Com. v. Shelton, R.

J. S66031/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RODNEY TALBO SHELTON, : No. 2122 EDA 2018
:
Appellant :

Appeal from the Judgment of Sentence Entered June 22, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0000147-2017

BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: September 10, 2020

Rodney Talbo Shelton appeals from the June 22, 2018 judgment of

sentence entered by the Court of Common Pleas of Delaware County following

his conviction in a jury trial of second-degree murder, robbery-inflict serious

bodily injury, possession of a firearm with manufacturer number altered,

possession of a firearm by a prohibited person, and firearms not to be carried

without a license.1 The trial court sentenced appellant to the mandatory

minimum sentence of life imprisonment without the possibility of parole. After

careful review, we affirm.

The trial court set forth the following factual and procedural history:

In the early morning of June 9, 2015, Thomas Childs
arrived to work as a delivery truck driver at Ridgeway

1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 6110.2(a), 6105(a)(1), and
6106(a)(1), respectively.
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Industries at 6250 Baltimore Avenue, Yeadon
Borough, Delaware County, Pennsylvania. At roughly
3:30 a.m., [appellant] approached Mr. Childs and
attempted to rob him using a 9-millimeter high-point
firearm. A struggle ensued, during which two shots
were fired. The second shot struck Mr. Childs in the
back and became lodged in his spine, proving to be a
fatal injury. [Mr.] Childs died at the crime scene as a
result of his gunshot wounds. Kevin Knoblauch, a
coworker of Mr. Childs, was showing up for work
around the time of the murder and was later able to
identify [appellant] in a police lineup.

Police found a 9-millimeter high-point gun abandoned
in a cemetery neighboring the industrial park, along
with loose cash and Mr. Childs’ cell-phone.
Ms. Sinoma Smith originally purchased the gun at
Chauncey’s Pawn & Gun in Elizabeth City,
North Carolina. Ms. Smith gave the gun to [appellant]
following her felony charge and subsequent probation
sentence. [Appellant] has no license to carry the gun.
Ms. Jerusha Scott, an acquaintance of [appellant],
testified that she recognized the gun used in the
murder, and that she had previously seen it at her
home. Furthermore, Yeadon Police Officers recovered
bullets lodged into a tree on the property, as well as
empty casings, after searching Ms. Smith’s residence
in Camden, North Carolina. Detective Louis Grandizio
of the Delaware County Criminal Investigation
Division (“CID”) testified after conducting a forensic
analysis of these bullets and casings, concluding in his
report that unique markings matched the bullets that
were recovered during Mr. Childs’ autopsy. After
Detective Grandizio tested the gun, it was later sent
to Katherine Cross at Guardian Forensic Sciences for
a DNA analysis. Ms. Cross testified her results were
inconclusive because the gun contained DNA samples
from two unidentified males. This matched the results
of DNA testing conducted by agent Lauren Force of
the Pennsylvania State [P]olice, which were also
deemed inconclusive.

Following the robbery and the murder of Mr. Childs,
[appellant] traveled roughly 800 miles south;

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U.S. Marshals arrested [appellant] in Georgia
18 months after Mr. Childs’ death. Detectives
Joseph Houghton and Michael Jay of the Yeadon Police
Department and CID, respectively, interviewed
[appellant] on December 12, 2016. After having
[appellant] sign a Miranda[2] warning form, the
[d]etectives spoke with [appellant] off the record for
about two hours, followed by an interview on the
record for about thirty minutes. [Appellant] confessed
to the murder during the recorded portion of their
conversation. [Appellant] admitted he was “tired of
running” and to taking significant steps to change his
appearance—such as growing his hair out, filling in his
tattoos, and removing his freckles. During the trial,
the Commonwealth showed the jury a YouTube video
published by [appellant] 83 days following Mr. Childs’
murder that depicted a similar event, and where
[appellant] more closely resembles his former
physical appearance. After his confession, [appellant]
was transported to the Darby Borough Police
Department in connection with the murder. While in
custody at the George Hill Correctional Facility in
Delaware County, [appellant] was recorded talking on
the phone with a friend expressing his desire to accept
a guilty plea, as well as expressing remorse for the
situation. On April 2, a jury trial commenced where
[appellant] was accused of first, second, and third
degree murder. During the process of jury selection,
the Commonwealth and [d]efense counsel were each
entitled to 9 peremptory strikes, for a total of
18 strikes. The Commonwealth used 7 of their
peremptory strikes against female jurors 4, 31, 35,
and 36 as well as African-American jurors 7, 18, and
19, prompting [d]efense counsel to raise a Batson[3]
challenge with the trial [court.] After discussion
wherein the Commonwealth provided race neutral
reasons for the strikes, the trial [court] allowed the
peremptory strikes to stand.

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

3 See Batson v. Kentucky, 476 U.S. 79 (1986).

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Trial court opinion, 7/22/19 at 1-4 (bolding and italics added).

