J-S28014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CALVIN LORENZO PURDIE, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 245 MDA 2022

Appeal from the Judgment of Sentence Entered January 27, 2022

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0004360-2019

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED: NOVEMBER 8, 2022

Appellant, Calvin Lorenzo Purdie, Jr., appeals from the January 27, 2022 

judgment of sentence1imposing an aggregate sentence of 30 to 60 years’ 

____________________________________________

1 On January 10, 2022, the trial court sentenced Appellant to an aggregate 

term of 30 to 60 years’ incarceration, with credit for time served, and ordered 

him to pay costs ($500.00) and restitution in the amount of $293,643.87, with 

certain distributions to each payee as specified within the sentencing order. 

See Sentencing Order, 1/18/22. On January 24, 2022, the Commonwealth 

filed a motion to modify Appellant’s sentence, requesting reallocation of 

Appellant’s restitution payments among the payees, while retaining the 

aggregate restorative sum of $293,643.87. On January 27, 2022, the trial 

court granted the Commonwealth’s motion and entered an amended judgment 

of sentence that same day, imposing an aggregate sentence of 30 to 60 years’ 

incarceration, with credit for time served, and ordering Appellant to pay costs 

($500.00) and restitution in the amount of $293,643.87, with certain 

redistributed payments to each payee as modified therein. See Order of 

Court, 1/27/22.

When a trial court amends a judgment of sentence during the period in which 

it retains jurisdiction pursuant to 42 Pa.C.S.A. § 5505, the direct appeal lies 
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incarceration after Appellant was convicted in a jury trial of aggravated 

arson – person present inside property, arson endangering persons – danger 

of death or bodily injury, arson endangering persons – inhabited building or 

structure, and third-degree murder.

2

 We affirm.

The trial court summarized the factual history as follows:

On May 23, 2019, Sergeant Anthony C. Clements [(“Sergeant

Clements")] of the Derry Township Police Department had just 

begun his shift at 6:00[ a.m.,] when he received a call for a 

structure fire at [a residence located on] West Chocolate Avenue 

in Hershey, Pennsylvania. Sergeant Clements was the first to 

arrive on scene and notified Dauphin County dispatch that there 

was smoke coming from the residence. He went to the side

entrance, near the kitchen, and observed a black male holding a 

child and a black female on the [tele]phone. The female was 

screaming [into the telephone] that her mother was still inside the

residence.

____________________________________________

from the amended judgment of sentence. See Commonwealth v. Garzone, 

993 A.2d 1245, 1254 n.6 (Pa. Super. 2010), aff’d, 34 A.3d 67 (Pa. 2012); see 

also 42 Pa.C.S.A. § 5505 (stating, “[e]xcept as otherwise provided or 

prescribed by law, a court upon notice to the parties may modify or rescind 

any order within 30 days after its entry, notwithstanding the prior termination 

of any term of court, if no appeal from such order has been taken or allowed”). 

Therefore, Appellant’s appeal properly lies from the January 27, 2022 

amended judgment of sentence. The caption has been corrected accordingly.

2 18 Pa.C.S.A. §§ 3301(a.1)(1), 3301(a)(1)(i), 3301(a)(1)(ii), and 2502(c), 

respectively. Appellant was sentenced to 20 to 40 years’ incarceration for his 

conviction of third-degree murder. In addition, Appellant was sentenced to 

10 to 20 years’ incarceration for his conviction of aggravated arson – person 

present inside property, with this sentence to run consecutively to the 

sentence imposed for his third-degree murder conviction. For sentencing 

purposes, Appellant’s convictions for arson endangering persons – danger of 

death or bodily injury and arson endangering persons – inhabited building or 

structure merged with his conviction for aggravated arson – person present 

inside property.
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Sergeant Clements entered the residence through the kitchen and 

noted a heavy amount of smoke and could see flames coming from 

the room straight back from the kitchen, which was later identified 

as the victim's bedroom. [Sergeant Clements] almost made it to 

the bathroom door when he was overcome with smoke and had 

to retreat outside. Sergeant Clements attempted to enter the 

residence a second [] time with a fire extinguisher, hoping to 

extinguish the flames. He did not make it through the kitchen 

before he was overcome with smoke and heat. He dropped the 

fire extinguisher and crawled back outside.

Keith Swank [("Swank")] is a volunteer firefighter for 

Hummelstown[, Pennsylvania]. He was on his way to work on 

May 23, 2019, when [he was alerted] that there was a structure 

fire with a possible entrapment. Since he was about a block away

[from the fire scene,] Swank drove to [the residence on] West 

Chocolate Avenue and arrived shortly after [Sergeant] Clements. 

Upon arriving at the scene, [] Swank entered [the residence]

through the kitchen and began a clockwise sweep through the 

residence. At that time, the smoke was hazy, and [] Swank was 

still able to stand[ upright].

