Com. v. Marsh, A.

J-A17010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ALI MARSH,

Appellant No. 2442 EDA 2015

Appeal from the Judgment of Sentence March 13, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0005820-2012

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED AUGUST 11, 2016

Appellant, Ali Marsh, a/k/a Jabbar Rice,1 appeals from the judgment of

sentence imposed following his jury conviction of murder of the first degree,2

attempted murder,3 robbery,4 burglary,5 conspiracy,6 possessing instruments

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
In addition to Jabbar Rice, Appellant has also used the names Hakeem
Marsh, John Moore, and Richard Marshall. (See N.T. Trial, 9/26/14, at 130).
2
18 Pa.C.S.A. § 2502(a).
3
18 Pa.C.S.A. § 901.
4
18 Pa.C.S.A. § 3701.
5
18 Pa.C.S.A. § 3502.
6
18 Pa.C.S.A. § 903.
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of crime,7 and violations of the Uniform Firearms Act (VUFA). 8 The trial

court imposed a sentence of life imprisonment, plus a consecutive term of

not less than fifty-six years nor more than one-hundred-twelve years of

incarceration. Appellant challenges the denial of a motion to suppress, the

denial of a mistrial, evidentiary rulings, and the weight and sufficiency of the

evidence. We affirm, in part on the basis of the trial court opinion.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. (See Trial Court Opinion,

10/21/15, at 1-7). Therefore, we have no reason to restate them at length

here.

However, for context and the convenience of the reader, we note

briefly that Appellant’s judgment of sentence stemmed from his jury

conviction of first degree murder and the other charges already noted, based

on his participation in an unsuccessful home invasion robbery.

On March 5, 2012, shortly after 3:00 a.m., Appellant and his co-

conspirator Charles Davis9 broke into the home of John Paul Sr., and his

____________________________________________

7
18 Pa.C.S.A. § 907.
8
18 Pa.C.S.A. § 6106 (firearms not to be carried without a license); 18
Pa.C.S.A. § 6108 (firearms not to be carried on the streets of Philadelphia).
9
Davis also went by the names Charles Williams, and Charles White. (See
N.T. Trial, 9/24/14, at 55, 91; N.T. Trial, 9/25/14, at 16). Appellant testified
that Davis is his longtime friend and cousin. (See N.T. Trial, 9/26/14, at
128-29).

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wife, Sherrel, and demanded money. When told there was none, they fatally

shot Mr. Paul. They also shot his wife, Sherrel, about a dozen times, but she

survived, although she required multiple surgeries and still carries bullets

and bullet fragments within her.

Appellant was also shot in the leg during the melee. The bullet moved

down his left leg to his ankle. He was bleeding profusely. The co-

conspirators fled by car. A neighbor of the Pauls heard the gunfire and saw

the conspirators depart. Davis and Appellant rendezvoused with Davis’ wife,

Nicole Walton. Sometime during this trip Appellant called his then-girlfriend,

Nija Pasture. At trial, Pasture testified that Appellant told her that “shit

went bad” and he got shot. (N.T. Trial, 9/25/14, at 68).

Appellant needed medical attention for the bullet wound in his ankle,

but did not want to risk apprehension in a Philadelphia hospital, so Walton

drove him (and Davis) to Union Hospital in Elkton, Maryland. Appellant

checked in using the name Jabbar Rice. However, he was soon transferred

to a hospital in Christiana, Delaware for treatment.

Still using the name Jabbar Rice, Appellant told Delaware hospital

personnel that he had been robbed, and shot, in Delaware. Maryland state

trooper Alan Flaugher was dispatched to investigate the shooting. He soon

realized that Appellant had given him a false name. Nevertheless, he

identified Appellant through FBI fingerprint records, and linked him to the

murder in Philadelphia. Delaware police, now assisted by Philadelphia

homicide detective John Harkins, obtained a search warrant to have blood

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drawn from Appellant. DNA testing later confirmed that blood on the Paul’s

porch and on the street outside belonged to Appellant. Appellant checked

out of the hospital before the scheduled removal of the bullet, apparently

against medical advice.

A day or two later he appeared at Ms. Pasture’s residence. She took

him to buy some clothes and they began moving from one hotel to another

until a few days later when they were apprehended.

The trial court denied Appellant’s motion to suppress the results of the

blood test, as well as the motion to exclude, as inflammatory, photographs

of Mr. Paul and the crime scene. Over Appellant’s objection, the trial court

allowed Walton’s testimony that when she picked up her husband, Davis, he

told her, “We got into some shit and Jabbar ( Appellant) got shot,” under the

co-conspirator exception. (N.T. Trial, 9/24/14, at 59).

Also during trial, after his counsel finished cross-examining Appellant’s

girlfriend, Nija Pasture, a lawyer sitting in the courtroom as a spectator, said

to Appellant’s counsel, “Why did you cross examine her? She didn’t hurt

you.” (N.T. Trial, 9/25/14, at 137). Appellant’s counsel made a motion for a

mistrial which the trial court denied. After Appellant’s conviction, his counsel

filed a post-sentence motion (including a challenge to the weight of the

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evidence) which was denied by operation of law. (See Order, 7/14/15).

This timely appeal followed.10

Appellant presents six questions on appeal.

1. Did the [t]rial [c]ourt err when it denied Appellant’s
motion to suppress the seizure of Appellant’s blood and the fruits
of that search based on the fact that the search warrant utilized
therein was based upon material misstatements made by law
enforcement?

2. Did the [t]rial [c]ourt abuse its discretion when it denied
Appellant’s request to preclude certain inflammatory
photographs of the decedent and crime scene herein from being
shown to the jury?

3. Did the [t]rial [c]ourt abuse its discretion when it
overruled the Appellant’s objection to witness Nicole Walton’s
testimony containing a hearsay statement from Appellant’s co-
defendant under the co-conspirator exception to the rule against
hearsay?

4. Did the [t]rial [c]ourt abuse its discretion in refusing to
grant Appellant a mistrial when spectating attorney made
prejudicial and inflammatory comments to Appellant’s counsel in
the presence of the jury?

5. Did the [t]rial [c]ourt err when it denied Appellant’s
[p]ost-[s]entence [m]otion and found that the evidence
presented at trial was legally sufficient to sustain a verdict of
guilty on all charges against the Appellant?

6. Did the [t]rial [c]ourt abuse its discretion when it denied
Appellant’s [p]ost-[s]entence [m]otion and found that the jury’s
verdict was not against the clear weight of the evidence?

____________________________________________

10
Appellant filed a statement of errors complained of on appeal, and a court-
ordered supplement. The trial court filed an opinion on October 21, 2015.
See Pa.R.A.P. 1925.

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(Appellant’s Brief, at 7-8).

In his first claim, Appellant argues that the search warrant used to

authorize collection of his blood samples was invalid. (See Appellant’s Brief,

at 29-39). He asserts the warrant was based on a deliberate and material

misstatement in the affidavit from police, namely, that he received the

wound in his ankle “because the injured suspect was reportedly shot by

another one of the suspects while both were on a staircase within the

[victims’] residence.” (Id. at 37 (quoting N.T. Trial, 9/23/14, at 8)).

Appellant focuses on the single word “reportedly.” He posits that:

“Given that this ‘report’ did not exist and was a factual fabrication, the

statements Detective Harkins gave to Delaware detectives to be used in

their affidavit of probable cause were misstatements of fact.” (Id. at 37)

(internal quotation marks in original ). We disagree.

Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842
(2003). Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, “whose duty it is to determine if the suppression
court properly applied the law to the facts.” Commonwealth v.
Mistler, 590 Pa. 390, 912 A.2d 1265, 1269 (2006) (quoting

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Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 881
(1998)). Thus, the conclusions of law of the courts below are
subject to our plenary review. Mistler, supra; Commonwealth
v. Morley, 545 Pa. 420, 681 A.2d 1254, 1256 n. 2 (1996).

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).

Our scope of review of a suppression court’s ruling is
confined primarily to questions of law. We are bound by findings
of fact which are supported by the record; we may reverse only
if the court’s legal conclusions are in error. As the parties herein
agree on the facts, we are asked to determine only the legal
implications of those facts.

Commonwealth v. Sharp, 683 A.2d 1219, 1221-22 (Pa. Super. 1996).

In determining whether probable cause exists to issue a
search warrant, Pennsylvania applies the “totality of the
circumstances” test as set out in Illinois v. Gates, 462 U.S. 213
[ ] (1983) and adopted in Commonwealth v. Gray, [ ] 503
A.2d 921 (Pa. 1985). The duty of an appellate court is to ensure
that the magistrate had a substantial basis for concluding that
probable cause existed. We are guided by these standards:

An affidavit for a search warrant is to be tested by
this court with common sense and a realistic manner, and
not subjected to overly technical interpretations; the
magistrate’s determination of probable cause is to be
accorded great deference on review. The law is clear that
before a search warrant may issue, facts supported by oath
or affirmation must be presented to the issuing officer which
will justify a finding of probable cause. For the warrant to
be constitutionally valid, the issuing officer must conclude
that probable cause exists at the time the warrant is issued.
Such a conclusion may not be made arbitrarily and must be
based on facts which are closely related in time to the date
the warrant is issued.

Id. at 1223 (some citations and internal quotation marks omitted).

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J-A17010-16

Here, we observe that the Commonwealth argues Appellant’s first

claim is waived. (See Commonwealth Brief, at 12). On independent review,

we agree.

Although he calls into question the sufficiency of the affidavit of

probable cause, Appellant failed to ensure that the certified record included

the actual affidavit, precluding us from meaningful review of the totality of

the circumstances under which the search warrant was issued. Accordingly,

we agree with the Commonwealth that the first claim is waived. See

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006), appeal

denied, 916 A.2d 632 (Pa. 2007) (appellate court is limited to considering

only materials in certified record when resolving an issue; any document

which is not part of the officially certified record is deemed non-existent).

Moreover, on the available record, the claim would not merit relief.

(See N.T. (Motion), 9/23/14, at 7-8). There is no dispute that the affidavit

was not based on a formal, written report, but on the oral reports of the

police officers investigating the crime scene. (See id. at 11-12).

Therefore, the legal question we are asked to resolve is whether the

affidavit in support of the search warrant is invalid as a matter of law.

However, as already noted, Appellant has not provided us with the affidavit,

presenting only an abbreviated quotation which contains the allegedly

inadequate word “reportedly.” (Id. at 8). The notion that use of the adverb

“reportedly” imports an assertion that a formal written report exists finds no

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support in controlling authority or ordinary English usage, and Appellant

offers none. (See Appellant’s Brief, at 37-39).

We review the issue of a search warrant in a “common sense and a

realistic manner, and not subject[ ] to overly technical interpretations.”

Sharp, supra at 1223. Appellant’s argument ignores all of these

requirements. His claim of a material misstatement in the supporting

affidavit based on the insertion of the word “reportedly” lacks foundation in

law or fact. It is, accordingly, frivolous. Even if not waived, Appellant’s first

issue would lack merit.11

In his second claim, Appellant asserts that the photographs of Mr. Paul

and the crime scene should not have been shown to the jury. He argues

their probative value was outweighed by their prejudicial effect. (See

Appellant’s Brief, at 40-43). We disagree.

“[Q]uestions concerning the admissibility of evidence are committed to

the sound discretion of the trial judge, whose rulings will not be disturbed on
____________________________________________

11
We decline to review Appellant’s subordinate claim (not included as a
separate question), that the evidence should have been suppressed without
a separate hearing or that he was entitled to a hearing under Franks v.
Delaware, 438 U.S. 154 (1978). (See Appellant’s Brief, at 29-39). We
agree with the trial court that Appellant failed to meet his burden. (See
Trial Ct. Op., at 10). Citing the omitted affidavit, Appellant claims Detective
Harkins gave a false statement that “someone had reported” Appellant was
shot. (Appellant’s Brief, at 36). We conclude this claim falls far short of “a
substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit.” Franks, supra at 155-56. No Franks
hearing was required or necessary.

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J-A17010-16

appeal absent an abuse of that discretion.” Commonwealth v. Reed, 990

A.2d 1158, 1167 (Pa. 2010), cert. denied, 562 U.S. 1020 (2010) (citations

omitted).

The trial court explained its reasoning, and the precautions it took to

avoid prejudice, in its opinion. (See Trial Ct. Op., at 12). We discern no

basis on which to disturb the trial court’s proper exercise of its discretion.

Appellant’s second claim lacks merit.

In his third claim, Appellant disputes the admissibility of the statement

by Charles Davis, “We got into some shit and Jabbar (Appellant) got shot,”

as testified to by Nicole Walton, under the co-conspirator exception.

(Appellant’s Brief, at 51; see also id. at 44-51; N.T. Trial, 9/24/14, at 59).

We disagree.

The trial court explains that the statement was admissible under the

exception to the hearsay rule provided at Pennsylvania Rule of Evidence

803(25)(E) (“made by the party’s coconspirator during and in furtherance of

the conspiracy”). (See Trial Ct. Op., at 13). The trial court notes further

that, under controlling authority, statements made during flight or the

concealment of evidence are in furtherance of the conspiracy. (See id. at

13-14) (citing cases).

A statement dealing with flight from the crime scene falls within the

co-conspirator’s exception. See Commonwealth v. Lambert, 603 A.2d

568, 575 (Pa. 1992) (co-conspirator’s statement in car during flight after

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murder admissible under co-conspirator exception); see also

Commonwealth v. Chester, 587 A.2d 1367, 1375 (Pa. 1991) (holding

statement made after murder properly admitted under co-conspirator’s

exception to hearsay rule; concealment integral part of crime);

Commonwealth v. Smith, 513 A.2d 1371, 1375 (Pa. 1986), cert. denied,

480 U.S. 951 (1987) (statements made in course of flight from scene of

crime and dividing proceeds of robbery “certainly” part of common design to

carry out robbery; statements in question properly admitted as having been

made in course of carrying out design of conspiracy). Appellant’s third claim

lacks merit.

Appellant’s fourth claim challenges the denial of a mistrial after an

attorney who was observing the trial questioned defense counsel about why

he cross-examined Appellant’s girlfriend, Nija Pasture, who testified for the

Commonwealth. The observing attorney said, “Why did you cross examine

her? She didn’t hurt you.” (Appellant’s Brief, at 53 (citing N.T. Trial,

9/25/14, at 139)). Counsel asked for a mistrial, which the trial court denied.

Appellant argues the comment created a reasonable likelihood of prejudice.

(See Appellant’s Brief, at 52-55). We disagree.

“The decision to grant a mistrial is within the sound discretion of the

trial court. This remedy is an extreme one, and is required only when an

incident is of such a nature that its unavoidable effect is to deprive the

appellant of a fair and impartial trial.” Commonwealth v. Johnson, 719

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A.2d 778, 787 (Pa. Super. 1998) (en banc ) (citations and internal quotation

marks omitted), appeal denied, 739 A.2d 1056 (Pa. 1999).

In this case, Appellant maintains that the spectator “opined that the

chances of the jury finding Appellant to be innocent were somehow lessened

after Nija Pasture had been cross-examined.” (Appellant’s Brief, at 53). In

an overlapping second argument, Appellant also asserts that the attorney’s

comment provided an opinion that his case had been damaged by his

counsel’s cross-examination. (See id.). We find no support for these

speculations in law or in fact.