On April 6, 2018, a jury convicted appellant of the aforementioned

offenses. The trial court sentenced appellant to a mandatory minimum term

of life imprisonment without possibility of parole for the second-degree murder

charge pursuant to 18 Pa.C.S.A. § 1102(b) on June 22, 2018.

Appellant filed a timely notice of appeal on July 16, 2018. The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court

subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a) on July 22, 2019.

Appellant presents the following issues for our review:

1. Whether the verdict of guilty of Second Degree
(Felony) Murder, Possession of a Firearm with
Obliterated Manufacturer’s Number, Persons not
to Posses [sic] Firearms and Firearms not to be
Carried without a License, are based upon
insufficient evidence?

2. Whether the trial court committed error of law
and abuse of its discretion in overruling
[a]ppellant [sic] challenge under Batson vs.
Kentucky, to strikes of seven African American
and female jurors?

3. Whether [a]ppellant’s confession was obtained
in violation of his right to due process of law and
against self[-]incrimination, guaranteed
[a]ppellant by the Fourth, Fifth, Sixth and
Fourteenth Amendments to the United States
Constitution and Article [I] Sections 8 and 9 of
the Pennsylvania Constitution, where, under the
totality of the circumstances, the confession
was involuntary in that it was not the product of
[a]ppellant’s free will and unconstrained choice,
but, instead, was the result of manipulative,

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coercive and overreaching interrogation by
police[?]

4. Whether the trial court committed error of law
and abuse of its discretion in admitting into
evidence the recording and transcript of a
telephone call of [a]ppellant wherein [a]ppellant
speaks of a potential sentence he might agree
to?

5. Whether the trial court committed error of law
and abuse of its discretion in admitting into
evidence a video depicting [a]ppellant being
shot while running from an automobile?

6. Whether the trial court committed error of law
and abuse of its discretion, in allowing the
Commonwealth’s DNA expert to testify to
matters not contained within her report?

Appellant’s brief at 5-6.

I.

In his first issue, appellant contends that the Commonwealth failed to

produce sufficient evidence to warrant his convictions of second-degree

murder, possession of a firearm with an obliterated manufacturer’s number,

persons not to possess firearms, and firearms not to be carried without a

license.

As a general matter, our standard of
review of sufficiency claims requires that
we evaluate the record in the light most
favorable to the verdict winner giving the
prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
charged and the commission thereof by

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the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need
not establish guilt to a mathematical
certainty. Any doubt about the
defendant’s guilt is to be resolved by the
fact finder unless the evidence is so weak
and inconclusive that, as a matter of law,
no probability of fact can be drawn from
the combined circumstances.

The Commonwealth may sustain its
burden by means of wholly circumstantial
evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s
participation in a crime is circumstantial
does not preclude a conviction where the
evidence coupled with the reasonable
inferences drawn therefrom overcomes
the presumption of innocence.
Significantly, we may not substitute our
judgment for that of the fact finder; thus,
so long as the evidence adduced,
accepted in the light most favorable to the
Commonwealth, demonstrates the
respective elements of a defendant’s
crimes beyond a reasonable doubt, the
appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23
(Pa. Super. 2013) (internal quotations and citations
omitted). Importantly, “the jury, which passes upon
the weight and credibility of each witness’s testimony,
is free to believe all, part, or none of the evidence.”
Commonwealth v. Ramtahal, [], 33 A.3d 602, 607
([Pa.] 2011).

Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).

In his brief, the overarching focus of appellant’s sufficiency claim is on

the jury’s credibility determinations as it relates to testimony from Kevin

Knoblauch, Jerusha Scott, and Sinoma Smith. (See id. at 34-42.) It is well

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settled that challenges to the credibility of the evidence are actually challenges

to the weight of the evidence. Commonwealth v. Mbewe, 203 A.3d 983,

987 (Pa.Super. 2019), citing Commonwealth v. Griffin, 65 A.3d 932, 935

(Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013). Credibility

determinations are within the sole purview of the jury, and appellate courts

will not substitute their credibility determinations for that of the jury.

Commonwealth v. Izurieta, 171 A.3d 803, 809 (Pa.Super. 2017), citing

Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998). Accordingly,

appellant’s first issue is without merit.

II.

Appellant next argues that the trial court erred when it sustained the

Commonwealth’s peremptory strikes of seven members of the jury pool.

(Appellant’s brief at 42.) In the instant case, the record reflects that the final

jury panel consisted of two African Americans; additionally, one of the

alternates seated was African American. (Notes of testimony, 4/3/18 at

20-21.) Appellant is African American. (Id. at 8.) This court has set forth

the following standard of review for Batson challenges:

A Batson claim presents mixed questions of law and
fact. Therefore, our standard of review is whether the
trial court’s legal conclusions are correct and whether
its factual findings are clearly erroneous.

