylvania , 550 U.S. 941 (2007).

First, appellant argues that the trial court erred when it admitted

evidence of appellant ’ s guilty plea in connection wi th an unrelated shooting.

(Appellant ’ s brief at 11

- 15.) The Commonwealth avers that the prior bad actsJ . S06 0 44 /20

- 10

-

evidence admitted by the trial court establishes both appellant ’ s identity and

the opportunity appellant had to commit the crime in the case

- at

- bar.

( Co mmonwealth ’s brief at 19

- 24.)

As noted by the trial court,

To that end, evidence of appellant ’ s shooting at [Mr.] Byrd earlier that same evening was relevant and highly probative. Appellant ’ s admission that he had been riding around in the gray , 19 [9] 7 Chevrolet Malibu four

- door sedan with [Mr.] Lee when he fired shots at [ Mr. Byrd] with a revolver on the west end of Norristown on the evening of March 18, 2011, provided a foundation which would justify an inference by the jury that appellant was in fac t the assailant who attempted to rob and subsequently shot [D.D.] The Commonwealth also argued that this evidence put into context statements regarding two separate incidents on the same night that appellant made in subsequent conversations with cooperati ng witnesses.

Trial court opinion, 4/23/19 at 26

- 27 (extraneous capitalization omitted).

In the instant case, the record reflects that the Commonwealth

introduced the eyewitness testimony of Christopher McDonnell, who indicated

that he saw a late 1990s m odel silver sedan speeding down Oak Street toward

Stanbridge Street. (Notes of testimony, 4/11/17 at 89, 91

- 94, 107

- 108, 110.)

Additionally, the Commonwealth presented testimony from

Jenna Wenger Decembrino , who testified that she observed a light gr a y o lder

model sedan parked on Oak Street. (Notes of testimony, 4/13/17 at 28, 30.)

Ms. Decembrino testified further that approximately one minute after she

heard a “ loud bang, ” she observed the light gr a y sedan “ speed away ” down

Oak Street. ( Id. at 31.) M s. Decembrino also testified that she saw the sameJ . S06 0 44 /20

- 11

-

car turn down Noble Street from Oak Street. ( Id. ) Further, both

Mr. McDonnell and Ms. Decembrino testified that they heard what they

respectively described as a “ pop ” and a “ loud bang. ” (Notes of testimony,

4/11/17 at 89

- 90; 4/13/17 at 28.)

Appellant further argues that the evidence at issue was of “ minimal

probative value, ” and was “ clearly outweighed by its prejudicial impact upon

the [j]ury. ” (Appellant ’ s brief at 14.)

Here, the r ecord reflects that the trial court provided the following

cautionary instruction to the jury:

Members of the jury, I want to read to you now what is called a limit[ing ] instruction before Lieutenant McGowan testifies any further, because his testimony, as I ’ m told by counsel, will involve what this limiting instruction covers.

You are about to hear evidence that [appellant] has previously pled guilty to criminal offens es that arose from his shooting at [Mr.] Byrd on March 18, 2011. Some of this evidence will be in the form of recorded conversations between [appellant] and cooperating witnesses. [Appellant] is not now being tried for those crimes. So he is not being t ried for the [Mr.] Byrd shooting.

I want to caution you

-- and this is very important

-- that the evidence is being admitted only for the limited purpose of establishing [appellant ’ s] identity as the perpetrator of and/or his opportunity to commit the cri mes for which he is now being tried, should you choose to accept it as such, and providing the context and completeness with respect to the recorded conversations.J . S06 0 44 /20

- 12

- Again, I caution you that this evidence is being admitted only for those limited purposes a nd not for any other purpose whatsoever.

Notes of testimony, 4/11/17 at 21 4

- 215

. During its charge to the jury, the trial court again reminded the jury of

the limits of the prior bad acts evidence:

The fourth cautionary or limiting instruction had to do with the admission of evidence regarding [appellant ’ s] criminal conduct and conviction related to the shootings at [Mr.] Byrd on March 18, 2011. You heard evidence that [appellant] previously pled guilty to criminal offenses that arose from the shooting a t [Mr.] Byrd on March 18, 2011. Some of this evidence was in the form of recorded conversations between [appellant] and cooperating witnesses. [Appellant] is not on trial for those crimes now, and his guilty plea has previously occurred. So I want to ca ution you that this evidence is being admitted only for the limited purpose of establishing [appellant ’ s] identity as the perpetrator of and/or his opportunity to commit the crimes for which he is now being tried, should you choose to accept it; and second , to provide context and completeness with respect to the recorded conversations. So again, I caution you that this evidence is being admitted only for those limited purposes and not for any other purpose.

Notes of testimony, 4/14/17 at 157

- 158.

