J-S32021-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL CULMER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 483 WDA 2021

Appeal from the Judgment of Sentence Entered July 23, 2019

In the Court of Common Pleas of Cambria County

Criminal Division at CP-11-CR-0001010-2018

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL CULMER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 484 WDA 2021

Appeal from the Judgment of Sentence Entered July 23, 2019

In the Court of Common Pleas of Cambria County

Criminal Division at CP-11-CR-0001011-2018

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL CULMER, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 485 WDA 2021

Appeal from the Judgment of Sentence Entered July 23, 2019

In the Court of Common Pleas of Cambria County

Criminal Division at CP-11-CR-0001071-2018

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
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MEMORANDUM BY MURRAY, J.: FILED: December 3, 2021

Daniel Culmer, Jr. (Appellant) appeals from the judgment of sentence 

imposed after he was convicted of two counts of recklessly endangering 

another person, and one count each of discharging a firearm into an occupied 

structure, flight to avoid apprehension, person not to possess firearms, and 

driving while operating privilege is suspended or revoked.

1 We affirm.

On April 25, 2018, Appellant was involved in a domestic dispute with 

Brayanna Lightfoot (Victim) at the Victim’s home. Appellant left the residence, 

but returned a few hours later, firing a handgun into the residence while the 

Victim and six-year-old child were inside. Appellant fled the scene and was 

not arrested until a few months later. As a result, the Commonwealth charged 

Appellant at three separate dockets: 1010-2018, 1011-2018, and 1071-2018. 

The trial court summarized: 

The cases filed at 1010-2018 and 1011-2018 were 

consolidated on November 7, 2018. Those cases were further 

consolidated for the purposes of trial with the case filed at 1071-

2018 on April 3, 2019. A jury trial was subsequently held on May 

20, 2019 and May 21, 2019. The jury found Appellant guilty of 

Count 2: Discharge of a Firearm into an Occupied Structure, Count 

3: Recklessly Endangering Another Person ([Victim]), Count 4: 

Recklessly Endangering Another Person (L.C., a female juvenile) 

on the case filed at 1011-2018, and Count 1: Flight to Avoid 

Apprehension, Trial or Punishment on the case filed at 1071-2018. 

The jury found the Appellant not guilty of Count 1: Simple Assault 

on the case filed at 1010-2018.

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1 18 Pa.C.S.A. §§ 2705, 2707.1(a), 5126(a), 6105(a)(1), and 75 Pa.C.S.A. § 

1543(b)(1). 
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The Appellant was also found guilty, through the non-jury 

phase of the trial, of the following: on the case filed at 1010-

2018, Count 3, Driving while Operating Privilege is Suspended or 

Revoked, and on the case filed at 1011-2018, Count 1, Person not 

to Possess, Use, Manufacture, Control, Sell [or] Transfer Firearms. 

Trial Court Opinion, 1/21/20, at 1-2.

On July 23, 2019, the trial court sentenced Appellant to an aggregate 5 

to 10 years of incarceration. Appellant timely appealed.2 Both Appellant and 

the trial court have complied with Pa.R.A.P. 1925.

Appellant presents four issues for review: 

1. Whether the [t]rial [c]ourt erred in not finding that the 

Commonwealth exercised its peremptory challenges in a 

racially discriminatory manner? 

2. Whether the [t]rial [c]ourt erred in not finding that the 

Commonwealth committed prosecutorial misconduct in 

exercising its peremptory challenges during jury selection?

3. Whether the [t]rial [c]ourt erred in admitting the telephone 

conversations between the Appellant and the Appellant’s sister, 

Sabrina Culmer? 

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2 On August 14, 2019, Appellant’s counsel filed a motion to withdraw. On 

August 19, 2019, Appellant filed a counseled notice of appeal. That same day, 

the trial court granted counsel’s request to withdraw, but did not appoint new 

counsel. On April 28, 2020, this Court dismissed Appellant’s appeal docketed 

at 1295 WDA 2019 for failure to file a brief. See Order, 4/28/20. On February 

11, 2021, Appellant pro se filed a petition pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, requesting that his direct 

appeal rights be reinstated. The court granted the petition, reinstated 

Appellant’s direct appeal rights, and appointed Timothy Burns, Esquire, to 

represent Appellant. On April 12, 2021, Appellant filed a notice of appeal at 

each of his three dockets, in compliance with Commonwealth v. Walker, 

185 A.3d 969, 971 (Pa. 2018). On May 5, 2021, this Court consolidated 

Appellant’s appeals sua sponte.
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4. Whether the [t]rial [c]ourt erred in admitting Detective 

Amanda Fox’s characterization of a mentioned individual, 

Tyrone Smith, as a known narcotics trafficker? 