While doing his sweep [of the residence, Swank] saw the door to 

the [victim’s] bedroom was [partially open] and could see light 

flickering. [] Swank dropped to his knees and pushed the

[bedroom] door open and saw the fire on the bed. Someone 

handed him a fire extinguisher[,] and he started to look for the 

victim. However, the smoke and fire were getting too bad, and

he was forced to crawl back outside [the residence. ]Swank and 

Sergeant Clements made an attempt together - the smoke was 

"banked all but to the floor" and they were no longer able to stand 

[upright. ]Swank made it about halfway to the [victim’s] bed but 

had to retreat outside for fresh air. [] Swank and Sergeant 

Clements started to go back in, but it was too dangerous as the 

fire was already rolling over[] their heads. Sergeant Clements 

wanted to make one final attempt, but did not make it through 

the kitchen before he was overcome with smoke and heat[. He]

does not remember how he got out [of the residence. ]Swank 

grabbed Sergeant Clements by his vest and [dragged] him out of 

the burning residence.

Sergeant Clements and [] Swank were transported to [a medical 

center] for treatment. Sergeant Clements felt a burning in his 

chest from the smoke inhalation. He was given oxygen at the 

scene, as well as [at] the [medical center,] and was monitored 
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until his oxygen levels returned to normal. Sergeant Clements

returned to desk duty for the remainder of his shift[ that same 

day and] had a cough for a couple of days after the fire. [] Swank 

could not breathe from the smoke inhalation and did not go back 

to work for about a day after being released. He had trouble

breathing and his chest hurt for about two [] days after the fire.

After the fire was completely extinguished, law enforcement 

officers discovered a charred body in the bedroom where the fire 

started[.]

Right there at the foot of the bed she was laying prone on 

her back. Her right hand was bent up at about a 45-degree 

angle towards her chest. Her left arm was laying limp out 

to its side underneath the desk and [] her legs and knees 

were bent up almost like she was sitting down.

The most significant charring was [on the bedroom ceiling] 

directly above where the body was found[.]

Dr. Wayne Ross [("Dr. Ross")], a forensic pathologist employed 

[by] the Dauphin County Coroner's Office[,] performed an autopsy 

on the victim on May 28, 2019. He described the body as 

completely charred, with the heaviest amount of charring at her 

upper face, neck[,] and chest area. The victim's right hand was

completely burned. However, the left [hand] was not, and Dr. 

Ross observed all five [] fingernails were still present and the left 

pinky nail was broken. The victim's fingernails from her left hand 

were collected and preserved for analysis.

Dr. Ross testified that the cause of death was strangulation, and 

the manner of death was homicide. He testified that the victim 

was dead before the fire began as there was no significant carbon 

monoxide in the victim's body. Dr. Ross further testified that the 

victim was alive when she was strangled because there was 

evidence of bleeding around the hyoid bone, as well as the thyroid 

cartilage, and there was a hemorrhage in the back of her neck.

The evidence is consistent with being strangled while on her back. 

There was no evidence of a sexual assault.

Pennsylvania State Trooper Jonathan Wolfe [("Trooper Wolfe")] is 

a deputy fire marshal and was assigned to investigate the fire in 

this case. Trooper Wolfe opined that the fire started in the victim's 

bedroom, within two [] feet of her head. Through his 

investigation, Trooper Wolfe ruled out the radiator and electrical 

outlets as [causes] of the fire. He opined that the fire had a single 
J-S28014-22

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source of origin and accelerants were not used. Trooper Wolfe 

concluded that the cause of the fire was undetermined.

Detective Robert Matthew Dotts [("Detective Dotts"), a detective]

with the Derry Township Police Department[,] arrived on scene 

with Detective [David E.] Rode. Upon arriving at the rear of the 

residence, Detective Dotts observed [Appellant] talking to other

people at the scene. Detective Dotts testified that [Appellant]

appeared more collected and approachable than some of the other 

individuals present. Unbeknownst to Detective Dotts, the camera 

system in his patrol vehicle [] recorded the entire scene at the 

back of the residence. The recording was played at trial.

At approximately 8:02 [a.m.], the recording shows [Appellant]

with the victim's daughter, []who is holding [her daughter, 

fathered by Appellant.] It appeared that [Appellant] and [the 

victim’s daughter] were having a discussion[,] and she rubbed 

[Appellant’s] face. From where he was standing, Detective Dotts 

could hear [Appellant’s] and [the victim’s daughter’s]

conversation. Detective Dotts testified that he overheard [the 

victim’s daughter] ask [Appellant], "what did you do, I need to 

know" and [Appellant] respond, "are you serious?" [Detective 

Dotts] further testified that he heard [the victim’s daughter] say, 

"I'm placing this on someone." While speaking with [Appellant]

later, Detective Dotts observed fresh scratch marks on

[Appellant’s] face and neck.

[The victim’s daughter] testified that she was with [Appellant]

leading up to the fire. She met him at his mother's house[ on the 

evening prior to the fire,] and [they] went to a bar[.] They were 

at [the bar] for a few hours and then walked back to [Appellant’s]

mother's house. [The victim’s daughter] texted her mother, the 

victim, for a ride home, but she was unavailable. As a result, 

[Appellant, the victim’s daughter,] and their daughter took a 

[transportation service] back to [the victim’s residence] sometime 

between 11:00 [p.m.] on May 22, 2019, and 12:00 [a.m.] on May 

23, 2019. The next thing [the victim’s daughter] remembered is 

being woken up by [Appellant] who was yelling at her about 

finding condoms in her bedroom. [The victim’s daughter] told 

[Appellant the condoms belonged to the victim] and [then] went 

back to sleep.