Notably, Appellant offers no authority in support of either of his claims,

aside from cases cited for general principles. (See id. at 52-53). The trial

court confirms that counsel for Appellant never requested a colloquy of each

of the jurors to determine what, if anything, a juror may have heard. (See

Trial Ct. Op. at 17). Without corroboration or controlling caselaw,

Appellant’s assessment about what the jury may have heard, amounts to no

more than unsupported speculation about what the jury might have

thought.12

In any event, Appellant concedes that the observing attorney made no

comment on any particular fact of the case. (See Appellant’s Brief, at 53).

____________________________________________

12
The trial court concludes that “it is unlikely that the jury [heard the
comment] because it was made while the jury was being escorted out of the
court room.” (Trial Ct. Op., at 17).

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Even assuming for the sake of argument that the jury (or some members of

the jury) may have heard the comment, all they would have heard was the

observing lawyer’s personal opinion that Ms. Pasture’s testimony did not

hurt Appellant. Appellant was not “deprived of a fair and impartial trial.”

Johnson, supra at 787. The trial court denied a mistrial, deciding that

Appellant failed to demonstrate a reasonable likelihood of prejudice. (See

Trial Ct. Op., at 17). We agree. Appellant’s fourth claim does not merit

relief.

In his fifth claim, Appellant challenges the sufficiency of the evidence

on all charges. (See Appellant’s Brief, at 8). He argues, inter alia, that Mrs.

Paul could not make an identification, and he notes that his DNA, while

located in blood outside of the victims’ residence, was not found inside.

(See id. at 56-59). However, none of these arguments were included in his

statement of errors complained of on appeal, which consisted solely of a

generic, boilerplate claim of insufficiency. (See Supplemental Concise

Statement of Matters Complained of on Appeal,” 10/02/15, at 2 ¶ 5). The

trial court suggests that we deem Appellant’s sufficiency claim waived. We

agree.

In reviewing the sufficiency of the evidence, we view all
the evidence admitted at trial in the light most favorable to the
Commonwealth, as verdict winner, to see whether there is
sufficient evidence to enable the jury to find every element of
the crime beyond a reasonable doubt. Commonwealth v.
Clark, 746 A.2d 1128 (Pa. Super. 2000) (en banc). “This
standard is equally applicable to cases where the evidence is
circumstantial rather than direct so long as the combination of

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the evidence links the accused to the crime beyond a reasonable
doubt.” Commonwealth v. Sanders, 426 Pa.Super. 362, 627
A.2d 183, 185 (1993) (citation omitted). Although a conviction
must be based on “more than mere suspicion or conjecture, the
Commonwealth need not establish guilt to a mathematical
certainty.” Commonwealth v. Badman, 398 Pa. Super. 315,
580 A.2d 1367, 1372 (1990) (citation omitted). “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.” Commonwealth v. Wright, 846 A.2d
730, 736 (Pa. Super. 2004).

Commonwealth v. Gainer, 7 A.3d 291, 292 (Pa. Super. 2010), appeal

denied, 23 A.3d 1055 (Pa. 2011).

In a recent decision, Commonwealth v. Williams, 959
A.2d 1252 (Pa. Super. 2008), this Court reiterated that when
challenging the sufficiency of the evidence on appeal, the
Appellant’s 1925 statement must “specify the element or
elements upon which the evidence was insufficient” in order to
preserve the issue for appeal. Williams, 959 A.2d at 1257
(quoting Commonwealth v. Flores, 921 A.2d 517, 522–23(Pa.
Super. 2007)). 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., at
1258 n.9. Here, Appellant not only failed to specify which
elements he was challenging in his 1925 statement, he also
failed to specify which convictions he was challenging.

* * *

Further, Appellant’s sufficiency of the evidence argument is
underdeveloped. Appellant does not state in his brief, which of
the convictions he is challenging. He does not set forth the
elements of the crimes he was convicted of and does not argue
which specific elements were not met.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010) (concluding sufficiency claim waived).

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As in Gibbs, Appellant’s claim is waived. Moreover, we note on

independent review that even though Appellant in his brief challenges all the

elements of all the charges of which the jury convicted him, his argument

consists of little more than a cursory reference to Mrs. Paul’s lack of

identification, a categorical denial of flight to avoid apprehension, and the

purported lack of evidence of a conspiracy. (See Appellant’s Brief, at 56-

59). The arguments are undeveloped and bereft of citations to pertinent

supporting case authority. Even if not waived, his challenge to sufficiency

would not merit relief.

Similarly, in his final claim, Appellant challenges the weight of the

evidence. (See Appellant’s Brief, at 60).

Our standard of review for a challenge to the weight of the
evidence is well-settled: The 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 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 breath,
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.

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Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 2007), appeal

denied, 928 A.2d 1289 (Pa. 2007) (citations omitted).

Here, in a one page argument, under the guise of avoiding

unnecessary repetition, Appellant purports to incorporate his insufficiency

argument into his weight claim. (See Appellant’s Brief, at 60).

Leaving aside the technical deficiencies and lack of merit of Appellant’s

sufficiency argument, the attempt to adopt sufficiency claims in a challenge

to the weight of the evidence is procedurally inappropriate. See

Commonwealth v. Birdseye, 637 A.2d 1036, 1039-40 (Pa. Super. 1994),

affirmed, 670 A.2d 1124 (Pa. 1996) (noting sufficiency claims distinct from

weight claims; deeming weight claim waived for failure to present separate

argument regarding weight). Here, Appellant’s weight claim is waived.

Moreover, it would not merit relief. The trial court declined to upset

the verdict of the jury, noting the blood containing Appellant’s DNA on the

porch and the street at the crime scene, his flight from Philadelphia to seek

medical treatment for his gunshot wound at a remote location out-of-state,

his inculpatory statement to his then-girlfriend, and the inculpatory

statement of his co-conspirator. The trial court found that Appellant’s

explanation for his presence at the crime scene was “simply ludicrous.”

(Trial Ct. Op., at 23). We discern no abuse of discretion in the trial court’s

rejection of Appellant’s weight claim. Appellant’s sixth claim does not merit

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relief. In addition to the reasons explained in this memorandum, we affirm

on the basis of the trial court opinion, which we attach for reference.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2016

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 Circulated 07/21/2016 12:25 PM

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS
OF PHILADELPHIA

VS. CRIMINAL TRIAL DIVISION

CP-51-CR-0005820-2012 Comm. v. Marsh Ali CP-51-CR-0005820-2012
Opinion '
ALI MARSH

IIII IIIII IIIII Ill Ill II l/1
7360004331
OCT 2 ~ ZDl5
OPINION
Grirnim11 hppsals Unit
!' · \ 1- · , : s. 0.i; DI\
PROCEDURAL HISTORY First.Jucucia 01sn1c1. 1 rh

Ali Marsh, the above-named defendant, was charged as of the above Bill and Term

number with, inter alia, murder, generally, attempted murder, aggravated assault, burglary,

robbery, criminal conspiracy, carrying a firearm prohibited, carrying a firearm without a license,

carrying a firearm on a public street, possessing an instrument of crime, generally. These

charges stem from an incident that occurred on March 5, 2012, during which appellant and

Charles Davis illegally entered the home of the Paul family to burglarize it and rob its occupants.

During the incident, John Paul, Sr. was shot and killed and his wife Sherrell was shot numerous

times and severely injured.

