J-A17043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

RASHEED MALCOLM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 954 EDA 2022

Appeal from the Judgment of Sentence Entered March 28, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001309-2020

BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KING, J.: FILED NOVEMBER 14, 2023

Appellant, Rasheed Malcolm, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his jury 

trial convictions for first-degree murder, firearms not to be carried without a 

license, carrying firearms on public streets in Philadelphia, and possessing 

instruments of crime.1 We affirm. 

In its opinion, the trial court set forth the relevant facts of this case as 

follows:

This case stems from the murder of Kevin Harris on 

December 22, 2018.

Police Officer Ankur Rana testified that on the evening of 

December 22, 2018, while on patrol around 62nd and Arch 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a); 6106; 6108; and 907, respectively. 
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Street, Philadelphia, Pa., he heard multiple gunshots and 

saw people running. When Officer Rana arrived at the 

scene, he observed a male, later identified as Kevin Harris 

(the “decedent”), laying non-responsive on the ground on 

62nd and Market Street. He and his partner, Officer Garced, 

placed the decedent into Officer Garced’s SUV, and 

transported him to Presbyterian Hospital, where he was 

pronounced dead. 

Police Officer Roodly Phanor testified that upon arriving at 

the scene, he observed a male, later identified as Donny 

Williams, hunched over with a gunshot wound in his 

midsection. Officer Phanor quickly drove Mr. Williams to 

Presbyterian Hospital. Williams survived his injuries.

Detective Thorsten Lucke, of the Philadelphia Police 

Homicide Unit, testified that he assisted in recovering 

surveillance footage and cell phone data for the 

investigation. Detective Lucke presented a video 

compilation of the surveillance footage recovered from the 

scene which consisted of two (2) systems from Kif’s Bar at 

6142 Market Street and one (1) system from Peerless Pest 

Control at 61[50] Market Street. The video footage depicts 

[Appellant] wearing a gray zipper hoodie, black boots, black 

pants, and wired white earbuds. [Appellant] was first seen 

on the footage circling the block multiple times, on which 

the incident occurred, ten (10) minutes before decedent was 

shot. The video footage then shows [Appellant] walking 

through a crowd that had exited a bar, coming up behind 

decedent, shooting him twice at close range, and then 

fleeing. As [Appellant] is running away, a gun can be seen 

in his right hand.

Ramona Harris, decedent’s aunt, testified that on December 

21, 2018, she was with a group of friends at Kif’s [B]ar 

located at 6142 Market Street to celebrate her birthday and 

that of her twin sister. The decedent arrived with friends, 

and joined their party. When Kif’s bar closed, the group

formed a circle near the bar on the sidewalk, and were 

“saying their goodbyes,” when [Ms.] Harris heard gunshots 

and ducked. When the shooting stopped, she checked 

everyone and discovered decedent was nonresponsive. She 

recalled seeing two shooters during the incident; one was 

wearing a black outfit and had black dreads, and the other 
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was tall, skinny and in a gray hoodie. 

Police Officer Robert Lamanna testified to being assigned to 

the 18th Police District from July of 2015, up until the time 

of the incident. As a patrol officer, he became familiar with 

the area and its residents. Officer Lamanna knew 

[Appellant] from 2015 or 2016, from seeing him in the 18th

District and on social media. The surveillance video of the 

incident was played for Officer Lamanna, after which he 

identified [Appellant] as the perpetrator of the murder, 

stating, “[y]es, I believe that to be [Appellant] in the gray 

hooded sweatshirt, dark pants, black Timberland-style 

boots.” His identification was “[b]ased on some of the facial 

features, the beard you can observe, the way he walks, his 

height, especially.” Officer Lamanna explained that 

[Appellant] had a distinct gait and was tall, standing about 

six feet seven inches. 

Police Officer Lamont Fox, from the Crime Scene Unit, 

testified that on December 22, 2018, the day of the incident, 

he processed the crime scene. Officer Fox recovered eleven 

fired cartridge casings (“FCCs”) from the crime scene: six 

FCCs were .380 and five were (9) nine millimeter. A wallet 

and jacket were also recovered from the crime scene. 

Police Officer Robert Stott, from the Philadelphia Firearms 

Identification Unit, testified that he performed an analysis 

on the FCCs. Officer Stott concluded that the FCCs were 

fired from two different guns. 

Dr. Eric Little, from the Philadelphia Medical Examiner’s 

Office, testified that he reviewed the photographs and 

autopsy report written by Dr. Brown, who examined 

decedent. The autopsy revealed that the decedent had been 

shot two times, once in the head and once in the chest. No

bullets were recovered from decedent. Dr. Little opined that 

the decedent’s cause of death was multiple gunshot 

wounds, and the manner of death was homicide. 

Detective James Burns, Philadelphia Homicide Unit, testified 

to being assigned to the instant case. Directly after the 

homicide, he was unable to find anyone identifying 

decedent’s shooter. Detective Burns initially spoke to the 

surviving shooting victim, Donny Williams, at the hospital, 
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but has since been unable to locate or talk to Mr. Williams. 

Detective Burns had trouble locating witnesses or having 

them cooperate with the investigation, and one [witness], 

Tyreek Camp, was murdered in the Fall of 2019. After 

recovering all of the surveillance video of the incident, 

Detective Burns sent out a patrol alert, that included a 

screen shot from the video of the individual suspected of the 

homicide. Officer Lamanna recognized the suspect as 

[Appellant] from this patrol alert. 

Select portions of [Appellant’s] videotaped interrogation 

were played for the jury, where Detective Burns, with a 

partner, interviewed him. [Appellant] expressed his 

innocence. 

During the interrogation, [Appellant] gave permission to 

Detective Burns to search his bedroom at 5915 Race Street, 

for items relating to the incident. Recovered from the 

search of the bedroom was a gray hoodie, black boots, and 

a pair of white iPhone corded headphones. The gray hoodie 

and black boots were consistent with the sweatshirt and 

boots depicted in the surveillance video. During the 

interrogation, [Appellant] denied that the hoodie was his, 

rather a friend’s, but [Appellant] never revealed its owner. 

Forensic Scientist, Hung Le, testified that gunshot residue 

was discovered on the right sleeve of the gray hoodie taken 

from [Appellant’s] bedroom.

Forensic Scientist, Jane Hess, testified that the gray hoodie 

contained DNA of three individuals, at least one of whom 

was male. However, the test was inconclusive regarding 

whether the DNA belonged to [Appellant]. Dr. Hess took 

DNA samples from a pair of boots and earbuds recovered in 

[Appellant’s] room, which also resulted in inconclusive 

findings. 

