Com. v. Spriggs, S.

J-S38011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STANLEY LEO SPRIGGS :
:
Appellant : No. 892 WDA 2017

Appeal from the Judgment of Sentence May 1, 2017
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0001878-2015

BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 22, 2018

Stanley Leo Spriggs appeals from the judgment of sentence of life

imprisonment without the possibility of parole imposed following his

convictions for, inter alia, second-degree homicide. We affirm.

On July 17, 2015, Appellant, along with Perry Henderson and Kenneth

Simmons, came to Johnstown in order to purchase drugs. Appellant, the

driver, saw an acquaintance, Robert Hinton, at a Sheetz convenience store.

Appellant called to Hinton, who walked over to the vehicle. Hinton testified

that he recognized Appellant, whom he knew as Jamil, from six or seven years

ago. The two engaged in small talk, and Appellant eventually asked Hinton

where he could buy heroin. Hinton, who was a drug addict at the time, stated

that he was uncomfortable with the request and pretended to send a text

message. However, Hinton’s girlfriend, overhearing the conversation, said

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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that she could arrange the purchase. She texted Peebles, whom Hinton

described as his occasional dealer.

The three defendants and Hinton, with Appellant driving, proceeded to

the Solomon Homes complex where Peebles was waiting with three bricks of

heroin. The negotiated price was $280 a brick. Hinton spoke to Peebles on

the phone and arranged the sale, which took place inside a stairwell. Since

Peebles did not know any of the three defendants, Hinton acted as an

intermediary. Hinton asked who would be bringing the money for the deal,

and Henderson and Simmons exited the vehicle. Appellant remained inside.

Hinton felt that something was not right, as the three defendants refused to

show Hinton that they had enough cash.

Hinton, Peebles, Henderson, and Simmons walked up the stairwell of

one of the buildings. Hinton testified that shortly after Peebles showed the

heroin, Hinton felt Simmons place a gun against the back of his head. He also

saw Henderson holding a gun to Peebles’ chest. Fearing for his life, Hinton

ran up the steps. He heard a scuffle, followed by a gunshot. Video

surveillance from inside the stairwell was played at trial, and shows Peebles,

Simmons, and Henderson struggling. Firearms are visible, but the parties fall

to the ground and the shooting is not visible. Simmons and Henderson fled,

taking the heroin with them. Hinton came back down the steps shortly

thereafter, and called 911.

Simmons accepted a plea to third-degree homicide in exchange for his

testimony. He stated that all three men agreed to commit the robbery.

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Appellant was convicted and sentenced as previously stated. Appellant

filed timely post-sentence motions, which were granted in part with respect

to vacating two of the sentences based on merger, and denied in all other

respects. Appellant filed a notice of appeal, and complied with the order to

file a Pa.R.A.P. 1925(b) statement. Appellant now raises fourteen issues for

our review.

[1] Whether the trial court erred and abused its discretion by
failing to suppress all evidence obtained and stemming from the
vehicle stop by police, as the stop violated the Pennsylvania and
United States’ Constitutions?

[2] Whether the trial court erred and abused its discretion by
failing to suppress DNA evidence obtained from the [Appellant],
as there was no probable cause to believe the [Appellant]’s DNA
would be found on any of the firearms found by police?

[3] Whether the trial court erred and abused its discretion by
failing to suppress the photo lineup identification of the
[Appellant]’s photo in the array presented was impermissibly
suggestive? [sic]

[4] Whether the trial court erred and abused its discretion by
failing to sever the [Appellant]’s trial from his co-defendant’s, as
the [Appellant] was prejudiced by the evidence presented against
his co-defendant, and also through his co-defendant’s
unsophisticated self-representation, particularly but not limited to
his cross[-]examination of Detective Wagner and Kenneth
Simmons, at their joint trial?

[5] Whether the trial court erred and abused its discretion by
improperly admitting into evidence inflammatory photographs of
the crime scene which depicted large amounts of blood?

[6] Whether the trial court erred and abused its discretion by
allowing Detective Lamantia to testify regarding his observations
of a surveillance video that was never shown to the jury or

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provided in discovery; thus, denying the [Appellant] his right to
cross-examination?

[7] Whether the trial court erred and abused its discretion by
permitting Detective Wagner to narrate/testify to his perceptions
regarding surveillance video from inside Building 5, as Detective
Wagner was not present during the depicted events and could not
attest to its accuracy?

[8] Whether the trial court erred and abused its discretion by
refusing to allow [Appellant] to play recordings of Kenneth
Simmons’s jail phone calls for use in and during his
cross[-]examination of Mr. Simmons?

[9] Whether the trial court erred and abused its discretion by
failing to grant [Appellant]’s Motion in Limine regarding Kenneth
Simmons’s testimony, after the Commonwealth failed to provide
in discovery the first statement made to police by Mr. Simmons
until four days before trial?

[10] Whether the trial court erred and abused its discretion by
failing to grant a new trial based on the lack of a unanimous
verdict, as one juror indicated the verdict was not unanimous
regarding their vote on the offense of Third Degree Murder?

[11] Whether the trial court erred and abused its discretion by
failing to grant a judgment of acquittal for the offenses of Robbery
and Homicide/Second Degree Murder, as the [Appellant] was
charged with Robbery as a principal, and there was no evidence
to show the [Appellant] committed Robbery as a principal actor.

[12] Whether the trial court erred and abused its discretion by
failing to modify the [Appellant]’s sentence because of the
disparity between the co-defendant’s sentences for Conspiracy to
Commit Robbery, as the evidence showed his co-defendant
Henderson was more culpable, yet the [Appellant] received a
lengthier sentence?

[13] Whether the trial court erred and abused its discretion by
failing to state adequate reasons for imposing lengthier sentences
on [Appellant] than on his co-defendant, resulting in unreasonably
excessive penalty for [Appellant]?