In Batson, the [Supreme Court of the United States]
held that a prosecutor’s challenge to potential jurors
solely on the basis of race violates the Equal
Protection Clause of the United States Constitution.

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When a defendant makes a Batson challenge during
jury selection:

First, the defendant must make a prima
facie showing that the circumstances give
rise to an inference that the prosecutor
struck one or more prospective jurors on
account of race; second, if the
prima facie showing is made, the burden
shifts to the prosecutor to articulate a
race-neutral explanation for striking the
juror(s) at issue; and third, the trial court
must then make the ultimate
determination of whether the defense has
carried its burden of proving purposeful
discrimination.

Commonwealth v. Edwards, 177 A.3d 963, 971
(Pa.Super. 2018) (citations and quotation marks
omitted). “The trial court should consider the totality
of circumstances when determining whether the
prosecutor acted with discriminatory intent or
engaged in purposeful discrimination.”
Commonwealth v. Towles, [] 106 A.3d 591, 602
([Pa.] 2014) (citation omitted). This Court must give
great deference to a trial court’s determination that
peremptory challenges were free of discriminatory
intent, and we will not overturn the determination
unless it was clearly erroneous. See id.

Commonwealth v. Scott, 212 A.3d 1094, 1105-1106 (Pa.Super. 2019),

appeal denied, 222 A.3d 383 (Pa. 2019).

Here, appellant contends that the Commonwealth improperly struck

seven jurors—three African Americans and six women.4 (Notes of testimony,

4/2/18 at 241.) Specifically, appellant argues that the trial court erred when

4 The record reflects that two of the African American jurors on whom the
Commonwealth used a peremptory strike were women. (Notes of testimony,
4/2/18 at 241.)

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it sustained the Commonwealth’s peremptory strikes of Juror Nos. 4, 7, 18,

19, 31, 35, and 36.5 (Appellant’s brief at 42.) We shall address each juror

individually.

Juror No. 4:

Appellant first contends that Juror No. 4 was improperly struck by the

Commonwealth because she previously served on a hung jury. (Appellant’s

brief at 44, citing notes of testimony, 4/2/18 at 247-248.) The record reflects

that Juror No. 4 served on a hung jury in a driving under the influence (“DUI”)

case in Delaware County in 2008. (Id. at 49.) Juror No. 4 also indicated that

there was nothing about her previous jury experience that would have caused

her to not be able to serve as a juror again or render any bias toward or

against either the Commonwealth or appellant. (Id. at 49-50.) The

Commonwealth explained that it used a peremptory strike on Juror No. 4

based on concern that “based upon her past experiences as a juror[, she may

be] unable to make a decision.” (Id. at 247.)

5 Appellant does not provide any discussion in his brief as to the peremptory
strikes used by the Commonwealth on Juror Nos. 7 and 36. (See appellant’s
brief at 43-45.) Accordingly, appellant waives any Batson claim as to Juror
Nos. 7 and 36. See Commonwealth v. Charleston, 94 A.3d 1012, 1022
(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014), quoting
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007),
appeal denied, 982 A.2d 509 (Pa. 2009) (“We shall not develop an argument
for [the appellant], nor shall we scour the record to find evidence to support
an argument; consequently, we deem this issue waived.” (brackets in
original)).

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Juror No. 18:

Next, appellant argues that the Commonwealth improperly used a

peremptory strike on Juror No. 18, an African American man. (Appellant’s

brief at 44; see also notes of testimony, 4/2/18 at 242-244.) The

Commonwealth provided the following reasoning for using a peremptory strike

on Juror No. 18:

[S]o when he initially was voir dired he indicated that
he was less likely to believe a police officer. When
questioned upon it he hesitated. I wrote that in my
notes. Then he also checked off yes for do you have
any religious, moral or any other beliefs that would
allow you to sit in judgment of somebody. I believe
that is what the wording was. And he indicated he
couldn’t remember and he was kind of hesitant with a
lot of his responses which concerns me that he will be
indecisive when deliberating. But I do remember him
like I said he clearly hesitated [when answering the]
less likely [to believe a] police officer [question].

Notes of testimony, 4/2/18 at 244.

Appellant’s argument pertaining to Juror No. 18 is limited to an

allegation that the trial court “failed to note whether [Juror No. 18] exhibited

the behavior ascribed by the Commonwealth.” (Appellant’s brief at 44, citing

notes of testimony, 4/2/18 at 244.)

Juror No. 19:

Appellant then avers that the Commonwealth improperly used a

peremptory strike on Juror No. 19, an African American woman. (Appellant’s

brief at 44, see also notes of testimony, 4/2/18 at 242-245.) The

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Commonwealth noted the following reasons for exercising a peremptory

strike:

So this was a juror that was absent for a significant
period of time. I have concerns that she doesn’t have
the ability to follow instructions. There was also I
think somewhat of a language barrier when we were
speaking with her. She had a very, very heavy
accent. Additionally she lives in Yeadon and she said
she had heard nothing about this case which I find
highly unlikely being that this was in the press for
quite some time.

