J-A16016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHNATHAN SAVAGE :
:
Appellant : No. 1646 EDA 2020
Appeal from the Judgment of Sentence Entered December 13, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001056-2017
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 29, 2022
Johnathan Savage (Appellant) appeals from the judgment of sentence 1
entered in the Philadelphia County Court of Common Pleas after his jury
convictions for robbery, burglary, person prohibited from possession of
firearms, carrying a firearm without a license, and conspiracy.2 Appellant
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant’s notice of appeal states that the appeal is from the order entered
on “December 13, 2018” and that his post-sentence motion was denied in
April of 2020. Appellant’s Notice of Appeal, 8/24/20 (emphasis added).
However, a review of the record reveals the judgment of sentence was entered
on December 13, 2019. Upon this Court’s order to show cause why this
appeal should not be quashed as untimely or improperly filed, Appellant
explained that his notice of appeal contained a typographical error and he was
appealing from the December 13, 2019, “sentencing order,” made final after
the denial of his post-sentence motions. See Appellant’s Response to Rule to
Show Cause, 10/1/20, at 1. The caption has been corrected accordingly.
2 18 Pa.C.S. §§ 3701(a)(1)(ii), 3502(a)(1), 6105(a)(1), 6106(a)(1), 903,
respectively.
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argues the trial court erred when it denied his motion in limine to admit expert
witness testimony and allowed his co-conspirators to testify at trial. For the
reasons below, we affirm.
Appellant’s convictions stem from a December 11, 2016, burglary of the
familial home of Ninja Barnes, Jamil Barnes, and their son I.B. Trial Ct. Op.
7/5/21, at 2. “[B]efore 9:30 p.m.[,]” two men, later identified as Justin
Savage3 and Marvel Grierson, knocked on the door of the Barnes’s home on
Devereaux Street in Philadelphia, Pennsylvania. Id. at 2-3. I.B. asked who
was at the door and one of the men said, “G [4] or Johnathan.” Id. at 2. I.B.
opened the door and two masked gunmen came into the home. Id. During
the incident, Grierson sustained a gunshot wound to his leg and both men fled
the home “toward a waiting sedan . . . driven by a third male[.]” Id. at 4.
After the crime, video surveillance footage from Hahnemann hospital showed
an individual, later identified as Appellant, at the emergency room entrance,
where Grierson was being treated after the home invasion. See id. at 5.
A few hours after the incident, the Barnes family viewed two videos, one
from a neighbor’s security camera showing the three perpetrators shortly
before the incident and as they fled the scene, and the other from Hahnemann
Hospital shortly after the burglary. N.T. Jury Trial, 10/9/19, at 12-13, 27.
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3 Appellant and Justin Savage are “close relative[s.]” N.T. Jury Trial,
10/11/19, at 42.
4 The Barnes family also knew Appellant by the nickname “G.” Trial Ct. Op.
at 2.
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After viewing these videos, Mr. and Mrs. Barnes identified Appellant, a family
friend for over two decades and employee of Mr. Barnes for three years, as
the third perpetrator. Trial Ct. Op. at 5.
Appellant was arrested on December 16, 2016, and charged with, inter
alia, robbery, burglary, person prohibited from possession of firearms,
carrying a firearm without a license, conspiracy, aggravated assault, and
unlawful restraint.5 Prior to trial, Appellant filed a motion in limine, requesting
to admit the testimony of Suzanne Mannes, PhD, a purported expert in the
area of eyewitness testimony. Appellant’s Motion In Limine to Admit Expert
Testimony, 12/23/18, at 3-4 (unpaginated). After a February 1, 2019,
evidentiary hearing, the trial court denied Appellant’s motion. See Order,
2/1/19.
This case proceeded to a jury trial on October 8, 2019. The
Commonwealth presented the testimony of, inter alia, Appellant’s co-
conspirators, Justin Savage and Grierson. Both men testified, by way of
reading their guilty plea colloquies,6 that they conspired with Appellant to
commit the December 11, 2016, burglary and robbery of the Barnes family.