Based o n our review of the record, we find that the trial court did not

abuse its discretion when it permitted the Commonwealth to introduce

evidence of appellant ’ s guilty plea relating to the case involving Mr. Byrd

.
Indeed, as noted in detail supra , the Commonwealth demonstrated that the

prior bad acts evidence established appellant ’ s identity and opportunity

pursuant to Rule 404(b). Because the trial court instructed the jury twice thatJ . S06 0 44 /20

- 1 3

-

the evidence of appellant ’ s guilty plea in the unrelated crime coul d not be used

in determining appellant ’ s guilt with regard to the crime in the case

- at

- bar,

we hold that the probative value of the evidence presented by the

Commonweal th exceeded its potential for prejudice. Pa.R.E. 404(b)(3);

Briggs , 12 A.3d at 336

- 337; Aikens , 168 A.3d at 143. Accordingly,

appellant ’ s first issue is without merit.

Second, appellant avers that the trial court erred when it denied

appellant ’ s motion in limine to preclude admission of appellant ’ s recorded

statements to a confidential inf ormant later identified as Jason Brown, while

both men were incarcerated at the Montgomery County Correctional Facility.

(Appellant ’ s brief at 15.) Specifically, appellant alleges that the trial court

erred when it admitted an audio recording and a writt en transcript of a

conversation between appellant and Mr. Brown. ( Id. at 16.)

Appellant argues that evidence is of minimal probative value because of

the excessive background noise present in the audio recording and because

“ [Mr.] Brown continuously jump s back and forth between the subjects of the

shooting of [Mr.] Byrd and the shooting of [D.D.] within the conversation.

Thus, it is virtually impossible to tell which shooting [ Mr. Brown] is referring

to at any given point in time during the conversation. ( Id. at 17

- 18.)

As we concluded supra , the trial court did not err when it admitted

evidence of appellant ’ s guilty plea in connection with the shooting at Mr. Byrd,

pursuant to Pa.R.E. 404(b). We further find appellant ’ s argument , that it isJ . S06 0 44 /20

- 14

-

“ virtually impossible to tell which shooting [Mr. Brown] is referring to at any

given point in time during the conversation[,] ” to be unpersuasive. ( See id.

at 17

- 18.)

During trial, Mr. Brown provided testimony regarding his recorded

conversation with app ellant while the Commonwealth played a recording of

the conversation for the jury. (Notes of testimony, 4/12/17 at 174

- 178.) The

Commonwealth also introduced a transcript of the recorded conversation into

evidence. ( Id. at 168.) The transcript of the r ecorded conversation reads, in

relevant part:

[Mr. Brown]: I know you couldn ’ t sleep after that n[****] , you had to be tossing and turning and s[***]

[Appellant]: That s[***] really weighed on m e , [t]hat s[***] really weighed on me real s[***] . [Mr. Byrd] kept sayin ’ my name

[Mr. Brown]: You got booked for that [Mr. Byrd] jawn[ 2 ]

[Appellant]: Yeah

[Mr. Brown]: Yo, that s[***] happen [sic] that same night

[Appellant]: Yeah around the same time. That s[***] was goofy. Takin[ ’ ] the burne r and the work and got a 1 to 2

[Mr. Brown]: You mean the jawn you caught the body with

2 The Oxford Dictionary defines “ jawn ” as dialect chiefly used in eastern Pennsylvania to “ refer to a thing, place, person, or event that one need not or cannot give a specific name to. ” Jawn Definition , lexico.com, https://www.lexico.com/en/definition/jawn (last visited July 24 , 2020).J . S06 0 44 /20

- 15

- [Appellant]: Naw not for the body. I did one to two for the [Mr. Byrd] s[***] . I ended up doing two years and s[***]

.

Commonwealth ’ s Exhibit C

- 73 at 5

- 6.

P rior to hearing evidence of the recorded conversation, the trial court

provided the following cautionary instruction to the jury:

You ’ re about to hear evidence of a recorded conversation between [appellant] and the cooperating witness. Within said convers ation, you may hear evidence that the conversation occurred while [appellant] was incarcerated at the Montgomery County Correctional Facility. I want to caution you that this evidence is being admitted only for the limited purpose of providing what we cal l context and completeness with respect to the recorded conversation and not for any other purpose. You may not consider the fact that [appellant] was incarcerated at the time [that] the conversation was recorded as any evidence of guilt of the crime for which [appellant] is now on trial.

Notes of testimony, 4/12/17 at 171. The record reflects that the trial court

repeated this instruction to the jury during its final charge. ( See notes of

testimony, 4/14/17 at 156

- 157.)

Based on our review of the reco rd, we find the evidence at issue to be

highly probative. Indeed, appellant directly addressed his role in the

D.D. shooting and its chronological relationship to his involvement in the

shooting of Mr. Byrd. Moreover, the trial court provided the jury wi th

instructions limiting the use of any references to appellant ’ s incarceration

within the recorded conversation. Accordingly, we hold that the probativeJ . S06 0 44 /20

- 16

-

value of Mr. Brown ’ s recorded conversation with appellant exceeds its

potential for prejudice and tha t the trial court did not abuse its discretion when

it admitted the recording and the accompanying transcript.

Pa.R.E. 404(b)(3); Briggs , 12 A.3d at 336

- 337; Aikens , 168 A.3d at 143.