Notes of testimony, 4/2/18 at 244-245.

Appellant argues that “the record is devoid of any information as to what

exactly the juror was absent from, nor does it appear that either the

Commonwealth or the trial court assessed whether the juror was possessed

with an adequate understanding of the English language so as to be able to

serve[.]” (Appellant’s brief at 44, citing notes of testimony, 4/2/18 at

244-245.)

Juror No. 31:

Next, appellant argues that the Commonwealth improperly used a

peremptory strike on Juror No. 31, a woman. (Appellant’s brief at 44;

see also notes of testimony, 4/2/18 at 246.) The Commonwealth averred

that it exercised a peremptory strike on Juror No. 31 because:

[Juror No.] 31 is a law clerk. I have concerns with
having somebody that has somewhat of a
sophisticated legal background on the jury. She also
indicated that her husband had a DUI. I have a little
bit of a concern about that as well. But it wasn’t
strictly on her being female.

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Notes of testimony, 4/2/18 at 246-247.

Appellant specifically argues that Juror No. 31 was not asked whether

her contact with the criminal justice system might color her assessment of the

evidence. (Appellant’s brief at 44, citing notes of testimony, 4/2/18 at

246-247.)

Juror No. 35:

Finally, appellant contends that the Commonwealth improperly struck

Juror No. 35, a woman. (Appellant’s brief at 44; see also notes of testimony,

4/2/18 at 246.) The Commonwealth stated that the decision to exercise a

peremptory strike on Juror No. 35 “was based upon her profession. I tend to

not put engineers on my jury panel in light of their thought processes.” (Notes

of testimony, 4/2/18 at 246.)

Appellant argues that “one is hard pressed to understand what it is

about an engineer’s ‘thought processes’ that would deem any such

professional unfit to serve on a jury[.]” (Appellant’s brief at 44 (emphasis in

original).)

The trial court denied appellant’s Batson motion, finding that the

Commonwealth gave a non-biased reason for exercising its peremptory

strikes. (Notes of testimony, 4/2/18 at 248.) In its Rule 1925(a) opinion, the

trial court concluded that, “[t]he Commonwealth met its evidentiary burden

[under Batson] because none of the reasons [it] provided were merely a

rebuttal or claim of good faith, but rather cited individual and specific reasons

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for striking each juror.” (Trial court opinion, 7/22/19 at 8, citing Batson, 476

U.S. at 97-98, Alexander v. Louisiana, 405 U.S. 625, 629-631 (1972).)

Based on our review of the record, we can discern no legal error on the part

of the trial court. Accordingly, we find that appellant’s second issue is without

merit.

III.

Appellant next argues that the trial court erred when it denied his

pre-trial motion to suppress evidence of his confession on the grounds that

his confession was not voluntary. (Appellant’s brief at 46.)

We review the denial of a motion to suppress using the following

standard of review:

[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
conclusions of law of the courts below are subject to [
] plenary review.

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Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015), appeal

denied, 135 A.3d 584 (Pa. 2016), quoting Commonwealth v. Jones, 988

A.2d 649, 654 (Pa. 2010) (internal citations and quotation marks omitted).

A confession obtained during
a custodial interrogation is
admissible where the
accused’s right to remain
silent and right to counsel
have been explained and the
accused has knowingly and
voluntarily waived those
rights. The test for
determining the voluntariness
of a confession and whether
an accused knowingly waived
his or her rights looks to the
totality of the circumstances
surrounding the giving of the
confession.

Commonwealth v. Jones, [] 170, 683
A.2d 1181, 1189 ([Pa.] 1996) (citations
omitted). []The Commonwealth bears the
burden of establishing whether a
defendant knowingly and voluntarily
waived his Miranda ‘rights.’[Footnote 3]
Commonwealth v. Bronshtein, [] 691
A.2d 907, 913 ([Pa.] 1997) (citation
omitted).

[Footnote 3] Miranda v.
Arizona, 384 U.S. 436 []
(1966).

Commonwealth v. Davis, 861 A.2d 310, 317
(Pa.Super. 2004), appeal denied, [] 872 A.2d 171
([Pa.] 2005).

When deciding a motion to suppress a
confession, the touchstone inquiry is

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whether the confession was voluntary.
Voluntariness is determined from the
totality of the circumstances surrounding
the confession. The question of
voluntariness is not whether the
defendant would have confessed without
interrogation, but whether the
interrogation was so manipulative or
coercive that it deprived the defendant of
his ability to make a free and
unconstrained decision to confess. The
Commonwealth has the burden of proving
by a preponderance of the evidence that
the defendant confessed voluntarily.