N.T. Jury Trial, 10/10/19, at 144-49; N.T., 10/11/19, at 21-39.
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5 18 Pa.C.S. §§ 2702(a), 2902(a)(1).
6 Grierson pled guilty to robbery, burglary, and conspiracy. N.T., 10/10/19,
at 138. Savage pled guilty to robbery, burglary, aggravated assault, and
conspiracy. N.T., 10/11/19, at 16.
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The jury found Appellant guilty of robbery, burglary, person prohibited
from possession of firearms, carrying a firearm without a license, and
conspiracy, and not guilty of aggravated assault and unlawful restraint. On
December 13, 2019, the trial court sentenced Appellant to an aggregate term
of 33 to 66 years’ incarceration.
Appellant filed a post-sentence motion7 challenging the weight of the
evidence and the discretionary aspects of his sentence. Appellant’s Post-
Sentence Motion, 12/21/19, at 1, 6. The motion was denied by operation of
law on April 19, 2020. See Docket Entry, 4/19/20. On August 24, 2020,
Appellant filed a notice of appeal.
This Court subsequently issued a rule to show cause why Appellant’s
appeal, submitted more than 30 days after the trial court denied his post-
sentence motion, should not be quashed as untimely. Appellant filed a
response, asserting that the clerk of courts failed to enter an order denying
his post-sentence motion by operation of law on the docket. Appellant’s
Response to Rule to Show Cause, 10/23/20, at 1-2. Our review of the record
reveals that although an order denying Appellant’s post-sentence motion by
operation of law was entered on the docket, there is no indication that the
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7 Appellant also filed a pro se “Motion for Post-Trial Relief” prior to sentencing
on November 22, 2019, which the trial court did not consider. See
Commonwealth v. Williams, 241 A.3d 353, 354 n.1 (Pa. Super. 2020)
(hybrid representation is not permitted in Pennsylvania and courts will not
accept pro se motions when a defendant is represented by counsel) (citation
omitted).
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order was ever sent to Appellant as required by Pa.R.Crim.P. 720(B)(3)(c).
See id. (“When a post-sentence motion is denied by operation of law, the
clerk of courts shall [ ] enter an order on behalf of the court, and . . . shall
serve a copy of the order on the” parties); see also Pa.R.Crim.P. 114(C)(2)(c)
(mandating that docket entries of orders entered by the trial court contain,
inter alia, “the date of service of the order or court notice”). Because this
constitutes a breakdown in the operation of the courts, we decline to quash
Appellant’s appeal as untimely. See Commonwealth v. Perry, 820 A.2d
734, 735 (Pa. Super. 2003) (“where the clerk of courts does not enter an order
indicating that the post-sentence motion is denied by operation of law and
notify the defendant of same, a breakdown in the court system has occurred
and we will not find an appeal untimely under these circumstances”);
Commonwealth v. Braykovich, 664 A.2d 133, 138 (Pa. Super. 1995)
(excusing facially untimely notice of appeal where clerk of courts failed to
notify defendant that post-sentence motions were by operation of law, under
predecessor to Pa.R.Crim.P. 720(B)(3)(c)).
Appellant subsequently complied with the trial court’s order to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), wherein he challenged: (1) the trial court’s exclusion of expert
witness testimony; (2) the sufficiency of the evidence; (3) the admission of
co-conspirator testimony; (4) the admission of testimony from the prosecutor
who handled co-conspirator’s guilty pleas; (5) the weight of the evidence; and
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(6) the discretionary aspects of the imposed sentence. Appellant’s Statement
of Errors Complained of On Appeal, 3/22/21, at 1-6.
Appellant raises the following claims on appeal:
1. Did the trial court abuse its discretion by excluding Appellant’s
proposed expert on eyewitness misidentification?
2. Did the trial court violate Appellant’s due process right to
present a complete defense by excluding Appellant’s proposed
expert witness on eyewitness misidentification?
3. Did the trial court abuse its discretion by allowing the
government to call all of Appellant’s co[-]defendants and
having the trial prosecutor cross examine them to testify that
they had pleaded guilty including that they conspired with
Appellant?