Counsel stipulated to the fact that if recalled to the stand, 

Detective Thorsten Lucke, who is an expert in cellphone 

extraction and analysis, would testify that the two phone 

numbers given by [Appellant] during the interrogation, were 

not in use before 2019. [Appellant] also provided Detective 

Burns with an iCloud account to review, but the account was 

inaccessible due to it being previously deactivated. 
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(Trial Court Opinion, filed 8/17/22, at 5-8) (internal record citations omitted).

Procedurally, a jury convicted Appellant on March 28, 2022, of the 

above-mentioned crimes. The court sentenced Appellant that day to life 

imprisonment without the possibility of parole for murder and imposed no 

further penalty for the remaining crimes. Appellant timely filed a notice of 

appeal that same day. On April 25, 2022, the court ordered Appellant to file 

a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b). 

Following an extension of time, Appellant filed his Rule 1925(b) statement on 

June 12, 2022.

Appellant raises four issues for our review:

Did not the [trial] court err and abuse its discretion in 

overruling counsel’s objection to the prosecutor’s burdenshifting argument and improper reference to trial counsel’s 

mindset, in violation of Pennsylvania law, and the Fifth,

Sixth and Fourteenth Amendments to the Constitution? 

Did not the [trial] court err and abuse its discretion in 

refusing trial counsel’s request for a Kloiber[2] charge, 

where the [trial] court itself acknowledged that the video 

from which the identification was made was “not clear,” was 

so grainy at the point of the shooting that “no one [could] 

make an identification,” and that the alleged perpetrator’s 

face is “hidden” for the remainder of the video, thus 

satisfying Kloiber’s requirement that the jury could have 

inferred that the witness did not “clearly observe” the 

assailant. 

Did not the [trial] court err and abuse its discretion by 

overruling trial counsel’s objection to the detectives’ 

____________________________________________

2 Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. 

denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954).
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opinions expressed on the surveillance video that 

[Appellant] was guilty, and thus his protestations of 

innocence false. 

Did not the [trial] court err and abuse its discretion by 

permitting lay opinion testimony of a police officer, 

identifying [Appellant] as the alleged perpetrator in a 

surveillance video, based on factors the jurors could easily 

see for themselves, or that are so common to the population 

at large as to render them far less probative than 

prejudicial, rendering the testimony unhelpful to the

determination of a fact at issue, in violation of Pa.R.E. 701. 

(Appellant’s Brief at 5-6).

In his first issue, Appellant argues that the prosecutor stated during 

closing arguments that defense counsel chose not to show the jury the 

surveillance video because defense counsel did not want the jury to “keep 

looking at the picture of [Appellant]” because “the more you see it, the more 

sure you are that [Appellant] shot [Decedent].” (Id. at 36) (citing N.T. Trial, 

3/25/22, at 117-18). Appellant claims that this statement by the prosecutor 

shifted the burden of proof in violation of Appellant’s constitutional rights. 

Appellant insists the prosecutor’s statement served only one purpose—to 

demonstrate that counsel’s decision not to show the video was probative of 

Appellant’s guilt. Appellant contends that “[s]uch a direct condemnation of a 

defendant’s decision not to present certain evidence violates the due process 

clause and compels reversal.” (Id.) Appellant emphasizes that he objected 

to the improper comment, but the court overruled his objection. Appellant 

maintains that the video evidence was of paramount importance in this case, 

particularly where there were no eyewitnesses who testified. Appellant 
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submits that “[f]or this reason, prosecution commentary highlighting the 

defense ‘failure’ to prove its case with the video—which can be no failure at 

all since the defense has no obligation to prove its case—is uniquely damaging 

when the video was the main event at the trial.” (Id. at 39). 

Further, Appellant claims the prosecutor’s comment suggested to the 

jury that defense counsel believed Appellant was guilty. Appellant avers the 

prosecutor’s statement not only suggested defense counsel’s state of mind 

regarding Appellant’s guilt, but also suggested that defense counsel sought to 

deceive the jury by limiting its access to the video. Appellant insists that the 

prosecutor’s comment encouraged the jury to evaluate the non-record 

considerations of defense counsel’s mindset and motives in determining 

Appellant’s guilt or innocence. Appellant maintains the prosecutor’s comment 

was prejudicial and cannot be considered harmless. Because the prosecutor 

also highlighted that Appellant had repeatedly objected to the video evidence 

during the Commonwealth’s case-in-chief, Appellant contends the prosecutor 

improperly commented on defense counsel’s failure to present evidence. 

(Appellant’s Reply Brief at 3). Appellant concludes the prosecutor committed 

misconduct, and this Court must grant relief. We disagree.

With respect to a claim of prosecutorial misconduct, this Court has 

explained:

Our standard of review for a claim of prosecutorial 

misconduct is limited to whether the trial court abused its 

discretion. 
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In considering this claim, our attention is focused on 

whether the defendant was deprived of a fair trial, not a 

perfect one.

Not every unwise remark on a prosecutor’s part constitutes 

reversible error. Indeed, the test is a relatively stringent 

one. Generally speaking, a prosecutor’s comments do not 

constitute reversible error unless the unavoidable effect of 

such comments would be to prejudice the jury, forming in 

their minds fixed bias and hostility toward [Appellant] so 

that they could not weigh the evidence objectively and 

render a true verdict. Prosecutorial misconduct, however, 

will not be found where comments were based on evidence 

or proper inferences therefrom or were only oratorical flair. 

In order to evaluate whether comments were improper, we 

must look to the context in which they were made. Finally, 

when a trial court finds that a prosecutor’s comments were 

inappropriate, they may be appropriately cured by a 

cautionary instruction to the jury.

* * *

In cases where an appellant alleges that his Fifth 

Amendment right to remain silent was improperly 

referenced at trial, the Pennsylvania Supreme Court has 

emphasized the mere revelation of silence does not 

establish innate prejudice.

Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal 

denied, 593 Pa. 726, 928 A.2d 1289 (2007) (internal citations and quotation 

marks omitted). 

Further:

Not every unwise, intemperate, or improper remark made 

by a prosecutor mandates the grant of a new trial. 

Reversible error occurs only when the unavoidable effect of 

the challenged comments would prejudice the jurors and 

form in their minds a fixed bias and hostility toward the 

defendant such that the jurors could not weigh the evidence 

and render a true verdict.
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Commonwealth v. Eilliott, 622 Pa. 236, 282, 80 A.3d 415, 443 (2013), cert. 

denied, 574 U.S. 828, 135 S.Ct. 50, 190 L.Ed.2d 54 (2014) (internal citation 

omitted). 