Commonwealth v. Nester, [] 709 A.2d 879, 882
([Pa.] 1998) (citations and footnote omitted).

When assessing voluntariness pursuant to
the totality of the circumstances, a court
should look at the following factors: the
duration and means of the interrogation;
the physical and psychological state of the
accused; the conditions attendant to the
detention; the attitude of the
interrogator; and any and all other factors
that could drain a person’s ability to
withstand suggestion and coercion.

Id. at [] 882 (citations omitted).

Commonwealth v. Harrell, 65 A.3d 420, 433-434 (Pa.Super. 2013), appeal

denied, 101 A.3d 785 (Pa. 2014).

Here, appellant admits that while he was given Miranda warnings, “the

warnings did not serve their purpose, and [a]ppellant’s rights against

self[-]incrimination and to counsel[] were not voluntarily waived.”

(Appellant’s brief at 52.) Specifically, appellant contends that his confession

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“was not the product of his own free will but, instead, was involuntarily

induced by the interrogation tactics of [the] police.” (Id. at 49.)

In denying appellant’s suppression motion, the trial court concluded as

follows:

Here, the will of [appellant] was not overborne by any
coercive or overreaching police conduct. [Appellant]
told detectives, “[I] didn’t mean to shoot [Mr. Childs].
. . . but obviously you know I know I pulled the trigger
and then I just [ran off].” [(Notes of testimony,
12/12/16 at 2.) Appellant] went on to say, “[At] that
moment I wanted to say something to somebody and
actually stand there like a fool knowing that I just did
this crime and say something [about] what I had
done.” [(Id.)] This interview was conducted on
December 12, 2016, at the Dekalb County Sheriff’s
Office — about 18 months following Mr. Childs’
murder — because [appellant] fled the
[Commonwealth] of Pennsylvania and evaded the law
in the intervening months. [Appellant] told the
Yeadon Borough Police Department, after apologizing
to Mr. Childs and his family, that he was “tired of
running.” [(Id. at 22.)]

The detectives conducted a pre-interview off the
record for approximately two hours before recording
their interview with [appellant] because it is not
standard police practice to go immediately on the
record with a suspect. [Appellant] verbally indicated
to the detectives that he understood the Miranda
warning recited to him, and [appellant] initialed a
form waiving his right against self[-]incrimination and
his right to counsel before speaking on the record.
[(Id.)]

Trial court opinion, 7/22/19 at 6 (some brackets in original, bolding and italics

added); see also trial court order denying appellant’s motion to suppress,

7/11/17 at 1-5.

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After a careful review of the record, viewing the totality of the

circumstances of appellant’s statements to police, the record supports the trial

court’s factual findings and legal conclusions. Therefore, appellant’s third

issue is without merit.

IV.

In his next three issues, appellant raises challenges to evidentiary

rulings by the trial court. When reviewing evidentiary rulings by the trial court

on appeal, we use the following standard of review:

“When reviewing the denial of a motion in limine,
[appellate courts] appl[y] an evidentiary abuse of
discretion standard of review. ... It is
well-established that the admissibility of evidence is
within the discretion of the trial court, and such rulings
will not form the basis for appellate relief absent an
abuse of discretion.” [Commonwealth v.] Rivera,
983 A.2d [1211,] 1228 [(Pa. 2009)] (citation and
quotation marks omitted). Thus, the Superior Court
may reverse an evidentiary ruling only upon a
showing that the trial court abused that discretion.
Commonwealth v. Laird, [] 988 A.2d 618, 636
([Pa.] 2010). A determination that a trial court
abused its discretion in making an evidentiary ruling
“may not be made ‘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.’” Id. (quoting
Commonwealth v. Sherwood, [] 982 A.2d 483, 495
([Pa.] 2009)). Further, discretion is abused when the
law is either overridden or misapplied.
Commonwealth v. Randolph, [] 873 A.2d 1277,
1281 ([Pa.] 2005).

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014).

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In his fourth issue, appellant avers that the trial court committed an

abuse of discretion when it admitted into evidence a portion of a recorded

telephone call during which appellant discussed accepting a potential plea

deal. (Appellant’s brief at 52.) Specifically, appellant alleges that the trial

court erred when it admitted a recording of the following statement into

evidence that was recorded while appellant was incarcerated at the

George H. Hill Correctional Facility:

. . . if I could swing that s**t down to like 10 or
something like that, then I can pull that man. I ain’t
gonna (sic) sit here and say, you know, but if I can
get the jawn[6] down to 10 then I’ll be alright on that
man.

Id., quoting Exhibit C-100 at unnumbered page 1.

Appellant contends that the recording is not relevant. (Appellant’s brief

at 56.) Specifically, he argues that he “only speaks of the length of a prison

sentence; he doesn’t admit to the crime, nor does he commit to bringing about

such a sentence in any particular fashion[.]” (Id.) Appellant further argues

that it is not clear in the recording that he’s even considering accepting a guilty

plea; rather he could be considering a sentence after a guilty verdict or a plea

of nolo contendere. (Id.)