Following the denial of a motion to suppress physical evidence and jury selection,

Defendant's trial commenced on September 23, 2014. On September 30, 2014, the jury found

defendant guilty of first-degree murder, attempted murder, robbery burglary the weapons

offenses set forth above, and criminal conspiracy. Sentencing was deferred until March 13, 2015,

on which date this Court imposed an aggregate sentence of life imprisonment plus fifty-six to
 one-hundred twelve years' incarceration, which aggregate sentence was ordered to be served

consecutive to the life sentence imposed on the first-degree murder charge. Following the

imposition of sentence, appellant filed a notice of appeal and a requested Pa.RAP. 1925(b)
1
Statement.

FACTUAL HISTORY

On March 5, 2012, shortly after 3:00 a.m., Jolm Paul Sr., his wife Sherrel, and their two

sons were asleep inside their home located at 3213 Cecil B. Moore, A venue in Philadelphia

when defendant and Charles Davis broke into the residence. John Paul, Sr., who was awakened

by the sound of the intruders entering the residence, exited his bedroom to investigate and in the

hallway outside his bedroom he encountered defendant and Davis. Mr. Paul was shot when he

confronted the two men after which · Mr. Paul began screaming to warn his wife. However,

because of the severity of the wound, he was no longer able to speak or fight off defendant and

Davis.

Mr. Paul's screammg awoke Ms. Paul and she went into the hallway where she

confronted Davis and defendant. One of the intruders shot her and she collapsed to the floor

unable to move her lower extremities. As she crawled toward her son's bedroom to protect them

one of the men picked her up and began repeatedly demanding that she tell him where the money

was. There was no money however, and Davis dropped her to the floor at which time they fired

numerous rounds into her body.

The two perpetrators then left the residence at which time John Paul, Jr. called the police

as he was trying to comfort his parents. They arrived soon thereafter and transported the two

I
This Court directed defendant to file a supplemental I 925(b)n statement containing references to the record where
the alleged errors contained in his original 1925(b) statement could be found. Defendant complied with this request.

2
 shooting victims to a nearby hospital where Mr. Paul was pronounced dead.2 Despite having

been shot numerous times and having twenty-six specific bullet wounds, Mrs. Paul survived.

She was unable to identify either of the intruders during a photographic identification session.

Jolm Paul Jr., was also awakened by the gunfire and upon going into the hallway he saw

his father get shot by a man he described as being black, about 5' 1 O," 200 pounds, dressed in all

black, with hood pulled tight around his face, which was visible. He also had a beard. In total, he

heard approximately ten gunshots. After the two men left his home, John Paul Jr. saw the man

who shot his father get into a car.

An investigation of the scene resulted in the seizure of twelve spent cartridge cases

scattered on the steps and the second floor of the residence. An examination of the cartridge

cases revealed that six of them were .40 caliber and six .45 caliber and that each of the .40

caliber cartridges and the .40 caliber cartridges had been fired from separate weapons of the

same calibers.

Police also recovered five spent projectiles one of which was .40 caliber and the

remainder .45 caliber. Although the .45 caliber cartridges had similar characteristics, testing

could not determine whether they had been fired from the same gun.

Police also collected several blood samples collected from vanous locations in the

residence and submitted them to a DNA lab for testing. That testing revealed that some of the

blood collected in the residence came from Mr. and Mrs. Paul. Police also observed a trail of

blood that began on the porch of the Paul residence and led to the street. DNA testing of that

blood revealed that it had come from defendant.

2
An autopsy of Mr. Paul's body indicated that he died as a result of a contact gunshot wound to his chest that caused
internal bleeding. The manner of death was deemed to be homicide.

3
 Ms. Angela McCray, a neighbor of the Pauls, was awakened by the gunfire. When she

looked out her front bedroom window, she saw two men crouched in front of her van. A car then

drove up and one of the men helped the second male to get into the vehicle, after which it was

driven away by

Nija Pasture, defendant's girlfriend at the time of the incident, received a phone call

3
from defendant in the early morning hours of the day of the incident. He told her that

something had gone "bad," which Pasture assumed referred to a botched robbery because

defendant had recently said to her that he was short of money, and that he had been shot.

Defendant then handed his phone to Nicole Walton, Charles Davis' wife, and she said she did

not know what had happened to defendant and was driving him to a hospital.

A couple of days later, defendant appeared at the home of Pasture's grandparents. He was

on crutches and had rods in his leg. Over the next several days defendant had Pasture take him

to various motels in Pennsylvania and New Jersey because he said he could not walk up the steps

of his residence. Pasture checked him in using her name. Although Pasture asked him how he

had gotten shot, he declined to speak about it. Defendant also began using a different phone.

Pasture tended to defendant for several days until he was arrested on March 10, 2012, inside the

Marriott hotel in Plymouth meeting, Pennsylvania. Incident to defendant's arrest, police seized,

inter alia, a number of false identification cards for defendant.

Nicole Walton received a telephone call from Davis at about 3:30 a.m., on March 5,

2012, asking her to come and pick him up in the area of so" Street and Greenway Avenue.4

3
Pasture was charged with conspiracy and hindering apprehension for helping defendant. She entered a negotiated
guilty plea to those charges promising her a probationary sentence in exchange for her testimony.
4
Walton was on state parole at the time. As a result of her having assisted defendant and Davis and because she
illegally left Pennsylvania, she was declared a parole violator and was ordered to serve fourteen months'

4
 Walton drove to that location at which time, Davis and defendant, who had a gunshot wound to

his foot that was bleeding profusely, got into her car at which time someone in the car told her to

drive to a hospital. When Walton said she was going to a nearby hospital she was directed to get

on "the expressway" and drive to a hospital in Maryland. During the ride Walton was told to tell

hospital personnel that defendant was a victim of a robbery and that he had been shot during the

robbery. Upon arrival at the hospital, Walton did as she was directed after which she and her

husband began driving back to their home after defendant was admitted into the hospital under

the name Jab bar Rice after which he was transferred to Christiana Hospital in Delaware.

While returning home, Ms. Walton received a telephone call from a Maryland State

trooper, who asked her to meet him at Christiana Hospital. After dropping Davis off in Chester,

Pennsylvania, she went to Christiana Hospital and told the Maryland State trooper Alan Flaugher

that defendant had called her earlier that morning and asked her to pick him up because he had

been shot during a robbery and together with a Charles White, who, in actuality was her husband

Charles Davis, they drove defendant to the hospital in Delaware.

Subsequent thereto, Walton was interviewed by Philadelphia Homicide detectives arid

she initially lied to police lied. She told them that Davis, who she identified as her boy friend,

was in bed with her when the incident herein occurred, She also tried to hide the fact that her

husband had called her several times before she picked him up.

After being given Miranda warnings and waiving the rights covered by those warnings,

Walton proceeded to tell police that Davis had called her and asked her to come and pick him up.

When she arrived at the location Davis mentioned, he told her that, "'We got into some shit and

incarceration. She also was charged by Philadelphia authorities with, inter alia, hindering apprehension but those
charges were withdrawn.

s
 Jab bar got shot. "5 Walton conceded that she was not entirely truthful while giving her statement

because she was trying to protect her husband.

Trooper Flaugher also spoke to defendant, who said his name was Jabbar Rice, at

Christiana Hospital. The trooper summarized what defendant told him as follows:

The defendant told me that he was dropped off at a female's
house. He believed it was in Bear, Delaware, and was there for
approximately a half hour and then had walked outside of that
residence, and while he was outside he was approached by a black
male wearing dark clothing. This male pointed a gun at him and
said give it up and stole money from him, his watch and his wallet,
which contained his Pennsylvania identification card.

N.T. 9/25/14, 12.

