J-A13007-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

DAVID J. MCCLELLAND 

 Appellant No. 1776 WDA 2013 

Appeal from the Judgment of Sentence June 6, 2013 

In the Court of Common Pleas of Washington County 

Criminal Division at No(s): CP-63-CR-0001884-2011 

BEFORE: PANELLA, J., SHOGAN, J., and OTT, J. 

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 21, 2015 

 Appellant, David J. McClelland, appeals from the judgment of sentence 

entered June 6, 2013, in the Court of Common Pleas of Washington County, 

following his conviction of Second Degree Murder, Dealing in Proceeds of 

Unlawful Activity, Receiving Stolen Property, and Criminal Conspiracy to 

Commit Criminal Homicide, Dealing in Proceeds of Unlawful Activity, 

Robbery, Burglary, and Theft by Unlawful Taking or Disposition. No relief is 

due. 

 We take the underlying history of this case from the trial court’s 

opinion. 

 Following a trial by jury, [Appellant], David J. McClelland, 

was convicted of [the above-mentioned crimes]. During the 

trial, the jury heard evidence that [McClelland] and his codefendants, his father and his step-mother, were engaged in 

numerous burglaries and thefts of cash from the home of Evelyn 

Stepko, their elderly neighbor, who lived alone, beginning in 
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August 2009 and continuing through July 18, 2011, when Evelyn 

Stepko was found murdered in her home. 

 During the period of time the burglaries were occurring, 

[McClelland] was a municipal police officer, working for several 

local departments. [McClelland] made at least one deposit of 

stolen cash into his co-conspirators’ account while dressed in his 

police uniform. Although [McClelland] gave conflicting 

statements to police and attempted to minimize his involvement 

in the burglaries, he admitted that he received large amounts of 

cash from his co-defendant father, knowing that the money had 

been stolen from Evelyn Stepko, and knowing that his father had 

no other means to give him money. Despite this knowledge, 

[McClelland] admitted asking his father for additional monies. 

[McClelland] further admitted that after one of the burglaries, his 

father called him at work while he was working as a police officer 

and asked if he had heard anything about the burglaries. The 

Commonwealth also introduced telephone records, which showed 

that [McClelland] would receive calls from his co-defendant 

father immediately before and immediately after at least one of 

the burglaries. 

 Although the Commonwealth had direct evidence, through 

DNA, that his co-defendant had been in the house at the time of 

the murder, there was circumstantial evidence introduced at trial 

from which the jury could infer that the Defendant had been in 

Mrs. Stepko’s home and had participated in the burglaries as 

well: the basement window from which the perpetrators gained 

entry to the home was difficult to traverse; members of the state 

police found it difficult to enter unassisted, inferring that it was 

unlikely that the co-defendant father, who was on disability, 

could have entered the home without help; during his statement 

to police, [McClelland] described in considerable detail Mrs. 

Stepko’s armoire from which cash was stolen; a neighbor 

testified that he saw a white male, fitting [McClelland’s] 

description, leaving Mrs. Stepko’s home carrying a white bag and 

moving toward [McClelland’s] home, following a burglary. 

 As was the case with his co-conspirators, [McClelland] 

admitted to using cash stolen from the burglaries at the casino. 

[He] also acknowledged spending stolen cash on firearms, tools 

and improvements to his property. [McClelland] also received 

from his co-conspirators the house he was living in and a 

vehicle, which were purchased with stolen cash. [McClelland] 

further admitted that he discussed with his co-defendant father 
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how and where they might hide the unspent cash that had been 

stolen from Mrs. Stepko. 

 Like his co-conspirators, at no time did [McClelland] report 

the criminal activity to police or attempt to abandon the 

conspiracy. Even after M[r]s. Stepko’s murder was discovered, 

[he] did not come forward. 

Trial Court Opinion, 4/29/14 at 5-7 (record citations omitted). 

 Following McClelland’s conviction by a jury of all charges, the trial 

court imposed an aggregate sentence of life imprisonment. McClelland 

thereafter filed timely post-sentence motions, which the trial court denied. 

This timely appeal followed. 

 McClelland raises the following issues for our review: 

1. Did the trial court err in allowing the Commonwealth to 

introduce evidence of Appellant’s former employment as a 

police officer in contradiction of the Pennsylvania Rules of 

Evidence and the jurisprudence of this Commonwealth? 

2. Did the trial court err in sustaining the verdict where the 

verdict was against the weight of the evidence? 

