Com. v. Campbell, G.

J-A14010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GRIFFIN T. CAMPBELL :
:
Appellant : No. 1810 EDA 2016

Appeal from the Judgment of Sentence January 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001793-2014

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

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 05, 2018

Appellant, Griffin T. Campbell, appeals from the judgment of sentence

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

trial convictions for thirteen counts of recklessly endangering another person,

six counts of involuntary manslaughter, and one count each of aggravated

assault and causing a catastrophe.1 We affirm.

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

facts and procedural history of this case. Therefore, we have no reason to

restate them.

Appellant raises the following issues for our review:

DID THE DELIBERATE FAILURE OF THE DISTRICT
ATTORNEY TO PRESERVE AND PREPARE A DETAILED
INVENTORY OF ALL OF THE PERSONAL, BUSINESS, AND
____________________________________________

1 18 Pa.C.S.A. §§ 2705; 2504; 2702; and 3302, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A14010-18

RELATED MARKET STREET WEST DEMOLITION AND
DEVELOPMENT DOCUMENTS OF THE IMMUNITY WITNESS—
ARCHITECT PLATO MARINAKOS, AND PROVIDE THAT
DETAILED LIST AND ALL NAMED RECORDS, AND E-DATA TO
THE CRIMINAL DEFENSE COUNSEL FOR APPELLANT—
CONSTITUTE A VIOLATION OF THE BRADY[2] RULE AND
DENY APPELLANT MATERIAL EXCULPATORY EVIDENCE AND
IMPEACHMENT EVIDENCE AGAINST THE KEY
COMMONWEALTH WITNESS?

DID THE DENIAL OF THE TRIAL COURT TO PERMIT DEFENSE
COUNSEL TO CALL WITNESSES UNDER SUBPOENA AND
AVAILABLE TO TESTIFY DENY APPELLANT A FAIR AND
IMPARTIAL TRIAL?

DID THE [TRIAL] COURT COMMIT REVERSIBLE ERROR BY
ITS RESTRICTIONS ON APPELLANT’S EXPERT WITNESS
TESTIMONY OF CLIFTON FORDHAM, REGISTERED
ARCHITECT?

WAS THE 15 TO 30 YEAR STATE CORRECTIONAL SENTENCE
IMPOSED BY THE [TRIAL] COURT EXCESSIVE, PUNITIVE,
AND IN CONTRADICTION TO THE JURY VERDICT OF
INVOLUNTARY MANSLAUGHTER A MISDEMEANOR OF THE
FIRST DEGREE?

DID BOTH THE SECRET TACIT AGREEMENT BETWEEN
RICHARD BASCIANO AND THOMAS SIMMONDS AND THE
OFFICE OF THE DISTRICT ATTORNEY NOT TO TESTIFY
UNTIL AFTER THE CRIMINAL CONVICTION OF APPELLANT
AND THE SUBSEQUENT CRIMINAL INDICTMENT AND
CONVICTION OF THE FORMER DISTRICT ATTORNEY, SETH
WILLIAMS, DENY APPELLANT A FAIR TRIAL?

WAS THE SUPERVISION OF THE MARKET STREET COLLAPSE
CRIMINAL GRAND JURY INVESTIGATION BY FRANK FINA,
ESQ.—AN ACTIVE PARTICIPANT IN THE “PORNGATE
SCANDAL”—A VIOLATION OF APPELLANT’S
CONSTITUTIONAL DUE [PROCESS] RIGHTS TO A FAIR AND
RACE NEUTRAL PROSECUTION?

____________________________________________

2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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J-A14010-18

(Appellant’s Brief at 8-9).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant’s first, second, third, fifth, and sixth issues

merit no relief. The trial court opinion comprehensively discusses and properly

disposes of those issues. (See Trial Court Opinion, filed March 10, 2017, at

2-3; 10-17) (finding: (pp. 2-3) initially, Appellant’s Rule 1925(b) statement

consists of narrative of Appellant’s complaints with several headings; format

of concise statement does not comport with Pa.R.A.P. 1925(b)(4); to extent

Appellant raises additional claims not addressed in court’s opinion, those

claims are waived for vagueness in concise statement; (1) (pp. 13-14)

Appellant failed to identify in his post-sentence motions or concise statement

those records of architect Plato Marinakos which Commonwealth allegedly

failed to disclose and were favorable to Appellant; Brady does not obligate

Commonwealth to secure evidence for Appellant but only to turn over

exculpatory evidence in its possession; (2) (pp. 12-13) court did not

categorically bar any witnesses who participated in investigations; rather,

court set forth restrictions on introduction of hearsay evidence, absent

applicable hearsay exception; Appellant could present evidence relevant only

to criminal charges against him and his culpability, and results of

investigations by properly qualified experts would be admitted only if they led

to opinions relevant to Appellant’s culpability; court excluded hearsay

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J-A14010-18

testimony or evidence directed solely to culpability of people not on trial and

irrelevant to charges against Appellant; court did not preclude Appellant from

calling any witnesses on his list for whom he proffered relevant, admissible

evidence; (3) (p. 15) record belies Appellant’s claim; court ruled in limine that

anything in Appellant’s expert’s report that pertained to architect Plato

Marinakos’ culpability was admissible and could be covered in full by

Appellant’s expert; court permitted defense to present freely any evidence of

culpability of any witness testifying at trial because culpability of witness could

arguably give rise to proper claim that witness was biased; because

Commonwealth called Mr. Marinakos as witness, court did not bar Appellant’s

expert’s opinion regarding Mr. Marinakos’ culpability; (5) (pp. 16-17)