Instantly, during the prosecutor’s closing argument, she emphasized the 

importance of the surveillance video evidence depicting Appellant as the 

shooter. Defense counsel objected to the prosecutor’s remarks as follows:

[THE PROSECUTOR:] What you can see, [Appellant] is 

significantly taller than everybody else. This video gives you 

everything. But it’s not everything, because there’s 

substantial corroboration in this particular case, and that 

comes from the physical evidence. Silent witnesses, things 

that can’t lie. And let me be clear; video is physical 

evidence. The video doesn’t lie. You determine what 

happens in the video. That is what it is.

Why do you think [defense counsel] didn’t actually show you 

the video? He could have showed you the video. He chose 

not to. Why? He doesn’t want you to keep looking at the 

picture of [Appellant] up on the screen. How many times 

has he objected to a picture of [Appellant]?

[DEFENSE COUNSEL:] I object to that.

[THE COURT:] Overruled. Its argument.

[THE PROSECUTOR:] He doesn’t want you to see 

[Appellant’s] face because the more you see it, the more 

sure you are that [Appellant] shot [Decedent].

(N.T. Trial, 3/25/22, at 117-18). Defense counsel made no further objection 

to the remainder of the prosecutor’s closing argument. 

Initially, Appellant did not object following the prosecutor’s statement: 

“He doesn’t want you to see [Appellant’s] face because the more you see it, 

the more sure you are that [Appellant] shot [Decedent].” Thus, Appellant’s 
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claim that the prosecutor’s comment improperly suggested defense counsel’s 

state of mind and that defense counsel believed Appellant was guilty, is waived 

on appeal. See Commonwealth v. Tucker, 143 A.3d 955 (Pa.Super. 2016), 

appeal denied, 641 Pa. 63, 165 A.3d 895 (2017) (explaining that failure to 

make timely and specific objection before trial court at appropriate stage of 

proceedings will result in waiver of issue on appeal). Consequently, we are 

left to consider only the impact of the prosecutor’s allegedly improper remarks 

stating: “Why do you think [defense counsel] didn’t actually show you the 

video? He could have showed you the video. He chose not to. Why? He 

doesn’t want you to keep looking at the picture of [Appellant] up on the 

screen. How many times has he objected to a picture of [Appellant]?” (N.T.

Trial, 3/25/22, at 117).

The trial court evaluated this claim as follows:

During closing argument, Defense counsel asserted that a 

proper identification could not be made from the 

surveillance video, stating: “...the video that they compiled, 

and edited and put it together, no matter how many times 

its been shown and how many times attempted to show that 

one still picture, the ultimate factor is that none of them, 

none of the video shows the face of or in any way shows 

anything at all that is [Appellant]. Not that he resembles 

somebody; that it is [Appellant].” N.T., 3/25/22, [61-62].

The statement [Appellant] claims to be prosecutorial 

misconduct was made in fair response to impress upon the 

jury that the video evidence did establish the identification 

of [Appellant] as the perpetrator of the murder. The 

Commonwealth stated[:] “[W]hy do you think [defense 

counsel] didn’t actually show you the video? He could have 

showed you the video. He chose not to. Why? He doesn’t 

want you to keep looking at the picture of [Appellant] up on 
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the screen. How many times has he objected to a picture 

of [Appellant]?” N.T., 3/25/22, 117.

Defense counsel’s closing argument attempted to diminish 

the identification of [Appellant] by Officer Lamanna made 

from the surveillance video. In fair response, the 

Commonwealth countered that the identification from the 

video was powerful evidence that the defense was 

downplaying. The prosecutor is permitted to use oratorical 

flair, which she did, by stating that the defense would have 

made use of the video if it depicted a shooter who was not 

[Appellant]. This is not burden shifting or commenting on 

silence, it is simply fair rebuttal to defense argument. 

The court did not abuse its discretion in overruling the 

objection, nor did the Commonwealth commit prosecutorial 

misconduct. 

(Trial Court Opinion at 15-16). 

The record supports the court’s analysis. Throughout trial, Appellant 

argued that the video evidence was not inculpatory because the video quality 

was too poor to yield an identification of the shooter. In closing arguments, 

the defense insisted that the video was not inculpatory. In fair response, the 

prosecutor used a bit of “oratorical flair” to suggest to the jury that if Appellant 

was not on the video as he claimed, defense counsel would not have objected 

to presentation of the video evidence. Given the theories of the case during 

trial and the arguments from both parties in closing, we see no abuse of 

discretion in the court’s ruling on Appellant’s objection to the prosecutor’s 

remarks. Notably, the prosecutor’s closing argument spanned 40 pages. 

(See N.T. Trial, 3/25/22, at 90-130). On this record, we cannot say that the

challenged portion of the prosecutor’s remarks, when read in context of the 
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entire closing argument, prejudiced the jurors and formed in their minds a 

fixed bias and hostility toward Appellant such that the jurors could not weigh 

the evidence and render a true verdict. See Elliott, supra; Harris, supra. 

Moreover, any prejudicial effect from the prosecutor’s statement was 

cured by the trial court’s general instructions to the jury following closing 

arguments that their determination should not be based on “which attorney 

you think makes the better speech”; that the jury is not “bound by the 

recollection of counsel in their arguments”; and that “it is the Commonwealth 

that always has the burden of proving each and every element of the crimes 

charged[.]” (See N.T. Trial, 3/25/22, at 133-35). See also Commonwealth 

v. Hawkins, 549 Pa. 352, 388, 701 A.2d 492, 510 (1997), cert. denied, 523 

U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998) (stating any prejudicial 

effect from prosecutor’s statement was cured by trial court’s general 

cautionary instruction to jury that closing arguments were not evidence and 

that Commonwealth always bore burden of proof because defendant did not 

have to prove he is not guilty; law presumes juries follow court’s instructions 

as to applicable law). Therefore, Appellant’s first issue on appeal merits no 

relief.

In his second issue, Appellant argues that trial counsel requested a 

charge on identification that “incorporated” the considerations in Kloiber. 

(Appellant’s Brief at 46). Appellant asserts that defense counsel noted the 

“degraded” quality of the surveillance video and that “the issue of 
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identification” was in play. (Id.) Appellant claims the court denied the 

requested charge because Kloiber does not apply in scenarios where the 

identifying witness knows the person identified; here, Officer Lammana 

claimed he knew Appellant from prior interactions. Appellant posits that the 

law requires a Kloiber charge when the witness did not clearly observe the 

suspect, regardless of whether the witness might have been acquainted with 

the suspect. Appellant contends the court also denied the charge because the 

court characterized defense counsel’s strategy as claiming the officer was 

lying, and not that the officer had misidentified Appellant. Further, Appellant 

insists the court admitted that the video was grainy, and that no one could 

make an identification from the actual shooting part of the video. Appellant 

emphasizes that the only identification witness at trial was Officer Lamanna. 