The next time [the victim’s daughter] woke up it was daylight and 

[Appellant] was not in the room. She then fell back asleep and 

was woken up again by [Appellant] yelling to get up because [the 
J-S28014-22

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victim’s] bedroom was on fire. [The victim’s daughter] ran to [the 

victims’ bedroom] and could see flames through [the open portion 

of the bedroom doorway]. When she opened [the bedroom door]

all the way, she could see the whole back side of the bedroom was 

on fire. [The victim’s daughter] closed the door, but not all the 

way, ran and got dressed, grabbed her [tele]phone while 

[Appellant] grabbed their daughter, and they went outside to 

safety. Initially, [the victim’s daughter] believed [the victim] was 

at work because that was her normal work schedule.

While [the victim’s daughter] was calling 911 [emergency 

services], she noticed [the victim’s] car was still parked in the lot 

behind [] the residence. Neither she nor [Appellant] attempted to 

reenter the [residence]. After emergency personnel arrived, [the 

victim’s daughter] and [Appellant] were talking when she noticed 

fresh scratch marks on [Appellant’s] face and neck that were not 

there the night before. She questioned [Appellant] about where

he got the scratches and told him she was going to find out who 

did it. [The victim’s daughter] denied that she caused the scratch 

marks on [Appellant].

Jennifer Marchand [("Marchand")] is a forensic scientist employed

by the Pennsylvania State Police at the Harrisburg Regional 

Laboratory. She received the following evidence for analysis: left 

hand fingernail clippings from the victim; a known blood sample 

from the victim; nasal, vaginal, anal[,] and oral swabs from the 

victim; and a buccal sample from Walter Gaines [("Gaines")]. The 

nasal swab was not analyzed because the oral swabs provide[d] a 

better sample than [the] nasal swabs. There were no 

spermatozoa on the vaginal, anal, and oral swabs. However, the 

anal and oral swabs were presumptive for blood[. T]herefore, 

[Marchand] prepared the swabs for further [deoxyribonucleic acid 

(“DNA”)] testing. [] Marchand did not test the fingernail clippings 

for spermatozoa or blood and merely prepared them for DNA 

analysis.

Timothy Gavel [("Gavel")] is a forensic scientist employed by the

Pennsylvania State Police DNA laboratory. [] Gavel received the

following evidence in this matter for DNA analysis: [a] known 

blood sample from the victim; a buccal swab from [] Gaines; a 

buccal swab from [Appellant]; the victim's fingernail clippings; 

and the vaginal, anal[,] and oral swabs of the victim. [] Gavel

determined that the vaginal, anal[,] and oral swabs did not have 

enough male DNA detected to proceed with further analysis.
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[] Gavel swabbed the underside of the fingernail clippings to 

obtain DNA and determined that there was a mixture of two []

individuals' DNA. Most of the mixture was a match to the victim[’s 

DNA], which was expected. [] Gavel compared the DNA to the 

buccal swab from [] Gaines and excluded him as a contributor.

When [the DNA was] compared to the buccal swab from 

[Appellant], he could not be excluded as a potential contributor. 

[] Gavel then conducted a Y chromosome [short tandem repeat 

(“STR”)] DNA test. He explained that in situations where there is

a large amount of female DNA and only a small amount of male 

DNA, the STR [DNA] test allowed him to isolate the male 

components and provide a Y chromosome DNA profile for the 

fingernail clippings. [] Gavel testified that the Y chromosome DNA 

profile was a match at all areas [of] the buccal swab [obtained] 

from [Appellant].

Dr. Christian G. Westring [("Dr. Westring")] is the Director for the 

Center for Crime and Forensics at Purdue University and the owner 

and executive director of Gustav & Sons, LLC. Dr. Westring was 

asked by the Commonwealth to review the Pennsylvania State 

Police analysis and conclusions regarding the victim's fingernail 

clippings. He agreed that the DNA sample from underneath the

fingernails contained a mixture of female and male DNA. The 

victim's DNA was identified as the female contributor and 

[Appellant’s] DNA was consistent with the male contributor. Dr. 

Westring confirmed that [] Gaines was excluded as a possible 

contributor. He further explained that DNA can be transferred

through a scratch on the skin.

The Commonwealth introduced additional evidence that showed 

[] Gaines was at his then-girlfriend's residence [] at the time of 

the homicide and subsequent fire. Similarly, the Commonwealth 

introduced testimony from [] the general factory business leader 

at the Reese's plant in Hershey, Pennsylvania[, who testified that 

the employment records indicate [a co-worker of the victim

(“Co-Worker 1”)] was at work from 10:26 [p.m.] on May 22, 

2019, until 6:30 [a.m.] on May 23, 2019. [The general factory 

business leader] further testified that the employment records 
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indicate [a second co-worker of the victim (“Co-Worker 2”)] was 

at work from 2:42 [a.m.] to 10:35 [a.m.3]

Trial Court Opinion, 4/20/22, at 3-10 (record citations, footnotes, and 

extraneous capitalization omitted).