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[14] Whether the trial court erred and abused its discretion by
failing to consider the sentencing factors under 42 Pa.C.S.A. §
9721(b), resulting in aggravated range/statutory maximum
sentences for all counts that did not mandate a life sentence,
which were manifestly excessive?

Appellant’s brief at 8-13.1

II

Challenges to pre-trial rulings

Appellant’s first four issues concern the trial court’s denial of claims

raised in his pre-trial omnibus motion seeking to suppress evidence. We apply

the following principles.

In reviewing the denial of a suppression motion, our role is to
determine:

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
____________________________________________

1 The trial court and the Commonwealth both invoked the oft-quoted wisdom
of the late Honorable Ruggero Aldisert:

With a decade and a half of federal appellate court experience
behind me, I can say that even when we reverse a trial court it is
rare that a brief successfully demonstrates that the trial court
committed more than one or two reversible errors. I have said in
open court that when I read an appellant’s brief that contains ten
or twelve points, a presumption arises that there is no merit
to any of them ... [and] it is [this] presumption ... that reduces
the effectiveness of appellate advocacy.

Commonwealth v. Robinson, 864 A.2d 460, 480, n.28 (Pa. 2004) (quoting
Aldisert, “The Appellate Bar: Professional Competence and Professional
Responsibility–A View From the Jaundiced Eye of the Appellate Judge,” 11
Cap. U.L. Rev. 445, 458 (1982) (emphasis in original)). We agree with the
criticism. Appellant presents fourteen issues, some of which are frivolous.

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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. 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. Thus, the
conclusions of law of the courts below are subject to
our plenary review.

Commonwealth v. Mackey, 177 A.3d 221, 226 (Pa.Super. 2017) (quoting

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

A

Facts

Our scope of review is limited to the evidence presented at the

suppression hearing. In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). We

therefore set forth the facts adduced at the suppression hearing.

Officer Matthew Reihart of the City of Johnstown Police was dispatched

to respond to Solomon Homes, and was the first officer on scene. He saw

Peebles bleeding on the ground, unconscious and holding a firearm. Several

bystanders were on scene trying to render aid. Officer Reihart spoke to

Hinton, who supplied his name and stated that “he witnessed the incident and

that three black males, two older black males and a younger black male fled

in a four-door, green Sedan.” N.T. Suppression, 7/28/16, at 8. Hinton

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indicated that the vehicle was headed towards Altoona. Officer Reihart related

this information to Sergeant Gerald Stofko, who arrived shortly after Officer

Reihart. Id. at 9.

In turn, Sergeant Stofko testified that he spoke to an unidentified

female, who stated the actors “had fled in a dark green vehicle and they were

headed to the Altoona area.” Id. at 17. He confirmed that Officer Reihart

related the specific information from Hinton. Id. Sergeant Stofko then

contacted dispatch, and told the operator “to have surrounding departments

on the lookout for a dark green, four-door vehicle possibly with three black

males.” Id. at 18. The information was sent out by 911 dispatch at 2:25

a.m. Id. at 33. The vehicle was stopped at 2:31 a.m. by Officer Paul

Mummert.

B

Seizure

Appellant challenges the constitutionality of the traffic stop and the

evidence derived therefrom, which led to a search warrant and recovery of

evidence. Clearly, Appellant’s vehicle was seized by Officer Mummert.

An officer may stop and briefly detain a person for investigatory
purposes when that officer has “reasonable suspicion, based on
specific and articulable facts, that criminal activity may be afoot.”
Commonwealth v. Allen, 555 Pa. 522, 725 A.2d 737, 740
(1999). “[T]he fundamental inquiry is an objective one, namely,
whether the facts available to the officer at the moment of the
intrusion warrant a man of reasonable caution in the belief that
the action taken was appropriate.” Commonwealth v. Gray,
784 A.2d 137, 142 (Pa.Super. 2001) (citation omitted). We must
consider the totality of the circumstances, including such factors

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as “tips, the reliability of the informants, time, location, and
suspicious activity.” Id. (citing Commonwealth v. Freeman,
563 Pa. 82, 757 A.2d 903, 908 (2000)).

Mackey, supra at 229.

We begin our analysis by quoting Appellant’s argument in support of

reversal.

In the case at bar, Officer Stofko, one of the first officers to arrive
on scene, testified at the preliminary hearing that "somebody" told
us the actors left in a green four door Ford. This information was
provided to dispatch to be put out over the radio. Later, at the
motions hearing, Officer Stofko stated he spoke with an unnamed
woman, who stated similar information, but a registration plate
number, names/ages of the individuals, and the manner in which
the vehicle left was not provided. Furthermore, Officer Stofko
agreed he was not provided any indication the information was
reliable, or even that the witness saw the alleged crime. Notably,
the witness did not tell him what roadway the vehicle turned onto.

Officer Reihart received similar information from a witness, but
did not question the witness on his background, his possible
involvement with the crime, or the witness’s reliability.

The stop of the vehicle, the Ford Escort Mr. Spriggs was driving,
was unsupported by reasonable suspicion. Initially, Mr. Spriggs
has a legitimate expectation of privacy in the vehicle, as he was
the driver. The stop constituted an investigatory detention so it
must be justified by specific and articulable facts giving rise to a
suspicion of criminal activity. Officer Mummert, who performed
the vehicle stop, did not testify to observing any indication of
illegal activity himself. He simply received unverified information
over the radio that 3 black males in a green four door sedan were
involved in a shooting in Johnstown. This information was not
enough to show specific and articulable facts to suspect my [sic]
the individuals in car involved in criminal activity - they merely
match a description of a potential car/suspect involved in a crime,
a description given with no indication of where it came from or its
reliability.

Appellant’s brief at 26-28 (citations omitted).