3. Did the trial court err in sustaining the verdict where there 

was insufficient evidence to convict Appellant of Criminal 

Homicide, Dealing in Proceeds of Unlawful Activity, or 

Criminal Conspiracy? 

4. Did the trial court err by incorrectly instructing the jury on the 

applicable law? 

Appellant’s Brief at 11. 

McClelland first challenges the trial court’s decision to admit evidence 

of his former employment as a police officer. “[T]he admission of evidence 

is within the sound discretion of the trial court and will be reversed only 

upon a showing that the trial court clearly abused its discretion.” 
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Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012), 

appeal denied, 76 A.3d 538 (Pa. 2013) (internal citations omitted). “An 

abuse of discretion is not merely an error of judgment, but is rather the 

overriding or misapplication of the law, or the exercise of judgment that is 

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

as shown by the evidence of record.” Commonwealth v. Mendez, 74 A.3d 

256, 260 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014) (citation 

omitted). An appellant cannot prove an abuse of discretion unless he shows 

how he was prejudiced by the court’s decision. See Commonwealth v. 

Ogrod, 839 A.2d 294, 324 (Pa. 2003). 

“All relevant evidence is admissible, except as otherwise provided by 

law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. Relevant 

evidence is defined as “having any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable 

or less probable than it would be without the evidence.” Pa.R.E. 401. 

However, “relevant evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice.” Pa.R.E. 403. 

“‘Unfair prejudice’ supporting exclusion of relevant evidence means a 

tendency to suggest decision on an improper basis or divert the jury's 

attention away from its duty of weighing the evidence impartially.” 

Commonwealth v. Wright, 961 A.2d 119, 151 (Pa. 2008) (citation 

omitted). 
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McClelland argues that evidence of his prior employment as a police 

officer was unfairly prejudicial as it suggested to the jury that he should 

answer to a higher standard than any other defendant. See Appellant’s 

Brief at 24-25. Notably, McClelland does not cite any case law to support his 

assertion. While we can certainly envision that some prejudice might result 

from the admission of evidence that McClelland was a police officer, whose 

duty it was to protect the public, at the time he committed the crimes, we 

find no danger that the contested evidence would “stir such passion in the 

[finder of fact] as to sweep them beyond a rational consideration of guilt or 

innocence of the crime on trial.” Commonwealth v. Sherwood, 982 A.2d 

483, 498 n. 25 (Pa. 2009), (citation omitted). We further agree with the 

trial court’s determination that the evidence of McClelland’s occupation as a 

police officer did not reflect upon the ultimate issue of McClelland’s guilt or 

innocence such that it denied him of a fair trial. See Trial Court Opinion, 

4/29/14 at 11. Therefore, we find the trial court did not abuse its discretion 

when it admitted evidence of McClelland’s employment. 

McClelland next argues that the jury’s verdict was against the weight 

of the evidence. We note that 

[t]he finder of fact is the exclusive judge of the weight of the 

evidence as the fact finder is free to believe all, part, or none of 

the evidence presented and determines the credibility of the 

witnesses. 

 

As an appellate court we cannot substitute our judgment 

for that of the finder of fact. Therefore, we will reverse a jury’s 

verdict and grant a new trial only where the verdict is so 

contrary to the evidence as to shock one’s sense of justice. A 
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verdict is said to be contrary to the evidence such that it shocks 

one’s sense of justice when “the figure of Justice totters on her 

pedestal,” or when “the jury’s verdict, at the time of its 

rendition, causes the trial judge to lose his breach, temporarily 

and causes him to almost fall from the bench, then it is truly 

shocking to the judicial conscience.” 

Furthermore, where the trial court has ruled on the weight 

claim below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against the weight 

of the evidence. Rather, appellate review is limited to whether 

the trial court palpably abused its discretion in ruling on the 

weight claim. 

 

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) 

(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 

2007)). 

 The trial court explained its reasons for rejecting McClelland’s weight 

of the evidence claim as follows. 

 The evidence presented at trial ... overwhelmingly 

supported the verdict rendered by the jury. The 

Commonwealth’s witnesses testified in a credible manner to the 

facts of the case. [McClelland], on the other hand, claimed in his 

defense that the allegations of his involvement in the burglaries 

and thefts were unfounded. The defense put forth that 

[McClelland], although unaware that his co-defendant father was 

stealing from the home of the victim, did not commit, plan or 

participate in any burglaries and that the only thing that [he] 

was guilty of was receiving stolen property. The jury justifiably 

rejected this defense. Simply put, based on the evidence elicited 

during trial, it would be impossible for the [t]rial [c]ourt to find 

the evidence was so contrary to the verdict as to shock the 

conscience of the [t]rial [c]ourt or to determine that [McClelland] 

was denied justice. 