After speaking to defendant Trooper Flaugher performed a records check of the name

defendant gave him and did not find anyone with that name. He returned to the hospital and

fingerprinted defendant. He then faxed the prints to the FBI, which advised him that the prints

matched those of defendant. After further investigation, the trooper learned that Ali Marsh was a

suspect in a shooting in Philadelphia and he related what he had learned in his discussions with

Walton and defendant.

Philadelphia Homicide Detective John Harkins was part of the team assigned to

investigate the crime herein. After checking local hospitals in Philadelphia for shooting victims

and coming up empty he widened his search and learned that a shooting victim had been

transferred from a hospital in Maryland to Christiana Hospital. The detective thereafter spoke to

Trooper Flaugher and was told about what the trooper had learned during his investigation of the

shooting of defendant. Detective Harkins and other detectives travelled to Christiana Hospital

and after obtaining a search warrant, he obtained blood samples from defendant for purposes of a

5
Defendant also used the name Jabbar.

6
 DNA comparison. The detective also received defendant's clothing from Trooper Flaugher and

observed a CT scan of the bullet lodged in defendant's ankle that indicated that the bullet was

6
10 .1 millimeters long.

Detective Harkins also interviewed Walton. It quickly became apparent that she was

lying about Davis having been home in bed with her after the detective checked her phone

records which indicated that she received several phone calls from him after the incident

occurred, When confronted with this information she said Davis had given his phone to

defendant.

A check of Charles Davis' and defendant's cell phone records showed that defendant

called Davis at 2:05 a.m. and that Davis was in the area of City Line A venue at the time. The

records then show that Davis' phone then travelled from that area to an area in Southwest

Philadelphia and then to an area where it was detected by a cell phone tower near where the

incident herein occurred. Following that the phone travelled back to Southwest Philadelphia,

then to Elkton, Maryland, where it was detected by a cell tower situated on the property of the

hospital defendant was driven to by Walton, and then to Chester, Pennsylvania.

Defendant's phone records minored those pertaining to Davis' phone and showed that he

called Davis and took the phone from Southwest Philadelphia to the area where the incident

occurred, back to Southwest Philadelphia, and then to Elkton, Maryland.

DISCUSSION

In his 1925(b) statement, defendant first asserts that this Court erred by denying his

Motion to Suppress the two draws of his blood because the affidavit of probable cause contained

6
The bullet was going to be removed from defendant's leg in a subsequent medical procedure but he checked
himself out of the hospital against medical advice on March 6, 2012, before that procedure could be performed.
Defendant's medical records indicated that he suffered a gunshot to his left leg that fractured his tibia and fibula and
that the bullet lodged in his ankle. The size of the bullet was consistent with a forty caliber projectile.

7
an averment not supported by any evidence. Specifically, in Paragraph 11 of the affidavit

contained information provided by Detective Harkins indicating that the detective reasonably

believed that defendant was shot inside the residence on a staircase by another suspect.

According to defendant, there was no information in any of the discovery material provided him

by the Commonwealth to substantiate the information provided by Detective Harkins that one

suspect was shot by a confederate.

"Probable cause to issue a search warrant has been defined as those facts reasonably

necessary to show (1) that the items sought are connected with criminal activity, and (2) that the

items will be found in the place to be searched." Commonwealth v. Gray, 469 A.2d 169, 173 (Pa.

Super 1983), aff'd, 503 A.2d 921 (Pa. 1985), quoting Commonwealth v. Kanouff, 462 A.2d 251,

252 (Pa. Super 1983 ). "In determining whether probable cause exists to issue a search warrant,

Pennsylvania applies the 'totality of the circumstances' test as set out in Illinois v. Gates, 462

U.S. 213 (1983), and adopted in Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985).

Commonwealth v. Sharp, 683 A.2d 1219, 1223 (Pa. Super 1996)." The duty of a court reviewing

the issuance of a search warrant is "to ensure that the magistrate had a substantial basis for

concluding that probable cause existed." Gray, 503 A.2d at 925.

Misstatements of fact in a search warrant affidavit will invalidate a search warrant and

require suppression only if they are deliberate and material. Commonwealth v. Gomolekoff, 910

A.2d 710 (Pa. Super. 2006); Commonwealth v. Mickell, 598 A.2d 1003 (Pa. Super. 1991) See

also, Commonwealth v. Zi1mnerman, 422 A.2d 1119, 1124 (Pa. Super. 1980). In

Commonwealth v. Antoszyk, 985 A.2d 975, 982 (Pa. Super. 2009), the Superior Court ruled that

a non-deliberate, nonmaterial misstatement did not by itself invalidate a search wan-ant and held

"it is well-settled that courts may uphold a warrant if an independent basis exists to support a

8
finding of probable cause; however, these cases also provide that a court must invalidate a search

warrant if the sole basis for finding probable cause is the material misstatements." To succeed

with such a claim, a defendant "must establish that the police (1) made a misstatement of fact,

which is both (2) deliberate and (3) material". Id. A material fact is defined as "one without

which probable cause to search would not exist." Zimmerman, 422 A.2d at 1124.

In Franks v. Delaware, 438 U.S. 154 (1978) the United States Supreme Court held a

defendant may attack the issuance of a warrant if based on untruthful information. Id. at 428 U.S.

at 171. In requiring a truthful basis for the issuance of a warrant, the Court explained:

[t]his does not mean "truthful" in the sense that every fact recited
in the warrant affidavit is necessarily correct, for probable cause
may be founded upon hearsay and upon information received
from informants, as well as upon information within the affiant's
own knowledge that sometimes must be garnered hastily .... To
succeed in attacking a warrant, a defendant must come forward
with "allegations of deliberate falsehood or of reckless disregard
for the truth, and those allegations must be accompanied by an
offer of proof."

Id. at 171, 98 S.Ct. 2674. Thus, "while the mere presence of an error in an affidavit of probable

cause supporting a search warrant does not invalidate the warrant, such a misstatement of fact

will invalidate the warrant if it is deliberate and material ( a material fact being one without which

probable cause to search would not exist)." Conunonwealth v. Baker, 24 A.3d 1006, 1018 Pa.

Super. 2011). Moreover, "[t]he question of whether a misstatement was deliberately made is to

be answered by the lower court." Id.

Finally, under Franks, a defendant who seeks suppression of evidence based on allegedly

false statements in an affidavit of probable cause has the burden of making a substantial

preliminary showing that the affidavit includes a false statement made knowingly and

intentionally or with reckless disregard for the truth. Once this prima facie showing is made

9
through affidavits and an offer of proof, only then is a defendant entitled to a hearing on the

issue. Franks, at 171-72. See also Commonwealth v. Miller, 518 A.2d 1187, 1193 (Pa. 1986)

(summarizing holding of Franks).

Relief should be denied with respect to this claim because defendant failed to meet his

burden of proving that Detective Harkins made an intentionally false statement or that he had a

reckless disregard for the truth. Based on the discovery of a blood trail from the door of the

residence where the incident occurred to the street and the absence of evidence indicating that

the blood trail was left by either of the victims or that anyone inside the house fired a gun, the

detective had a reasonable basis for assuming that the blood trail was left by a perpetrator of the

crime and that he was shot by another perpetrator. Thus, no error was committed by rejecting

this claim in denying defendant's motion to suppress.

In addition, even if defendant had met his burden of proving that Detective Harkins made

a material misrepresentation, relief was properly denied him because the remaining information

contained in the affidavit was more than sufficient to establish probable cause. It clearly

provided the magistrate with sufficient information to conclude that defendant likely was a

source of the blood trailing from the victims' residence. Accordingly, it is respectfully suggested

that defendant be denied relief with respect to this claim.