On November 12, 2021, a jury convicted Appellant of aggravated 

arson – person present inside property, arson endangering persons – danger 

of death or bodily injury, arson endangering persons – inhabited building or 

structure, and third-degree murder.4 As discussed supra, on January 27, 

2022, Appellant was sentenced to an aggregate sentence of 30 to 60 years’ 

incarceration, with credit for time served, and was ordered to pay costs in the 

amount of $500.00 and restitution in the amount of $293,643.87. Appellant 

did not file a post-sentence motion. This appeal followed.5

Appellant raises the following issues for our review:

[1.] Whether the trial court erred in denying [Appellant’s

introduction] of a protection from abuse [(“PFA”)] order's 

contents, specifically the mental state of the [victim]

regarding her safety from [] Gaines, [into evidence] when 

the statement provided evidence that she feared for her 

safety, it was not offered for the truth of the matter 

asserted, and was central to a third[ person] guilt defense?

____________________________________________

3 “Several individuals involved in this case worked at the Reese’s plant – the 

victim, [the victim’s daughter,] Gaines, [Co-Worker 1, and Co-Worker 2].” 

Trial Court Opinion, 4/20/22, at 10 n.3.

4 Appellant was found not guilty of first-degree murder, 18 Pa.C.S.A. 

§ 2502(a). Appellant’s first jury trial, which occurred in April 2021, resulted 

in a mistrial because the jury was unable to render a verdict.

5 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
J-S28014-22

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[2.] Whether there was sufficient evidence to sustain a 

conviction for third-degree murder, when the evidence, 

even in the light most favorable to the Commonwealth, 

requires too many factual and logical leaps to prove 

[Appellant] committed the homicide when the evidence was 

limited to his mere presence at the [victim’s residence], 

scratch marks with unknown origin, and DNA with no 

manner of determining its source[?]

[3.] Whether there was sufficient evidence to sustain a 

conviction for arson, when the evidence, even in the light 

most favorable to the Commonwealth, requires too many 

factual and logical leaps to prove [Appellant] committed 

[third-degree] murder [] and arson, when the evidence was 

limited to his mere presence at the [victim’s residence], 

scratch marks with unknown origin, and DNA with no 

manner of determining its source[?]

Appellant’s Brief at 6-7 (extraneous capitalization omitted).

In his first issue, Appellant argues that the trial court erred in refusing 

to admit a PFA petition the victim filed against Gaines. Appellant’s Brief at 

24-37. Appellant offered the petition as evidence to show that the victim

feared Gaines, a third party Appellant claims may have committed the 

offenses for which Appellant was charged. Id. Appellant contends that the 

PFA petition was admissible to establish third person guilt because it was 

relevant, did not constitute hearsay, and its probative value was not 

outweighed by a danger of, inter alia, confusing the issues for the jury. Id. 

In particular, Appellant asserts that the PFA petition did not constitute hearsay 

because it was offered not for the truth of the matter asserted therein (that 

Gaines stated he would harm, or find someone to harm, the victim) but,

rather, to show that the victim feared Gaines would harm her. Id. at 26, 28 

(arguing that, the statement was not offered for the truth of the matter 
J-S28014-22

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asserted[,] i.e., the truth that [] Gaines said those things[, r]ather[,] it was 

offered solely for the [jury] to know [the victim] feared him”).

Our standard of review of questions concerning the admissibility of 

evidence is well-settled.

[T]he admissibility of evidence is a matter within the sound 

discretion of the trial court and will be reversed only where there 

is a clear abuse of discretion. Our standard of review of a 

challenge to an evidentiary ruling is therefore limited. Abuse of 

discretion is not merely an error of judgment, but rather 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. Herring, 271 A.3d 911, 918 (Pa. Super. 2022) (original 

brackets omitted).

“Third person guilt evidence” is defined as “evidence of a third person’s 

crimes, wrongs[,] or other acts (‘third person guilt’) offered by a criminal 

defendant in an effort to raise a reasonable doubt that he[, or she,] was not 

the perpetrator of the crime charged.” Commonwealth v. Yale, 249 A.3d 

1001, 1004 (Pa. 2021). “[Such evidence] is admissible if it is relevant, not 

otherwise excludable, and surmounts the disqualifying considerations of 

Pa.R.E. 403 [(probative value outweighed by, inter alia, unfair prejudice)].” 

Id. at 1023 (stating that, the admissibility of third person guilt evidence is 

governed by Pennsylvania Rules of Evidence 401 to 403).

Recognizing the three-prong test set forth in Yale, supra, as governing 

the admissibility of third person guilt evidence, the trial court, in the case sub 
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judice, excluded the PFA petition on grounds that it constituted hearsay within 

hearsay, explaining,

The issue here is whether the PFA petition is otherwise excludable, 

i.e., hearsay without an exception. Hearsay is an out-of-court 

statement made by a declarant that a party seeks to admit for the 

truth of the matter asserted. Pa.R.E. 801 (definitions). Hearsay 

is generally inadmissible unless there is an exception. Pa.R.E. 