Appellant maintains it was crucial for the court to give a Kloiber instruction, 

telling the jury that if it found the video did not offer the viewer the opportunity 

to “clearly observe” the perpetrator, then the identification should be received 

with caution. 

Appellant highlights that the jury struggled with identification in this 

case, based on the jury’s request to see a side-by-side still of the video and 

Appellant, after which the jury still could not reach a verdict. Appellant 

emphasizes that the jury then asked to resume deliberations after the 

weekend. Absent a Kloiber instruction, Appellant insists the jury was free to 

consider the officer’s more confident opinion, unencumbered by the “caution” 
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the court should have directed them to exercise. Given the lack of evidence 

against Appellant in this case, Appellant claims the court’s failure to give the 

Kloiber instruction could not have been harmless. Appellant concludes the 

court erred by denying his requested Kloiber charge, and this Court must 

grant relief. We disagree. 

Preliminarily, “to preserve a claim that a jury instruction was 

erroneously given, the [a]ppellant must have objected to the charge at trial.” 

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa.Super. 2014), appeal 

denied, 632 Pa. 669, 117 A.3d 296 (2015). Our Supreme Court has explained:

The pertinent rules [of criminal procedure] require a specific 

objection to the [jury] charge or an exception to the trial 

court’s ruling on a proposed point to preserve an issue 

involving a jury instruction. Although obligating counsel to 

take this additional step where a specific point for charge 

has been rejected may appear counterintuitive, as the 

requested instruction can be viewed as alerting the trial 

court to a defendant’s substantive legal position, it serves 

the salutary purpose of affording the court an 

opportunity to avoid or remediate potential error, 

thereby eliminating the need for appellate review of 

an otherwise correctable issue. This is particularly so 

where a judge believes that the charge adequately covered 

the proposed points. 

Commonwealth v. Pressley, 584 Pa. 624, 630-31, 887 A.2d 220, 224 

(2005) (internal citations and footnotes omitted) (emphasis added). See also

Pa.R.Crim.P. 647(c) (explaining that no portions of jury charge nor omissions 

from charge may be assigned error, unless specific objections are made 

thereto before jury retires to deliberate); Parker, supra (holding appellant 

waived challenge to jury instruction where he failed to object after court read 
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jury charge; although appellant expressly objected to flight charge at charging 

conference, defense counsel responded negatively when court asked if any 

additions or corrections to jury charge needed to be made after court issued 

jury instructions); Commonwealth v. Melton, No. 849 EDA 2018 (Pa.Super. 

filed Apr. 27, 2020) (unpublished memorandum),3 appeal denied, 662 Pa. 

489, 240 A.3d 109 (2020) (holding appellant waived challenge to court’s 

failure to give requested corpus delicti instruction; although appellant 

submitted proposed point for charge regarding corpus delicti instruction and 

initially objected to jury instructions, appellant failed to object to court’s 

supplemental instructions which had inadvertently omitted requested 

instruction; appellant’s failure to object to supplemental instruction deprived 

court of opportunity to correct its error at appropriate stage of proceedings 

and to alleviate appellate issues).

Instantly, after the court issued its jury instructions, defense counsel 

had the following exchange with the court:

[DEFENSE COUNSEL:] ...[I]s there any charge on 

identification here.

[THE COURT:] You didn’t ask for a charge on 

identification; but what type of charge are you asking for?

[DEFENSE COUNSEL:] Well, I mean, the identification 

charge certainly lays out all of the factors. Maybe they have 

the standard charge. Not put together, you have sort of a 

____________________________________________

3 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this 

Court filed after May 1, 2019 for their persuasive value).
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Kloiber charge incorporated in identification.[4]

[THE COURT:] That’s if someone doesn’t know 

the individual. This police officer testified that [he] know[s] 

the individual, so that’s why I didn’t give a Kloiber charge. 

That’s for an unknown identification; stranger on stranger 

identification.

[DEFENSE COUNSEL:] Your Honor, I would suggest that 

generally speaking with the video there has to be some 

explanation.

[THE COURT:] I actually said something to them 

at the time of the video that the officer made the 

identification, but it’s up to them, you know. I will reiterate 

that. That’s about it.

[THE PROSECUTOR:] I said that in my closing, too. I 

don’t think they need to hear it.

[THE COURT:] Different than me.

[THE PROSECUTOR:] That’s true. They already heard 

numerous times. They already heard it numerous times. 

It’s not a difficult jury charge.

[THE COURT:] They have to decide whether 

they believe the police officer or not; not because of the 

lighting or any conditions. I mean, he says “I know him. 

That’s him.” They have to decide whether he’s telling the 

____________________________________________

4

In Kloiber, our Supreme Court held:

[W]here the witness is not in a position to clearly observe 

the assailant or he is not positive as to identity, or his 

positive statements as to identity are weakened by 

qualification, or by the failure to identify the defendant on 

one or more prior occasions, the accuracy of the 

identifications is so doubtful that the [c]ourt should warn 

the jury that the testimony as to identity must be received 

with caution.

Kloiber, supra at 424, 106 A.2d at 826-27. 
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truth or not.

[DEFENSE COUNSEL:] The video, the degrading part, all 

of that was talked about during the course of the closing. I 

think there’s an issue as to identification. At least let the 

jury know.

[THE COURT:] If I did a Kloiber charge, the 

officers made an identification of [Appellant] in the video, 

and then it would basically say you have to take a look at 

the lighting, you know, all of these other things. You list it. 

You know, prior experience with him, that they have to 

scrutinize that identification testimony. If there’s this whole 

issue of some concern about identification. We are talking 

about the comparison that was made, even though...[y]our 

claim was never that the police officer misidentified. Your 

claim was, isn’t it, sort of that the police officer lied.

[DEFENSE COUNSEL:] Well, that is another issue.

[THE COURT:] Is it a misidentification?

[DEFENSE COUNSEL:] Seems to me, Judge. Some 

information has to be given about—

[THE COURT:] I will just read it. I am not saying 

I am giving it. All it does is outline the lighting, the—

[THE PROSECUTOR:] Doesn’t really make sense for 

the—it’s also for a stranger, isn’t it?

[THE COURT:] He recognized him because he 

knows him.

[THE PROSECUTOR:] I will defer to the charge, 

obviously.

[DEFENSE COUNSEL:] I think as you know they have—

there has been alteration on the identification charge where 

they mixed it all with Kloiber and—

[THE COURT:] That’s the stranger identification. 

In other words, they’re saying identification evidence is 

unreliable, and, so, if you—certain cases allow an expert to 
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testify. Regarding the cross-facial identification, things of 

the sort. But when you recognize someone, because you 

know them, you say, “I know them,” that doesn’t apply 

when they know the person. It doesn’t.

The thing is now it’s whether do you believe the police officer 

that he knows him.

