Com. v. Frierson, K.

J-A11022-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KNOWLEDGE DANTE FRIERSON :
:
Appellant : No. 1241 MDA 2018

Appeal from the Judgment of Sentence Entered February 20, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001063-2016

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.: FILED JULY 31, 2019

Appellant, Knowledge Dante Frierson, appeals from the judgment of

sentence entered on February 20, 2018, following his jury trial convictions for

third-degree murder, aggravated assault (attempt to cause serious bodily

injury), aggravated assault (attempt to cause serious bodily injury with a

deadly weapon), possession of an instrument of crime, tampering with

physical evidence, and related firearm offenses.1 We affirm.

The trial court set forth the facts of this case as follows:

On October 13, 2015, at approximately 9:00 p.m., Keith Freeman,
Jr. (Freeman) was in his home [on Brandon Avenue in Lycoming
County] with his children. His girlfriend, Katrina Washington
(Washington), was at work. Freeman testified that his son told
Freeman that someone was at the door. Freeman did not open
____________________________________________

1 18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), 2702(a)(4), 907, and 4910,
respectively. At a separate bench trial following the jury trial, the trial court
also found Appellant guilty of persons not to possess a firearm and carrying a
firearm without a license. 18 Pa.C.S.A. §§ 6105 and 6106, respectively.
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the door, but he saw an individual [(Appellant)] on the front porch
[whom] he did not recognize. [Appellant] asked for a person
whose name Freeman also did not recognize. Freeman told
[Appellant] he had the wrong house, and [Appellant] walked
[away in a westerly direction].

Freeman testified that [Appellant’s] demeanor made him nervous
because [Appellant] did not look him in the eye and had his hands
in [the pockets] of his [hooded sweatshirt]. After [Appellant] left,
Freeman decided he did not want Washington to walk home from
work. Freeman called his mother and aunt and asked one of them
to pick up Washington. His aunt, Carolyn Barr (Barr), said that
she would pick up Washington. Freeman called Washington and
told her Barr would pick her up after work.

[Appellant] knocked on the door again, and Freeman told him
again that he had the wrong address. Freeman testified that
[Appellant] insisted that he had the right address and that
someone sent him. Freeman also testified that after the second
encounter, he ran upstairs and got his gun.

When Barr and Washington arrived at the house, they noticed
[Appellant] was waiting around outside the house and was staring
at them. Freeman testified that he also called his friend Tyson
Bolden (Bolden). Bolden came to Freeman’s house shortly after
Washington and Barr arrived, and Freeman believed Bolden
brought a handgun with him.

Freeman, Washington, Barr, and Bolden discussed the situation in
the house. When the time came for Barr to leave, Freeman and
Bolden decided to walk Barr back to her car. As they were walking
down the steps of the house, Freeman testified that Barr screamed
his nickname, Dump, and suddenly he and [Appellant] were face
to face. Washington, who was inside the house, also testified that
she heard Barr scream[, “]Dump[,”] followed by gunshots.
Freeman and [Appellant] struggled over [Appellant’s] gun as they
fell to the ground near the bottom of the steps, and a shot went
off. Freeman testified that he jumped off of [Appellant] and that
[Appellant] shot again. [Appellant] and Freeman then exchanged
gunfire as Freeman backed away east [] and [Appellant] headed
west []. Freeman testified that he fired about three or four shots,
and he thought [Appellant] fired about six shots. Freeman
testified that he threw his weapon into the bushes and that he saw
[Appellant] limping in an unnamed alley after the shooting

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stopped. At some point during the gunfire exchange, a bullet
struck Barr in the torso and she died soon after. Dr. Michael
Johnson (Johnson), the forensic pathologist who performed Barr’s
autopsy testified that the cause of Barr’s death was a single
gunshot wound to her abdomen. Johnson concluded that the
manner of her death was homicide.

Multiple eyewitnesses testified to the events that occurred on
October 13, 2015. Robert Smith lived on [] Cherry Street, just
around the corner from [] Brandon Avenue. At approximately
9:30 p.m. he heard between 10-12 gunshots. Smith testified that
there were one or two gunshots at first, followed by a brief pause
and then more gunshots after that, [which he described as being]
“almost like a panic fire.” He believed that the gunfire sounded
like it was coming from [two] different guns, one smaller caliber
and one slightly larger caliber. After calling 911, Smith testified
that he heard a male voice yelling for help that sounded like it was
coming from [Freeman’s street].

Kathleen Mitsdarfer (Mitsdarfer), lived [on Freeman’s street]. She
testified that she was awakened by the sound of gunfire, heard
three shots followed by a pause and then a few more. She said
the shots were coming from the west and that she looked out her
bedroom window and saw a man with a silver gun in his right hand
walking backwards in front of her house. Mitsdarfer testified that
the man did not fire the gun while she was watching, and that he
was walking quickly to the east down the middle of the street.