Appellant offered no evidence to support his allegation of “tacit agreement”;

at hearing to set briefing schedule for Appellant’s post-sentence motions, both

prosecuting attorneys in this case categorically denied any such agreement;

defense counsel did not contend that prosecutors were being dishonest;

instead, defense counsel relied solely upon fact that two witnesses asserted

5th Amendment right to remain silent at Appellant’s trial but then testified in

civil depositions after Appellant’s trial; absent some offer of proof, Appellant

failed to establish “act by government” caused loss of those witnesses’

testimony at Appellant’s trial; further, Appellant does not indicate how those

witnesses would have provided material or favorable evidence to defense; (6)

(pp. 10-12) Appellant failed to raise claim of selective prosecution in pre-trial

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J-A14010-18

motion to dismiss, so this claim is waived; moreover, Appellant cannot show

that anyone not prosecuted was similarly situated to Appellant; other

Caucasian men involved in demolition project did not share Appellant’s

responsibilities as sole demolition contractor to supervise and direct day-to-

day operations of demolition worksite; prosecutor’s decision not to pursue

charges against those individuals is not basis for valid selective prosecution

claim; notwithstanding former ADA Fina’s supervision of grand jury

proceedings and involvement in exchange of racially offensive e-mails,

Appellant does not dispute that former ADA Fina’s role was limited to grand

jury investigation or that former District Attorney Seth Williams made ultimate

charging decisions in this case; Appellant has not alleged racial bias by Seth

Williams; even if Appellant’s averments of racial hostility regarding former

ADA Fina were correct, they would not have supported Appellant’s selective-

prosecution claim or entitled him to relief). Therefore, as to Appellant’s first,

second, third, fifth, and sixth issues, we affirm on the basis of the trial court’s

opinion.

In his fourth issue, Appellant argues the sentence the court imposed is

more consistent with one for a third-degree murder conviction than one for

involuntary manslaughter. Appellant claims the court ignored his prior record

score of one, which was not for a violent crime, and the jury’s acquittal on the

third-degree murder charges. Appellant insists the sentence of 15 to 30 years

was excessive and a de facto life sentence, given Appellant’s age and life

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J-A14010-18

expectancy. Appellant contends the trial court should also reconsider its

sentence in light of the verdict in Appellant’s civil trial, which took place after

Appellant’s criminal trial and sentencing, demonstrating Appellant was the

least culpable civil defendant.3 As presented, Appellant’s claim implicates the

discretionary aspects of sentencing. See Commonwealth v. Archer, 722

A.2d 203 (Pa.Super. 1998) (en banc) (holding claim that court misapplied

sentencing guidelines implicates discretionary aspects of sentencing);

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining

allegation that court failed to consider specific mitigating factor implicates

discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,

668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195

(1996) (stating claim that court imposed excessive and unreasonable

sentence without considering mitigating factors challenges sentencing court’s

discretion).

Challenges to the discretionary aspects of sentencing do not entitle an

____________________________________________

3 Within his sentencing issue, Appellant also appears to contest the sufficiency
of the evidence to sustain his aggravated assault conviction, claiming the
Commonwealth failed to prove that crime beyond a reasonable doubt and in
light of the jury’s acquittal on the third-degree murder charges. Nevertheless,
Appellant cites no law regarding the relevant standard and scope of review of
sufficiency claims, the elements for aggravated assault, or inconsistent
verdicts. Therefore, this precise claim is waived. See Commonwealth v.
Knox, 50 A.3d 732 (Pa.Super. 2012), appeal denied, 620 Pa. 721, 69 A.3d
601 (2013) (reiterating failure to cite to legal authority to support argument
results in waiver of claim on appeal). Further, the trial court thoroughly
explained its rationale for rejecting this claim in its opinion. (See Trial Court
Opinion at 17-23).

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J-A14010-18

appellant to review as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Before we review a discretionary aspect of sentencing

claim:

[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006).

When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial question

as to the appropriateness of the sentence under the Sentencing Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The requirement that an appellant separately set forth the reasons

relied upon for allowance of appeal furthers the purpose evident in the

Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision to

exceptional cases.” Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc) (emphasis in original) (internal quotation marks

omitted). Failure of the defendant to include the requisite Rule 2119(f)

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J-A14010-18

statement constitutes waiver of a challenge to the discretionary aspects of a

sentence if the Commonwealth objects to omission of the statement.

Commonwealth v. Bruce, 916 A.2d 657 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007).