802.

Here, the victim's allegations within the PFA petition are clearly 

hearsay within hearsay, which requires an exception for each. 

They are out-of-court statements made by a declarant to prove 

the truth of the matter asserted, i.e., that the victim was afraid of 

[] Gaines. Appellant failed to articulate a valid exception for either 

the PFA petition or the allegations within the petition. Rather, he 

argued that the allegations within the PFA petition are statements 

that were signed and verified by the victim; therefore, it is not 

hearsay. It appears Appellant may be combining two [] separate 

issues - evidence of the existence of a PFA petition versus the 

allegations within the PFA petition. . . . However, the allegations 

within the PFA petition are also hearsay without an exception.

Additionally, counsel for Appellant elicited the crux of the victim's 

allegations against [] Gaines during direct examination[.]

Trial Court Opinion, 4/20/22, at 17.

We begin our review of the trial court’s ruling with the relevance prong 

of the Yale test. “The United States Supreme Court has long recognized that 

a defendant has the right to present evidence and that in defense, evidence 

of a third person's guilt is relevant.” Yale, 249 A.3d at 1012 (stating, “[f]ew 

rights are more fundamental than that of an accused to present witnesses of 

his own defense” (citation and original quotation marks omitted)). Our 

Supreme Court “has also historically recognized a defendant's right to present 

evidence that someone else committed the crime of which he is accused.” Id.
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at 1014 (stating, “an accused should be allowed to prove a fact which would 

logically produce a doubt of his guilt in the mind of the jury” (citation and 

original quotation marks omitted)). Conversely, a “defendant has no duty to 

present evidence and may instead rely on the presumption of innocence and 

the Commonwealth's burden of proof.” Id. at 1018 (citation and original 

quotation marks omitted). Evidence that a third person, such as Gaines, may 

have committed the offenses of which Appellant was charged was relevant at 

Appellant’s criminal trial. See id. at 1014.

Admissibility under the second prong of the Yale test requires that the 

third person guilt evidence must not be otherwise excludible. Id. at 1023. 

Pennsylvania Rule of Evidence 802 states, “[h]earsay is not admissible except 

as provided by these rules, by other rules prescribed by the Pennsylvania 

Supreme Court, or by statute.” Pa.R.E. 802. Hearsay is defined as a 

statement “the declarant does not make while testifying at the current trial or 

hearing” that “a party offers in evidence to prove the truth of the matter 

asserted in the statement.” Pa.R.E. 801(c)(1) and (2).

An out-of-court declaration containing another out-of-court 

declaration is double hearsay. In order for double hearsay to be 

admissible, the reliability and trustworthiness of each declarant 

must be independently established. This requirement is satisfied 

when each statement comes within an exception to the hearsay 

rule.

Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa. 2001). By comparison, 

if an out-of-court statement is not offered for the truth of the matter asserted, 

the statement is not hearsay and can be admitted for a non-truth purpose. 
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Commonwealth v. Fitzpatrick, 255 A.3d 452, 479 (Pa. 2021). Thus, a trial 

court’s initial inquiry involves, in part, identification of the purpose for which 

the evidence is propounded.

In the case sub judice, the trial court excluded the PFA petition because 

it concluded that both the PFA petition and the allegations contained therein

constituted double hearsay for which Appellant did not offer valid exceptions. 

N.T., 11/12/21, at 629-630; see also Trial Court Opinion, 4/20/22, at 17.

6

 

Upon review, we concur with the trial court that the PFA petition and the 

allegations contained therein constituted hearsay within hearsay because the 

out-of-court statements were offered for the truth of the matter asserted, 

namely that Gaines threatened and attempted to harm the victim previously.7 

To support his third person guilt theory, Appellant sought to introduce the PFA 

petition and the allegations contained therein as evidence that Gaines 

previously threatened to harm and attempted to harm the victim to create 

doubt in the eyes of the jury as to Appellant’s culpability. See Appellant’s 

____________________________________________

6 The notes of testimony for Appellant’s trial, which took place on November 

8, 2021, through November 10, 2021, and on November 12, 2021, were 

compiled as a single, successively-paginated transcript. For purposes of citing 

the notes of testimony, we refer to the date the testimony was provided and 

the page number of the transcript.

7 Although the PFA petition is not part of the certified record, Gaines testified 

at trial that the PFA petition contained an allegation by the victim that, on May 

14, 2018, Gaines “woke up and lunged at [the victim] with a hanger from the 

bed.” N.T., 11/12/21, at 676-677. Appellant further asserts that the PFA 

petition contained an averment by the victim that Gaines told her “I will, or I 

will get[] someone to[,] hurt you.” Appellant’s Brief at 26.
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Brief at 32 (stating, the PFA petition and the allegations contained therein 

“makes [Appellant’s] culpability less probable, as it provides doubt as to why 

he would commit the homicide”).8 The PFA petition and the allegations 

contained therein were not offered solely for the purpose of demonstrating 

that the victim feared Gaines, as Appellant argued at trial.