Appellant’s Brief at 5.

Appellant first argues that pursuant to Batson v. Kentucky, 476 U.S. 

79 (1986), the trial court “erred in not finding that the Commonwealth 

exercised its peremptory challenges in a racially discriminatory manner during 

[jury] selection, when the lone African-American juror was struck from the 

jury pool.” Appellant’s Brief at 10. Appellant asserts the Commonwealth 

“failed to provide a sufficient answer or explanation as to the reason the lone 

African-American juror was struck from the [j]ury [p]anel.” Id. at 11. 

We have explained: 

A Batson claim presents mixed questions of law and fact. 

Therefore, our standard of review is whether the trial court’s legal 

conclusions are correct and whether its factual findings are clearly 

erroneous. The ultimate burden of persuasion regarding racial 

motivation rests with the opponent of the strike. 

Commonwealth v. Murray, 248 A.3d 557, 567 (Pa. Super. 2021) (some 

citations omitted). In Batson,

... the United States Supreme Court held that a prosecutor’s 

challenge to potential jurors solely on the basis of race violates 

the Equal Protection Clause of the United States Constitution. ... 

When a defendant makes a Batson challenge during jury 

selection: 

First, the defendant must make a prima facie showing 

that the circumstances give rise to an inference that 

the prosecutor struck one or more prospective jurors 

on account of race; second, if the prima facie showing 

is made, the burden shifts to the prosecutor to 

articulate a race-neutral explanation for striking the 

juror(s) at issue; and third, the trial court must then 
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make the ultimate determination of whether the 

defense has carried its burden of proving purposeful 

discrimination. 

Commonwealth v. Thompson, 106 A.3d 742, 751 (Pa. Super. 

2014). 

The trial court should consider the totality of the circumstances 

when determining whether the prosecutor acted with 

discriminatory intent. This Court must give great deference to the 

trial court’s determination that peremptory challenges were free 

of discriminatory intent, and we will not overturn the 

determination unless it was clearly erroneous. Such great 

deference is necessary because a reviewing court, which analyzes 

only the transcripts from voir dire, is not as well positioned as the 

trial court is to make credibility determinations. Moreover, there 

will seldom be much evidence on the decisive question of whether 

the race-neutral explanation of a peremptory challenge should be 

believed; the best evidence often will be the demeanor of the 

prosecutor who exercises the challenge. ...

Within the prima facie case wherein a defendant must establish 

on the record the circumstances demonstrating purposeful 

discrimination, Pennsylvania law also requires that a defendant 

must make a record specifically identifying (1) the race or gender 

of all venirepersons in the jury pools, (2) the race or gender of all 

venirepersons remaining after challenges for cause, (3) the race 

or gender of those removed by the prosecutor, and (4) the race 

or gender of the jurors who served and the race or gender or 

jurors acceptable to the Commonwealth who were stricken by the 

defense. ... 

In the second-step Batson analysis, we determine whether the 

Commonwealth gave a race-neutral explanation for its challenge. 

This inquiry does not demand an explanation that is persuasive, 

or even plausible. Instead, the issue is the facial validity of the 

prosecutor’s explanation. Unless a discriminatory intent is 

inherent in the prosecutor’s explanation, the reason offered will 

be deemed race neutral.

Murray, 248 A.3d at 567-68 (some citations omitted).
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Here, during jury selection, the Commonwealth moved to strike Juror 

No. 139. N.T., 4/4/19, at 79. Defense counsel objected, arguing that nothing 

“of record would allow us to understand on what basis the Commonwealth had 

moved to strike this juror absent the color of her skin.” Id. at 80. The 

Commonwealth responded, “It did not have anything to do with her race.” Id. 

The Commonwealth stated it struck Juror No. 139 because the juror “had not 

answered a question posed to the group truthfully.” Id. at 81. 

The trial court explained:

The Appellant in these cases is an African American man. During 

jury selection, the Commonwealth struck an African American 

juror from the jury panel. The following series of exchanges 

occurred at jury selection between the [court, the Commonwealth, 

and defense counsel:]

[DEFENSE COUNSEL]: May we approach? 

[THE COURT]: [Defense counsel], what is your 

objection? 