Instantly, Appellant failed to include the requisite Rule 2119(f)

statement in his appellate brief, and the Commonwealth objected to this

omission. Consequently, Appellant’s challenge to the discretionary aspects of

his sentence is waived.4 See Pa.R.A.P. 2119(f); Bruce, supra. Accordingly,

we affirm Appellant’s other issues on the basis of the trial court’s opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/5/18

____________________________________________

4Further, the trial court thoroughly explained its sentencing rationale in its
opinion. (See Trial Court Opinion at 23-25).

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 Received
Circulated 08/20/2018 03:45 PM

MAR 10 2017
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App&alSIPOStll\al FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION

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GRIFFIN CAMPBELL II I llml 111 Ill I 11111111.
7917725061
OPINION

BRONSON, J. March 10, 2017

On October 19, 2015, following a jury trial before this Court, defendant Griffin Campbell

was convicted of one count of causing a catastrophe (18 Pa.C.S. § 3302), six counts of
. .
involuntary manslaughter (18 Pa.C.S. § 2504), thirteen counts of recklessly endangering another

person ("REAP") (18 Pa.C.S. § 2705), and one count of aggravated assault (18 Pa.C.S. § 2702).1

On January 8, 2016, the Court imposed an aggregate sentence of fifteen to thirty years

incarceration in state prison. Defendant filed post-sentence motions, which the Court denied on

May 13, 2016.

On January 26, 2017, in response to an order of the Court, defendant filed a Concise

Statement of Errors Complained of on Appeal ("Statement of Errors") pursuant to Pa.RAP.

1925(b). The Statement of Errors begins with eight numbered paragraphs that state defendant's

intention to file motions based upon newly discovered evidence. Under the Rules of Criminal

Procedure, "[a] post-sentence motion for a new trial on the ground of after-discovered evidence

must be filed promptly after such discovery." Pa.R.Crim.P. 720(C). Moreover, "after-discovered

evidence discovered during the direct appeal process must be raised promptly during the direct

I
Defendant was found not guilty of one count of conspiracy to cause a catastrophe (18 Pa.C.S. § 903), and six
counts of third degree murder (18 Pa.C.S. § 2502).
appeal process, and should include a request for a remand to the trial judge." Pa.R.Crim.P. 720

comment. As of the date of this Opinion, defendant has not filed a motion based on after-

discovered evidence, and has not sought a remand from the Superior Court for a hearing.

Accordingly, the averments in the Statement of Errors regarding newly discovered evidence are

not addressed further in this Opinion.2

The remaining paragraphs of the Statement of Errors, which are not numbered, consist of

a narrative of defendant's complaints with several headings. While the Court believes that this

format does not comport with the mandates of Pa.R.A.P. 1925(b), the Court has attempted to

glean defendant's claims from this pleading.3 Having done so, the Court believes that defendant

is claiming the following errors on appeal: 1) the Court erred in failing to dismiss the jury panel

as the panel was tainted by pre-trial publicity; 2) the Court erred in ruling that privately retained

counsel was required to pay for grand jury notes of testimony; 3) the Court erred in denying

defendant's motion to dismiss due to selective racial prosecution; 4) the Court failed to

investigate racial hostility by Frank Fina, the assistant district attorney who supervised the grand·

jury investigation; 5) the Court erred in prohibiting defendant from presenting numerous

witnesses, including officials who could testify to fact finding investigations of the collapse, such

as the Mayor, City Controller, and Inspector General of the City of Philadelphia; 6) the

Commonwealth failed in its affirmative duty to secure and produce all records of Plato

Marinakos, the architect working for the owner of the collapsed property, who had been

immunized by the Commonwealth; 7) the Commonwealth wrongfully withheld discovery from

2
Defendant did file, on March 2, 2017, a document entitled "Petition of Grffin [sic] Campbell to the Post
Conviction Relief Unit of the Office of the District Attorney .... " Although filed with the Clerk of this Court, this
petition sought relief only from the District Attorney, requesting that District Attorney Seth Williams take action on
this case prior to the expiration of his term in office. Petition at 128.
3
The Rule requires that the claims on appeal be set forth in a concise and non-redundant manner. Pa.R.A.P.
1925(b)(4). .

2
defendantregarding the fact finding investigations of various officials, and the Court erred in

failing to conduct an investigation into this matter; 8) the Court erred in restricting the testimony

of Clifton Fordham, an architect retained as an expert by the defense; 9) the Court failed to

investigate a secret, tacit agreement between the Commonwealth and witnesses Richard

Basciano (owner of the collapsed property) and Thomas Simmonds (property manager for

Basciano), pursuant to which these witnesses asserted the Fifth Amendment and refused to

testify at defendant's trial, but immediately thereafter testified freely in civil dispositions

regarding the collapse; 10) the jury's verdict for aggravated assault regarding victim Mariya

Plekan was not supported by sufficient evidence, and was 'inconsistent with the jury's other

verdicts; 11) the Court's sentence was excessive; and 12) the Court erred in denying all of

defendant's motions and objections noted on the record at all pre-trial hearings, motions, trial,

and post-trial motions.4 Concise Statement of Errors Complained of on Appeal ("Statement of