[THE PROSECUTOR:] Right.

[DEFENSE COUNSEL:] I can’t disagree with that.

I think the other factors involved here that creates the issue 

of identification; cause they’re looking at the video, put 

aside the officer at the moment, the video is what is key for 

the Commonwealth’s case.

[THE COURT:] Maybe I will give some kind of 

instruction.

[THE PROSECUTOR:] I strenuously object. The 

instruction is not necessary. Not only is it not necessary, 

there are no jury instructions that would apply to this 

particular circumstance. He’s asking for a jury instruction 

unrelated type of circumstance. He want[s] to reargue his 

own closing.

[THE COURT:] I understand it doesn’t apply, but 

I will give you the benefit of the doubt. Remind them you 

have to judge the identification by the police officer.

[THE PROSECUTOR:] I would object. We argued. I 

said it in my closing. It’s not the same. You did give the 

instruction.

[THE COURT:] I will reiterate it. How is this—I 

am not going to go through lighting and everything. It’s a 

video. They know it’s a video.

[DEFENSE COUNSEL:] Okay. 

[THE COURT:] Stated obvious.

[DEFENSE COUNSEL:] You’re mentioning the police 
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officer. Are you—

[THE COURT:] I don’t have to say that is the 

identification. He’s the only witness to identify. You have 

to say there was an identification by the police officer. And, 

you know, even though he identified him, it’s up to you to 

decide.

[THE PROSECUTOR:] I don’t think that is—they can 

use him to help judge credibility and they judge—I don’t 

think to give that instruction is—

[THE COURT:] It’s not a Kloiber case.

[DEFENSE COUNSEL:] We can back off of that for a 

moment.

The other part sitting we have to re-emphasize that the jury, 

they have to determine what’s on that video, not those 

markers or whatever else.

[THE COURT:] I told them; some emphasis on 

that. I will agree to that. We are good. 

(N.T. Trial, 3/25/22, at 159-165). After this exchange, the sidebar discussion 

concluded. The court then issued a supplemental jury charge as follows:

[THE COURT:] One other thing I will add in. 

During the trial you saw a video in this matter. Sometimes 

there was narration by the detective in the case. What you 

see in the video. You are the judge of the facts, so you 

make that determination. That is it.

(Id. at 165-66). After the court’s supplemental instruction, Appellant posed 

no objection or requested any additional instruction for the jury. (See id.) 

Here, the record makes clear that following the initial jury instructions, 

defense counsel requested a Kloiber charge. After a lengthy discussion with 

the parties concerning the propriety of the requested charge, the court 
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declined to give the specific Kloiber instruction, but the court agreed to reemphasize to the jurors that they are to determine what the video evidence 

shows. Defense counsel made no objection to the court’s statement that it 

would not issue the requested Kloiber instruction, and defense counsel also

did not object following the court’s supplemental instruction. Therefore, 

Appellant’s second issue is waived on appeal.5 See Pressley, supra; Melton, 

supra. 

In his third issue, Appellant argues that the court improperly overruled 

his objection to the detectives’ expressions of their disbelief in Appellant’s 

account of events as well as their disbelief in Appellant’s assertion of 

innocence. Appellant claims the prosecutor sought to introduce the detectives’ 

statements from his videotaped interrogation6that “we believe it’s you in the 

____________________________________________

5

In his reply brief, Appellant cites to mostly civil cases which purportedly 

stand for the proposition that this Court can overlook waiver where the trial 

court addressed the issue on the merits in its Rule 1925(a) opinion. (See

Appellant’s Reply Brief at 4-6). As these cases are not specific to the criminal 

context addressing the failure to object to a jury charge, they do not afford 

Appellant relief. We further note that in Pressley, our Supreme Court 

distinguished the rules governing issue preservation concerning a jury charge 

in the criminal and civil arenas. See Pressley, supra at 632 n.10, 887 A.2d 

at 225 n.10. 

6 The videotaped interrogation played for the jury is included in the certified 

record. On July 3, 2023, this Court granted Appellant’s unopposed motion 

seeking to supplement his brief with transcribed excerpts of the videotaped 

interrogation. We made clear in our order, however, that we accepted the 

transcribed excerpts only for the purpose of aiding this Court’s review of the 

videotaped interrogation, and to the extent that there are any inconsistencies 

between the transcript references and the video, the video controls. 
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[surveillance] video, we believe we have the right person, we believe it’s you 

in the video.” (Appellant’s Brief at 53) (citing N.T. Trial, 3/24/22, at 35). 

Appellant claims the court admitted such evidence over defense counsel’s 

objections, which “unleashed a torrent of impermissible opinion evidence from 

law enforcement, including direct accusations that [Appellant’s] repeated 

insistence of innocence was nothing more than fabrication.” (Id. at 53). 

Relying on Commonwealth v. Kitchen, 730 A.2d 513 (Pa.Super. 1999), 

Appellant insists that “[t]he detectives’ repeated accusations in the face of 

[Appellant’s] denials, delivered with such certitude, coupled with their 

expressions of incredulity, are the very type of statements that this Court has 

held must be excluded from a defendant’s trial.” (Appellant’s Brief at 56). 

Appellant highlights that there were 14 accusations by police “repudiating 

[Appellant’s] exculpatory statements by reaffirming their unshakable 

conclusion that he was guilty, and his story untrue.” (Id.) Appellant 

maintains that “[i]n a close case like this one, where the single identification 

witness is viewing the same obstructed images that the jury is viewing, 

lobbing fourteen accusations of fabrication could never be deemed harmless.” 

(Id. at 57). Appellant concludes the court’s evidentiary ruling was improper, 

and this Court must grant relief. We disagree. 

Our standard of review of a trial court’s admission or exclusion of 

evidence is well established and very narrow: 

Admission of evidence is a matter within the sound 

discretion of the trial court, and will not be reversed absent 
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a showing that the trial court clearly abused its discretion. 

Not merely an error in judgment, an abuse of discretion 

occurs when the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias, or ill-will, as shown by 

the evidence on record. 

Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009), 

cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal 

citations and quotation marks omitted). Further, our scope of review in cases 

where the trial court explains the basis for its evidentiary ruling is limited to 

an examination of the stated reason. Commonwealth v. Stephens, 74 A.3d 

1034, 1037 (Pa.Super. 2013). “We must also be mindful that a discretionary 

ruling cannot be overturned simply because a reviewing court disagrees with 

the trial court’s conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968 

(Pa.Super. 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004). 

In Kitchen, supra, this Court considered the Commonwealth’s appeal 

from an order granting in part the appellee’s motion in limine to exclude at 

trial a videotape of her interrogation by police. In her motion in limine, the 

appellee had argued the videotape evidence “contained hearsay statements 

by police interrogators and that the police questioning of her contained 

‘inflammatory’ information and involved an ‘accusatory nature.’” Id. at 517. 