Theresa Bower (Bower) lived [on Freeman’s street] close to where
the unnamed alley [was located]. She testified that she heard
gunshots and a woman screaming which caused her to look
outside. Bower testified that she saw a man running down the
alley with a gun and that he was limping.

Drew Barasky (Barasky) was living [on Freeman’s street] at the
time, and around 9:30 p.m. that night he heard gunshots. He
then saw someone limping in the alleyway as if they were hurt,
and shortly after that he heard someone screaming for help at the
side of his house. In June 2016, Barasky and [Appellant] were
both housed in the same block of the Lycoming County prison.
Barasky testified that he and [Appellant] had a brief conversation
regarding the night of the shooting. Barasky mentioned to
[Appellant] that he lived in the area [] where the shooting
occurred, and testified that [Appellant] told Barasky that

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[Appellant] “got rid of the thing in the alley,” which Barasky
understood to mean the gun.

A few months after the shooting, Bruce Huffman (Huffman)
discovered a bullet hole in a post on his back porch. Huffman lives
[in the neighborhood], and can see [Freeman’s Brandon Avenue
residence] from his back porch. Huffman testified that the hole
was on the east side of the post, and that there was a dent or
small protrusion pushing out to the west side. He also testified
that he had not heard any gunshots since the night of the shooting
before he found the bullet in his porch.

At 9:30 p.m. on October 13, 2015[,] Officer Eric Houseknecht
(Houseknecht) was dispatched to [Freeman’s street] for shots
fired and a victim on scene. Houseknecht was the first unit to
arrive at the scene and he testified that he found Barr barely
conscious and lying on the ground in front of [the subject
residence] and Washington was crying on the porch. Officer
Jordan Stoltzfus (Stoltzfus) also arrived to clear people from the
scene. Stoltzfus was told that someone was crying for help behind
a nearby residence, and he found [Appellant] lying on the ground
with a gunshot wound. Stoltzfus testified that he collected two
pairs of pants from [Appellant] that had been cut off by
[Emergency Medical Services (EMS)] and that there was blood on
the pants.

Officer Derrick Cummings (Cummings) was also called to the
scene to perform a gunshot residue (GSR) kit on [Appellant]. He
testified that he went to the ambulance to use a scanning
electronic microscopy kit (SEMS) on [Appellant] to check for
gunpowder residue. Cummings testified that the kit looks for
residue on the hands, which would be left behind if someone
shoots a weapon. Cummings received SEMS training at the
[P]olice [A]cademy, and testified that any type of fluid or blood
can cause a negative result on the test. He also stated that the
hands that are being tested should not touch anything, such as
clothing, because it could remove some of the residue. Cummings
testified that after swabbing both [of Appellant’s] hands, he placed
the swabs into the kit and sealed it. He confirmed that a proper
chain of custody was maintained and the kits are kept in a secure
location.

Officer Joseph Ananea (Ananea) processed the crime scene []. He
testified that he marked various items of interest as he did a

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walk-through of the scene. Because the outside crime scene
involved a shooting, he especially looked for ballistic evidence
such as shell casings, bullets and bullet fragments, as well as
blood. He testified that in addition to fresh pools of blood on
Brandon Avenue, he found a pool of blood in the gravel stones
where [Appellant] was found lying in the alleyway. Along the
alleyway, Ananea testified that there were drag marks and
disturbances in the gravel, as well as more blood in the stones
and bloody leaves. At the end of the bloody trial, Ananea found a
handgun in the alley next to a chain link fence. Ananea collected
blood samples, the handgun, and took photographic evidence of
the crime scene. He testified that he did not find any bullets or
casings that night, and that revolver style guns do not eject
casings, unlike semi-automatic weapons which do.

A few days later, Ananea was informed that there was a possible
bullet strike on a tree [near the crime scene]. Ananea testified
that he saw a fresh bullet strike on the eastern side of the tree
and found tiny metal fragments imbedded into the tree. The tree
was cut down in order to extract the bullet.

Lieutenant Arnold Duck (Duck) also processed the crime scene
with Officer Ananea. Duck made a map of the scene after the
walk-through and diagrammed where evidence was collected and
the markers were placed. Duck also took measurements to be
used for reconstructing the crime scene. Duck testified that the
handgun recovered from the alleyway was a Ruger revolver. All
[six] rounds had been fired, with all of the casings still intact but
no bullets in the gun. Duck also testified that there was a lot of
blood on the gun, mostly on the metal portion around the trigger
and the barrel but barely any blood on the grip itself. He testified
that he swabbed the gun for blood and DNA evidence, and that he
could not find any fingerprints on the gun.