[DEFENSE COUNSEL]: Your Honor, the only juror of 

color in the panel has been stricken. This was a juror 

that hasn’t responded in any traditional way that we 

would –

[THE COURT]: What juror is that? 

[DEFENSE COUNSEL]: Juror 139. And there isn’t 

anything of record that would allow us to understand 

on what basis the Commonwealth had moved to strike 

the juror absent the color of her skin. 

[COMMONWEALTH]: Your Honor, I am familiar with 

the case of Batson v. Kentucky. I am trying not to 

take any personal offense from the challenge. 

[DEFENSE COUNSEL]: None is meant.
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[COMMONWEALTH]: I understand it is [defense 

counsel’s] job. The question she answered about 

people not committing any crimes or a person close to 

her being charged with a crime, she did not answer 

that question when it was posed to the entire voir dire. 

She indicates an affirmative to that in her 

questionnaire.

[THE COURT]: Where at? 

[COMMONWEALTH]: Question number three, have 

you or anyone close to you ever been charged with or 

arrested for a crime other than a traffic citation? She 

answered yes in her questionnaire but when you 

posed that to the group, she did not answer.

[THE COURT]: Was that the basis for your strike? 

[COMMONWEALTH]: That is the basis for me striking 

her. It did not have anything to do with her race. 

[THE COURT]: Let me look and see how she answered 

the other questions here. Any other questions 

similarly where she answered one way but didn’t 

answer here? 

[COMMONWEALTH]: No, Your Honor. In terms of the 

reason that I chose to strike her, she was on the panel 

and she had not – she was within the first twelve and 

she had not answered a question posed to the group 

truthfully. 

[THE COURT]: [Defense counsel], what is your 

response to that? 

[DEFENSE COUNSEL]: It occurs to me that while if you 

give me a few minutes, I can go through the list, we 

had other jurors similarly situated who did not 

respond affirmatively to the spoken questions. 

[THE COURT]: Can you give me some examples of 

that?
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[DEFENSE COUNSEL]: I can give you the one, that’s 

the gentleman No. 66. I actually asked to call him 

down here because of the fact that he had not 

responded verbally to a question that he had 

answered. 

[THE COURT]: He has explained that. 

[DEFENSE COUNSEL]: That’s true, but you asked me 

to give you an example. That’s one. 

[THE COURT]: I am going to deny your motion. 

Transcript of Jury Selection, 4/4/19, [at] 79-81[.]

***

Similar to the case in Batson, the Appellant here made a 

timely objection to the Commonwealth’s strike of a juror of color. 

However, in the case at hand, in contrast to Batson, the trial court 

heard the objection made by [defense counsel], required the 

[Commonwealth] to give an explanation for his action, and 

allowed [defense counsel] to give an example of a similar situation 

of a juror answering questions inconsistently.[3] Ultimately, the 

[c]ourt relied on its experience in supervising voir dire and found 

that the Commonwealth did not commit purposeful discrimination, 

as the Commonwealth came forward with a neutral explanation 

for the action it took. 

Trial Court Opinion, 1/21/20, at 2-7 (footnote added). 

Our review of the jury selection transcript and pertinent law comports 

with the trial court’s conclusion that the Commonwealth provided a facially 

valid, race-neutral explanation, and in viewing the totality of the 

circumstances, Appellant failed to prove the Commonwealth committed

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3 Juror No. 66 was called to sidebar and questioned about his inconsistent 

answers to voir dire. See N.T., 4/4/19, at 74-77. Defense counsel ultimately 

struck Juror No. 66 from the jury. Trial Court Opinion, 1/21/20, at 6 n. 1. 
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“purposeful discrimination.” Trial Court Opinion, 1/21/20, at 7; see also

Murray, 248 A.3d at 567-68. Appellant’s first issue does not merit relief. 

Appellant next argues that the trial court “erred in not finding that the 

Commonwealth committed prosecutorial misconduct in exercising its 

peremptory challenges during jury selection.” Appellant’s Brief at 8. Both the 

trial court and Commonwealth contend Appellant failed to preserve this issue. 

See Trial Court Opinion, 1/21/20, at 8 (“This [c]ourt finds [Appellant] waived 

this issue at the time of jury selection by failing to expressly state that his 

reason for objecting was due to prosecutorial misconduct.”); Commonwealth 

Brief at 13 (Appellant “has waived a prosecutorial misconduct claim.”). We 

agree. 

Issues not preserved in the trial court cannot be raised on appeal. 