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It is unclear what the precise nature of Appellant’s argument is. First,

he appears to suggest that the pertinent consideration is limited to the facts

that Officer Mummert2 himself knew, as he emphasizes that the information

received by him was “unverified.” Relatedly, he states that Sergeant Stofko,

who supplied the information to dispatch which was broadcasted to Officer

Mummert, knew only that “somebody” told him the information. Thus, taken

together, Appellant suggests that Officer Mummert’s stop was based on

unreliable information because he did not know its provenance.

However, Appellant’s argument omits any mention of Officer Reihart’s

testimony, and it is quite clear that Officer Reihart was told by Hinton, who

remained on scene, that the persons involved in the shooting were traveling

a particular direction in a dark green vehicle. Appellant fails to recognize that

it is well-settled that a police officer may validly rely on information related to

a fellow officer in effectuating a seizure. We summarized that law in

Commonwealth v. Chernosky, 874 A.2d 123 (Pa.Super. 2005) (en banc).

It is entirely permissible for an officer to engage in the
investigation of a suspect based on the observations of another
officer even when the officer conducting the investigation has not
been supplied with the specific facts needed to support the
seizure; however, the officer who made the observations must
have the necessary facts to support the ordered interdiction. See
United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83
L.Ed.2d 604 (1985) (police may conduct investigatory stop in
reliance on another police department’s wanted flyer as long as
flyer was issued based on articulable facts supporting reasonable
suspicion); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d
____________________________________________

2 Officer Mummert did not testify at the suppression hearing.

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794 (1972) (officer making warrantless arrest pursuant to order
from superior need not have probable cause for arrest provided
superior had information necessary to support probable cause to
order arrest). This precept flows from the realities of police
investigation, which often relies upon the cooperation of many
police officers.

Id. at 126.

Hensley was discussed by our Supreme Court in Commonwealth v.

Queen, 639 A.2d 443 (Pa. 1994), which Appellant cites as supporting his

argument. Therein, Officer Bryant of the Philadelphia Police Department

proceeded to a scene following a police radio request. When he arrived, three

detectives were standing behind a vehicle occupied by Queen. One of these

detectives, Mr. Mango, approached Officer Bryant and stated that Queen

“resembled a male wanted for robbery.” Id. at 444. Based on this

information, Officer Bryant seized Queen, which ultimately led to the recovery

of a firearm. Id. At the suppression hearing, the Commonwealth called only

Officer Bryant. Our High Court concluded that the Commonwealth was

required to call Detective Mango to sustain its burden, relying in part on

Hensley.

The rationale of [Whiteley v. Warden, 401 U.S. 560 (1971)],
and Hensley clearly supports the proposition that a stop and frisk
may be supported by a police radio bulletin only if evidence is
offered at the suppression hearing establishing the articulable
facts which support the reasonable suspicion. . . .

Applying the above principles to this record, it is clear that the
suppression court erred in refusing to suppress [Queen]’s weapon.
The suppression court assumed that Detective Mango possessed
the required facts to conduct an investigatory stop. At the
suppression hearing, Officer Bryant testified that Detective Mango

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did not tell him any of the pertinent facts from which Detective
Mango concluded that [Queen] was a suspected robber, only that
Detective Mango believed he was. Therefore, the suppression
court did not have a description of the robbery suspect or the
circumstances surrounding the robbery. Without any such
information, the suppression court was required to speculate as
to whether Officer Bryant had sufficient facts to establish a
reasonable suspicion.

Id. at 445–46 (emphasis in original).

Appellant’s citation to Queen is misplaced, as the Commonwealth

therein established nothing more than Detective Mango’s belief that Queen

was a robbery suspect. In effect, the Commonwealth asked the trial court in

Queen to accept the fact that Detective Mango would not instruct a fellow

officer to conduct an arrest in the absence of constitutionally adequate

information, without proving what that information was. This case stands in

stark contrast to Queen, as the Commonwealth called both Officer Reihart

and Sergeant Stofko. Therefore, the relevant consideration is whether those

men, who were the source of the pertinent knowledge, possessed reasonable

suspicion. This inquiry is no different than asking whether Officer Reihart,

based on his knowledge and information, would have been permitted to seize

the vehicle.

We conclude that the answer is yes. Contrary to Appellant’s argument

that the information was unreliable, Officer Reihart spoke to Hinton, who

identified himself and remained on scene. That fact alone is highly relevant.

See Commonwealth v. Hayward, 756 A.2d 23, 34 (Pa.Super. 2000) (“[I]f

an informer . . . identifies him or herself to the police, then there is an indicia

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of reliability attached to the tip, because the informant has placed himself or

herself at risk for prosecution for giving false information to the police if the

tip is untrue.”). This case is even stronger than an ordinary tipster case, as

Officer Reihart was not merely acting on Hinton’s assertion that a shooting

had occurred. The officer saw the aftermath of that shooting, as he observed

Peebles dying from a gunshot wound. There is no doubt that Officer Reihart

was justified in concluding, under the totality of the circumstances, that

criminal activity was afoot and that the persons in a dark green vehicle

heading towards Altoona were possible suspects. Therefore, Officer

Mummert, acting on his fellow officers’ directions, was permitted to seize the

vehicle that matched that description six minutes later for purposes of further

investigation. No relief is due.

C

Search Warrant

Following the vehicular stop, firearms were recovered in the trunk. The

Commonwealth executed a search warrant for Appellant’s DNA in order to

determine if it matched the DNA on the weapons. Appellant argues that there

was no probable cause. We adopt the trial court’s cogent analysis of this issue

as our own.