Next, defendant raises two claims involving the admission of evidence over the objection

of the defense. "As a general rule, questions concerning the admissibility of evidence are

committed to the sound discretion of the trial judge, whose rulings will not be disturbed on

appeal absent an abuse of that discretion." C01m11onwealth v. Reed, 990 A.2d 1158, 1167 (Pa.

2010). An abuse of discretion is not merely an error in judgment but a gross misapplication of

10
the law, manifestly unreasonable judgment, or demonstrable bias or partiality. Commonwealth

v. Kubiac, 550 A.2d 219, 223 (Pa. Super. 1988).

In his first attack on a ruling made by this Court defendant asserts that this Court

committed an abuse of discretion by overruling an objection to the introduction of certain

photographs in evidence. (N.T. 9/23/14, 175-185). These photographs, marked Exhibits 1-S, 1-

NN, 1-QQ, and 1-UU, should not have been admitted in evidence, according to defendant,

because they "were unnecessarily inflammatory and could only have served to prejudice the

jurors against defendant." Defendant's Supplemental l 925(b) Statement, Issue 2.

With regard to the admission of photographs, the Court in Commonwealth v. Patterson,

91 A.3d 55 (Pa. 2014) stated:

In determining whether to admit a photograph or videotape of a
murder victim, a trial court must engage in a two-step analysis.
First, the court must determine whether the photograph is
inflammatory. If it is not, the photograph may be admitted if it has
relevance and can assist the jury's understanding of the facts. If the
photograph is inflammatory, the court must determine whether the
essential evidentiary value of the photograph outweighs the
likelihood that the photograph will improperly inflame the minds
and passions of the jury.

Patterson, 91 A.3d at 67 ( citation omitted).

Our Supreme Court has noted:

A criminal homicide trial is, by its very nature, unpleasant, and the
photographic images of the injuries inflicted are merely consonant
with the brutality of the subject of inquiry. To permit the disturbing
nature of the images of the victim to rule the question of
admissibility would result in exclusion of all photographs of the
homicide victim, and would defeat one of the essential functions of
a criminal trial, inquiry into the intent of the actor. There is no
need to so overextend an attempt to sanitize the evidence of the
condition of the body as to deprive the Commonwealth of
opportunities of proof in support of the onerous burden of proof
beyond a reasonable doubt.

11
Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (quoting Commonwealth v. McCutchen,

454 A.2d 547, 549 (Pa. 1982)).

Instantly, this Court took great care to admit only what was necessary to show the

location of the wounds and the blood smears. First, photograph S-1, which was a photograph of

the decedent, was a black and white photograph wherein the decedent's face was blacked out,

was introduced to establish specific intent to kill. (N. T. 9/23/14, 1 78-180). Because the

photograph was black and white and the question of intent was not immediately apparent from

the evidence, it was clear to this Court that the probative value of the sanitized photo outweighed

any prejudicial effect it may have had on the jury.

The remainder of the photographs depicted blood stains found inside and on the exterior

of the victims' residence. (N.T. 9/23/14, 181-183). These photographs were clearly relevant to

show the movement of the defendant and the victims during the incident. Moreover, the

photographs were not overly gruesome or inflammatory and it was highly unlikely that showing

the jury the photographs would prevent it from making an objective review of the evidence.

In conclusion, the photographs in this case enhanced the jury's full understanding of the

crime and therefore, their probative value outweighed any inflammatory effect they may have

had on the jury. Accordingly, no relief should be forthcoming with respect to this claim.

Third, defendant complains that this Court c01m11itted an abuse of discretion when it

overruled an objection to testimony indicating that Charles Davis told Nicole Walton that, '"We

got into some shit and Jabbar got shot." (N.T. 9/24/14, 57-59). Defendant asserts that this Court

should have sustained an objection to this testimony because it was hearsay inadmissible under

any exception to the hearsay rule.

12
 The Pennsylvania Rules of Evidence recognize the co-conspirator's exception to the

hearsay rule, which applies when a statement is offered against an opposing party and the

statement was made by the party's co-conspirator during and in furtherance of the conspiracy.

Pa.RE. 803(25)(E) (statement offered against party that was made by co-conspirator of party

during course of conspiracy and in furtherance of it is not excluded by hearsay rule);

Commonwealth v. Zdrale, 608 A.2d 1037, 1039 (Pa. 1992) ("The co-conspirator exception

allows the introduction of statements made by a co-conspirator, if they were made during the

conspiracy, in furtherance thereof, and where there is other evidence of the existence of the

conspiracy."). See generally, Commonwealth v. Lambe1i, 603 A.2d 568, 575 (Pa. 1992)

("inculpatory statements made by co-conspirators in their own presence following a crime have a

strong indicia of spontaneity and reliability so as to comport with confrontation requirements")

(citation omitted); Conunonwealth v. Timer, 609 A.2d 572, 575 (Pa. Super. 1992) ("During the

course of a conspiracy, each conspirator is considered the agent of the other, and thus a statement

by one is an admission by all.").

With respect to the introduction of evidence under the co-conspirator exception, the

Commonwealth is only required to prove the existence of a conspiracy by a fair preponderance

of the evidence. Commonwealth v. Pinkins, 525 A.2d 1189, 1191 (Pa. 1987). "[A]conspiracy,

for purposes of the co-conspirator exception, may be inferentially established by showing the

relation, conduct or circumstances of the parties." Id.

In addition, the law is clear that a conspiracy may include statements made during flight

or during the course of concealing evidence. See, e.g., Commonwealth v. Chester, 587 A.2d

1367, 1375 (Pa. 1991) (where concealment of evidence was part of conspiracy, co-conspirator

statements admissible), cert denied, 502 U.S. 959 (1991); Commonwealth v. Smith, 513 A.2d

13
 1371, 1375 (Pa. 1986) (statement made by co-conspirator in course of flight from crime properly

admitted under exception to hearsay rule permitting admission of declaration of co-conspirator),

cert. denied, 480 U.S. 951 (1987); Commonwealth v. Coccioletti, 425 A.2d 387, 392 (Pa. 1981)

(statements "made in the course of concealing evidence and in furtherance of the common

design" properly admitted under co-conspirator exception); Commonwealth v. Basile, 458 A.2d

587, 591 (Pa. Super. 1983) ("[T]he fact that the 'central objective' of the conspiracy has been

nominally attained does not preclude the continuance of the conspiracy. Where there is evidence

that the conspirators originally agreed to take certain steps after the principal objective of the

conspiracy was reached, or evidence from which such agreement may reasonably be inferred, the

conspiracy may be found to continue."); Commonwealth v. Cofer, 390 A.2d 1363, 1365 (Pa.

Super. 1978) ("an act such as flight from the scene of a crime by one co-conspirator ... must

rightfully be considered part of the [r]es gestae of the conspiracy and, in furtherance thereof').

Here, a review of the record clearly establishes that the Commonwealth presented

sufficient evidence to prove by a preponderance of the evidence that defendant and Davis entered

into multiple conspiracies that included robbing the victims and hindering their apprehension

given their activities following the commission of the crime, which included evading authorities

and seeking treatment for defendant's gunshot wound.7 Davis made the remark in the course of

having Walton drive defendant to a hospital so that he could obtain treatment for the gunshot

wound he suffered during the incident. Thus, the admission of testimony in question was

7
The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Commonwealth v. Carter, 416 A.2d 523, 524 (Pa. Super. 1979);
Commonwealth v. Anderson, 402 A.2d 546, 549 (Pa. Super. 1979); Commonwealth v. Henderson, 378 A.2d 393,
398 (Pa. Super. 1977). "The crime by its very nature is frequently not susceptible of proof except by circumstantial
evidence. 'A conspiracy may be inferentially established by showing the relationship, conduct or circumstances of
the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a
corrupt confederation has in fact been formed.' Commonwealth v. Horvath, 144 A.2d 489, 492 (Pa. Super. 1958)."