Relevance is the threshold for admissibility of
evidence; evidence that is not relevant is not
admissible. Commonwealth v. Cook, [] 952 A.2d

6 The Oxford Dictionary defines “jawn” as dialect chiefly used in eastern
Pennsylvania to “refer to a thing, place, person, or event that one need not or
cannot give a specific name to.” Jawn Definition, lexico.com,
https://www.lexico.com/en/definition/jawn (last visited July 8, 2020).

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594, 612 ([Pa.] 2008); Pa.R.E. 402. “Evidence is
relevant if it logically tends to establish a material fact
in the case, tends to make a fact at issue more or less
probable or supports a reasonable inference or
presumption regarding a material fact.”
Commonwealth v. Drumheller, [] 808 A.2d 893,
904 ([Pa.] 2002) (citation omitted). Our Rules of
Evidence provide the test for relevance: evidence is
relevant if “(a) it has any tendency to make a fact
more or less probable than it would be without the
evidence; and (b) the fact is of consequence in
determining the action.” Pa.R.E. 401. Further, “[t]he
court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”
Pa.R.E. 403.

Commonwealth v. Leap, 222 A.3d 386, 390 (Pa.Super. 2019), appeal

denied, A.3d , 2020 WL 2465050 (Pa. May 13, 2020).

Here, the trial court concluded as follows:

[Appellant’s] call from prison is relevant evidence
because it addresses the issue of fact as to whether
or not [appellant] was coerced into giving a
confession. [Appellant] talks openly regarding his
willingness to negotiate a deal with the
[Commonwealth], as well as statements such as,
“that was the last straw man. That’s what it took to
make my hard-headed ass stop.” [(Notes of
testimony, 4/6/18 at 173-184.)] These statements
were used to show [appellant’s] feelings of guilt and
culpability, and helped the Commonwealth to refute
[appellant’s] claims of being coerced into a confession
during cross[-]examination.

Trial court opinion, 7/22/19 at 18.

Based on our review of the record, we find that the trial court did not

abuse its discretion when it admitted evidence of a portion of a recorded

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telephone call during which appellant discussed accepting a potential plea deal

on the basis of relevance.

Our inquiry, however, cannot end here. Appellant also contends that

the record was admitted into evidence in violation of Pa.R.E. 410, which

excludes “any statement made in the course of plea discussions with an

attorney for the prosecuting authority which does not result in a plea of guilty

or which results in a plea of guilty later withdrawn.” (Appellant’s brief at 54,

citing Pa.R.E. 410(a)(4).) Appellant admits that at the time the recording at

issue was made, appellant was not speaking with an attorney for the

Commonwealth, which, therefore, would not bar the recording’s admission

into evidence under Rule 410; however, appellant argues that because he had

an expectation of negotiating a plea deal with the Commonwealth at the time

of the recording, the recording was admitted in error. (Appellant’s brief at

54-55.)

Our supreme court has held the following:

Not every statement making reference to a deal or
omission of jail time is necessarily a plea discussion
for purposes of this rule. Hutto v. Ross, 429 U.S. 28
[] (1976). First, the accused must exhibit an actual
subjective expectation to negotiate a plea at the time
of the discussion; and second, the accused’s
expectation must be reasonable given the totality of
the circumstances. Commonwealth v. Calloway, []
459 A.2d 795, 800-801 ([Pa.Super.] 1983) (adopting
the Fifth Circuit’s two-tiered analysis in United
States v. Robertson, 582 F.2d 1356 (5th Cir. 1978),
for determining whether plea negotiations are
underway). In Commonwealth v. Vandivner, []
962 A.2d 1170, 1181 ([Pa.] 2009), [our supreme

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court] observed that “the very word negotiation posits
the participation of two parties and not unilateral
conduct,” and specifically declared that:

Of primary importance in assessing an
accused’s subjective expectation of
negotiating a plea is whether the
Commonwealth showed an interest in
participating in such discussions. In line
with this reasoning, voluntary, unsolicited
statements uttered by an accused to
authorities cannot be said to be made in
furtherance of striking a plea bargain.

Id. at 1181. Vandivner provides an example of an
accused’s statement that was not protected by
Pa.R.E. 410 because there was no evidence that the
Commonwealth showed an interest in participating in
plea discussions at the time the accused gave his
inculpatory statement.

Commonwealth v. Burno, 154 A.3d 764, 784 (Pa. 2017).

Here, we find that Rule 410 does not protect the statement at issue.

Unlike the defendants in Burno and Vandivner, appellant did not make the

statement at issue to a police officer or an attorney for the Commonwealth.