Appellant’s Brief at 4.8
As all of Appellant’s claims challenge the admission of evidence,
[appellate courts] apply an evidentiary abuse of discretion
standard of review. The admission of evidence is committed to
the sound discretion of the trial court, and a trial court’s ruling
regarding the admission of evidence will not be disturbed on
appeal unless that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support to be
clearly erroneous.
Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation
omitted). We review a challenge to a trial court’s ruling on a motion in limine
by the same standard as the admission of evidence at trial. Id.
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8 Appellant has, therefore, waived the other claims raised in his 1925(b)
statement. See Pa.R.A.P. 2119(a), (c) (argument must have discussion of
pertinent authority and appropriate citation to the record); Commonwealth
v. Sipps, 225 A.3d 1110, 1116 (Pa. Super. 2019) (failure to adequately
develop argument results in waiver of claims) (citations omitted).
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In his first claim, Appellant argues that the trial court abused its
discretion when it denied his motion in limine to admit purported expert
witness testimony regarding eyewitness misidentification. Appellant’s Brief at
40. Appellant maintains that the trial court erred when it concluded that “none
of the factors” relevant to a potential misidentification were present here.
Appellant’s Brief at 46-47. Appellant contends that the Commonwealth
“depended solely or primarily” on eyewitness identification and this evidence
was “critical” to its case. Id. at 49 (internal quotation marks omitted). He
further argues that there is not an “abundance of circumstantial evidence[,]”
non-identification evidence, or substantial corroborating evidence that could
connect Appellant to the neighbor’s security footage. Id. at 48, 50, 52-53.
Appellant then avers that the trial court “did not cautiously cross-examine Dr.
Mannes in a brief, unbiased manner” as it should have. Id. at 41. Instead,
he insists the trial court examined Dr. Mannes “for approximately four times
as long as” the Commonwealth and “asked questions and made statements
that only helped” the Commonwealth. Id. at 42.
To determine if evidence is admissible, the trial court must first
determine if it is relevant. Pa.R.E. 402; Commonwealth v. Bergen, 142
A.3d 847, 850 (Pa. Super. 2016). Evidence is relevant when it has
any tendency to make a fact more or less probable than it would
be without the evidence[,] and the fact is of consequence in
determining the action. Pa.R.E. 401(a), (b). However, pursuant
to Rule 403, “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of . . . confusing the
issues [or] misleading the jury[.]” Pa.R.E. 403.
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Bergen, 142 A.3d at 850 (some internal quotation marks omitted).
When expert testimony is at issue, we are guided by Pennsylvania Rule
of Evidence 702, which states a witness qualified as an expert “may testify in
the form of an opinion or otherwise if . . . the expert's scientific, technical, or
other specialized knowledge is beyond that possessed by the average
layperson[,] will help the trier of fact to understand the evidence or to
determine a fact in issue[, and their] methodology is generally accepted in the
relevant field.” Pa.R.E. 702(a)-(c).
In support of his argument, Appellant compares the current matter to
the following cases: Commonwealth v. Thomas, 215 A.3d 36 (Pa. 2019);9
Commonwealth v. Walker, 92 A.3d 766 (Pa. 2017); Commonwealth v.
Brown, 200 A.3d 986 (Pa. Super. 2018); and Commonwealth v Selenski,
158 A.3d 102 (Pa. Super. 2017). Appellant’s Brief at 41-53. However, it is
clear the controlling case concerning the admission of expert testimony on
eyewitness misidentification is Walker. We conclude Walker is
distinguishable on the facts.
In Walker, the appellant was accused of committing two gunpoint
robberies. Walker, 92 A.3d at 769. In the first robbery, he held three victims
at gunpoint. Id. 769-70. Two of the victims identified the appellant from
photo arrays and one of those same victims identified the appellant at a later
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9 The defendant in Thomas offered the same expert witness, Dr. Mannes, on
a similar basis as Appellant. See Thomas, 215 A.3d at 48.