Appellant ’ s second issue, therefore, is without merit.

In his third is sue, appellant contends that the trial court erred when it

granted the Commonwealth ’ s motion in limine , permitting part of a written

statement made by appellant ’ s non

- cooperating, non

- testifying co

- defendant,

Mr. Lee, to be admitted into evidence. (Appellant ’ s brief at 19

- 24.)

Specifically, appellant alleges that the evidence at issue was inadmissible

hearsay and that it violated appellant ’ s rights under the Confrontation Clause. 3

( Id. at 20.)

The Commonwealth avers that the stat ement at issue was not offered

for the truth of the matter asserted, thereby rendering the rule against

hearsay irrelevant in this context. (Commonwealth ’ s brief at 30.) Specifically,

the Commonwealth argues that the statement from Mr. Lee attempted to

p rovide an alibi for both himself and appellant. ( Id. )

3 Appellant ’ s brief does not include any discussion of the Confrontation Clause, or how it applies in the instant case. Accordingly, a ppellant waives any Confrontation Clause claim. See Commonwealth v. Charleston , 94 A.3d 1012, 1022 (Pa.Super. 2014), appeal denied , 104 A.3d 523 (Pa. 2014), quoting Commonwealth v. Beshore , 916 A.2d 1128, 1140 (Pa.Super. 2007), appeal denied , 982 A.2d 509 (Pa. 2009) ( “ We shall not develop an argument for [the appellant], nor shall we scour the record to find evidence to support an argument; consequently, we deem this issue waived. ” (brackets in original) )

.J . S06 0 44 /20

- 17

-

The Pennsylvania Rules of Evidence prohibit the admission of hearsay

evidence, except as provided by the Rules. Pa.R.E. 802. Our cases define

hearsay as “ a n out

- of

- court statement offered to prove the truth of the matter

asserted in the statement. ” Commonwealth v. Kuder , 62 A.3d 1038, 1055

(Pa.Super. 2013), appeal denied , 1 14 A.3d 416 (Pa. 2015), citing

Commonwealth v. Puksar , 740 A.2d 219, 225 (Pa. 1999), cert. denied

sub nom. Puksar v. Pennsylvan ia , 531 U.S. 829 (2000).

Here, the record reflects that the evidence at issue was not introduced

to prove the truth of the matter asserted within the statement; therefore, the

rule against hearsay and its exceptions do not apply in this instant case.

Ind eed, the trial court instructed the jury as follows:

Members of the jury, you may remember yesterday that I provided you with a cautionary instruction and told you that certain evidence was being admitted for a limited purpose. Before we hear any more tes timony from this witness, I also want to give you an instruction as follows:

You are about to hear evidence that [Mr.] Lee gave a written statement to Detectives Bandy and Schurr on March 26, 2011. I want to caution you that this evidence is not being admitted to prove the truth of the contents of that statement; rather, it is being admitted only for a limited purpose of establishing by circumstantial evidence the existence of th e alleged conspiracy between [Mr.] Lee and [appellant], should you choose to accept it as such.

Again, I caution you that this evidence is being admitted only for that limited purpose and not for any other purpose.

Notes of testimony, 4/12/17 at 45.J . S06 0 44 /20

- 18

-

Acc ordingly, appellant ’ s third issue is without merit.

In his fourth issue, appellant appears to raise a sufficiency of the

evidence claim. Specifically, appellant contends that the trial court erred when

it denied appellant ’ s post

- sentence motion for a jud gment of acquittal for the

second

- degree murder charge because the Commonwealth failed to establish

beyond a reasonable doubt that a robbery took pla ce. (Appellant ’ s brief

at 27.)

The Pennsylvania Rules of Appellate Procedure require an appellant to

“ con cisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge ” within the

concise statement of errors complained of on appeal.

Pa.R.A.P. 1925(b)(4)(ii). Pennsylvania cou rts have consistently held that for

sufficiency of the evidence challenges, an appellant ’ s Rule 1925(b) statement

“ needs to specify the element or elements upon which the evidence was

insufficient. ” Commonwealth v. Tyack , 128 A.3d 254, 260 (Pa.Super.

2015 ), quoting Commonwealth v. Williams , 959 A.2d 1252, 1257

(Pa.Super. 2008) (citation omitted). Failure to do so results in waiv er of the

issue on appeal. Id.

Here, similar to the defendant in Tyack , appellant provides a boilerplate

Rule 1925(b) statement , averring as follows: “ Did the Trial Court err by

Denying [Appellant ’ s] Post

- sentence Motion for a Judgment of Acquittal on the

charge of Murder in the Second Degree, for which the Jury returned a guiltyJ . S06 0 44 /20

- 19

-

verdict? ” (Appellant ’ s Rule 1925(b) statement , 1/2 6/18 at ¶ IV ; see also

Tyack , 128 A.3d at 260.) Appellant failed to specify any element upon which

the Commonwealth ’ s evidence was insufficient. Accordingly, appellant ’ s

fourt h issue is waived on appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2020