See id. at 783 (statement at issue was made to an attorney for the

Commonwealth); Vandivner, 962 A.2d at 1180 (statement at issue was made

to police officers). Rather, appellant’s statements at issue were made to a

friend during a telephone call. Accordingly, such statements are not afforded

protection under Pa.R.E. 410(a)(4). Therefore, the trial court did not abuse

its discretion when it admitted evidence of a portion of a recorded telephone

call during which appellant discussed accepting a potential plea deal.

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V.

Fifth, appellant contends that the trial court abused its discretion when

it admitted a YouTube video posted by appellant into evidence. (Appellant’s

brief at 56.) The trial court provided the following description of the video at

issue:

Here, [appellant] published a music video to YouTube
that includes a scenario closely aligned with the facts
of the murder of Mr. Childs. In the video, entitled “I
Shouldn’t Be Here,” [appellant] portrays the victim of
a violent robbery and homicide. [(Notes of testimony,
4/6/18 at 198, 202-203.) Appellant] is sitting in a
vehicle when he is approached by a gunman, who
pulls [appellant] out of the vehicle and shoots him in
the back — mirroring the untimely demise of
Mr. Childs in the Yeadon Industrial Park early on
June 9, 2015, when police say someone shot him [at]
point-blank range during a robbery. [(Id.)]

On [September] 1, 2015, [Sinoma] Smith received a
promotional text message from [appellant] asking her
to watch the newly published “I Shouldn’t Be Here”
video. [(Notes of testimony, 4/3/18 at 169-170.)]
Ms. Smith testified that she had “never known
[appellant] to have hair on his head,” and that his
physical appearance in the rap video — notably,
[appellant] has a shaved head — matched his typical
appearance prior to the murder of Mr. Childs. [(Id.)
Appellant,] who fled Pennsylvania and was found
18 months later in Georgia, altered his physical
appearance subsequent to the murder of Mr. Childs,
including removing freckles from his face and growing
out his hair. [(Notes of testimony, 4/5/18 at 48-49.)]

Trial court opinion, 7/22/19 at 14-15.

This court’s decision in Commonwealth v. Talbert, 129 A.3d 536

(Pa.Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016), governs here. The

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defendant in Talbert was charged with two counts of first-degree murder and

other related charges following a shooting in which the victims died of multiple

gunshot wounds. Id. at 537. During the trial, the trial court admitted a music

video “that allegedly contained lyrics describing a crime similar to the murders

at issue in [the] case.” Id. at 538 (citation omitted). The defendant appealed,

claiming that “it was impossible to conclude that the rap specifically referred

to the murders in question,” and that the video was “irrelevant and unfairly

prejudicial,” thereby entitling the defendant to a new trial. Id. (citations

omitted).

This court affirmed the defendant’s judgment of sentence, holding as

follows:

To expect rap lyrics, which are a form of artistic
expression, to communicate a criminal event in
precise detail would be wholly unreasonable. See,
e.g., Holmes v. State, 306 P.3d 415, 419 (Nev.
2013) (stating that “defendant-authored rap lyrics
may employ metaphor, exaggeration, and other
artistic devices, and can involve abstract
representations of events or ubiquitous storylines.
But these features do not exempt such writings from
jury consideration where [] the lyrics describe details
that mirror the crime charged.”) (citations and
quotations omitted). Taken as a whole, we conclude
that [the defendant’s] rap video is relevant to show
his involvement in these murders. See
[Commonwealth v.] Flamer, 53 A.3d [82,] 89
[(Pa.Super. 2012)] (holding that the trial court
abused its discretion by finding defendant’s rap lyrics
to be irrelevant and prejudicial, where lyrics about
people “keeping their mouths shut,” sending friends
to kill for him, and “popping shells” in people that “run
their mouth” had a tendency to show a conspiratorial
agreement.); see also United States v. Stuckey,

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J. S66031/19

253 Fed.Appx. 468, 482 (6th Cir. 2007) (concluding
that rap lyrics were relevant because the lyrics
concerning the killing of government witnesses was
precisely what the government accused the defendant
of doing).

Id. at 541.

In its Rule 1925(a) opinion, the trial court noted the similarities between

the instant case and the evidence considered by this court in Talbert, the

United States Court of Appeals for the Sixth Circuit in Stuckey, and the

Supreme Court of Nevada in Holmes.

[Appellant] is free to express himself artistically, but
he cannot argue that his expression is irrelevant to
the present legal propositions when he is accused of
the very crime his expression depicts. Like in
Talbert, where the defendant’s rap lyrics specifically
referenced the neighborhood of the scene of the
crime, the escape vehicle reflected in the record, and
phrases that closely aligned with the injuries
sustained by the victim of the crime, [appellant’s]
video includes specifics to the known facts of the
murder of Mr. Childs, including the removal of the
victim from a vehicle and the shooting of the victim in
the back. And like in Stuckey, where a defendant’s
rap lyrics described precisely what the government
accused [him] of doing, [appellant’s] music video
depicts a scene closely aligning to the facts of the
murder of Mr. Childs.