Errors") at unnumbered pages 2-7. For the reasons set forth below, defendant's claims are

without merit and the judgment of sentence should be affirmed. ·

I. FACTUAL BACKGROUND

At trial, the Commonwealth presented the testimony of Philadelphia Police Detective

Paul Guercio, Philadelphia Police Officers John Taggert and Robert Flade, FBI Agent William

Schute, Philadelphia Fire Department Chief John O'Neill, Delaware State Chief Medical

Examiner Dr. Gary Collins, Philadelphia Deputy Chief Medical Examiner Dr. Albert Chu, Plato

Marinakos, Timothy Lotspeich, Darryl Alston, Eric Sullivan, Nadine White, Rodney Geddis,

Felicia Hill, Albert McCarthy, John Higgins, Richard Roberts, Sarah Carle, Mariya Plekan,

4Defendant's claims have been reorganized and, in some cases, combined for ease of analysis. To the extent that
defendant seeks to raise claims in addition to those set forth above, they are waived for vagueness. See
Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008) (where a defendant makes a vague and
generalized objection on appeal that leaves the trial court to guess at his claims, those claims are deemed to have
been waived).

3
Rosemary Kreutzberg, Sean Benschop, Tynisha Gregory-Benschop, David Peraza, Kadiatu

Conteh, Robert Coleman, Maggie Davis, Nancy Winkler, Margarita Agosto, Ralph Pomponi,

and Nicholas DeJesse. Defendant testified on his own behalf and presented the testimony of

Philadelphia Police Officer Gary Harrison, Clifton Fordham, John Doherty, Scott Mulderig,

Perry Cocco, Frank Parker, Esther Jones-Woodrit, Elizabeth Minter, and Michelle Holden.

Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence

established the following.

Richard Basciano was the owner of a group of properties located on the 2100 and 2200

blocks of Market Street in Philadelphia. In 2011, Basciano, and his property holding company

STB, hired architect Plato Marinakos to assist in the development of that area. N.T. 10/1/15

(Vol. 1) at 19-23. Around September of 2012, Basciano enlisted the aid of Marinakos to

accomplish the demolition of several buildings as part of the development project. N. T. 10/1/15

(Vol. 1) at 25-28.

In order to find a demolition contractor, Marinakos solicited bids from four companies

that he had worked with before, including defendant's company. N.T. 10/1/15 (Vol. 1) at 28-30,

33-34. Defendant was, by far, the lowest bidder, and was hired. N.T. 10/1/15 (Vol. 1) at 40-49.

In May 2013, defendant began demolition of the buildings on the 2100 block, including the

building located at 2136 Market Street, which formerly housed a Hoagie City restaurant ("the

Hoagie City building"). N.T. 10/1/15 (Vol. 1) at 91-97. The HoagieCity building was a four-

story structure that shared a wall with the Salvation Anny Thrift Store immediately to its west

(the shared ''western wall"). The Salvation Anny Thrift Store was not owned by Basciano and

was still an ongoing business. N.T. 10/1/15 (Vol. 1) at 19�20; 10/6/15 at 161-162, 176, 186-187.

4
 As the demolition contractor, defendant was in control of the means and methods of

demolition. N.T. 10/1/15 (Vol. 1) at 57-59; 10/2/15 at 49; 10/5/15 at 193; 10/6/15 at 67; 10/7/15

at 72, 79; 10/8/15 at 56, 103; 10/9/15 at 20. Defendant was also fa charge of on-site safety. N.T.

10/1/15 (Vol. 1) at 62.

As defendant worked to demolish the Hoagie City building, defendant ordered the

removal of the horizontal floor joists, which defendant then resold for salvage, leaving the

building without lateral support. N.T. 10/1/15 (Vol. 1) at 96, 98�100, 107; 10/5/15 at 193;

10/6/15 at 16-18, 27-28; 10/7/15 at 194-196, 199-200. By removing the joists, defendant also

removed the ability for workers to take the building down by hand, as the internal floors were

now left without support. N.T. 10/5/15 at 183; 10/6/15 at 25; 10/8/15 at 59; 10/9/15 at 36.

Defendant was told multiple times that removing the joists was rendering the building unsafe.

N.T. 10/6/15 at 30-32, 39-40.5

In an attempt to continue demolition without using the internal floors, defendant sought

permission from the Salvation Army to continue the demolition work from the Salvation Army

building roof, but this permission was denied. N.T. 10/15/15 at 256-258, 274-275. Without

access to the Salvation Army roof, defendant informed Marinakos that he would have to tear the

building down from the inside, and so the demolition would be harder. N.T. 10/2/15 at 17.

Defendant could have rented a "high reach" to effectuate the demolition, but chose not to due to

costs.6 N.T. 10/2/15 at 21-25; 10/6/15 at 34, 36-37; 10/8/15 at 62-65.

Defendant hired co-defendant Sean Benschop in April to assist with the demolition. N.T.

10/2/15 at 49; 10/8/15 at 51-55. Benschop owned an excavator used in the demolition. N.T.