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in-person line-up. Id. at 770. During the second robbery, two victims were
held at gunpoint, and both later identified the appellant as the perpetrator
after viewing photo arrays. Id. “The sole evidence connecting [the a]ppellant
to the robberies was eyewitness identification by the victims.” Id.
Walker filed a motion in limine to admit expert testimony regarding the
fallibility of eyewitness identification. Walker, 92 A.3d at 770-71. The trial
court denied the motion, stating Pennsylvania case law held that expert
testimony concerning eyewitness identification was inadmissible because it
would have an “unwarranted appearance of authority on the eyewitness’s
credibility[.]” Id. at 771. The appellant was subsequently convicted of the
second robbery, but acquitted of the first. Id. A panel of this Court affirmed
the appellant’s judgment of sentence on direct appeal. Id. at 772.
The Pennsylvania Supreme Court granted allocatur review “to consider
whether a trial court may permit, in its discretion, the testimony of an expert
in the field of eyewitness identification.” Walker, 92 A.3d at 772. Walker
argued that certain factors were relevant to make jurors “aware of the
variables that impact eyewitness accuracy” and they were “critical to ‘a fair
adjudication of the truth.’” Id. at 774. The factors include:
(1) the phenomenon of ‘weapons focus’; (2) the reduced reliability
of identification in cross-racial identification cases; (3) the
significantly decreased accuracy in eyewitness identifications in
high-stress/traumatic criminal events; (4) increased risk of
mistaken identification when police investigators do not warn a
witness, prior to viewing a photo array or line up, that the
perpetrator may or may not be in the display; and (5) the lack of
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a strong correlation between witness statements of confidence
and witness accuracy.
Id. at 773. Our Supreme Court agreed and concluded
such expert testimony on the limited issue of eyewitness
identification as raised in this appeal may be admissible, at the
discretion of the trial court, and assuming the expert is qualified,
the proffered testimony relevant, and will assist the trier of fact. .
. . The admission must be properly tailored to whether the
testimony will focus on particular characteristics of the
identification at issue and explain how those characteristics call
into question the reliability of the identification. . . .
Id. at 792.
Further, the Court opined that to have the evidence admitted,
the defendant must make an on-the-record detailed proffer to the
court, including an explanation of precisely how the expert’s
testimony is relevant to the eyewitness identifications under
consideration and how it will assist the jury in its evaluation. The
proof should establish the presence of [the above] factors . . .
which may be shown to impair the accuracy of eyewitness
identification in aspects which are (or to a degree which is) beyond
the common understanding of laypersons.
Id.
We agree with the trial court’s conclusion that none of the Walker
factors were present in the case before us. Trial Ct. Op. at 20, 22. First, we
note that although Appellant offered Dr. Mannes’ testimony to show that the
eyewitness identification was unreliable based on Walker, her testimony
amounted to observations that the length of the videos were short, and the
videos’ quality did not show full and unobstructed views of Appellant’s face.
N.T., 2/1/19, at 75, 77. Dr. Mannes opined that she was “not sure” that the
videos had enough information for a person to have a “detailed impression”
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of the individuals in the videos, but admitted this is something the jurors could
“[p]ossibly” assess from viewing the videos themselves. Id. at 93.
Regarding the Walker factors, since Appellant never entered the home,
the victims would not have been distracted by the presence of a weapon, nor
would they have misidentified him based on his presence during a traumatic
event. See Walker, 92 A.3d at 773. Moreover, there was no cross-racial
identification issue, the police did not present a photo array or line up, and
the trial court did not believe the confidence in the victims’ identifications
impacted their accuracy since the victims knew Appellant for nearly three
decades prior to the incident. See id.; Trial Ct. Op. at 22-23.