9

 Rather, Appellant 

sought to suggest, through introduction of the PFA petition, that a third party, 

namely Gaines, was responsible for the victim’s death based upon the 

truthfulness of the alleged threats and attempted harm contained within the 

PFA petition. Both the PFA petition and the victim’s allegations contained 

____________________________________________

8 Appellant’s characterization of the PFA allegations – providing “doubt as to 

why [Appellant] would commit the homicide” – is misplaced. The PFA relates 

to a matter involving the victim and Gaines, with no mention of or reference 

to Appellant. The PFA and the allegations contained therein do not explain 

why Appellant did or did not commit the homicide. Rather, the PFA and the 

allegations contained therein provide doubt whether Appellant did or did not

commit the homicide by suggesting third person guilt.

9 “In the context of a PFA case, the court's objective is to determine whether 

the victim is in reasonable fear of imminent serious bodily injury[.]” E.K. v. 

J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020) (citation and original quotation 

marks omitted). To obtain relief, a victim must prove the allegations 

contained within the PFA petition by a preponderance of the evidence. 23 

Pa.C.S.A. § 6107(a); see also E.K., 237 A.3d at 519.

Implicit in Appellant’s “fear” argument, in the case sub judice, is the assertion 

that the allegations of what Gaines did or said to the victim were truthful 

thereby giving rise to the victim’s fear of Gaines. While it may be inferred 

from the filing of a PFA petition that a victim fears the person against whom 

the PFA petition is filed, a victim may also file a PFA petition because the victim 

is annoyed with or felt harassed by the person against whom the PFA is filed

or, even, for malicious reasons. The rationale behind the filing of a PFA 

petition cannot be ascertained simply by evidence that a petition was filed.
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therein were out-of-court statements that Appellant offered for the truth of 

the asserted matter, i.e., Gaines’ threats and his previous attempt to harm 

the victim. Thus, the petition and the allegations contained therein constituted 

double hearsay, and Appellant needed to demonstrate an exception to the rule 

against hearsay for both the PFA petition and the allegations contained 

therein. Because Appellant did not make such a showing, the trial court’s 

evidentiary ruling must be affirmed.

At trial, Appellant asserted that the PFA petition and the victim’s 

allegations against Gaines contained in the PFA petition fell within the state of 

mind exception to the rule against hearsay. N.T., 11/12/21, at 625. 

Pennsylvania Rule of Evidence 803(3) sets forth the present state of mind 

exception as follows,

Rule 803. Exceptions to the Rule Against 

Hearsay - Regardless of Whether the Declarant is 

Available as a Witness

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a witness:

. . .

(3) Then-Existing Mental, Emotional, or Physical Condition.

A statement of the declarant's then-existing state of mind (such 

as motive, intent, or plan) or emotional, sensory, or physical 

condition (such as mental feeling, pain, or bodily health), but not 

including a statement of memory or belief to prove the fact 

remembered or believed unless it relates to the validity or terms 

of the declarant's will.

Pa.R.E. 803(3). “Rule 803(3) permits only statements establishing the 

declarant's state of mind, but no one else's[, and] forbids the admission of a 
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statement of memory or belief to prove the fact remembered or believed 

unless it relates to a will.” Fitzpatrick, 255 A.3d at 481 (citation and original 

quotation marks omitted). State of mind statements “are normally excepted

out of the hearsay rule, because the reliability of such statements are 

established by the statement being made contemporaneous with a provoking 

event.” Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013). The state 

of mind exception does not serve “as a mechanism to circumvent the rules of 

evidence, repurposing statement of mind evidence into a ‘conduit’ to obtain 

admission of otherwise inadmissible facts.” Fitzpatrick, 255 A.3d at 481.

As discussed supra, Appellant offered the PFA petition and the 

allegations contained therein as evidence that Gaines did or said what the 

victim alleged to support his theory of third person guilt. In this instant, the 

PFA petition and the allegations contained therein were being offered for the 

truth of the matter asserted, namely that Gaines threatened and attempted 

to harm the victim previously (a fact-bound component). To qualify for the 

state of mind exception, the out-of-court statement must relate to the 

declarant’s state of mind and may not be a statement of memory or belief 

to prove the fact remembered or believed. Pa.R.E. 803(3); see also 

Fitzpatrick, 255 A.3d at 481-482. The PFA petition and the allegations 

contained therein are a statement of the victim’s memory of the things Gaines 

said to her or the harm that he threated or attempted to impose upon her. 

While the victim’s involvement with Gaines may have resulted in the victim 

experiencing an emotional state of fear, the PFA petition and the allegations
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contained therein are, nonetheless, substantive facts being used to prove that 

Gaines previously threatened and attempted to harm the victim. Used in this 

way to support Appellant’s third person guilty theory, we concur with the trial 

court, and the record supports, that the PFA petition and the allegations 

contained therein are hearsay statements without exception. Consequently, 

we discern no abuse of discretion in the trial court’s evidentiary ruling 

regarding the admissibility of the PFA petition and the allegations contained 

therein.10

____________________________________________

10 Appellant also asserted that the PFA petition and the allegations contained 

therein qualified for the excited utterance exception or were admissible

because the PFA petition was signed and verified by the victim. N.T., 

11/12/21, at 623, 625-626.