The trial court granted the motion in part, ruling that portions of the videotape 

evidence were inadmissible as part of the Commonwealth’s case-in-chief, 

because they contained hearsay and inflammatory and prejudicial remarks by 

the police interrogators. Id. at 517-18. The Commonwealth declined the 
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court’s invitation to redact the videotaped evidence. Id. at 517. Thus, the 

court barred portions of the video regarding police officers’ statements to the 

appellee that “(a) she is going to be arrested for murder; (b) witnesses will 

connect [the a]ppellee to the murder; (c) [the appellee’s co-defendant] was 

in police custody; (d) [the a]ppellee is lying to police and she is aware that 

she is lying; and (e) the police would not be accusing [the a]ppellee of murder 

and conspiracy if they did not have a solid case against her.” Id. at 518. The 

court further excluded portions of the video where the appellee did not 

respond to the accusatory police questions concerning the appellee’s 

participation in the crimes. Id. 

On appeal, this Court affirmed in part and reversed in part the trial 

court’s ruling. Relevant to our analysis of Appellant’s issue, this Court agreed 

with the trial court’s exclusion of several instances where the police, “either 

directly or indirectly, accused [the a]ppellee of lying.” Id. This Court 

explained: “When the troopers stated to [the a]ppellee, ‘You’re lying,’ or ‘We 

know that you’re lying,’ or phrases to that effect, their statements were akin 

to a prosecutor offering his or her opinion of the truth or falsity of the evidence 

presented by a criminal defendant, and such opinions are inadmissible at 

trial.” Id. Thus, this Court held that the twelve accusations of lying and 

untruthfulness must be redacted from the videotaped evidence prior to their 

submission to a jury. Id. at 522. 

This Court noted that there were also several instances when the 
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troopers asked the appellee whether she had lied about a particular fact and 

she responded; those inquiries did not need to be redacted because they were 

in question form, did not involve an opinion as to the truth or falsity of the 

appellee’s statements or an opinion as to the appellee’s guilt, and the appellee 

offered responses. Id. This Court further agreed with the trial court’s 

exclusion of several instances of police questioning coupled with a lack of 

responses by the appellee, because those instances would constitute an 

improper reference to the appellee’s pre-arrest silence. Id. In so holding, 

this Court explained:

Evidence of a defendant’s silence in refusing to deny guilt 

after an accusation of guilt has been made (often referred 

to as a tacit admission) is generally not admissible where 

the silence occurred while the defendant is in police custody 

because a contrary policy would effectively vitiate a 

defendant’s constitutionally guaranteed Fifth Amendment 

right against self-incrimination. However, this [principle] of 

not allowing evidence of a tacit admission by the defendant 

does not extend to instances where the defendant does not 

choose to remain silent but instead volunteers responses to 

police questioning. 

Once a defendant chooses to make a response, that 

response, and the circumstances surrounding the response, 

are properly made available for the jury’s consideration in 

evaluating the credibility of the verbal denial based on a 

contemporaneous non-verbal act.

Id. (quoting Hawkins, supra at 385-86, 701 A.2d at 509). 

Thus, this Court made clear “that any accusatory statement made or 

question posed by police to [the a]ppellee, and [the a]ppellee’s reaction 

and/or response to the statement or question, need not be redacted from the 
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videotape if [the a]ppellee responded, even if after a silent pause, to the 

statement or question.” Kitchen, supra at 523 (citing Hawkins, supra). 

Even where the admission of police accusatory statements is improper, 

relief is unwarranted where the error is harmless. See Commonwealth v. 

Kratz, No. 150 EDA 2020 (filed April 30, 2021) (unpublished memorandum), 

appeal denied, ___ Pa. ___, 266 A.3d 451 (2021) (holding admission of 

detectives’ accusatory statements was harmless error). An error is harmless 

where:

(1) the error did not prejudice the defendant or the 

prejudice was de minimis; or (2) the erroneously admitted 

evidence was merely cumulative of other, untainted 

evidence which was substantially similar to the erroneously 

admitted evidence; or (3) the properly admitted and 

uncontradicted evidence of guilt was so overwhelming and 

the prejudicial effect of the error was so insignificant by 

comparison that the error could not have contributed to the 

verdict.

Commonwealth v. Williams, 274 A.3d 722, 735 (Pa.Super. 2022), appeal 

denied, ___ Pa. ___, 290 A.3d 647 (2023) (internal citation omitted).

7

Instantly, Appellant objects to the following 14 statements by police 

made during the videotaped interrogation:

1. Detective Burns: “You were picked up on surveillance 

footage.” 

2. Detective Burns: “I don’t believe that we [have the wrong 

____________________________________________

7 The Commonwealth agrees with Appellant that the challenged portions of 

the videotaped interrogation were inadmissible under Kitchen but insists that 

Appellant suffered no prejudice to warrant a new trial. (See Commonwealth’s 

Brief at 14).
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guy].” 

3. Detective Burns: “I’m telling you that I know that this ... 

is you, that’s what I’m telling you [Appellant].” 

4. Detective Burns: ... “You were right on 62nd Street at this 

time.” 

5. Detective Burns: “I showed you the photo and you looked 

and you said no, that’s not me, and I said it is you.” 

6. Detective Harkins: “We checked the cameras on 62nd

Street ..., and you were out there.” 

7. Detective Burns: ...“I know that you were right there.” 

8. Detective Harkins: (in response to [Appellant’s]

statement that he does not wear hats) “Do you know how 

absurd that sounds?” 

9. Detective Burns: ... “[you are not] building a lot of points 

on your behalf” ...

10. [Detective Burns:] ... “You’re a 25-year-old kid, I find it 

awfully suspicious that you wouldn’t have a cell phone at 

some point.” 

11. Detective Burns: “Your story keeps evolving, changing, 

and everything else with your [phone] numbers.” 

12. Detective Burns: “Another reason why you would have 

something on your head – to cover up that thing on your 

head. That’s exactly what I’m thinking.” 

13. Detective Harkins: “Do you remember the photograph 

that we showed you this morning of what we said was you, 

and you said I don’t even own those clothes?” ... “You 

couldn’t possibly make the argument that these [clothes 

recovered from Appellant’s home] are not the exact same 

clothes depicted in that video.” 

14. Detective Burns: “We’re quite confident we have the 

right person here.” 
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(Appellant’s Brief at 54-56) (reformatted from brief; record citations omitted).