Duck called Agent Trent Peacock (Peacock) and advised him that
there had been a shooting. Duck also told Peacock that there
were two victims, one already deceased and the other seriously
injured in the hospital. Peacock testified that he drove straight to
the scene and met with Houseknecht and Stoltzfus. He then
proceeded to the hospital, where he came into contact with
[Appellant]. […] He testified that [Appellant’s] hands had been
bagged to protect any residue or other evidence that was on the
hands. Peacock also testified that immediately after the bags
were removed, [Appellant] stuck his hands under his hospital

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gown and wiped them. Peacock asked him to stop and [Appellant]
replied that his groin itched. Peacock asked [Appellant] if he had
handled a gun, and [Appellant] responded that he did not want to
talk to Peacock any longer. After [a] SEMS kit was completed,
Peacock delivered it to R.J. Lee Group for analysis.

Peacock testified that the investigators found that [a] resident
[on] Brandon Avenue, Shawn Silvis, had video cameras on the
front of his house, and that he was able to recover a videotape of
the events of that night. When Peacock reviewed the video, he
saw that there was a person walking backward[s] down the street
to the east with a gun. He later identified the individual as
Freeman, and Freeman initially denied that he had a gun. Freeman
later admitted to having a gun and told Peacock that he discarded
the weapon in some bushes [near the scene].

Peacock also obtained a one-foot cut section of the tree in front of
[the subject residence] that contained the embedded bullet. He
testified that he and Duck and Ananea were able to extract a
mushroomed bullet from the tree section and sent it to the
ballistics lab. He also met with Huffman to observe the bullet hole
in Huffman’s porch post. He saw that the bullet had entered from
the east side and dented the west side, and Peacock extracted the
bullet from the porch post. He testified that he believed that the
bullets found in the tree and the porch were from Freeman’s gun
because both bullets entered on the east side and were heading
west and Freeman was heading east while firing at [Appellant],
who was going west.

Peacock testified that after [investigators] evaluated the
preliminary evidence and determined that [Appellant] was a
suspect, Peacock and Agent Kontz conducted a recorded interview
of [Appellant at the Williamsport Police Station]. Peacock testified
that [Appellant] was read his Miranda[2] rights and that
[Appellant] did not appear to be under the influence of alcohol or
any substance, and that [Appellant] appeared to understand the
questions regarding his rights. Peacock also testified that no
promises were made to [Appellant] in exchange for his statement,
and that [Appellant’s] statement was voluntarily and freely given.

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966).

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Peacock also testified that he and Agent Kontz took [Appellant]
into custody and transported him from Harrisburg to Williamsport
on the same day they interviewed [Appellant]. He testified that
he did not discuss the charges with [Appellant] prior to the
interview, that while he was taking [Appellant] into custody [he]
only told [Appellant] that his arrest [] stemm[ed] from the
shooting in which [Appellant] was injured, and that neither he nor
Agent Kontz interviewed [Appellant] while he was being
transported.

Veronica Miller (Miller), a forensic scientist at the Greensburg
Regional Laboratory, performed a DNA analysis. She testified that
she matched [Appellant’s] DNA profile to the DNA samples she
extracted from the blood stains on the Ruger revolver, the leaves
and stones from the alleyway, and the rear steps of [the subject
residence]. Miller was unable to perform a full analysis on the
sample from the grip of the gun due to the complexity of the
mixture.

Stephanie Hrico (Hrico), an employee of R.J. Lee Group’s forensic
science department, performed the GSR analysis. She testified
that she has undergone SEMS and GSR analysis training. Hrico
explained that in order for her to determine that a particle is highly
specific to the discharge of a firearm, the particle has to have the
correct chemical elements and the proper morphology. She
testified that the three elements that make up gunshot residue
are lead, barium, and antimony, and that the particle should be
round or smooth-edged due to the intense heat from the discharge
of the firearm. Hrico further explained that if a particle has all
three chemical components, then that three-component particle
is considered to be characteristic of gunshot residue. She testified
that firing a weapon can also create two and one-particle
[samples] as well, although those particles could come from other
sources.

Hrico used a scanning electron microscope to determine what
chemical elements were present and to see the actual shape of
the particles. The kits she received contained samples from
[Appellant’s] left and right palms, and the backs of his left and
right hands. Hrico testified that on the back of [Appellant’s] right
hand, she found one three-component particle that was
characteristic of gunshot residue. She also found two and
one-component particles in all [four] locations of [Appellant’s]
hands. She also testified that there are many factors that could

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remove residue from the hands, such as hand washing, running,
wiping hands off, adverse weather, and bodily fluids such as blood
and sweat.

Sergeant Elwood Spencer (Spencer), a Pennsylvania State Police
Trooper assigned to the Bureau of Forensic Services as a firearm
and tool mark examiner, provided the ballistics analysis. He
identified the handgun recovered from the alley as a Ruger
Security 6 .357 magnum caliber revolver. He testified that the
weapon was functional and had a routine trigger pull. Spencer
also testified that he recovered two discharged and mutilated
bullets, one from the tree and one from the porch post. He
concluded that the two bullets were fired from the same weapon,
but was unable to determine if they were fired from the Ruger
revolver or a different gun. Spencer also identified that although
he could not give a definitive answer as to the caliber of the
bullets, he said that the weight and morphology would make it
more likely that the caliber was .380 or .357 as opposed to a 9
mm.