5
Buildings adjacent to occupied structures require top-down, floor by floor, hand demolition. N. T. 10/7/15 at 24-
25; 10/7/15 at 184-188, 201-202, 221, 260; 10/9/15 at 32-35.
6
A high reach is a mechanically lifted platform that enables construction workers to reach otherwise inaccessible
locations in order to complete their tasks.

5
10/8/15 at 45, 51-53, 208. While the Hoagie City building was being demolished, and after it
had been gutted, Benschop told Campbell that defendant would need a high reach in order to

knock down the building's western wall. N.T. 10/8/15 at 57-58, 61-62.

On June 2, 2013, defendant ordered Benschop to demolish the front wall of the Hoagie

City building with his excavator, removing one of the two walls supporting the western wall and

leaving the western wall almost completely free standing. N.T. 10/5/15 at 250; 10/6/15 at 73;

10/8/15 at 68-69. On that day, Benschop voiced concerns about the western wall, and defendant

indicated that he would take care of it. N.T. 10/5/15 at 220-221. On June 3, 2013, no demolition

work was done due to rainy weather. N.T. 10/1/15 (Vol. 1) at 113; 10/2/15 at 47.

Demolition work on the western wall continued on June 4, 2013, and included the partial

removal of the eastern wall by Benschop and the excavator. N.T. 10/8/15 at 75-77. Although

Benschop told defendant that it was dangerous to use the excavator at that time, defendant

directed Benschop to continue to use it. N.T. 10/8/15 at 75-78. That day, Marinakos visited the

site to take pictures and, seeing the freestanding western wall, told defendant, "You have to take

this wall down immediately." N.T. 10/1/15 (Vol. 1) at 113-119; 10/2/15 at 26-29. Defendant

told Marinakos that defendant would take care of it, and that he had men coming that night to get

up on the Salvation Anny roof to lower the wall. N.T. 10/2/15 at 28; 10/8/15 at 78, 80.

That night, defendant had several workers go up on the Salvation Army roof work on

removing parts of the wall. N.T. 10/6/15 at 75-80. These workers also informed defendant that

the wall was unsecure. N. T. 10/6/15 at 81-82. They were not able to significantly lower the

unsupported portions of the wall. N.T. 10/8/15 at 81. At this time, the wall was in an imminent

state of collapse and a gust of wind could have knocked it down. N.T. 10/9/15 at 46, 50.

6
 On the morning of June 5, 2013, demolition work at the site continued. N.T. 10/5/15 at

223-226. Although the unsupported wall loomed over the Salvation Army building, the thrift

store remained open for business. N.T. 10/6/15 at 161-162, 176, 186-187. Defendant called

Marinakos and falsely stated that the wall had been taken down. N.T. 10/2/15 at 36-37.

That same morning, defendant ordered Benschop to work on demolishing the eastern

wall with a pry tool in the jaws of the excavator. N.T. 10/1/15 (Vol. 2) at 37; 10/7/15 at 35;

10/8/15 at 82-83. Benschop began working on the eastern wall as directed and, at approximately

10:41 a.m., the western wall collapsed· and fell onto the Salvation Army building, collapsing the

roof into the store. N.T. 10/2/15 at 37-38; 10/5/15 at 226-231; 10/8/15 at 86-87. Immediately

after the collapse, defendant called Marinakos and told him to come to the scene. N.T. 10/2/15

at 37-38: Defendant also told Marinakos that the excavator was being used, that it hit the

western wall, and that the western. wall had collapsed. N.T. 10/2/15 at 3 9-40.

Rescue workers and emergency personnel arrived and attempted to search the

construction pile for survivors. N.T. 10/1/15 (Vol. 2) at 19; 10/7/15 at 145-160. The rescue

operation continued throughout the day and into the next morning. N.T. 10/1/15 (Vol. 2) at 20;

10/7/15 at 145-160. Defendant later called Marinakos and apologized for the collapse. N.T.

10/2/15 at 45. Benschop, who was injured in the collapse, was transported to the hospital by

another co-worker. N.T. 10/5/15 at 223-224, 243; 10/8/15 at 88-89.

As a result of the collapse, Kimberly Finnegan, Juanita Harmon, Roseline Conteh, Borbor

Davis, Ann Bryan, and Mary Simpson were killed. N.T. 10/1/15 (Vol. 2) at 21-23, 75-78, 81-84,

94-101. The collapse seriously injured Mariya Plekan, resulting in a year-long hospital stay,

multiple surgeries, and the amputation of both her legs. N.T. 10/1/15 (Vol. 2) at 23; 10/8/15 at

24-32. Rosemary Kreutzberg was trapped in the rubble, resulting in three days of

7
hospitalization. N.T. 10/8/15 at 35-39. The collapse also placed numerous other people at risk

as they were on or near the site at the time of the collapse. N.T. 10/6/15 at 166-168, 177-181,

187-192. Emergency medical personnel also assisted pedestrians who were off to the side of the

street at the time of the collapse. N.T. 10/1/15 (Vol. 2) at 15-16, 25-26, 28-30.