An excited utterance by a declarant, regardless of whether the declarant is 

available as a witness at trial, is not excluded by the rule against hearsay 

when the out-of-court statement relates “to a startling event or condition” and 

is “made while the declarant is under the stress of excitement that it caused.” 

Pa.R.E. 803(2).

Here, the victim’s allegations contained within the PFA petition were made 

some time after the events that led to the allegations and upon reflection by 

the victim. Therefore, the excited utterance exception to the rule against 

hearsay does not apply to the allegations in the PFA petition. Murray, 83 

A.3d at 157 (describing an excited utterance as a “spontaneous declaration 

by a person whose mind has been suddenly made subject to an overpowering 

emotion caused by some unexpected and shocking occurrence, which that 

person has just participated in or closely witnessed, and made in reference to 

some phase of that occurrence which he[, or she,] perceived, and this 

declaration must be made so near the occurrence both in time and place as 

to exclude the likelihood of its having emanated in whole or in part from his[, 

or her,] reflective faculties”). Insomuch as Appellant argued that the 

allegations contained in the PFA petition were admissible under the excited 

utterance exception, Appellant’s assertion is without merit.
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Appellant’s second and third issues collectively challenge the sufficiency 

of the evidence to support to his aforementioned convictions. Appellant’s Brief 

at 6-7, 37-46. Our standard of review of sufficiency of the evidence claims is 

well-settled.

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying [this] test, we may not weigh the 

evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant's guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proof or proving every element of the 

crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying [this] test, the 

entire record must be evaluated and all the evidence actually 

received must be considered. Finally, the trier[-]of[-]fact while 

____________________________________________

Regarding the assertion that the PFA petition was signed and verified by the 

victim and, therefore, admissible, Pennsylvania Rule of Evidence 803.1(1) sets 

forth an exception to the rule against hearsay by which a signed and adopted 

prior written statement by a declarant is admissible if the declarant’s prior 

statement is inconsistent with the declarant’s testimony at trial. 

Pa.R.E. 803.1(1) (stating that, a prior statement, which is in writing and 

signed by and adopted by the declarant, is not excluded by the rule against 

hearsay if the declarant testifies at trial and is subject to cross-examination 

about the prior statement and the prior statement is inconsistent with the 

declarant’s testimony at trial). In the case sub judice, the victim, the 

declarant of the out-of-court statement (the PFA petition) did not testify at 

trial because she is deceased. As such, her PFA petition could not be admitted 

as a signed and adopted prior written statement by the victim pursuant to 

Rule 803.1(1).
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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. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)

(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004).

This standard [of review] is equally applicable to cases where the 

evidence is circumstantial rather than direct so long as the 

combination of the evidence links the accused to the crime beyond 

a reasonable doubt. Although a conviction must be based on more 

than mere suspicion or conjecture, the Commonwealth need not 

establish guilt to a mathematical certainty.

Commonwealth v. Patterson, 180 A.3d 1217, 1229-1230 (Pa. Super. 

2018) (citation and quotation marks omitted), appeal denied, 229 A.3d 562 

(Pa. 2020).

Simply stated, “[t]o establish the offense of third-degree murder, the 

Commonwealth must prove the killing of an individual with malice.” 

Commonwealth v. Jones, 271 A.3d 452, 458 (Pa. Super. 2021), appeal 

denied, 2022 WL 2913856 (Pa. filed July 25, 2022) (slip copy). Section 3301 

of the Crimes Code defines arson in relevant part as follows:

§ 3301. Arson and related offenses

(a) Arson endangering persons.--

(1) A person commits a felony of the first degree if he 

intentionally starts a fire or causes an explosion, or if he 

aids, counsels, pays or agrees to pay another to cause a fire 

or explosion, whether on his own property or on that of 

another, and if:

(i) he thereby recklessly places another person in danger of 

death or bodily injury, including but not limited to a 

firefighter, police officer or other person actively engaged in 

fighting the fire; or
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(ii) he commits the act with the purpose of destroying or 

damaging an inhabited building or occupied structure of 

another.

. . .

(a.1) Aggravated arson.--

(1) A person commits a felony of the first degree if he 

intentionally starts a fire or causes an explosion, or if he 

aids, counsels, pays or agrees to pay another to cause a fire 

or explosion, whether on his own property or on that of 

another, and if:

(i) he thereby attempts to cause, or intentionally, knowingly 

or recklessly causes bodily injury to another person, 

including, but not limited to, a firefighter, police officer or 

other person actively engaged in fighting the fire; or

(ii) he commits an offense under this section which is graded 

as a felony when a person is present inside the property at 

the time of the offense.

18 Pa.C.S.A. § 3301(a)(1)(i and ii) and (a.1)(1)(i and ii).

Rather than challenge the sufficiency of the evidence to support any of 

the applicable elements of the aforementioned offenses, Appellant contends 

that the evidence was insufficient to prove he was the perpetrator of these 

offenses. Appellant’s Brief at 42 (stating, “the evidence was insufficient to 

show [Appellant’s] participation in the murder [and] arson [offenses] because 

the evidence is either speculative or innocuous”).