[A] totality of the circumstances test is utilized to evaluate
whether probable cause exists for the issuance of a search
warrant. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,
76 L.Ed.2d 527 (1983); adopted by the Pennsylvania Supreme
Court in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d
921, 925 (1985); Commonwealth v. Jones, 542 pa. 418, 424,

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668 A.2d 114, 116 (1995). "The information offered to
demonstrate probable cause to search must be viewed in a
common sense, nontechnical, ungrudging and positive manner."
Commonwealth v. Woods, 590 A.2d 1311, 1313 (Pa. Super.
1991). "It is based on a finding of probability, not a prima facie
showing of criminal activity." Id. "[Reviewing courts] must test
and interpret the affidavit in a realistic fashion, and the resolution
of doubtful or marginal cases should be largely determined by the
preference to be accorded to warrants." Commonwealth v.
Nycz, 418 A.2d 418, 422 (Pa. Super. 1980).

In the instant matter, [Appellant] was driving the subject vehicle
at the time of the traffic stop. Additionally, the Commonwealth
presented evidence that he drove the vehicle earlier in the day.
The guns were found in the trunk of the vehicle. As the
Commonwealth emphasizes, the driver of a car clearly has
dominion over the contents of the trunk. [Appellant] relies heavily
on the fact that he remained in the vehicle and was never seen
handling a weapon. However, because the guns were ultimately
located in the trunk of the vehicle, we find there was sufficient
probable cause to couple ownership or possession of the guns with
the driver of the vehicle. [Appellant]’s motion is without merit.

Suppression Court Opinion, 8/30/16, at 13-14.

D

Photo Array

Appellant’s fourth claim challenges the denial of his motion to suppress

Hinton’s identification, on the basis that the photo array containing Appellant’s

picture was unduly suggestive. Appellant maintains that his picture stood out

more than the others, as his photo

was emphasized more than the other photos used in the lineup.
See Exhibit 4, N.T. 7/26/16. In said photo, his lips, appear to be
much lighter than the other suspects’ photos. Id. Also, his beard
appears to be white, much more so than any other persons
depicted in the other photos.

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Appellant’s brief at 32-33. We recently set forth the principles applicable to

such challenges.

In deciding whether to admit contested identification evidence,
the trial court must consider: (1) the opportunity of the witness
to view the perpetrator at the time of the crime; (2) the witness’
degree of attention; (3) the accuracy of his prior description of the
perpetrator at the confrontation; (4) the level of certainty
demonstrated at the confrontation; and (5) the time between the
crime and confrontation. Commonwealth v. Moye, 836 A.2d
973, 976 (Pa. Super. 2003). “Suggestiveness in the identification
process is but one factor to be considered in determining the
admissibility of such evidence and will not warrant exclusion
absent other factors.”

The suppression court may suppress an out-of-court identification
only where, after considering all the relevant circumstances, “the
facts demonstrate that the identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Commonwealth v.
Kendricks, 30 A.3d 499, 504 (Pa. Super. 2011) (citation omitted
and emphasis added). The most important factor in addressing
the reliability of an identification is the witness’s opportunity to
observe the perpetrator at the time of the crime.
Commonwealth v. Edwards, 762 A.2d 382, 391 (Pa. Super.
2000).

Commonwealth v. Milburn, 2018 WL 3078669 at *5-6 (some citations

omitted, emphasis in original).

The court set forth the following with respect to its ruling that the photo

array was not suggestive.

[Appellant] alleges that his photograph is highlighted white in
comparison to the other five pictures. The Commonwealth agrees
that while this is true of the photocopied line-up that was provided
to [Appellant] in discovery, it is not true of the original array
showed to Hinton on the night in question.

We agree with the Commonwealth that while the quality of the
photocopies may be poor, the original line-up does not place any

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emphasis upon [Appellant]’s photo. Moreover, consistent with
case law, the suggestiveness of a photo array is dependent on the
ability of the witness to view the defendant. In the instant matter,
Hinton clearly testified that he knew [Appellant], albeit as Jamil,
that they met when Hinton was 18 years old, that they used to
"hang out," and that he would consider [Appellant] a friend.
Given this familiarity, Hinton clearly recognized [Appellant], and
identified him as such. Thus, the photo array was superfluous.
[Appellant]’s Suppression Motion must fail in this regard.

Suppression Court Opinion, 8/30/16, at 9-10.

We fully agree with the court’s analysis of the array. Even a cursory

glance at that exhibit establishes that the array is not suggestive. Indeed,

our independent review of the array required an examination of the

suppression hearing transcript to determine which of the pictures depicted

Appellant, as none of the pictures stands out more than any other.

Additionally, even if the array were unduly suggestive—and it plainly is

not—Appellant is not entitled to relief because Hinton had an independent

basis for the identification. Appellant initiated contact with Hinton due to their

prior relationship, and, as Hinton testified, he immediately recognized him.

As our Supreme Court observed in Commonwealth v. Smalls, 741 A.2d 666

(Pa. 1999), a prior relationship is an independent basis justifying the in-court

identification. “Since the witnesses were acquainted with appellant prior to

the commission of the crime, there is an independent corroboration that the

in-court identification was not tainted.” Id. at 679 (footnote omitted).

Finally, we note that Appellant never denied that he was present. In his

pre-trial motion to sever, Appellant set forth the following:

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[Appellant] avers his case is presently joined with his two co-
defendants for trial. [Appellant] avers the Commonwealth’s
evidence does not allege that [Appellant] took part in the actual
shooting, nor does it allege he was present in the actual building
in which the shooting took place. [Appellant] avers that the jury
will use evidence of his co-defendants’ participation in the
shooting to infer guilt on his part. The [Appellant] avers the jury
will be incapable of separating the evidence produced against him
and the evidence produced against his co-defendants. The
[Appellant] avers that he will be prejudiced by a joint trial because
of the aforementioned reasons.

Omnibus pre-trial motion, 1/26/16, at unnumbered 7-8 (paragraph breaks

omitted).