Following the collapse, defendant informed Marinakos that the excavator was being used

in the demolition just prior to the collapse. N.T. 10/2/15 at 39-40. However, in defendant's

initial interview with OSHA investigator Sarah Carle, defendant denied that the excavator was in

use at the time of the collapse. N.T. 10/7/15 at 286-287. Defendant did ultimately admit to

Carle that the excavator was running and was being used in demolition at the time. N.T. 10/7/15

at 287.

II. DISCUSSION

A. Jury Tainted by Pretrial Publicity

Defendant asserts that the Court "should have dismissed the entire [jury] panel" as the ·

unfavorable media attention generated by this case polluted the jury pool and rendered the panel

unable to render a neutral, fair, and unbiased verdict. Statement of Errors at unnumbered pages

2-3. However, defendant did not, at any time prior to trial or during jury selection, make a claim

that the jury pool was tainted and that the jury panel should be dismissed. Accordingly, this

claim is waived, See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal."); Commonwealth v. Miller, 80 A.3d 806, 811 (Pa.

Super. 2013) .

. B. Requirement to Pay for Grand Jury Notes of Testimony

Defendant next claims that, prior to the commencement of trial, defense counsel

requested a copy of the notes of testimony from the grand jury proceedings in this matter, and

8
that the Court erred in requiring that defendant pay for the notes in order to receive them.

Statement of Errors at unnumbered pages 3-4. This claim should be rejected for two reasons.

First, at no time did defendant request that he be provided with the notes free of charge.

While the Court did state that only court-appointed counsel was entitled to notes of testimony

without paying for them, defendant's privately retained counsel never argued that he was entitled

to have the government pay for the notes due to defendant's inability to afford them. To the

contrary, counsel advised the Court that because key grand jury witnesses had given extensive

depositions in the civil suit arising out of the collapse, and since counsel had the transcripts of all

of those depositions, 'and the exhibits from those depositions, he believed that he had sufficient

material for an effective defense without the grand jury transcripts. N.T. 9/21/2015 at 34-36.

Defendant cannot properly claim that the Court erred in denying a request that was never made.

See Miller, 80 A.3d at 811.

Second, the record establishes that any claim premised upon defendant's lack of access to

the notes was explicitly waived. The Court held an extensive ex parte colloquy with defendant

and defense counsel prior to trial to address trial counsel's election to forego ordering some of

the grand jury notes. N.T. 9/21/15 at 27-38. During this colloquy, defense counsel described in

detail his reasons for going forward without ordering the notes, including, as stated above,

counsel's access to the extensive discovery from the related civil case. N. T. 9/21/2015 at 34-36.

The Court then advised defendant that if he was not satisfied to proceed without the notes, the

Court would permit defendant to present a claim that he could not afford his defense, that he was

entitled to court-appointed counsel and all of the notes free of charge, and that the case should be

continued. N.T. 9/21/2015 at 37. Defendant declinedthat invitation and elected to proceed to

trial, leading the Court to find that defendant had made "a knowing, intelligent, and voluntary

9
relinquishment of his right to have court-appointed counsel and the documents paid for by the

Commonwealth." N.T. 9/21/2015 at 37. Neither defendant nor his counsel contested that

finding. N.T. 9/21/2015 at 37-38.

Accordingly, the record demonstrates that defendant and his privately retained counsel

made a joint strategic decision to proceed to trial without some of the grand jury notes, and that

defendant waived anyclaim based his failure to secure those notes. No relief is due.

C. Motion to Dismiss due to Selective Racial Prosecution

Defendant claims that he was denied his constitutional rights due to selective prosecution.

He premises this claim on the fact that he and co-defendant Benschop, both of whom are

African-American, were the only people to be criminally prosecuted for the collapse, while

numerous other culpable parties, all of whom were Caucasian, were not prosecuted. Statement

of Errors at unnumbered page 3.

It is well-established that a claim of selective prosecution is waived if it is not raised in a

pre-trial motion to dismiss. Commonwealth v. Butler, 601 A2d 268, 270-71 (Pa. 1991).

Defendant first raised his claim of selective prosecution in a post-verdict motion for

extraordinary relief. Accordingly, this claim is waived. Id.

Even if defendant had properly preserved his claim, he would still not be entitled to

relief. To establish a defense of selective prosecution, the defendant must prove that: 1) other

similarly situated individuals were not prosecuted for similar conduct; and 2) that the decision to

prosecute the defendant was based on an impermissible ground such as race, religion, the

exercise of some constitutional right, or any other arbitrary classification. Commonwealth v.

Olavage, 894 A.2d 808, 811 (Pa. Super. 2006) (citing Commonwealth v. Mulholland, 702 A.2d

1027 (Pa. 1997). Defendant must establish that he was prosecuted for an invalid reason, not that

10
 another guilty-party was not prosecuted. Commonwealth v. Childress, 799 A.2d 805, 811 (Pa.

Super. 2002).