The remaining cases Appellant cites are also distinguishable for similar
reasons. See Thomas, 215 A.3d at 50 (trial court did not err in excluding
expert testimony on eyewitness identification because eyewitness testimony
was not the primary evidence of defendant’s guilt); Brown, 200 A.3d at 991
(trial court did not abuse its discretion when it excluded expert witness
testimony on eyewitness identification because the Commonwealth offered
independent corroborating evidence); Selenski, 158 A.3d at 116 (trial court
did not abuse its discretion when it excluded expert testimony regarding
eyewitness identification because the Commonwealth presented
circumstantial evidence and “was not solely or primarily dependent” on
eyewitness identification).
Further, the Commonwealth offered other physical corroborating
evidence:
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Appellant’s clothing that he had worn in the hospital emergency
room[,] particularly his vibrant blue shoes[,] had been confiscated
by law enforcement and displayed to the jury for comparison. The
sedan owned by Appellant’s brother and admitted conspirator
Justin Savage was recovered. The blood recovered within the
sedan’s back seat area was matched by DNA analysis to admitted
conspirator . . . Grierson.
Trial Ct. Op. at 23. Appellant failed to demonstrate an abuse of discretion
since the evidence supported the trial court’s determination that Dr. Mannes’
testimony was not relevant, would not aid the jury, and where the
Commonwealth was not relying “solely or primarily” on eyewitness
identification. See Walker, 92 A.3d at 787.
Appellant also argues the trial court “did not cautiously cross-examine
Dr. Mannes in a brief, unbiased manner” as it should have. Appellant’s Brief
at 41. In support of this argument, Appellant cites Commonwealth v.
Seabrook, 379 A.2d 564, 568 (Pa. 1977). In Seabrook, the appellant
argued the trial court abused its discretion when it showed “pro-prosecution
bias” while it questioned a witness during a suppression hearing. Id. at 566.
Ultimately the Pennsylvania Supreme Court concluded the trial court did not
abuse its discretion because the questioning (1) occupied “three and one-half
pages in a 107 page record[;]” (2) drew rational inferences from the evidence;
and (3) asked questions which “did the Commonwealth’s case no good.” Id.
at 568 (footnote omitted).
Upon review of the record, we conclude the trial court did not abuse its
discretion when it examined Dr. Mannes. While the trial court engaged in a
lengthy examination of the witness, a review of the transcript demonstrates it
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did so to seek an explanation of how her expertise was relevant to the salient
facts, and to clarify her research methods and sources, a topic which neither
party adequately questioned her. N.T., 2/1/19, at 85-99. The length of the
trial court’s questioning does not, alone, reflect an abuse of discretion. See
Seabrook, 379 A.2d at 567-68 (It is proper for a trial court to question a
witness regarding facts “which did not appear from either counsel’s
examination[.]” A trial court has a duty to “ascertain the truth” in criminal
proceedings, which may “necessitate[ ] interrogation of witnesses to clear up
some doubtful fact”) (citations and internal quotation marks omitted). Like
Seabrook, the nature of the trial court’s questions also no not reflect a bias
towards any one party. Instead, the examination illustrated a thorough
inquiry into the usefulness of Dr. Mannes’ specific claimed expertise. Thus,
no relief is due on Appellant’s first issue.
In his second claim, Appellant argues that the trial court deprived him
of his right to due process by not allowing him to present a “complete defense”
when it excluded expert witness testimony. Appellant’s Brief at 54. Appellant
avers that Dr. Mannes’ testimony “could have given [the] jury a scientific,
professional perspective . . . about why” the eyewitness testimony was
“inherently unreliable.” Id. at 57. Appellant insists that absent this
testimony, the jury had no basis “beyond the word of [his] counsel” that the
identification testimony may have been unreliable. Id. at 58.