Trial Court Opinion, 7/23/2018, at 2-10 (record citations omitted).

On November 2, 2017, a jury convicted Appellant of third-degree

murder, aggravated assault (attempt to cause serious bodily injury),

aggravated assault (attempt to cause serious bodily injury with a deadly

weapon), possession of an instrument of crime, and tampering with physical

evidence. In a separate bench trial following the jury’s verdict, the trial court

also convicted Appellant of persons not to possess a firearm and carrying a

firearm without a license. On February 20, 2018, the trial court imposed an

aggregate sentence of 26 to 60 years of imprisonment. This timely appeal

resulted.3
____________________________________________

3 Appellant filed a timely post-sentence motion on March 2, 2018. The trial
court had 120 days to decide the post-sentence motion, but when it failed to
decide the motion within that period, the motion was deemed denied by

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On appeal, Appellant presents the following issues for our review:

1. Whether the trial court erred in denying a motion to suppress
when [Appellant] had previously indicated to police that he did
not want to speak to them without an attorney present?

2. Whether the [trial] court erred in failing to [hold a hearing
pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir.
1923)] when there is no national standard with regard to
gunshot residue testing positive?

3. Whether the [trial] court erred in failing to give the missing
witness [jury] instruction when the witness was an eyewitness
to a homicide?

4. Whether the [trial] court erred in precluding testimony
corroborating [Appellant’s] explanation as to why he was at
[Freeman’s] residence?

5. Whether the jury’s verdict is against the weight of the
evidence?

____________________________________________

operation of law on July 1, 2018. See Pa.R.Crim.P. 720(B)(3)(a). When a
post-sentence motion is deemed denied, the clerk of courts enters an order
deeming the motion denied on behalf of the trial court and serves copies on
the parties. See Pa.R.Crim.P. 720(B)(3)(c). A notice of appeal must be filed
within 30 days of the entry of the order denying the post-sentence motion by
operation of law. See Pa.R.Crim.P. 720(A)(2)(b). Here, the clerk of courts
failed to enter an order disposing of Appellant’s post-sentence motion on July
1, 2018. Instead, the trial court entered an opinion and order denying relief
on July 23, 2018, outside the 120-day period, and Appellant filed a notice of
appeal within 30 days of that order. This Court has previously determined
that there is a breakdown in the judicial system when the clerk of courts fails
to enter a deemed denied order under Pa.R.Crim.P. 720 and, thus, we may
consider the merits of Appellant’s current appeal. See Commonwealth v.
Patterson, 940 A.2d 493, 498-499 (Pa. Super. 2007). After Appellant filed
his notice of appeal, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(b) on August 31, 2018, which relied upon its July 23, 2018
decision.

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6. Whether the [trial] court erred in failing to grant a hearing on
the criminal case disposition of an eyewitness that occurred
after Appellant’s verdict when testimony [adduced at
Appellant’s trial suggested the witness had no deal with
prosecutors]?

Appellant’s Brief at 4-5 (complete capitalization and suggested answers

omitted).

In his first issue presented, Appellant claims that the trial court erred in

denying his suppression motion wherein he sought to preclude statements he

made to police because he previously requested to speak with an attorney.

Appellant’s Brief at 15-19. More specifically, Appellant contends that when

Agent Peacock attempted to question him while he was hospitalized with a

gunshot wound, on October 13, 2015, the day of Barr’s shooting, Appellant

advised Agent Peacock that he wanted a lawyer, refused to answer questions,

and sought to terminate the interview. Id. at 16. Appellant points out that

“there were three [police] officers in the room [when Agent] Peacock began

questioning [Appellant].” Id. at 17. Appellant does not seek to suppress

information obtained during this encounter. Instead, he seeks to suppress

information divulged six months later, when Agent Peacock obtained an arrest

warrant, transported Appellant from Harrisburg to Williamsport, advised

Appellant of his Miranda rights, and obtained a waiver of Miranda rights from

Appellant before commencing with questions. Id. Thus, Appellant contends

that “the issue becomes whether [Agent Peacock] had the right to request a

waiver of his Fifth Amendment rights [under Miranda] knowing full well that

[Appellant] had previously exercised those rights.” Id. at 17.

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The standard of review for the denial of a motion to suppress evidence

is as follows:

An appellate court's standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court's factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court's factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court's legal conclusions are
erroneous. Where ... 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 [legal
conclusions of the trial courts] are subject to plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (internal

brackets and citation omitted).