Appellant did not claim that his defense was incompatible with that of

his co-defendants, e.g. that he was not present at the scene of the crime. His

defense was that he remained in the car while the other men completed the

drug deal, and did not know of any plan to rob Peebles. In fact, his closing

argument conceded that he was probably guilty of arranging a drug deal. “I

would submit to you that the evidence showed that the only criminal mind

that Stanley had was for a conspiracy to possess drugs or that he aided in

setting up the drug transaction. And if they had charged Stanley with a drug

crime, I would probably tell you to find him guilty of that.” N.T., 2/21/17, at

7.

It is baffling to this Court that Appellant can now claim that he was

misidentified and that he is entitled to a new trial when (1) not one photograph

stands out more than the others in the array; (2) Appellant and Hinton were

friends, thereby providing an independent basis for identification, and (3)

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Appellant does not deny that he was present. This claim is not only meritless,

it is frivolous. We remind counsel that an appellate brief is not an exercise in

issue spotting, and direct his attention to the observations in footnote one,

supra, regarding effective appellate advocacy.

E

Motion to sever

As noted, Appellant filed a motion to sever his case from his co-

defendants. According to criminal procedural rules, a court may order

separate trials “if it appears that any party may be prejudiced by offenses or

defendants being tried together.” Pa.R.Crim.P. 583. “The decision whether

to sever the trials of co-defendants resides within the sound discretion of the

trial court and will not be disturbed on appeal absent a manifest abuse of such

discretion.” Commonwealth v. King, 721 A.2d 763, 771 (Pa. 1998) (citation

omitted).

As quoted supra, Appellant moved to sever because the Commonwealth

did not allege that he directly participated in the robbery and murder. On

appeal, Appellant continues that same argument. However, he adds that the

trial court failed to sever due to the fact that his co-defendant, Henderson,

represented himself pro se. He alleges that Henderson made numerous

mistakes and asked open-ended questions which permitted witnesses to

reiterate main points. “Mr. Henderson’s pro se defense was an utter failure,

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and doomed from the start, and [Appellant] should not have been subjected

to Mr. Henderson’s shortcomings.” Appellant’s brief at 38-39.

With respect to Henderson’s self-representation, we discern no error.

That issue was not presented to the trial court as a basis to sever, and the

trial court has no authority to sua sponte interfere with the presentation of

trial. We therefore decline to consider that aspect of Appellant’s argument.

What remains is Appellant’s claim that severance was warranted due to

potential confusion. Appellant states:

However, if at any point, any member of the jury confused which
defendants were alleged to have entered the building at Solomon
Homes with the witness R[ichard] H[inton], the prejudice to
[Appellant] is immense, simply because the potential culpability
for the actors alleged to have been in the building during the
shooting is much greater. There was no evidence showing
[Appellant] knew what actions Defendant Henderson and
Defendant Simmons were going to take inside the Solomon Homes
building. The risk that the jury will simply use evidence of the
Defendant Simmons and Defendant Henderson’s alleged
participation in the shooting against [Appellant] was too great for
the consolidated trial to have been fair to [Appellant].

Appellant’s brief at 36-37.

This argument not only attributes a remarkable degree of incompetence

to our juries, it ignores the applicable law. Regarding the possibility that the

jury may have been confused as to whether Appellant was actually in the

building for the murder, there was absolutely no confusion on this point, as all

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parties agreed that Appellant remained in the vehicle during the robbery.3

Unsurprisingly, Appellant fails to cite to any place in the record that could

possibly lead the jury to conclude otherwise.

Next, Appellant’s argument that “There was no evidence showing

[Appellant] knew what actions Defendant Henderson and Defendant Simmons

were going to take inside the Solomon Homes building,” militates in favor of

a joint trial, as our judicial system prefers a single determination of disputed

facts. We stated in Commonwealth v. Cole, 167 A.3d 49, 57 (Pa.Super.

2017), that “there is a universal preference for a joint trial of co-conspirators.”

As our Supreme Court explained in Commonwealth v.
Housman, 604 Pa. 596, 986 A.2d 822, 834 (2009), joint trials
are preferred where conspiracy is charged. Nevertheless,
severance may be proper where a party can establish the co-
defendants’ defenses are so antagonistic that a joint trial would
result in prejudice. However, the party seeking severance must
present more than a mere assertion of antagonism.

Id. (cleaned up).

Herein, Appellant and Henderson were charged as conspirators, and

therefore joint trials were favored from the outset. This principle even extends

to cases where there is a dispute as to who did what. ”In fact, it has been

asserted that the fact that defendants have conflicting versions of what took

place, or the extents to which they participated in it, is a reason for rather

____________________________________________

3For example, the Commonwealth stated in closing argument: “And this part
of the conspiracy, also testified by Mr. Simmons, Mr. Spriggs decides that he
doesn’t want to get out of the vehicle. He sends Mr. Simmons and Mr.
Henderson to go or further the conspiracy.” N.T., 2/21/17, at 46.

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than against a joint trial because the truth may be more easily determined if

all are tried together.” Commonwealth v. Chester, 587 A.2d 1367, 1373

(Pa. 1991). In this case, Appellant and Henderson’s defenses were not

conflicting, since both men maintained that there was no conspiracy to rob

Peebles. Appellant’s defense was that he remained in the vehicle while the

planned drug deal occurred, and Henderson asserted that he shot Peebles in

self-defense after the deal went wrong. Taken together, the trial court would

have committed an abuse of discretion in granting the motion to sever. While

Appellant deserves credit for crafting an argument that manages to defy both

logic and law, he does not deserve relief.

III

Evidentiary rulings

The following claims address the trial court’s decision to admit various

pieces of evidence.

A

Photographs

Appellant alleges that the trial court abused its discretion in admitting

three particular photographs, which he states are inflammatory. We apply the

following test.