Pa.R.A.P. 302(a). To preserve an objection, a party must raise the objection 

and state a specific ground when it is raised. Commonwealth v. Duffy, 832 

A.2d 1132, 1136 (Pa. Super. 2003); Pa.R.E. 103(a)(1). The failure to state a 

specific legal theory in support of an objection results in waiver of the theory 

and the overall objection itself. Commonwealth v. Lopez, 57 A.3d 74, 81–

82 (Pa. Super. 2012); Pa.R.E. 103(a)(1). Also, having articulated one or more 

bases for an objection, a party waives all non-stated bases. Lopez, 57 A.3d 

at 82. An appellant cannot raise on appeal a legal theory in support of an 

objection or other issue if the theory is different from the theory advanced at 

trial. Duffy, 832 A.2d at 1136. It is an appellant’s duty to demonstrate where 
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and how an issue and its supporting theory were preserved. Commonwealth 

v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008); Pa.R.A.P. 2117(c), 2119(e). 

During jury selection, Appellant objected to the Commonwealth’s 

striking of Juror No. 139. N.T., 4/4/19, at 79-80. Appellant “raised this 

objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).” Appellant’s 

Brief at 10. However, Appellant did not make a prosecutorial misconduct 

objection, N.T., 4/4/19, at 79-81, nor has Appellant indicated that he 

“preserved such a theory of relief.” See Appellant’s Brief at 13-14; Rush, 

959 A.2d at 949. Thus, we agree Appellant’s second issue is waived.

As Appellant’s third and fourth issues challenge the trial court’s 

admission of evidence, we address them together.

It is well-established that the admissibility of evidence is within 

the discretion of the trial court, and such rulings will not form the 

basis for appellate relief absent an abuse of discretion. . . . When 

a trial court comes to a conclusion through the exercise of its 

discretion, there is a heavy burden on the appellant to show that 

this discretion has been abused. An appellant cannot meet this 

burden by simply persuading an appellate court that it may have 

reached a different conclusion than that reached by the trial court; 

rather, to overcome this heavy burden, the appellant must 

demonstrate that the trial court actually abused its discretionary 

power. A determination that a trial court abused its discretion in 

making an evidentiary ruling may not be made merely because an 

appellate court might have reached a different conclusion, but 

requires a result of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so as to be clearly 

erroneous. 

Commonwealth v. Saez, 225 A.3d 169, 177-78 (Pa. Super. 2019) (citations 

omitted). Where the trial court indicates “the reason for its decision, our scope 
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of review is limited to an examination of the stated reason.” Commonwealth 

v. Stephens, 74 A.3d 1034, 1037 (Pa. Super. 2013) (citation omitted). 

Appellant asserts the trial court “erred in admitting telephone calls 

between the Appellant and his sister, Sabrina Culmer, in which he allegedly 

told his sister that he was looking to send the [V]ictim away during his jury 

trial and provided the dates of the jury trial to his sister during the recorded 

conversation.” Appellant’s Brief at 8. Appellant states: 

In the call, the Appellant also referred to an individual named 

“Freak” who could “push up on the [V]ictim” to prevent her from 

testifying at trial. The Appellant vigorously submits that the 

introduction of said recordings had no probative value, and 

painted him in a negative light in the eyes of the [j]ury. 

Id. (emphasis omitted). 

Appellant also claims the trial court “erred in admitting Detective Fox’s 

characterization of a mentioned individual: Tyrone Smith (AKA: “Freak”) as a 

known narcotics trafficker.” Appellant’s Brief at 9. Appellant argues “this 

testimony was highly prejudicial to the Appellant, and [had] no relevance to 

the charges for which the Appellant was accused; said testimony did nothing 

more than paint the Appellant in a negative light in the eyes of the [j]ury[.]” 

Id.

Our Supreme Court has explained, “all relevant evidence, i.e., evidence 

which tends to make the existence or non-existence of a material fact more 

or less probable, is admissible, subject to the prejudice/probative value 

weighing which attends all decisions upon admissibility.” Commonwealth v. 

Dillon, 925 A.2d 131, 136 (Pa. 2007). An exception to this rule is that 
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“[e]vidence of a crime, wrong, or other act is not admissible to prove a 

person’s character in order to show that on a particular occasion the person 

acted in accordance with the character.” Pa.R.E. 404(b)(1). Evidence may 

be admissible for a purpose other than to show criminal propensity, “such as 

proving motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). 

“Evidence of prior bad acts may also be introduced to prove 

consciousness of guilt, i.e., that the defendant was aware of his wrongdoing.” 

Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016) (citation 

omitted). The Pennsylvania Supreme Court “has also recognized the res 

gestae exception, permitting the admission of evidence of other crimes or bad 

acts to tell ‘the complete story.’” Commonwealth v. Hairston, 84 A.3d 657, 

665 (Pa. 2014) (citations omitted). 

Even where an exception to Rule 404(b)’s prohibition against evidence 

of prior bad acts applies, the evidence is admissible “only if the probative value 

of the evidence outweighs its potential for unfair prejudice.” Pa.R.E. 

404(b)(2). “Unfair prejudice means a tendency to suggest decision on an 

improper basis or to divert the jury’s attention away from its duty of weighing 

the evidence impartially.” Pa.R.E. 403 (comment).

Instantly, the trial court explained: 

By way of background, while the Appellant was in jail, a 

telephone conversation between the Appellant and his sister, 

Sabrina Culmer, took place and was subject to monitoring and 

recording by the jail, as stated in the opening of all telephone calls 

made from the jail. This phone call took place on April 25, 2019,
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and the Commonwealth moved in limine prior to trial to introduce 

this telephone conversation to the jury at the time of trial. The 

[c]ourt granted the Commonwealth’s Motion in Limine and that 

telephone conversation was subsequently played for the jury at 

trial. 

During the telephone conversation with Sabrina Culmer, the 

Appellant referenced an individual named “Freak” when Appellant 

mentioned his plan to his sister to organize a vacation for the 

[V]ictim during the time of trial. The Appellant stated during the 

conversation with his sister that “Freak” could “push back up on 

[] the [V]ictim” to prevent her from testifying at trial. The [c]ourt 

found that the telephone calls supported the Appellant’s 

consciousness of guilt. The Appellant refused the [c]ourt’s 

offer to redact portions of the recorded telephone 

conversation to allow the jury to hear only the relevant 

portions of the call. 

At the time of trial, Appellant’s counsel objected to the 

Commonwealth’s witness’s characterization of who law 

enforcement recognizes as “Freak,” claiming that the 

characterization was prejudicial to the Appellant and was not 

relevant to the proceedings. The [c]ourt overruled Appellant’s 

counsel’s objection because the [c]ourt found the identity of 

“Freak” to be relevant to the jury’s understanding of the 

nature of the Appellant’s plans and “routes” for what he 

wanted “Freak” to do to aid in the Appellant’s plan to stop 

the [V]ictim from testifying at the time of trial. 

Trial Court Opinion, 1/21/20, at 9-10 (emphasis added). 

The recorded telephone call between Appellant and his sister, in which

Appellant indicated “he wanted to arrange a vacation for” the Victim with 

assistance from “Freak,” was probative to show Appellant’s consciousness of 

guilt. N.T., 5/20/19, at 178; see also Commonwealth v. Rega, 933 A.2d 

997, 1009 (Pa. 2007) (“This Court has long recognized that any attempt by a 

defendant to interfere with a witness’s testimony is admissible to show a 

defendant’s consciousness of guilt.”) (citations omitted); see also 
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Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004) (defendant’s 

conduct following a crime is admissible as tending to show guilt). In addition, 

Detective Fox’s testimony that “Freak” was known to law enforcement as 

“Tyrone Smith, a narcotics trafficker,” was relevant to show that Mr. Smith

was not “a travel agent who would be taking [the Victim] on a legitimate 

vacation.” N.T., 5/20/19, at 179-80; see also Hairston, 84 A.3d at 665. 

Prior to trial, the court ordered the Commonwealth to redact portions of 

the phone call to limit prejudice to Appellant. See Order, 5/15/19. However, 

at trial, before the call was played for the jury, defense counsel requested the 

entire call be played, stating: “I have discussed this with [Appellant]. I 

understand that I could limit the call, but the problem is, then all the jury gets 

is a lopsided view of what was taking place.” N.T., 5/20/19, at 177. Given

defense counsel’s request, the court admitted the call without redaction. Id. 

Upon review, we conclude the trial court did not abuse its discretion in 

admitting the evidence for its probative value, where the court was aware of 

and attempted to minimize the likelihood that the evidence “inflamed the jury 

or caused it to convict Appellant on an improper basis.” Hairston, 84 A.3d 

at 666; see also Commonwealth v. Gad, 190 A.3d 600, 605 (Pa. Super. 

2018) (“Evidence will not be prohibited merely because it is harmful to the 

defendant.”) (citation omitted). Accordingly, Appellant’s evidentiary issues do 

not merit relief.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/3/2021