We previously determined:

In Miranda, the United States Supreme Court established that an
accused has the right to have counsel present during custodial
interrogations under the Fifth and Fourteenth Amendments to
the United States Constitution. [Miranda,] 384 U.S. at 474. This
right to counsel is part of “a set of prophylactic measures designed
to safeguard the constitutional guarantee against
self-incrimination.” J.D.B. v. North Carolina, 564 U.S. 261, 269
(2011).

In Edwards v. Arizona, [, 451 U.S. 477 (1981),] the [United
States] Supreme Court addressed the consequences of a suspect's
invocation of the right to counsel. The Edwards court held that
“when an accused has invoked his right to have counsel present
during custodial interrogation,” police may not conduct further
interrogations “until counsel has been made available to him,

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unless the accused himself initiates further communication,
exchanges, or conversations with the police.” [Edwards,] 451
U.S. at 484–485. If police conduct further interrogations outside
the presence of counsel, “the suspect's statements are presumed
involuntary and therefore inadmissible as substantive evidence at
trial, even where the suspect executes a waiver and his
statements would be considered voluntary under traditional
standards.” McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).

To trigger these protections, a defendant's request for counsel
must be sufficiently clear “that a reasonable police officer would
understand the statement to be a request for an attorney.” Davis
[v. United States], 512 U.S. [452,] 459, [(1994)].

Commonwealth v. Champney, 161 A.3d 265, 272 (Pa. Super. 2017) (en

banc) (emphasis added); see also Commonwealth v. Woodard, 129 A.3d

480, 498 (Pa. 2015), citing McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)

(To invoke the Fifth Amendment right to counsel effectively, the accused must

make “some statement that can reasonably be construed to be an expression

of a desire for the assistance of an attorney in dealing with custodial

interrogation by the police.”) (original emphasis omitted; emphasis

supplied).

Our Supreme Court has also stated:

The United States Supreme Court has held that, before law
enforcement officers question an individual who has been in taken
into custody or has been deprived of his freedom in any significant
way, the officers must first warn the individual that he has the
right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be
appointed. Miranda, 384 U.S. at 478–479. However, these
special procedural safeguards are required only where a
suspect is both taken into custody and subjected to
interrogation. Commonwealth v. Bland, 115 A.3d 854, 857

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(Pa. 2015) (quoting Rhode Island v. Innis, 446 U.S. 291, 300
(1980)).

Commonwealth v. Yandamuri, 159 A.3d 503, 519–520 (Pa. 2017)

(emphasis added); see also Bland, 115 A.3d at 863 (“[T]o require a

suspension of questioning by law enforcement officials on pain of an

exclusionary remedy, an invocation of the Miranda-based right to counsel

must be made upon or after actual or imminent commencement of in-

custody interrogation.”) (emphasis added).

The appropriate test for determining whether a situation involves

custodial interrogation is as follows:

The test for determining whether a suspect is being subjected to
custodial interrogation so as to necessitate Miranda warnings is
whether he is physically deprived of his freedom in any significant
way or is placed in a situation in which he reasonably believes that
his freedom of action or movement is restricted by such
interrogation.

Said another way, police detentions become custodial when,
under the totality of the circumstances, the conditions and/or
duration of the detention become so coercive as to constitute the
functional equivalent of arrest.

The factors a court utilizes to determine, under the totality of the
circumstances, whether a detention has become so coercive as to
constitute the functional equivalent of arrest include: the basis for
the detention; its length; its location; whether the suspect was
transported against his or her will, how far, and why; whether
restraints were used; whether the law enforcement officer
showed, threatened or used force; and the investigative methods
employed to confirm or dispel suspicions. The fact that a police
investigation has focused on a particular individual does not
automatically trigger custody, thus requiring Miranda warnings.

* * *

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In order to be “in custody,” a person must believe that he is not
free to leave, and in order to be considered “interrogation,” the
questioning by the police must be expected to, calculated to, or
likely to evoke admission.

Commonwealth v. Mannion, 725 A.2d 196, 200–201 (Pa. Super. 1999)

(internal citations, brackets, and some quotations omitted).

The suppression court determined that when Appellant requested an

attorney at the hospital six months prior to the interview at the Williamsport

Police station, “he was not subject to a custodial interrogation, so the

Edwards presumption would not apply[,]” but that, regardless, “a sufficient

break in custody had occurred[.]” Trial Court Opinion, 7/28/2017, at 6. For

the reasons that follow, we agree that Edwards does not apply since

Appellant was not in custody at the hospital and, hence, was not subjected to

custodial interrogation. We also agree that, even if Appellant were subject to

custodial interrogation when he initially invoked his right to counsel during his

hospital stay, the ensuing six-month period that elapsed before his next

encounter with police officials precluded application of the Edwards rule.

Because Edwards does not apply, the trial court correctly denied suppression.