The trial court must apply a two-part test prior to admitting
photographs into evidence over objection by a party. First, the
court must determine whether the photograph is inflammatory.
Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122 (2007).
This Court has interpreted inflammatory to mean the photo is so
gruesome it would tend to cloud the jury’s objective assessment

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of the guilt or innocence of the defendant. Commonwealth v.
Dotter, 403 Pa.Super. 507, 589 A.2d 726 (1991). Next, if the
trial court decides the photo is inflammatory, in order to permit
the jury to view the photo as evidence, it must then determine
whether it is has essential evidentiary value. Eichinger, 915 A.2d
at 1142 (Pa.2007).

Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011).

We have reviewed the photographs at issue and agree with the trial

court’s analysis that the photographs, which depict a blood-soaked towel and

blood near where Peebles was discovered, were not inflammatory. The

photographs, while unpleasant, do not display the victim’s body, and, as the

Commonwealth notes, Appellant has failed to cite a case holding that a

depiction of blood alone was inflammatory. In fact, our precedents suggest

the opposite. See Commonwealth v. Spell, 28 A.3d 1274, 1279 (Pa.Super.

2011) (“While [Spell] claims the presence of blood in these color photographs

is inflammatory, that result is not made out by the mere depiction of blood.”).

“Murder evidence is not often agreeable, but sanguinity does not equal

inadmissibility.” Id. We agree that the photographs were not inflammatory,

and the court therefore did not abuse its discretion.

B

Testimony regarding surveillance video not recovered

Appellant next argues that his constitutional right to confront witnesses

was violated during Detective Gregory Lamantia’s testimony, in which he

testified regarding observations he made from reviewing footage from exterior

cameras at Solomon Homes. Detective Lamantia recorded what he saw, but

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the videos were never copied and thus not provided in discovery. The

testimony established that a car was on scene at 2:04 a.m., and left the

parking lot shortly thereafter. Detective Lamantia observed three individuals

walking from the car towards a building. Appellant maintains that he is

entitled to a new trial. Appellant’s brief at 44 (“[T]he trial court ruling impaired

[Appellant]’s constitutional right to confront witnesses against him, and his

conviction should be overturned on this basis.”).

We agree with the Commonwealth that Appellant’s real complaint is not

that he could not confront Detective Lamantia—he plainly could—but rather

that he could not “cross-examine” the video itself.4 In Delaware v.

Fensterer, 474 U.S. 15 (1985) (per curiam), the United States Supreme

Court addressed a Confrontation Clause claim concerning an expert witness’s

inability to recall precisely how he determined that a hair was forcibly

removed. The Court stated:

Agent Robillard’s inability to recall on the stand the basis for his
opinion presents none of the perils from which the Confrontation
Clause protects defendants in criminal proceedings. The
Confrontation Clause includes no guarantee that every witness
called by the prosecution will refrain from giving testimony that is
marred by forgetfulness, confusion, or evasion. To the contrary,
the Confrontation Clause is generally satisfied when the defense
____________________________________________

4 As the Commonwealth notes, Appellant did not object on alternative
grounds, such as the best evidence rule. As the United States Supreme Court
has stated: “[I]f a statement is not made for the primary purpose of creating
an out-of-court substitute for trial testimony, its admissibility is the concern
of state and federal rules of evidence, not the Confrontation Clause.”
Williams v. Illinois, 567 U.S. 50, 83–84 (2012) (plurality) (cleaned up).

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is given a full and fair opportunity to probe and expose these
infirmities through cross-examination, thereby calling to the
attention of the factfinder the reasons for giving scant weight to
the witness’ testimony.

Id. at 21–22.

We therefore find that Appellant’s Confrontation Clause argument does

not warrant relief.

C

Narrative testimony

Appellant’s next claim also concerns a surveillance video. The

Commonwealth introduced video from the entryway of the building where the

murder occurred. Over Appellant’s objection, Detective Lawrence Wagner

narrated the video, explaining that the viewer would see Hinton and Peebles

entering the building through the exterior door and proceed up a stairwell

outside the camera’s view. Henderson and Simmons follow. Detective

Wagner stated the video then shows Henderson, holding a handgun, already

struggling with Peebles as the parties come back in view. Simmons, also with

a handgun, is seen leaning over to pick up something, which Detective Wagner

opined was the heroin that Peebles intended to sell. Appellant complains that

this narration impermissibly influenced the jury to accept Detective Wagner’s

testimony of what the video actually depicted.

We recently examined a similar claim in Commonwealth v. Palmer,

2018 WL 3121452 (Pa.Super. June 26, 2018), wherein the prosecution played

several surveillance videos which the investigators determined showed Palmer

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in the area of the crime scene. The detective narrated the videos, explaining

to the jury how and why he identified Palmer based on his review of the video

and other evidence. We observed:

Detective Wearing merely testified that he identified the shooter
by finding and watching the video surveillance of the shooting,
then examining earlier portions of the video for other instances
where the suspect appeared. . . . Thus, Detective Wearing’s
testimony about the videos was based upon his perception of
them, placed his subsequent actions in context, and was helpful
in allowing the jury to reach a clear understanding of all his
testimony. Hence, his fact testimony permissibly included non-
expert opinions and was properly admitted.

Furthermore, we note that the videos had little relevance if
Appellant was not the person appearing at the times highlighted
by the Commonwealth. The jury was obviously aware that the
Commonwealth believed that the person was Appellant, and it was
the jury’s duty to determine if the Commonwealth proved that fact
beyond a reasonable doubt. The jury itself watched the videos,
and was free to reach a different conclusion if it disagreed with
Detective Wearing’s conclusion that it was Appellant depicted on
the video at specific moments in the footage. We therefore find no
abuse of discretion.

Id. at *13.