Our review of Appellant’s interrogation confirms that the statements 

posed by the police in Appellant’s interrogation were different than those 

deemed inadmissible in Kitchen. Unlike in Kitchen, the challenged portions 

of the police statements at issue here did not state “[y]ou’re lying,” or “[w]e 

know that you’re lying,” or phrases to that effect. Compare Kitchen, supra

at 521-22 (discussing specific accusations of lying or untruthfulness that were 

inadmissible).

8

 Rather, the police informed Appellant repeatedly that they 

believed Appellant was the person on the video surveillance (based on police 

identification of Appellant) and made statements confirming their position that 

Appellant was on the video in an effort to obtain an admission of guilt. 

Although Appellant maintains that the officers’ repeated accusations implied

____________________________________________

8 Specifically:

[T]he troopers stated four times on Tape 1 that [the 

a]ppellee was “lying”. On Tape 1A there were three 

instances, one at the beginning and two at the end of the 

tape. At the beginning of Tape 1A Trooper Schreiber stated, 

regarding Tape 1, “There were a lot of things we know were 

not true.” At the end of Tape 1A the troopers stated, “This 

is not the story we’ve been getting from other people” and 

“This is something different from what you’ve said before.” 

On Tape 2 there were five accusations of lying or 

untruthfulness: three were direct accusations and two 

involved indirect accusations. All of the aforementioned 

twelve accusations of lying and untruthfulness must be 

redacted from the videotapes prior to their submission to a 

jury.

Kitchen, supra.
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that Appellant must be lying in his assertion of innocence, none of the 

challenged statements directly accused Appellant of lying or untruthfulness 

similar to the statements made in Kitchen. 

Additionally, we note that Appellant did not remain silent when faced 

with any of the challenged police statements; instead, he repeatedly 

maintained his innocence. Thus, once Appellant chose to respond, his 

responses and the circumstances surrounding his responses were properly 

before the jury for consideration in evaluating Appellant’s credibility. See id. 

Further, any challenged questions posed by police (as opposed to alleged 

accusatory statements) would not be inadmissible under Kitchen. Id. 

To the extent the police indirectly commented on Appellant’s 

truthfulness, we agree with the Commonwealth that such error was harmless. 

Here, the interrogating officers’ protestations that Appellant was on the video 

were based on Officer Lamanna’s identification of Appellant in the video. 

Officer Lamanna identified Appellant in the video at trial and was available for 

cross-examination.9 Further, the court informed the jury multiple times 

throughout trial that they were the finders of fact, “so it doesn’t matter what 

the detective believes he sees in the picture.” (N.T. Trial, 3/24/22, at 138). 

(See also N.T. 3/25/22, at 165-66) (stating: “What you see in the video. You 

are the judge of the facts, so you make that determination. That is it”). We 

____________________________________________

9 We discuss the propriety of Officer Lamanna’s identification of Appellant in 

our discussion of Appellant’s fourth issue, infra.
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will presume the jury followed the court’s instructions. See Hawkins, supra. 

Under these circumstances, any error in playing the videotaped interrogation 

for the jury was harmless. See Williams, supra; Kratz, supra. Therefore, 

Appellant’s third issue on appeal merits no relief. 

In his final issue, Appellant argues that the court improperly permitted 

Officer Lamanna to identify Appellant from the video surveillance evidence. 

Appellant asserts that Officer Lamanna did not base his opinion upon any 

sensory or experiential observations particular to his acquaintance with 

Appellant that distinguished Appellant from others in the population at large. 

Rather, Appellant claims Officer Lamanna made observations of widely 

applicable, common features, and had no insight to offer the jurors. Appellant 

insists that Officer Lamanna imparted nothing to the jurors that they could not 

see and fairly consider themselves. As such, Appellant maintains the officer’s 

testimony was not helpful to the jury in determining the critical fact in issue. 

Appellant suggests that the officer’s description of the person in the 

video’s long arms would be representative of any individual of great height. 

Appellant further submits that the perpetrator did not even take short strides, 

in contrast to the officer’s testimony of Appellant’s particular gait. Even if the 

perpetrator did take short strides, allegedly similar to Appellant’s gait, 

Appellant posits “the fact of a short stride is a thin reed upon which to allow a 

police officer to tell the jury that the person in the video is the defendant.” 

(Appellant’s Brief at 63). Appellant concludes the court’s admission of Officer 
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Lamanna’s identification testimony was improper, and this Court must grant 

relief. We disagree.

Initially, we reiterate that the failure to make a timely and specific 

objection before the trial court at the appropriate stage of the proceedings will 

result in waiver of the issue on appeal. See Tucker, supra. See also 

Commonwealth v. Cash, 635 Pa. 451, 137 A.3d 1262 (2016), cert. denied, 

580 U.S. 1161, 137 S.Ct. 1202, 197 L.Ed.2d 249 (2017) (explaining that 

appellant waives claim on appeal where objection raised at trial was different 

ground for relief than that raised on appeal). 

Instantly, Appellant objected to any police identification of Appellant 

from the surveillance video prior to trial. (See N.T. Pre-Trial Hearing, 

3/17/22, at 17). Specifically, defense counsel argued:

The second issue we have is the testimony of police officers 

as to attempts to make identification. That is a little more 

crucial than what we are speaking about now, although both 

of them are extremely crucial, and that is the testimony of 

police officers.

They have a limited purpose, nothing more. Remember, 

there is no layman identification of my client from any 

source, not even the information concerning the height and 

weight of the individual, any type of description.

It doesn’t even match my client and then the police officers 

come in and they look at the video and they say he is 

running that way. I saw this and, therefore, that must be 

him. I am objecting to all of that, Your Honor.

(Id.) Following argument from counsel and the court’s viewing of the 

surveillance video, the court decided the identification testimony was 
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admissible. The court stated:

Under the case law, [the prosecution] can do that because 

the video isn’t clear. If he would have looked right up in the 

video, that would be different but the video isn’t clear and 

this is a neighborhood that he hangs in and they are patrol 

officers. It will not be prejudicial in the sense they just know 

who hangs out in the neighborhood. They will not talk about 

prior crime or anything like that.

* * *

They patrol and they can just say that they think it is him 

and then I can give a cautionary instruction but they have 

to have a basis for it. He is very tall. 

(Id. at 46-47). During trial, the court revisited Appellant’s continued objection 

to the police identification testimony. (See N.T. Trial, 3/23/22, at 2). 

Specifically, Appellant argued:

As I informed the [c]ourt and the Commonwealth, Your 

Honor, I object to this police officer [Officer Lamanna] 

making an identification and indicating during the course of 

this video, the location of my client and where he is walking 

and as a result, Your Honor, that is for the jurors’ 

determination, not this particular officer, not because 

he is offering an opinion but because the best 

evidence is this video and, more importantly, the features 

are going to be designated and shown on this particular 

video, so the jury can make its own determination.