Here, defendant cannot demonstrate that anyone who was not prosecuted was similarly

situated to the defendant. The defendant averred that the following white males shared

culpability for the collapse: "Plato Marinakos - Project Achitect, Richard Basciano - Owner,

\\"QVY1Q.� StmJl"IPf\d.s·..property Manager, Frank Cresci- Comptroller ofSTB, Alexander Wolfington

-Exclusive Real Estate Broker for the Project." Defendant's Post Verdict Motion Pursuant to

Pennsylvania Rules of Criminal Procedure 704(b) for Extraordinary Relief - Selective Racial

Prosecution During the Investigating Grand Jury Investigation and Indictment Process and the

Tacit Agreement Not to Indict Richard Basciano,'Jho-r,,fl.C. Simmonds and Frank Cresci at ,r 7.

None of these men shared defendant's responsibility, as the sole demolition contractor, to

supervise and direct the day-to-day operation of the demolition worksite. Where, as here, the

persons not charged had a distinct and different role in the events at issue, the prosecutor's

decision not to pursue charges against those persons cannot be the basis for a valid selective

prosecution claim. Olavage, 894 A.2d at 811.

· Accordingly, defendant's selective prosecution claim is both waived and without merit.

No relief is due.

D. Failure to Investigate Racial Hostility by Frank Fina

Defendant further asserts that the Court erred by dismissing, without judicial

investigation, defendant's post-trial motion alleging racial hostility by Assistant District

Attorney Frank Fina, who led the grand jury investigation into the collapse. Statement of Errors

at unnumbered page 7. This claim is without merit.

11
 It is true that Assistant District Attorney Fina supervised the investigating grand jury that

recommended charges against defendant. It is also true that Fina was allegedly involved in the

exchange of racially offensive emails. However, the Commonwealth averred, and defendant did

not dispute, that Fina's role was limited to his involvement in the grand jury investigation. It is

undisputed that Seth Williams, the District Attorney, made the charging decisions in this case.

Defendant has not, at any time, alleged racial bias on the part of Mr. Williams.

Accordingly, assuming arguendo that defendant's averments regarding Fina were correct,

they would not have supported defendant's selective prosecution claim, nor otherwise have

entitled defendant to relief. Therefore, the Court properly denied defendant's request to conduct

a 'judicial investigation" into the email exchanges involving Fina.

E. Prohibiting Defendant from Calling Witnesses at Trial

Defendant alleges that several investigations of the collapse were conducted by a variety

of officials, including the Mayor, the City Controller, the City Inspector General, and others. He

contends that the Court erred in barring him from calling witnesses to present the findings of

these investigations. Statement of Errors at unnumbered pages 4-5.

Defendant's claim incorrectly describes the ruling of the Court. After receiving

defendant's witness list, the Commonwealth moved in limine to exclude numerous public

officials that were included on that list who may have had involvement in an investigation of the

collapse. The Court did not categorically bar any witnesses who participated in the

investigations. Instead, it set forth the following restrictions.

First, the Court stated defendant would not be permitted to put on evidence unless it

complied with the rules of evidence. Therefore, hearsay would not be admissible absent an

applicable exception to the hearsay rule. N.T. 7/24/i"J,InS· at 41-54. For example, the Mayor

12
would not be permitted to be called as a witness to testify to the things that his Staff had reported

to him about the collapse, and which he may have commented on in a press conference. That

would be hearsay. N.T. 7/24/·tt,\S « 39-41.
Second, the Court would only permit evidence relevant to the criminal charges against

the defendant. Evidence of the culpability of other people and organizations would only be

admitted if relevant to defendant's own culpability. Therefore, any evidence of the culpability of

any witnesses called at trial would be admitted, since the arguable culpability of a witness could

give rise to a proper claim that the witness was biased. N.T. 7/24/20\( at 44. Also, evidence

that anyone had interactions with the defendant in a manner that might affect his mental state

would be allowed, such as what an L&I inspector or OSHA inspector may have done, or failed to

have done, after coming to the site and meeting with defendant. All such evidence would be

admissible. N.T. 7/24:f 10,� a.t 54.

Third, the results of investigations by properly qualified experts would be admitted if

they led to .opinions relevant to defendant's culpability
. in this case. Also, any regulations that

were in effect, or any policies and practices that may have been known by defendant would be

admitted as well. N.T. 7/24/ 1,.olS at 41-42. All that was excluded was hearsay or evidence

directed solely to the culpability of people and organizations not on trial that did not have

relevance to the criminal charges against defendant. N.T. 7/24/:'JAIS at 54-56.

The Court did not preclude defendant from calling any witnesses on his list for whom he

proffered relevant, admissible evidence. Accordingly, no relief is due.

F. Failure to Secure and Produce Records ofPlato Marinakos

Defendant asserts that the Commonwealth failed in its "clear affirmative duty to secure

and produce all of [Marinakos '] records, documents, emails and all discovery relating to the

13
 Market Street Collapse" once Marinakos was granted immunity, and that the Court failed to

correct this error. Statement of Errors at unnumbered page 5. In his post-sentence motions,

defendant argued that the failure of the Commonwealth to produce this material was a violation

of Brady v. Maryland, 373 U.S. 83, 87 (1963). This claim is without merit.