The same logic applies herein. Detective Wagner explained his

perception of the video, which placed the events and investigation in context.

Additionally, the trial court instructed the jury both before and after the

challenged testimony that their perceptions controlled, and that they were

free to accept or reject the testimony. “[The Commonwealth is] asking

Detective Wagner to narrate [the video], what he sees, his perception of what

he sees on the video. You are not to be guided by Detective Wagner’s

narration. You’re to be guided by what you see and what conclusions you

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draw from the narration.” N.T., 2/15/17, at 136. Following the narration, the

trial judge reminded the jury of the instruction. “You’re to be guided by what

you observed on the video. If that concurs with Detective Wagner, that’s fine.

If it doesn’t, then, as in all questions of fact, you’re to determine the facts of

what you saw.” Id. at 139. We find no abuse of discretion.

D

Recessing the jury at approximately 5:00 p.m. during cross-examination

Appellant’s next claim is that the trial court erred by not permitting him

to cross-examine Simmons with the contents of a recorded phone call made

from jail. We find no abuse of discretion.

During cross-examination, Appellant asked if, paraphrased, Simmons

told his mother that he would implicate Appellant as an active participant in

the robbery in order to curry favor with the prosecution. Appellant asked for

a sidebar, where he informed the judge he had subpoenaed jail call records

and intended to play a tape of one of the calls. The Commonwealth objected

on authentication grounds, and stated that the proper course was to introduce

this evidence during Appellant’s case-in-chief. The judge stated that the

matter would take some time to resolve, and decided to dismiss the jury for

the weekend. The transcript states that the jury was in recess at 4:55 p.m.

On Monday, cross-examination resumed without restriction.

“The trial judges of this Commonwealth exercise broad powers while

presiding at the trial of cases assigned to them.” Commonwealth v.

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Pittman, 466 A.2d 1370, 1373 (Pa.Super. 1983) (citation omitted). The

decision to recess for the day clearly falls under those broad powers.

Remarkably, Appellant nonetheless asserts that this single act warrants a new

trial. “[T]he trial court erred by not permitting Appellant to play the recordings

during his initial cross-examination on February 17, 2017. Thus, his

convictions should be overturned and the case remanded for retrial.”

Appellant’s brief at 50. To quote this argument is to defeat it. As the

Commonwealth notes, this speculation could easily go the other direction.

Had the judge kept the jury in the box for the evening, Appellant could

complain that the jury was tired and inattentive due to the upcoming weekend.

We find no abuse of discretion.

E

Remedy for discovery violation

On February 14, 2017, the first day of trial, Appellant filed a motion in

limine seeking to bar Kenneth Simmons’s testimony. Within the motion,

Appellant alleged that the Commonwealth had provided in discovery two

statements given by Simmons, but failed to disclose his initial recorded

statement to the police, which was given on the night of the crime. Appellant

realized that statement existed due to another police report referring to its

existence. Appellant requested the statement on February 6, 2017, and the

Commonwealth supplied the recording on February 10, 2017, four days before

trial.

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There was no hearing on this matter as the trial court summarily denied

the motion before trial started. The Commonwealth, however, does not

dispute the facts, and, since the motion itself states that the Commonwealth

turned the material over upon request, we accept the allegations for purposes

of our review. The trial court is authorized to impose sanctions for discovery

violations.

(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to
permit discovery or inspection, may grant a continuance, or may
prohibit such party from introducing evidence not disclosed, other
than testimony of the defendant, or it may enter such other
order as it deems just under the circumstances.

Pa.R.Crim.P. 573 (emphasis added).

Appellant claims that the only order “just under the circumstances” was

preclusion of Simmons’s testimony. We disagree. As the Commonwealth

notes, cases have reversed orders that barred the Commonwealth from

introducing evidence, finding that the sanction was too harsh. See

Commonwealth v. Robinson, 122 A.3d 367 (Pa.Super. 2015) (precluding

Commonwealth from calling the victims as witnesses, based on noncompliance

with order requiring transcription of statements, was an abuse of discretion).

Appellant fails to explain why the trial court was obligated to bar the

testimony. His motion asserted that he was prejudiced by the late disclosure

because he was unable to investigate, but does not develop that claim beyond

that mere assertion. Moreover, Appellant’s motion states that he was aware

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of the missing information a full week before jury selection. Once Appellant

discovered the error he could have, inter alia, requested a postponement if

more time for investigation was truly needed. While the Commonwealth was

obviously required to disclose the material in the first place, Appellant’s

requested sanction was much too harsh, especially in light of alternative

remedies and where there was no suggestion that the omission was

deliberate. No relief is due.

IV

Challenges to the verdict

A

Unanimity of verdict

Following the jury’s verdict as read by the foreperson, Appellant

requested polling. Juror number one indicated a verdict of guilty for third-

degree homicide, while the foreperson stated that the jury’s verdict for that

charge was not guilty. Consistent with the foreperson’s declaration, juror

number one indicated a verdict of guilty as to second-degree homicide.

Appellant raised this issue in his concise statement, and we adopt the

trial court’s thoughtful resolution of this claim.

The record is clear that the foreperson initially indicated a verdict
of not guilty as to Count 1, Criminal Homicide, Third Degree
Murder. N.T. 2/21/17 at p. 108. Thereafter, counsel for Co[-]
Defendant Henderson requested an individual poll of the jury.
N.T. 2/21/17 at p. 110. Juror Number One twice indicated a
verdict of guilty as to Count 1, Criminal Homicide, Third Degree
Murder relative to Defendant [Appellant]. Id. At the completion
of Juror Number One’s individual poll, defense counsel for

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Defendant [Appellant] requested to approach the bench, and the
following exchange occurred:

ATTORNEY DOMBROSKY: I don’t know if I caught
that?

THE COURT: Sorry?