14
properly admitted because it was made while Davis was attempting to facilitate his and

defendant's flight and for the purpose of concealing evidence of the cnme. See, e.g.,

Conunonwealth v. Dreibelbis, 426 A.2d 1111, 1115-16 (Pa. 1981) (object of conspiracy, which

was murder, did not terminate conspiracy, and in their flight and efforts to conceal their

identities, conspirators acted in furtherance thereof, thereby providing no obstacle to admission

of certain co-conspirator's inculpatory statements); Coccioletti, 425 A.2d at 392 ("declarations . .

made in the course of concealing evidence and in furtherance of common design of evading

capture" properly admitted under co-conspirator exception to hearsay rule). Therefore, the

statement was properly admitted in evidence.

Even had the testimony in question been erroneously admitted, it is submitted that relief

should still be denied defendant because the resulting error was harmless. A review of the

remaining evidence presented at trial was more than sufficient to establish defendant's guilt

given that it established that defendant clearly had been at the scene of the crime, that he was

shot there, and that he sought treatment for his wounds. See, e.g., Commonwealth v. Rivera, 773

A.2d 131, 138-39 (Pa. 2001) (improper admission of co-defendants' statements was harmless

error in light of the overwhelming evidence against defendant, which included the testimony of

two eyewitnesses, who identified him as the shooter); Commonwealth v. Miles, 681 A.2d 1295,

1301 (Pa. 1996) ("considering the overwhelming evidence of Miles' guilt, including his

confession and eyewitness testimony, it is clear beyond a reasonable doubt that the error is

harmless"). Accordingly, for all of the foregoing reasons, defendant's claim with respect to

these issues should be denied.

In his penultimate claim, defendant argues that this Court committed an abuse of

discretion when it refused to grant a mistrial after an attorney in the court room asked defense

J 5
counsel why he cross-examined Nija Pasture when defense counsel completed his cross-

examination of her. (N.T. 9/25,12, 136-139). Defendant submits that a mistrial should have

been granted because the jury may have heard counsel's remark thereby prejudicing defendant.

The remedy of a mistrial is required "only when an incident is of such a nature that its

unavoidable effect is to deprive the appellant of a fair and impartial tribunal." Commonwealth v.

Johnson, 719 A.2d 778, 787 (Pa. Super. 1998) (en bane), quoting Commonwealth v.

Montgomery, 626 A.2d 109, 112-113 (Pa. 1993 ). The decision granting or denying a motion for

a mistrial is reviewed under an abuse of discretion standard. Commonwealth vs. Lettau, 955

A.2d 360 (Pa. Super. 2008), reversed on other grounds, 986 A.2d 114 (Pa. 2009). An abuse of

discretion "is not merely an error of judgment," but a ruling that is "manifestly unreasonable, or

the result of partiality, prejudice, bias, or ill-will." Conm1onwealth v. Chambers, 685 A.2d 96,

104 (Pa. 1996).

There is no question that an extraneous influence may compromise the impartiality and

integrity of the jury. See Caiier by Cmter v. U.S. Steel Corp., 604 A.2d 1010, 1015-16 (Pa. 1992)

(plurality). The relevant inquiry is whether the extraneous influence caused "a reasonable

likelihood of prejudice." Id. at 1016; see also Commonwealth v. Bradley, 459 A.2d 733, 739 (Pa.

1983) (requiring showing that contact between member of the jury and court officer resulted in

"a reasonable likelihood of prejudice" to defendant.). In making the "reasonable likelihood of

prejudice" determination, the comi must consider: "(1) whether the extraneous influence relates

to a central issue in the case or merely involves a collateral issue; (2) whether the extraneous

influence provided the jury with information they did not have before them at trial; and (3)

whether the extraneous influence was emotional or inflammatory in nature." Caiier, 604 A.2d at

1017 (footnote omitted). The burden is on the party claiming prejudice. Id.

16
 While the comment herein was inappropriate, defendant failed to demonstrate that there

was a reasonable likelihood that it prejudiced him. While this Court heard the comment, it is

unlikely that the jury did because it was made while the jury was being escorted out of the court

room. Moreover, the defense never requested a colloquy of each of the jurors so his claim that

the jurors were influenced by the remark rests on pure speculation. In addition, the remark was

innocuous and did not concern a central issue in the case. Based on the foregoing, it is therefore

suggested that defendant's assertion that this Court committed an abuse of discretion when it

denied his motion for a mistrial be deemed lacking in merit.

Defendant lastly contends that this Court "erred when it denied by operation of law

defendant's post-sentence motion for a new trial and/or an arrest of judgment because the

evidence was insufficient to convict appellant of first degree murder and the other charges,

further the jury verdict was against the weight of the evidence." Defendant's Supplemental

Pa.R.A.P. 1925(b) Statement of Matters, Issue 5. It is suggested that this claim be deemed

waived because it consists of mere "boilerplate" and is too vague for this Court to ascertain what

defendant is asserting, Specifically, it fails to specify why the evidence is insufficient or against

the weight of the evidence.

[W]hen issues are too vague for the trial court to identify
and address, that is the functional equivalent of no concise
statement at all. Rule 1925 is intended to aid trial judges in
identifying and focusing upon those issues which the parties plan
to raise on appeal. Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.
Super.2002). Thus, Rule 1925 is a crucial component of the
appellate process. Id. "When the trial court has to guess what
issues an appellant is appealing, that is not enough for meaningful
review." Id., citing Dowling, supra.

17
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) (en bane) (citation omitted). In

Commonwealth v. Manley, 985 A.2d 256 (Pa. Super. 2009), appeal denied, 606 Pa. 671, 996

A.2d 491 (2010), the Court stated:

In Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.
2008), this Cami stated, "[i]f Appellant wants to preserve a claim
that the evidence was insufficient, then the 1925(b) statement
needs to specify the element or elements up on which the evidence
was insufficient. This Cami can then analyze the element or
elements on appeal."

Manley, 985 A.2d 261-262. "As this Cami stated in Williams, the 1925(b) statement is required

to determine '[w]hich elements of which offense[s] were unproven? What part of the case did he

Commonwealth not prove?"' Manley, 985 A.2d at 262, quoting Williams, 959 A.2d at 1257.

Similar waiver rules apply to vague weight of the evidence claims set forth in l 925(b)

statements. See Commonwealth v. Seibe11, 799 a.2d 64, 62 (Pa. Super. 2002) (appellant's

weight of the evidence issue waived for having filed a vague Rule l 925(b) statement, to wit,

"[t]he verdict of the jury was against the weight of the credible evidence as to all charges.")

If this Court's view that defendant's claims be deemed waived is not adopted, review

should be denied in any event because a review of the claims establishes that they both lack

merit. With respect to his sufficiency claim, defendant asserted in his post-sentence motion that

the evidence was insufficient to sustain his myriad convictions because no one saw him enter the

victims' residence, there was no eyewitness testimony, the testimony was inconsistent and

contradictory regarding defendant's actions following the crime's commission, the verdicts rest

on speculation and conjecture regarding defendant's involvement in the crime, and the verdict

finding defendant participated in the incident herein rests on speculation and conjecture.