Under Brady, exculpatory evidence not disclosed to the defense will give rise to a due

process violation and will require a new trial if the exculpatory evidence is "material" either to

guilt or punishment. 373 U.S. at 87; see also Pa.R.Crim.P. 573(B)(l)(a) (specifying, as

mandatory discovery, "[a]ny evidence favorable to the accused that is material either to guilt or

to punishment, and is within the possession or control of the attorney for the Commonwealth").

Defendant must therefore establish three elements: "(1) suppression by the prosecution (2) of

evidence, whether exculpatory or impeaching, favorable to the defendant, (3) to the prejudice of

defendant." Commonwealth v. Tedford, 960 A.2d 1, 30 (Pa. 2008). If the police possess

evidence that is favorable to the defense, then the Commonwealth is deemed to be responsible

for its disclosure even if it is solely in the possession of the police. See Commonwealth v.

Lambert, 884 A.2d 848, 853 (Pa. 2005) (quoting Brady, 373 U.S. at 87).

Nowhere in defendant's Statement of Errors, or post-sentence motions, does defendant

. identify the records of Marinakos that were not disclosed and that were favorable to defendant.

See Defendant's Post-Sentencing Appeal and Motions per Rule 720, filed January 19, 2016,

unnumbered page 3 at 12; Statement of Errors at unnumbered page 5. Moreover, unless material

is in possession of the police, Brady does not obligate the Commonwealth to secure evidence for

defendant, but only to turn over exculpatory evidence in its possession. Since the

Commonwealth was under no obligation to secure any records of Marinakos, no relief is due.

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 G. Withholding Discovery and Failure of Court to Investigate

Defendant claims· that the Commonwealth wrongfully withheld discovery regarding the

results of fact-finding investigations of the collapse that were performed by "Investigation

Members," including the Mayor, the City Controller, the City Inspector General, and others.

Statement of Errors at unnumbered page 5. However, defendant did not, at any time prior to this

appeal, make this claim, nor seek relief from the Court concerning these alleged discovery

violations. Accordingly, this claim.is waived. See Pa.R:A.P. 302(a); Miller, 80 A.3d at 811.

H Restricting the Testimony ofDefense Expert Clifton Fordham

Defendant asserts that the Court committed error by "severely restrict[ing] the

Defendant[']s Expert Report and Trial Testimony of Board Certified Architect, Clifton

Fordham." Statement of Errors at unnumbered page 5. As .the basis for this claim, defendant

avers that Fordham placed primary responsibility for the safe demolition of the property on

architect Plato Marinakos, and that the Court denied defendant a fair trial by not permitting

Fordham to cover Marinakos' responsibility for the collapse in his testimony. Id

· This claim is refuted by the record. Contrary to defendant's avennents in the Statement

of Errors, the Court ruled in limine that anything in Fordham's report that pertained to

Marinakos' culpability was admissible and could be covered in full by Fordham. N.T. 7/24/15 at

44-48. As detailed in Section II.(E) above, the Court permitted the defense to freely present any

evidence of the culpability of any witnesses called at trial since the arguable culpability of a

witness could give rise to a proper claim that the witness was biased. Because Marinakos was a

Commonwealth witness, Fordham's opinion regarding Marinakos' culpability was not barred

from evidence. No relief is due.

15
 1 Failure to Investigate Tacit Agreement

Defendant asserts that the Court erred in denying his post-trial motions "concerning the

secret tacit agreement between the DA and the counsel for both witnesses.'' Statement of Errors

at unnumbered page 6. In his post-trial motions, defendant asserted that witnesses Richard

Basciano and Thomas Simmonds both asserted their right to remain silent under the Fifth

Amendment and refused to testify at defendant's trial, and yet testified in civil depositions about

the collapse after defendant's criminal trial was completed.7 Defendant averred that he was

denied the right to present the testimony of these witnesses due to a "tacit agreement" between

these witnesses and the District Attorney that they would not be prosecuted so long as they

refused to testify in the criminal case. Post Sentencing Appeal and Motions per Rule 720,

unnumbered page 3 at, 5; Defendant's Rule 720 Pennsylvania Rules of Criminal Procedure-

Post Sentencing Motion [Based on] Selective Racial Prosecution During the Investigating Grand

Jury Investigation and Indictment Process and the Tacit Agreement Not to Indict Richard

Basciano, -inow, CJ Simmonds and Frank Cresci at ,r 12. This claim is without merit.

"To establish a fourteenth amendment due process violation based on the denial of the

right to compulsory process, a defendant must establish more than the mere absence of

testimony. There must be a plausible showing that an act by the government caused the loss or

erosion of testimony that was both material and favorable to the defense." Commonwealth v.

Holloman, 621 A.2d 1046, 1054 (Pa. Super. 1993) (internal citations omitted). As such,

defendant must establish "some plausible nexus between the challenged governmental conduct

and the absence of certain testimony." Id (quoting United States v. 1-\o,.f��n)