ATTORNEY DOMBROSKY: I don’t know if I caught that,
I believe she said not guilty for a second and third
degree murder.

THE COURT: That’s what I heard too. Did you hear
that?

ATTORNEY BEYER: I did as well, Your Honor.

N.T. 2/21/17 at p.p. 111-112.

Following this discourse, we decided to continue polling the other
jurors, especially given that Second Degree Murder is a higher
degree of crime. N.T. 2/21/17 at p. 112. All other jurors
responded consistently with the verdict as to both defendant and
Co[-]Defendant Henderson. N.T. 2/21/17 at p.p. 113-137.
Thereafter, we called counsel to sidebar, and defense counsel
voiced a request to re-poll Juror Number One. N.T. 2/21/17 at p.
137. During the re-poll, Juror Number One indicated a guilty
verdict as to Count 1, Criminal Homicide, Second Degree Murder,
and a not guilty verdict as to Count 1, Criminal Homicide, Third
Degree Murder. N.T. 2/21/17 at p.p. 137-138.

Firstly, the record confirms that despite what counsel, and the
Court, may have heard, Juror Number One consistently answered
that defendant was guilty as to Count 1, Criminal Homicide,
Second Degree Murder. N.T. 2/21/17 at p.p. 110 and 137-138.
Because Juror Number One modified her initial answer from guilty
to not guilty as to Third Degree Murder during the re-poll, we
believe that defense counsel is incorrect in his assertion that the
verdict was not unanimous. Additionally, during the individual poll
of the remaining eleven jurors, we had the opportunity to observe
the demeanor of Juror Number One. Given her body language
after hearing the other jurors’ responses, we believe that she
realized her error, and appeared visibly shook up and
embarrassed. Any error was cured by the re-poll, which was done

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at defense counsel’s request. Thus, we believe that defendant’s
allegation of a non–unanimous verdict lacks merit.

Trial Court Opinion, 7/5/17 at 13-15.

B

Sufficiency of the evidence

Appellant challenges the sufficiency of the evidence supporting the

offenses of robbery and second-degree murder. Appellant claims that the

Commonwealth charged him as a principal, and, there being no evidence to

support that fact, he is entitled to discharge at both robbery and second-

degree murder.

The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.

Commonwealth v. Hewlett, 189 A.3d 1004, 1008 (Pa.Super. 2018)

(quoting Commonwealth v. Caban, 60 A.3d 120, 132-33 (Pa.Super. 2012)).

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This claim is meritless. In Commonwealth v. Murphy, 844 A.2d 1228

(Pa. 2004), our Supreme Court examined accomplice liability as a component

of the sufficiency of the evidence test.

In determining whether the evidence was sufficient to support a
defendant’s conviction, we must review the evidence admitted
during the trial along with any reasonable inferences that may be
drawn from that evidence in the light most favorable to the
Commonwealth as the verdict winner. If we find, based on that
review, that the jury could have found every element of the crime
beyond a reasonable doubt, we must sustain the defendant’s
conviction.

....

It is well-established, however, that a defendant, who was not a
principal actor in committing the crime, may nevertheless be liable
for the crime if he was an accomplice of a principal actor.

Id. at 1233-34 (citations and footnotes omitted).

Appellant does not claim that the evidence presented at trial does not

warrant a finding of accomplice liability. Instead, he asserts that the evidence

was insufficient by way of challenging the criminal information.

Instantly, the Commonwealth charged [Appellant] as a principle
[sic] in the commission of the crime of robbery: “Count 3: Robbery
18 Pa.C.S.A.3701(a)(1)(i) - Felony 1st Degree. The Actor, in the
course of committing a theft, inflicted serious bodily injury upon
Thomas Peebles by shooting him.” See Information. Notably, the
Commonwealth also charged him with Criminal Homicide and
Aggravated Assault, “as a principal or accomplice.”

However, the sum of the evidence showed that [Appellant] did not
participate as a principal in the robbery.

Appellant’s brief at 60.

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J-S38011-18

Appellant recognizes that this claim goes to the sufficiency of the

evidence. Thus, we fail to see why any defect in the criminal information 5 is

relevant to whether the jury was presented with sufficient evidence to sustain

a finding of accomplice liability. Since Appellant’s argument is limited to an

argument that he was not guilty as a principal, this claim fails.

V

Sentencing claims

Appellant’s remaining three claims all challenge his sentence. He alleges

(1) that the court erred by imposing a greater sentence than that of his co-

defendant Henderson, whom Appellant maintains was more culpable; (2) the

court failed to state adequate reasons for its sentence; and (3) the court

imposed a manifestly excessive sentence. These claims challenge the

discretionary aspects of his sentence. The following principles apply.

An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:

(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.[ ] § 9781(b).
____________________________________________

5 Appellant does not cite any case holding that the Commonwealth is required
to specify, in the criminal information, the precise theory of culpability.

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Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(some citations omitted).

“A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (quotation

marks and citation omitted). We find that Appellant has failed to meet this

test, as a mandatory sentence of life imprisonment without parole applied. 18

Pa.C.S. § 1102 (mandatory sentence of life imprisonment for second-degree

homicide); 61 Pa.C.S. § 6137(a) (inmates “condemned to death or serving

life imprisonment” are ineligible for parole).

We fail to see how the trial court violated the Sentencing Code or its

fundamental norms by imposing the mandatory sentence. Finally, we

recognize Appellant’s argument that the trial court imposed longer sentences

at his non-homicide counts, .e.g. robbery, than was imposed for his co-

defendant. Appellant fails to mention, however, that his prior record score is

higher than Henderson’s. Moreover, Appellant’s sentences were imposed

concurrently to his mandatory life sentence.

Judgment of sentence affirmed.

Judge Strassburger joins the memorandum.

Judge Nichols concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2018

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