To be sure, [the trial] court does not expect rap music,
which is a form of artistic expression, to communicate
a criminal event in precise detail. It is understood that
music of all varieties commonly involves abstract
representations of events or ubiquitous storylines.
However, as in Holmes, minor differences between
the actual crime committed and the crime depicted in
the art does not exempt the art from jury
consideration where the details mirror the crime
charged. Therefore, [the trial] court found that there

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J. S66031/19

was sufficient probative value to admit the YouTube
video as evidence.

Trial court opinion, 7/22/19 at 16.

Based on our review of the record, we find that the trial court did not

abuse its discretion when it admitted the YouTube video at issue into evidence.

Accordingly, appellant’s fifth issue is without merit.

VI.

In his final issue, appellant argues that the trial court erred when it

permitted the Commonwealth’s DNA expert, Katherine Cross (“Cross”), to

“testify that had she known Detective Louis Grandizio had handled the firearm

before she could test it, she would have cautioned against the DNA testing.”

(Appellant’s brief at 58-59.) As a means of brief background, the

Commonwealth called Ms. Cross to testify as an expert witness.7 Ms. Cross

testified that she conducted a DNA test on the firearm recovered from the

crime scene. (Notes of testimony, 4/4/18 at 144-145.) She testified that

neither appellant nor the victim, Mr. Childs, were the source of the male DNA

recovered from the grips and trigger of the firearm. (Id.) Cross further

testified, however, that after hearing Detective Grandizio testify that he

handled the firearm prior to Ms. Cross’s conducting a DNA test, she would

have, “cautioned that the results may or may not have any significance

7 Cross is a DNA analyst, serologist, and DNA technical leader at Guardian
Forensic Sciences. (Notes of testimony, 4/4/18 at 135.)

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J. S66031/19

because of the way -- the processing and things that happened to that weapon

prior to [her] getting it.” (Id. at 157-158.)

Expert testimony in a criminal trial is governed by Pennsylvania Rule of

Criminal Procedure 573, which provides, in relevant part:

If an expert whom the attorney for the
Commonwealth intends to call in any proceeding has
not prepared a report of examination or tests, the
court, upon motion, may order that the expert
prepare, and that the attorney for the Commonwealth
disclose, a report stating the subject matter on which
the expert is expected to testify; the substance of the
facts to which the expert is expected to testify; and a
summary of the expert’s opinions and the grounds for
each opinion.

Pa.R.Crim.P. 573(B)(2)(b). As noted by appellant, our supreme court has

held the following:

Expert testimony is admissible in all cases, civil and
criminal alike, “when it involves explanations and
inferences not within the range of ordinary training
knowledge, intelligence and experience.”
[Commonwealth v. Walker, 92 A.3d 766, 788 (Pa.
2014)] (quoting Commonwealth v. Leslie, [] 227
A.2d 900, 903 ([Pa.] 1967)). Even where an expert’s
testimony arguably went beyond the scope of his or
her report, the defendant still bears the burden of
proving he suffered prejudice from the admission of
the testimony. See Commonwealth v. Henry, [],
706 A.2d 313, 326–327 ([Pa.] 1997).

Commonwealth v. Poplawski, 130 A.3d 697, 718 (Pa. 2015), cert. denied

sub nom. Poplawski v. Pennsylvania, 137 S.Ct. 89 (2016).

Appellant contends that he suffered prejudice,

in that he was unable to have [Ms.] Cross’[s]
conclusions reviewed by his own expert, as to

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whether they are correct or subject to
cross[-]examination, or have his expert obtain and
analyze Detective Grandizio’s DNA sample. Instead,
[a]ppellant’s counsel was left only to question
[Ms.] Cross about other ways that “touch DNA” is
deposited on an item and lost[.]

Appellant’s brief at 61, citing notes of testimony, 4/4/18 at 162-163 (emphasis

in original).

The trial court concluded that Ms. Cross’s testimony did not have an

appreciable effect on the outcome of the trial. Indeed, the trial court noted

that her testimony had a:

null effect on the outcome of the trial. It is important
to recognize that her forensic report and testimony
ultimately came back as inconclusive, due to the
presence of multiple samples. Ms. Cross goes no
further toward implicating [appellant] or misleading
the jury in [its] interpretation of the evidence.
Instead, she merely suggests that Detective Grandizio
may have been the cause of the contamination which
led to the inconclusive result.

Trial court opinion, 7/22/19 at 22.

Based on our review of the record, we can discern no abuse of discretion

on the part of the trial court when it permitted Ms. Cross to testify pertaining

to potential DNA contamination on the firearm. Accordingly, appellant’s sixth

issue is without merit.

Judgment of sentence affirmed.

Stabile, J. joins this Memorandum.

Nichols, J. concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/20

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