Although defendant phrased these assorted claims as challenges to the sufficiency of the

evidence, in actuality, many of defendant's assertions apply to weight of the evidence claims. In

18
Commonwealth v. Brown, 52 A. 3d 1139 (Pa. 2012), the Supreme Cami intimated that

sufficiency claims predicated on mere inconsistencies in the testimony are generally to be

regarded not sufficiency of evidence claims but claims involving challenges to the weight of

evidence. Consequently, those contentions challenging the reliability of the testimony or the

credibility of the witnesses do not entitle defendant to relief on sufficiency grounds

Although many of the assertions defendant claims renders the evidence insufficient are

more suited to claims challenging the weight of the evidence, this Cami recognizes that there is a

body of law holding that the evidence is insufficient when the "evidence offered to support a

verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure

conjecture .... " Commonwealth v. Karkaria, 533 Pa. 412, 419, 625 A.2d 1167, 1170 (1993); See

also Commonwealth v. Farguarson, 354 A.2d 545, 550 (Pa. 1976). Nevertheless, the principle

enunciated in these cases, has been limited to instances where the evidence presented by the

party bearing the burden of proof is either so unreliable or contradictory so as to render any

verdict predicated thereon the result of conjecture or surmise. Farguarson, 354 A.2d at 550;

Conm10nwealth v. Holmes, 406 A.2d 510 (Pa. 1979). Assuming that defendant is relying on this

body of law to support his claim, insofar as his 1925(b) statement does not so indicate, he still

would not be entitled to any relief.

In assessing the sufficiency of evidence, the court must view the evidence in the light

most favorable to the verdict winner - in this case, the Commonwealth. Commonwealth v.

Boczkowski, 846 A.2d 75, 80 (Pa. 2004). Both direct and circumstantial evidence, along with all

reasonable inferences arising therefrom from which the finder of fact could properly have based

its verdict, must be accepted as true and sufficient to support the challenged conviction.

Commonwealth v. Perez, 931 A.2d 703, 706-7 (Pa. Super. 2007); Commonwealth v. Johnson,

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719 A.2d 788 (Pa. Super. 1998), appeal denied. The finder of fact may believe all, part, or none

of the evidence regarding the question of whether reasonable doubt existed, and the facts and

circumstances need not be incompatible with the defendant's innocence. Commonwealth v.

Derr, 841 A. 2d 558, 559 (Pa. Super. 2004). Finally, a mere conflict in the evidence does not

render the evidence insufficient because it is the duty of the fact finder to determine the weight to

be given the testimony and the jury may believe all, part or none of the evidence.

Commonwealth v. Walter, 849 A.2d 265, 267 (Pa. Super. 2004) (citing Commonwealth v.

Verdekal, 506 A.2d 415 (Pa. Super. 1986); Commonwealth v. Whitfield, 380 A.2d 362 (Pa.

1977)).

Instantly, the evidence was not so contradictory or inconsistent to call into question the

reliability of the verdict. The evidence presented by the Commonwealth clearly demonstrated

beyond a reasonable doubt that the defendant willfully and deliberately acted with a specific

intent to kill the victim. In addition, it proved, albeit circumstantially, beyond a reasonable doubt

that defendant was inside the victims' residence and that he was a participant in the gruesome

events that occurred therein. First, there was DNA evidence collected at the scene that matched

defendant's DNA. Second, the evidence proved that two guns were used during the commission

of the crime, that two individuals participated in it, and that a bullet matching the bullets fired

from one of those guns rested in defendant's leg. Third, defendant's actions in the minutes and

hours after the crime evince consciousness of guilt. That evidence included his flight to

Maryland, the creation of a story to explain the gunshot wound to his leg, his flight from the

hospital against medical advice, and his frequent change of places to stay. Fourth, phone records

placed phones registered to defendant and his co-defendant in close proximity to one another and

in the area of the incident before, during, and following the incident. Finally, both defendant's

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co-defendant and defendant himself conceded that they had run into a problem when queried

about defendant's leg injury. All of this evidence was more than sufficient to sustain his

conviction.

In addition, the law is clear that flight can be used as a factor in assessmg guilt.

Commonwealth v. Davalos, 779 A.2d 1190, 1194(Pa. Super. 2001) (a fact finder can consider

flight indicative of a consciousness of guilt). Moreover, "' [t]here is no requirement that a

homicide ... be proven by eyewitness testimony."' Commonwealth v. Lee, 626 A.2d 1238, 1240

(Pa. Super. 1993) (citation omitted); Commonwealth v. Hardcastle, 546 A.2d 1101, 1107-08 (Pa.

1988), cert. denied, 493 U.S. 1093 (1990) (same). Also, "[c]ircumstantial evidence itself can be

sufficient to prove any element or all of the elements of a criminal homicide." Santiago, 980

A.2d 659, 662 (Pa. Super. 2006). In Santiago, supra, 980 A.2d at 663, the Court held that the

totality of evidence, although circumstantial, was sufficient to find the accused guilty of first

degree murder and related offenses because it established that he argued with the victim over the

victim's refusal to let him hold a gun, that a neighbor heard two shots, and then saw defendant

walk out of victim's house, that the victim was discovered on a couch with gunshot wound to

head, and that defendant asked another individual to hold a gun for him. A similar ruling was

issued in Hardcastle, 546 A.2d at 1108, wherein despite the lack of eyewitness testimony, first-

degree murder convictions were upheld in view of the totality of circumstantial evidence

consisting of witnesses' testimony placing defendant outside by victim's car, then on victim's

porch with door open, and then running from victim's house after which the bodies of the victim

and a woman, both of whom had been repeatedly stabbed, were found.

In the instant case the evidence establishing guilt is as compelling and inculpatory, if not

more so, than in the above cited cases. Thus, if it should be determined that defendant did not

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 waive review of this claim because of his defective 1925(b) statement, it is suggested that he be

8
denied relief with respect to his sufficiency claim.

A claim that the verdict is against the weight of the evidence asserts that the verdict

shocks one's sense of justice. Commonwealth v. Vandivner, 962 A.2d 1170, 1177 (Pa. 2009).

"A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence

concedes that there is sufficient evidence to sustain the verdict; thus the trial court is under no

obligation to view the evidence in the light most favorable to the verdict winner."

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citation omitted). "An allegation

that the verdict is against the weight of the evidence is addressed to the discretion of the trial

court." Id. at 751-752. Finally, it is exclusively for the finder of fact to determine the credibility

of witnesses, and he may believe all, part, or none of the evidence presented. Commonwealth v.

Dreibelbis, 426 A.2d 1111, 1113 (1981 ).

Instantly, while there were some inconsistencies and contradictions in the testimony, they

do not shock the conscience or call into doubt the reliability of the verdict especially given, inter

alia, the blood found at the scene came from defendant, defendant's flight from Philadelphia

following the incident to receive treatment outside Philadelphia ostensibly to stay off the radar of

the police, and his comment to his then girlfriend that his gunshot wound occurred when

something went "bad." What the evidence showed that went "bad" was the scheme to enter the

Pauls' residence and rob them. In addition, the inconsistencies between the testimony given by

Mrs. Paul and her son regarding the descriptions they gave of the perpetrators likely was easily

8
In this Court's view, defendant's sufficiency claim did not require a discussion concerning whether the
Commonwealth's evidence particularly established each element of the crimes defendant was convicted of
committing. Other than baldly stating that there were no eyewitnesses and that the Commonwealth failed to prove
the material elements of the crime in his post-sentence motion, defendant failed to point to any specific element of
the crimes in question he believes was not established by the evidence beyond a reasonable doubt.

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reconciled by the jury given that Mrs. Paul was shot numerous times and left to die and her son

was traumatized by having to tend to his dying parents. Finally, defendant's explanation about

what he was doing in the area of the shooting was simply ludicrous. Thus, it is suggested that

defendant's weight of the evidence claim be denied because it is clear that the rejection of

defendant's weight claim did not amount to an abuse of discretion.

CONCLUSION

For the foregoing reasons, the defendant's assertions of error should be dismissed for lack
of merit and the judgment of sentence entered in this matter should be affirmed.

By the court,

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