(Id. at 2-3) (emphasis added). The court overruled Appellant’s objection. 

(See id. at 3-5). 

Instantly, the Commonwealth argues that Appellant waived this issue, 

where defense counsel confirmed he was not objecting because the officer 

was offering an opinion, but because the video is the best evidence in this 

case. (See Commonwealth’s Brief at 16) (citing N.T. Trial, 3/23/22, at 2-3). 
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Although the highlighted statement above might suggest that Appellant was 

abandoning any earlier objection in favor of limiting his objection to a violation 

of the “best evidence rule,”10 in light of Appellant’s earlier pre-trial hearing 

objection and the court’s on-the-record discussion of same, we decline the 

Commonwealth’s invitation to deem this issue waived on appeal. 

Turning to the merits of this issue, Pennsylvania Rule of Evidence 701 

provides:

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, the testimony in 

the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony 

or to determining a fact in issue; and 

(c) not based on scientific, technical, or other specialized 

knowledge within the scope of Rule 702.

Pa.R.E. 701. “Generally, lay witnesses may express personal opinions related 

to their observations on a range of subject areas based on their personal 

experiences that are helpful to the factfinder.” Commonwealth v. Berry, 

172 A.3d 1, 3-4 (Pa.Super. 2017). 

Under appropriate circumstances, this Court has upheld decisions to 

____________________________________________

10 See Pa.R.E. 1002 (stating: “An original writing, recording, or photograph is 

required in order to prove its content unless these rules, other rules prescribed 

by the Supreme Court, or a statute provides otherwise”). The comment to 

the Rule explains that this rule of evidence corresponds to the common law 

“best evidence rule.” Pa.R.E. 1002, Comment. 
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allow police to offer lay opinion testimony. See, e.g., Commonwealth v. 

Palmer, 192 A.3d 85 (Pa.Super. 2018), appeal denied, 651 Pa. 339, 204 A.3d 

924 (2019) (holding admission of detective’s lay opinion testimony identifying 

appellant as shooter in surveillance videos was proper because it was based 

on his perceptions and was helpful in allowing jury to reach clear 

understanding); Commonwealth v. Spencer, 639 A.2d 820 (Pa.Super. 

1994) (holding that admission of witness’s opinion that gait of robber and gait 

of appellant were similar was proper); Commonwealth v. Hassinger, No. 

168 MDA 2020 (Pa.Super. filed July 9, 2021) (unpublished memorandum), 

appeal denied, ___ Pa. ___, 270 A.3d 431 (2021) (holding trial court did not 

abuse its discretion in permitting lay opinion testimony by law enforcement 

that defendant was person on surveillance video based on their interactions 

with him over years; lay opinion testimony is more likely to be admissible 

where surveillance evidence is of poor or grainy quality or where it shows only 

partial view of subject). 

Here, Officer Lamanna testified that he has seen Appellant in the area 

of the 18th District “[i]n person, more than ten times; on social media, 

hundreds.” (N.T. Trial, 3/23/22, at 20). The Commonwealth then played the

surveillance video in front of the jury. The officer stated: “I believe that to be 

[Appellant] in the gray hooded sweatshirt, dark pants, black Timberland-style 

boots.” (Id. at 26). Officer Lamanna testified that he identified the person in 

the video as Appellant “[b]ased on some of the facial features, the beard you 
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can observe, the way he walks, his height, especially.” (Id. at 27). The officer 

also indicated that Appellant’s arms hang low, below his waist. (Id. at 28). 

In discussing the way that Appellant walks, the officer stated: “He seems to 

take shorter strides given his height than you normally would expect and he 

kind of mills about, walks slowly for what you would expect [for a tall person].” 

(Id. at 29). The Commonwealth asked the officer: “[W]hat, if anything, about 

this particular clip reinforces your belief that the person we have been 

watching is [Appellant]?” (Id. at 33). The officer responded: “The same 

stride, the same length of arms, they way his arms hang low to the side.” 

(Id.) The officer characterized Appellant’s stride as “unique” to Appellant, 

given his height of six feet, seven inches tall. (Id. at 38-39). The officer also 

indicated that Appellant has a Superman logo on his forehead.11 (Id. at 39). 

The officer also confirmed that he has previously spoken face-to-face with 

Appellant, where the officer was able to observe Appellant’s facial features 

and “things like that[.]” (Id. at 40). 

The trial court evaluated this claim as follows:

In the instant matter, Officer Lamanna, who identified 

[Appellant] as the perpetrator in the surveillance video, 

knew him prior to the incident for a few years, and observed 

him many times in person on social media.

In the context of this case, police officers were the only 

identification witnesses since the civilian witnesses were 

uncooperative. The court allowed Officer Lamanna to make 

____________________________________________

11 A tattoo is not visible in the surveillance video due to the presence of a 

hooded covering on the shooter’s head. 
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the identification based on his prior familiarity with 

[Appellant], since he was a patrol officer in the area and in 

the footage the perpetrator had his head covered with a 

hoodie. Upon identifying [Appellant], Officer Lamanna 

stated the basis for his identification as follows: “it was 

based on some of the facial features, the beard you can 

observe, the way he walks, his height, especially.” N.T., 

3/23/22, 25-27. The officer additionally identified 

[Appellant] by his gait, stating: “he takes shorter strides, 

walking slowly for what you expect, due to his height with 

his arms hanging below his waist.”5 N.T., 3/23/22, 28-29.

5 [Appellant] is six feet seven inches tall.

Officer Lamanna’s identification testimony was admissible 

because the testimony was based on a prior knowledge of 

[Appellant], and the officer stated the basis of his 

identification which was [Appellant’s] facial features, arm 

length, gait, and height. This identification was helpful in 

allowing the jury to reach a clear understanding. It bears 

noting that the jury was viewing the exact video from which 

the identification was made. Therefore, the jury was free to 

believe or disbelieve the testimony, and the officer was 

subject to cross-examination on his identification of 

[Appellant]. 

The court did not abuse its discretion by overruling trial 

counsel’s objection to allowing a police officer to identify 

[Appellant] from a surveillance video.

(Trial Court Opinion at 24-25) (some internal citations omitted).

We agree with the court’s analysis. Here, Officer Lamanna’s 

identification of Appellant from the surveillance video was rationally based on 

his perception of Appellant from prior interactions; was helpful to the jury 

concerning the identification issue in the case, particularly where the video 

was not totally clear at times; and was not based on scientific, technical, or 

other specialized knowledge. See Pa.R.E. 701; Hassinger, supra. Upon our 
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review, we see no abuse of discretion concerning the court’s evidentiary 

ruling. See Montalvo, supra. Accordingly, we affirm.

Judgment of sentence affirmed. 

Date: 11/14/2023