A review of the record demonstrates that on the evening prior to the 

incident, Appellant, the victim’s daughter, and the victim’s granddaughter 

returned to the victim’s home between 11:00 p.m. and 12:00 a.m. N.T.,

11/10/21, at 507. These three individuals remained at the victim’s residence 

until they exited the residence the following morning due to the fire. Id. at 
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507-510. The victim’s daughter testified that, upon exiting the residence due 

to the fire, she noticed that Appellant had fresh scratches on his face, neck,

and arm that she had not observed the prior evening. Id. at 512. Detective 

Dotts, upon arriving at the scene of the incident, similarly observed Appellant 

with fresh scratches on his face and his left arm above the elbow. N.T., 

11/9/21, at 225.

Mr. Gavel, an expert qualified as a forensic scientist in the field of DNA 

profiling and testing, testified that a DNA sample obtained from the fingernail 

clippings on the victim’s left hand demonstrated the presence of both the 

victim’s DNA and DNA from a male individual. Id. at 376, 384, 394 (stating, 

“from the left hand fingernail clippings[,] I [(Mr. Gavel)] obtained what’s 

considered a DNA mixture profile[, which] means that there’s more than one 

person’s DNA present on that particular item”). Comparing DNA samples 

obtained from Gaines and Appellant with the DNA mixture profile found on the 

victim’s fingernails, Mr. Gavel excluded Gaines as a contributor to the DNA 

mixture. Id. at 385-386. Appellant was unable to be excluded as a 

contributor to the DNA mixture using the same analysis and comparison 

methods.11 Id. at 387. Mr. Gavel then performed a Y chromosome STR DNA 

test to isolate the DNA of the male contributor. Id. at 388-389. This analysis, 

____________________________________________

11 Mr. Gavel explained that his initial analysis of the DNA evidence involved a 

comparison of 24 locations on the DNA to determine whether the DNA 

obtained from the evidence sample matched the DNA sample obtained from 

Gaines or Appellant. N.T., 11/9/21, at 378, 386.
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again, confirmed that Appellant could not be excluded as a contributor to the 

DNA mixture obtained from the victim’s fingernails. Id. at 390. Mr. Gavel 

summarized his findings as follows:

I performed a likelihood ratio for [the DNA mixture profile] and 

the comparison was how much more likely is it that it's [the 

victim’s] and [Appellant’s] DNA versus [the victim’s] and some 

unknown person's DNA and it's 14 trillion times more likely in the 

Caucasian population, 2.8 trillion times more likely in the African 

American population[,] and 3.4 trillion times more likely in the 

Hispanic population that it's [the victim’s] and [Appellant’s] DNA 

as opposed to [the victim’s] and some unknown person's DNA.

Id. at 399-400.12 Dr. Westring, an expert in the fields of molecular biology, 

forensic genetics, and forensic biology, confirmed Mr. Gavel’s findings 

regarding the DNA sample. N.T., 11/10/21, at 413, 421-426. Specifically, 

Dr. Westring stated that the male DNA sample collected from the victim’s 

fingernails was consistent with the DNA sample obtained from Appellant. Id.

at 425. Dr. Westring also confirmed that Gaines was excluded as a contributor 

of the male DNA collected from the victim’s fingernails. Id. at 426.

Trooper Wolfe, a deputy fire marshal with the Pennsylvania State Police 

and an expert in cause and origin of fire, upon analyzing the crime scene, 

concluded that the cause of the fire was undetermined. N.T., 11/8/21, at 183, 

189. In so concluding, Trooper Wolfe determined that the fire was not caused 

____________________________________________

12 Appellant is an African American male. Therefore, according to Mr. Gavel’s 

findings, it was 2.8 trillion times more likely that Appellant was the contributor 

of the male DNA collected from the victim’s fingernails.
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by the radiator, the electrical wiring, or a lit cigarette, and there was no 

indication that an accelerate was used to start the fire. Id. at 185-189. 

Trooper Wolfe further determined that there was a single point of origin for

the fire approximately two feet from the victim’s head and on the mattress of 

the bed where the victim was found. Id. at 187-188, 195. The victim’s death 

was ruled a homicide because the autopsy revealed the cause of death was 

strangulation, and that the victim was deceased prior to being subjected to 

the effects of the fire. Id. at 93, 132.

In viewing the evidence in the light most favorable to the 

Commonwealth, as verdict winner, there was sufficient evidence to enable the 

jury, as fact-finder, to find beyond a reasonable doubt that Appellant was the 

perpetrator of the aforementioned offenses. Specifically, Appellant was 

present in the victim’s residence prior to the incident, Appellant had scratches 

on his face, arm, and neck on the morning following the incident that were 

not present the evening prior, and it was 2.8 trillion times more likely that 

Appellant’s DNA was found underneath the victim’s fingernails. Therefore, 

Appellant’s claims as they relate to the sufficiency of the evidence are without 

merit.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/2022