J. S06044/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 EDA 2018

:

 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, appellant 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).
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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 late ‘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 away” 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 Street 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. 

Dr. 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 a 
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homicide. The evidence showed 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. Officers were unable to recover any 

shell casings from the scene.

While responding to the scene on March 18th 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 front of the Corporal.

Corporal 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 appellant, with [Mr.] Lee driving, 

and another friend, Steven Jackson in the back seat, 

had also fired shots from a handgun out of the gray 

four-door Malibu with tinted windows at one 

Khalil (“Batman”) Byrd [(“Mr. Byrd”)].

On March 26, 2011, appellant and [Mr.] Lee gave 

statements to police in which appellant eventually 

admitted that they had been driving around

Norristown in [Mr.] Lee’s sister’s 1997 gray, four-door 

Chevrolet Malibu with tinted windows on Friday night, 

March 18, 2011. Both appellant and [Mr.] Lee initially 

gave false statements and were subsequently charged 

with unsworn falsification to authorities 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 appellant, he 

was wearing gloves when he shot at [Mr. Byrd].

During his subsequent statement to the detectives, 

appellant agreed to show them where he had 
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discarded the gun. Appellant 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 searching 

for the firearm to no avail. Law enforcement officers 

also conducted a search with appellant’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 plastic 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 appellant had assured them that others had 

successfully disposed of the gun. Law enforcement 

officers never recovered 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 Norristown Borough Police 

Department. Following years of diligent police work, 

officers arrested appellant 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 appellant. 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 the 
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shooting 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 killing of Dawkins. 

Additionally, counsel 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 

motions and scheduled appellant’s trial to begin on 

Monday, April 10, 2017.

Trial court opinion, 4/23/19 at 2-8 (extraneous capitalization and citations to 

the record omitted).

Following [its] deliberations . . . , the jury convicted

appellant of second-degree murder and other offenses 

as noted above on Friday, April 14, 2017. The [trial]

court deferred sentencing and directed that a

presentence investigation report and a PPI evaluation 

report be obtained. The [trial] court sentenced 

appellant 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.
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Attorney Genovese timely filed appellant’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 counsel 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 had 

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

testified about what precipitated that struggle at the 

corner of Noble and Oak Streets that night. [The trial] 

court denied appellant’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 

appellant to file a concise statement of the errors 

complained of on appeal (“statement”), pursuant to 

Pa.R.A.P. 1925(b) by order entered on January 5, 

2018. Appellant filed his statement on January 26, 

2018

[Footnote 4] The argument on appellant’s 

post-trial motions was originally 

scheduled on October 10, 2017. 

However, it was continued at the request 

of appellant’s counsel because of an 

attachment to a capital case in Bucks

County.

Id. 14-15 (extraneous capitalization 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 the 
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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 

abuse 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 

is manifestly unreasonable, or the result of partiality, 
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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 particular 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 a 
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“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. Pennsylvania, 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.’” Commonwealth v. Crispell, 193 

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

1156, 1178 (Pa. 2015). It is well settled that juries are presumed to follow 

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

(Pa. 2017), 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 with an unrelated shooting. 

(Appellant’s brief at 11-15.) The Commonwealth avers that the prior bad acts 
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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. 

(Commonwealth’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 fact 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 cooperating 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 model 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 gray older 

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 gray sedan “speed away” down 

Oak Street. (Id. at 31.) Ms. Decembrino also testified that she saw the same 
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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 record 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 offenses 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 tried 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 

crimes 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.
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Again, I caution you that this evidence is being 

admitted only for those limited purposes and not for 

any other purpose whatsoever.

Notes of testimony, 4/11/17 at 214-215.

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 at 

[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 caution 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 on 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 that 
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the evidence of appellant’s guilty plea in the unrelated crime could 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 

Commonwealth 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 informant 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 written 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 jumps 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 is 
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“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 appellant 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 recorded 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 me, [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 burner 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).
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[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.

Prior 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 conversation, 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 call 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 record, 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 with 

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

within the recorded conversation. Accordingly, we hold that the probative 
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value of Mr. Brown’s recorded conversation with appellant exceeds its 

potential for prejudice and that 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 issue, 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 statement 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 

provide 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, appellant 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)).
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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 “an 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, 114 A.3d 416 (Pa. 2015), citing 

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

sub nom. Puksar v. Pennsylvania, 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. 

Indeed, 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 

testimony 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 the 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.
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Accordingly, 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 judgment of acquittal for the 

second-degree murder charge because the Commonwealth failed to establish 

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

at 27.)

The Pennsylvania Rules of Appellate Procedure require an appellant to 

“concisely 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 courts 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 waiver 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 guilty 
J. S06044/20

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verdict?” (Appellant’s Rule 1925(b) statement, 1/26/18 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 

fourth issue is waived on appeal.

Judgment of sentence affirmed.

Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 9/22/2020