We agree with the trial court’s determination that the Pennsylvania
Supreme Court’s Walker decision does not “grant carte blanch to admission
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of expert testimony.” Trial Ct. Op. at 16. To the contrary, the Walker
decision limits the admission of such testimony and leaves the decision of
admissibility to the trial court’s discretion. See Walker, 92 A.3d at 792. For
the reasons stated above, we conclude the trial court did not abuse its
discretion when it excluded irrelevant evidence that would not aid the jury in
its fact-finding duties. No relief is due.10
In his final argument, Appellant avers the trial court abused its
discretion when it allowed his co-defendants to testify that they pled guilty
and conspired with Appellant to commit the offenses charged. Appellant’s
Brief at 58. Appellant maintains this evidence was inadmissible as unfairly
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10 We note this Court’s recent decision, Commonwealth v. Robinson, __
A.3d __, 1127 EDA 2021 (Pa. Super. June 27, 2022), addresses expert
testimony concerning eyewitness identification. In Robinson, another panel
of this Court granted the defendant a new trial on post-conviction review after
it concluded counsel was ineffective for not offering eyewitness identification
expert testimony based on the following: (1) the Commonwealth’s case was
based “solely or primarily” on eyewitness identification; (2) the Walker
factors were present; (3) counsel for the defendant raised a misidentification
defense; and (4) as a result, the defendant was prejudiced by counsel’s
actions. Robinson, __ A. 3d__, __, 1127 EDA 2021, at 11, 12-13 n.4, 16.
The panel emphasized the “limited nature” of the decision, stating that while
expert testimony on eyewitness identification is permitted, it is not required.
Id. at 24.
Robinson is distinguishable both procedurally and factually from the
present matter. Here, Appellant has raised a challenge to the trial court’s
discretion when it did not admit Dr. Mannes’ testimony, whereas the
defendant in Robinson challenged counsel’s ineffectiveness for failing to call
an expert witness. Further, as discussed supra, the Commonwealth
presented additional evidence of Appellant’s guilt and the factors outlined in
Walker are not present.
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prejudicial by demonstrating to the jury “the case against [him] had already
twice been proven beyond a reasonable doubt.” Id. at 59. Appellant also
insists the trial court’s warning to both co-defendants pertaining to perjury
“unduly influenced them” to change their testimony. Id. at 60-61.
Preliminarily, the Commonwealth contends Appellant’s challenges to the
admission of his co-defendants’ testimony are waived. See Commonwealth’s
Brief at 51-53. First, it insists that Appellant did not raise specific objections
at trial on the basis that the testimony was unfairly prejudicial or that the
court’s perjury warnings were inappropriate. Commonwealth’s Brief at 50-51.
Moreover, it asserts Appellant’s claim that the trial court abused its discretion
when it warned his co-defendants of the potential consequences of perjury is
also waived because Appellant failed to include this claim in his Pa.R.A.P.
1925(b) statement. Commonwealth’s Brief at 53. Upon our own review, we
agree with the Commonwealth that Appellant failed to preserve, in the trial
court, either of these issues he now raises on appeal. See N.T., 10/10/19, at
142 (counsel objects to reading of Grierson’s plea colloquy based on hearsay
grounds); N.T., 10/11/19, at 20 (counsel objects to reading of Justin Savage’s
plea colloquy based on hearsay and confrontation clause grounds); see also
Appellant’s Statement of Errors Complained of On Appeal at 1-6. Thus,
Appellant’s arguments here are waived for our review. See Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”); Pa.R.A.P. 1925(b)(4)(vii) (issues not included in a
1925(b) statement are waived); Commonwealth v. McGriff, 160 A.3d 863,
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873 (Pa. Super. 2017) (concluding challenges to the admissibility of evidence
were waived when the appellant did not make timely and specific objections
in the trial court).
In any event, had Appellant preserved his objection that the admission
of his co-defendants’ testimony was unfairly prejudicial, we would rest on the
trial court’s opinion:11
By its very nature, the testimony of both co-defendants was
relevant to prove Appellant’s secret participation in the conspiracy
to rob and assault the Barnes’ family members in their home.
Each defendant was subjected to examination before the jury by
all parties through their counsel. Thus, this admissible evidence
far outweighed any prejudicial impact because it supported
identification of Appellant as a perpetrator. As such, Appellant
was not unduly prejudiced.
Trial Ct. Op. at 26.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2022
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11 The trial court did not address Appellant’s assertion that it improperly
influenced the testimony of his co-defendants. We pass no judgment on this
waived claim.
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