While it is true that three police officers were present when Appellant

was questioned in his hospital room, we conclude, under a totality of the

circumstances, that the conditions and/or duration of the questioning did not

become so coercive as to constitute the functional equivalent of arrest. When

police interviewed Appellant at the hospital, they treated him as a shooting

victim, not as a suspect. There was no evidence that police restrained or

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transported Appellant against his will. In fact, Appellant voluntarily went to

the hospital to receive treatment. The police questioning was brief, there were

no threats or use of force, and Agent Peacock ended the interview immediately

upon Appellant’s invocation of counsel. See N.T., 4/17/2017, at 5-6. The

officers left the hospital (without Appellant) when the interview terminated.

Moreover, Appellant left town after receiving treatment and had no further

contact with the officers for six months. Based upon this record, we conclude

that Appellant was not in police custody when Agent Peacock briefly

questioned him at the hospital.

In addition, Appellant has not cited legal authority, and our independent

research has not revealed any, that the mere invocation of counsel during

non-custodial police questioning triggers the rule announced in Edwards, to-

wit that once an accused has been subject to custodial interrogation and has

invoked his right to counsel pursuant to Miranda, police may not conduct

further interrogations until counsel has been made available or the accused

himself initiates further communication. Since only custodial interrogation

triggers the rule announced in Edwards, and because the hospital interview

did not qualify as a custodial interrogation, the police were not barred from

later questioning Appellant without an attorney present given that he waived

his rights under Miranda.

We also agree that the six-month period between Appellant’s initial

encounter with authorities at the hospital and his later interaction with police

in Williamsport constituted a sufficient break in custody that allowed officers

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to re-approach him to secure a waiver of his Miranda rights. The United

States Supreme Court has held that the Edwards rule does not apply if a

break in custody lasting at least 14 days has occurred prior to subsequent

interrogation. See Maryland v. Shatzer, 559 U.S. 98, 110 (2010); see also

Champney, 161 A.3d at 277-285 (discussing Edwards at length and

concluding that five-month break between initial invocation of right to counsel

and re-interrogation was sufficient to remove Edwards’ presumption of

involuntariness). Based upon the foregoing, we conclude the record supports

the denial of suppression.

In his second issue presented, Appellant contends that the trial court

erred by permitting the Commonwealth to present evidence regarding gunshot

residue without a pre-trial hearing on novel scientific evidence pursuant to

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Appellant’s Brief at

19-21. Appellant argues that “he was entitled to a Frye hearing as there is

no national standard or consensus on what qualifies as a positive result for

purposes of gunshot residue testing.” Id. at 19. Appellant posits that the

trial court agreed that there was no national standard. Id. at 20. As such,

Appellant argues that expert gunshot residue testimony “should have been

precluded [] based upon the fact that the expert could not tell whether

[Appellant] fired the weapon[; a]ll she basically could testify to was that he

was in the vicinity of a firearm being discharged.” Id. at 20-21.

Our Supreme Court has held:

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As a general rule, [an appellate court’s] standard of review of a
trial court's evidentiary ruling, including a ruling whether expert
scientific evidence is admissible against a Frye challenge, is
limited to determining whether the trial court abused its
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.

Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005) (internal

citations and quotations omitted).

Moreover, the Dengler Court determined:

Admissibility of the scientific evidence depends upon the general
acceptance of its validity by those scientists active in the field to
which the evidence belongs.

* * *

The requirement of general acceptance in the scientific community
assures that those most qualified to assess the general validity of
a scientific method will have the determinative voice. Additionally,
the Frye test protects prosecution and defense alike by assuring
that a minimal reserve of experts exists who can critically examine
the validity of a scientific determination in a particular case. Since
scientific proof may in some instances assume a posture of mystic
infallibility in the eyes of a jury of laymen, the ability to produce
rebuttal experts, equally conversant with the mechanics and
methods of a particular technique, may prove to be essential.

* * *

Frye is not implicated every time science comes into the
courtroom; rather, it applies only to proffered expert testimony
involving novel science. What constitutes novel scientific evidence
has historically been decided on a case-by-case basis, and there
is some fluidity in the analysis; indeed, science deemed novel at
the outset may lose its novelty and become generally accepted in
the scientific community at a later date, or the strength of the
proponent's proffer may affect the Frye determination.

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Id. at 381-382.

Here, the trial court determined that gunshot residue testing “is not

novel and holds general acceptance in the scientific community.” Trial Court

Opinion, 7/23/2018, at 14. We agree. Appellant does not provide citation to

any Pennsylvania authority suggesting that courts have precluded gunshot

residue testing from prior trials as novel evidence under Frye. Our

independent research has not yielded any instances, either. Moreover, when

arguing for a Frye hearing, counsel for Appellant acknowledged that “gunshot

residue testing has been around for years.” N.T., 9/8/2017, at 7. As gunshot

residue testing is already scientifically established, a Frye hearing was

unwarranted and we discern no trial court error or abuse of discretion.