Trial Court Opinion, 4/29/14 at 21. 
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 Upon review, we find no abuse of discretion by the trial court in 

determining that the verdicts were not against the weight of the evidence. 

The trial court’s determinations are supported by the record, and the jury 

acted well-within its discretion to credit the consistent testimony of the 

Commonwealth’s witnesses and not McClelland. See Commonwealth v. 

Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (“[T]he trier of fact while 

passing upon the credibility of witnesses and the weight of the evidence 

produced, is free to believe all, part or none of the evidence.” (citation 

omitted)). Thus, we find this claim to be without merit. 

McClelland alternatively challenges the sufficiency of the evidence to 

support his convictions. We review a challenge to the sufficiency of the 

evidence as follows. 

The standard we apply when 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 the 

above 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 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced is free to believe all, part or 

none of the evidence. Furthermore, when reviewing a sufficiency 
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claim, our Court is required to give the prosecution the benefit of 

all reasonable inferences to be drawn from the evidence. 

However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such volume 

and quality as to overcome the presumption of innocence and 

satisfy the jury of an accused’s guilt beyond a reasonable doubt. 

The trier of fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion will fail 

even under the limited scrutiny of appellate review. 

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014) 

(citation omitted). 

“In order to preserve a challenge to the sufficiency of the evidence on 

appeal, an appellant's Rule 1925(b) statement must state with specificity the 

element or elements upon which the appellant alleges that the evidence was 

insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 

2013) (citation omitted). “Such specificity is of particular importance in 

cases where, as here, the appellant was convicted of multiple crimes each of 

which contains numerous elements that the Commonwealth must prove 

beyond a reasonable doubt.” Id. (citation omitted). 

In his Rule 1925(b) statement, McClelland argued only that “there was 

insufficient evidence to convict Defendant of any count besides Receiving 

Stolen Property[.]" Concise Statement, 11/19/13. at ¶ 5. This sweeping, 

generic statement fails to satisfy the requirement that an appellant must 

state with specificity the elements of the crimes for which there is allegedly 
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insufficient evidence.1 This violation is especially significant here, given that 

McClelland challenges the sufficiency of the evidence to support his 

conviction of multiple crimes, but his Rule 1925(b) statement utterly fails to 

pinpoint any specific crime or any elements of his convicted crimes that 

lacked sufficient evidence. We therefore are constrained to find McClelland’s 

sufficiency claims to be waived. See Garland, supra. 

 Lastly, McClelland argues broadly that the trial court erred by 

“incorrectly instructing the jury on the law.” Appellant’s Brief at 54. 

Preliminarily, we note that we agree with the trial court’s conclusion that 

McClelland has waived any challenge to the jury instructions on appeal. 

“[T]o preserve an issue for appellate review, a party must make a timely 

and specific objection at the appropriate stage of the proceedings.” 

Commonwealth v. Williams, 91 A.3d 240, 252 (Pa. Super. 2014) (citation 

omitted). Our review of the trial transcript reveals that defense counsel did 

not raise a contemporaneous objection to any allegedly improper jury 

instruction—either during or immediately after the court issued its 

____________________________________________ 

1

 Nor does McClelland detail his challenge to the sufficiency of the evidence 

with greater specificity in the statement of questions involved contained in 

his appellate brief. Therein, he argues only broadly that “there was 

insufficient evidence to convict Appellant of Criminal Homicide, Dealing in 

Proceeds of Unlawful Activity, or Criminal Conspiracy[.]” Appellant’s Brief at 

11. 
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instructions to the jury.2 Accordingly, this claim is waived. See 

Commonwealth v. May, 887 A.2d 750, 761 (Pa. 2005) (holding that the 

“absence of a contemporaneous objection renders” an appellant’s claims 

waived). 

 Having found no merit to McClelland’s issues raised on appeal, we 

affirm the judgment of sentence. 

 Judgment of sentence affirmed. 

 Judge Shogan joins the memorandum. 

 Judge Ott files a concurring/dissenting memorandum. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/21/2015 

____________________________________________ 

2

 Although defense counsel lodged an objection to a sentence contained on 

the verdict slip, he did not challenge the jury instructions issued by the court 

at any time. See N.T., Jury Trial, 4/9/13 at 1183, 1187-1193. The issue 

concerning the language contained on the verdict slip is obviously altogether 

different from the challenge to the jury instructions now raised on appeal.