In his third issue presented, Appellant claims the trial court erred by

failing to issue a “missing witness” jury instruction regarding a purported

eyewitness to the crimes, Tyson Bowman,4 who did not testify at trial.

Appellant’s Brief at 21-24. Appellant argues that Bowman’s testimony was

important and not cumulative. Id. at 23. Appellant maintains that the

uncalled witness was not accessible to him and essentially under the

Commonwealth’s control. Id. at 23-24. Thus, he claims he was entitled to

a jury instruction regarding a missing witness.

____________________________________________

4 As explained below, the purported witness’ name was in contention.
Appellant claims the alleged witness’ last name is “Bowman;” the
Commonwealth and the trial court refer to him as “Bolden.”

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“[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court's

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Leaner, 202 A.3d 749, 782–783 (Pa. Super. 2019)

(citation omitted). This Court has stated:

The trial court is not required to give every charge that is
requested by the parties and its refusal to give a requested charge
does not require reversal unless the [a]ppellant was prejudiced by
that refusal.

A missing witness instruction may be given in limited
circumstances. When a potential witness is available to only one
of the parties to a trial, it appears this witness has special
information material to the issue, and this person's testimony
would not merely be cumulative, then if such party does not
produce the testimony of this witness, the jury may draw an
inference that it would have been unfavorable. However, this
Court has clarified at least six circumstances where a party is not
entitled to the missing witness adverse inference instruction:

1. The witness is so hostile or prejudiced against the party
expected to call him that there is a small possibility of
obtaining unbiased truth;

2. The testimony of such a witness is comparatively
unimportant, cumulative, or inferior to that already
presented;

3. The uncalled witness is equally available to both parties;

4. There is a satisfactory explanation as to why the party
failed to call such a witness;

5. The witness is not available or not within the control of
the party against whom the negative inference is desired;
and

6. The testimony of the uncalled witness is not within the
scope of the natural interest of the party failing to produce
him.

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Commonwealth v. Miller, 172 A.3d 632, 645–646 (Pa. Super. 2017)

(internal citations and quotations omitted).

Here, the trial court explained:

The Commonwealth has been unable to locate Bolden, and has
neither had the opportunity to interview nor speak with him. Any
attempts to locate Bolden have undoubtedly been complicated by
the fact that there has been a debate over what the missing
witness’s name actually is. Freeman, Bolden’s friend, initially
provided the name Bowman and then later said the name was
Bolden. Freeman’s girlfriend, Washington, also had trouble
remembering the last name while she was testifying.
Furthermore, the [trial c]ourt [found] that this witness was equally
available (or unavailable) to both parties, and that furthermore,
[Appellant] has not shown that the testimony of this witness would
have provide[d] information or insight that would have not been
merely cumulative.

Trial Court Opinion, 7/23/2018, at 12.

Upon review, we discern no trial court error or abuse of discretion in

denying Appellant’s request for a missing witness jury instruction. Appellant

does not challenge the determination that the purported witness could not be

located. As such, the witness was unavailable to both the Commonwealth and

Appellant. Moreover, Appellant merely speculates as to the nature of the

alleged missing witness’ testimony. Hence, there was no evidence that the

purported testimony would not have been cumulative. As such, Appellant’s

third issue lacks merit.

In his fourth issue, Appellant argues that the trial court erred in

precluding him from calling Gregory Smith to testify at trial. Smith was the

landlord of the property where the shooting occurred. Appellant’s Brief at

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24-26. Appellant proffered that the landlord would testify that a family, with

a son who was about the same age as Appellant, lived in the duplex next door

to Freeman a year or two before the crimes. Id. at 24-25. Appellant claims

that the property owner’s testimony would have corroborated his own

testimony that “his reason for knocking on [Freeman’s] door and being in that

location was to stay with a friend [named] Craig.” Id. at 25. Appellant notes

that the landlord could not specifically recall the boy’s name who allegedly

lived next door to Freeman and, as such, the trial court precluded Appellant

from calling the landlord as a witness. Id. at 25. Appellant claims it was trial

court error to preclude the proffered testimony.

On a challenge to a trial court's evidentiary ruling, our standard of

review is one of deference:

The admissibility of evidence is solely within the discretion of the
trial court and will be reversed only if the trial court has abused
its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or
the result of bias, prejudice, ill-will or partiality, as shown by the
evidence of record.

Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012).

Herein, the trial court determined:

[Appellant] claimed that [the landlord’s] testimony would support
[Appellant’s] testimony that he was looking for a friend [] named
‘Craig’ or ‘Greg’ when he went to Freeman’s home[.] However,
the relevancy of this testimony was not clear to the [trial c]ourt,
because the residential lease does not identify the young male [for
whom Appellant was allegedly searching]. Furthermore, [the
landlord] did not recall the boy’s name. Without additional specific

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information, the [trial c]ourt precluded [the] landlord [] from
testifying.

Trial Court Opinion, 7/23/2018, at 11-12.

We discern no error or abuse of discretion. Here, the relevancy of the

proposed evidence was unclear. The landlord was uncertain regarding key

elements of Appellant’s proffer. Moreover, even if Appellant were looking for

a person his age at the duplex next to Freeman’s residence, Appellant has not

explained how it would have exculpated him from shooting the victim or

materially aided his defense. Appellant’s purported reason for being in the

location was irrelevant as to whether Appellant was the perpetrator of the

crimes. Accordingly, the trial court did not abuse its discretion in precluding

the landlord from testifying.

In his fifth issue on appeal, Appellant argues that the jury’s verdict was

against the weight of the evidence presented at trial. Appellant’s Brief at

26-28. Appellant claims that, “there were a minimum of four individuals

present when the victim was accidentally shot and killed.” Id. at 26.

Appellant claims that the evidence presented at trial showed that two people,

other than defendant, had firearms. Id. at 26-27. He contends that “[o]ther

than Freeman, none of the Commonwealth witnesses were able to identify

[Appellant] as the shooter or as possessing a weapon.” Id. at 27. Appellant

asserts that the Commonwealth failed to establish the trajectory of the fatal

bullet and offered gunshot residue evidence as proof that Appellant was in the

vicinity of a fired weapon, but failed to prove that he was the actual shooter.

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Id. at 27. Appellant claims that the Commonwealth’s presentation of evidence

that Appellant’s DNA was found on the barrel of the recovered .357 mm

revolver “was consistent with [his] testimony that he grabbed the gun as

Freeman was attempting to shoot him.” Id. at 27. As such, Appellant

contends that “[w]ithout any ballistic support, there is no evidence to convict

[Appellant] of third[-]degree murder and aggravated assault with possession

of an instrument of crime.” Id. at 28.

An appellate court's standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.

Commonwealth v. Thomas, 194 A.3d 159, 168 (Pa. Super. 2018) (citation

omitted).

On Appellant’s weight of the evidence claim, the trial court concluded:

[T]he jury appropriately weighed the testimony of various
witnesses and [] the jury’s verdict is a reasonable application of
[law to] the facts. […] The jury’s decision to consider the
testimony of Freeman, multiple eyewitnesses, and law
enforcement officials [as] more credible than the testimony of

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[Appellant] is within the jury’s purview as the trier of fact.
Therefore, the [trial c]ourt found that the jury’s verdict was not
inconsistent or contrary to the weight of the evidence, and did not
grant a new trial.

Trial Court Opinion, 7/23/2018, at 17.

Here, while Appellant assails the ballistic evidence and DNA evidence

presented at trial as inadequate, he disregards the eyewitness testimony,

video surveillance footage, and his recorded confession to police that was also

presented at trial. Based on the record before us, we discern no abuse of

discretion or error of law in denying relief on Appellant’s weight of the evidence

claim.

In his final issue presented, Appellant argues that the trial court erred

by failing to grant him a hearing regarding the subsequent criminal case

against Commonwealth witness, Keith Freeman. Appellant’s Brief at 28-29.

Appellant notes that, at trial, Freeman admitted that he faced criminal charges

arising from this incident, but denied receiving any promises from the

Commonwealth in exchange for his testimony. Id. at 28. Appellant contends

that, after trial, he “discovered that the charges against Keith Freeman were

nol prosed.” Id. Thus, Appellant argues that the trial court erred by denying

relief when “[c]ounsel sought a hearing to obtain information as to when the

deal was made with Freeman and whether his [trial] testimony was inaccurate

in that there was a no deal promised to him in exchange for his testimony.”

Id. at 28-29. Appellant concludes, “that this is an issue that goes to

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[Freeman’s] credibility and would have been something the jury should have

had an opportunity to hear.” Id. at 29.

This Court previously decided:

A trial court may grant a post-sentence [m]otion for a [n]ew [t]rial
based on after-discovered evidence if the appellant shows by a
preponderance of the evidence that the after-discovered evidence
(1) could not have been obtained prior to trial by exercising
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach a
witness's credibility; and (4) would likely result in a different
verdict.

Commonwealth v. Griffin, 137 A.3d 605, 608 (Pa. Super. 2016) (internal

citation omitted) (emphasis added).5

Here, Appellant sought the proposed after-discovered evidence to

challenge Freeman’s credibility by alluding to a possible motive for testimony

favorable to the Commonwealth. However, an appellant seeking a new trial

must demonstrate that he will not use the alleged after-discovered evidence

“solely to impeach a witness’s credibility.” Id. As such, we discern no trial

court abuse of discretion or error of law in denying Appellant’s

after-discovered evidence claim.

Judgment of sentence affirmed.

____________________________________________

5 We note that Appellant does not provide any citations to legal authority on
this issue. We could find the issue waived, but decline to do so because our
judicial review is unhampered by the omission.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2019

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