Com. v. Coburn, D.

J-A29017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DOUGLAS COBURN

Appellant No. 41 WDA 2016

Appeal from the Judgment of Sentence July 15, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012781-2014

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED FEBRUARY 08, 2017

Douglas Coburn appeals from the July 15, 2015 judgment of sentence

entered in the Allegheny County Court of Common Pleas following his bench

trial convictions for criminal attempt – homicide, aggravated assault (serious

bodily injury inflicted), recklessly endangering another person (“REAP”),

carrying a firearm without a license, and persons not to possess a firearm.1

We affirm.

On June 11, 2014, police received a 911 call reporting multiple shots

fired at Hi-View Gardens Apartments (“Hi-View”) in McKeesport. Upon

arriving at the scene, police found Kaleel Herring lying on the walkway

leading up to building four. Herring suffered multiple gunshot wounds and
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1
18 Pa.C.S. §§ 901(a), 2702(a)(1), 2705, 6106(a)(1), and
6105(a)(1), respectively.
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was airlifted to the University of Pittsburgh Medical Center – Presbyterian

(“UPMC”) for treatment.

Officer Jeremy Zuber of the McKeesport Police Department was the

first to arrive at the crime scene. N.T. Trial, 4/13/16-4/16/16, at 114.2

Upon pulling into the apartment complex, security guards Robert Demuth

and Michael Acrie waived Officer Zuber over to the area where Kaleel Herring

lay wounded. Id. at 115. Police secured the crime scene and began an

investigation.

Emily Wilkinson of the Allegheny County Medical Examiner’s Mobile

Crime Unit processed the crime scene. Wilkinson recovered 13 shell casings

and two projectile fragments from the parking lot. N.T. Trial at 192. She

also found two vehicles with suspected ballistic projectile damage. Wilkinson

also discovered similar ballistic projectile damage in a building just beyond

where Herring was found. Id. at 194-97. The shell casings recovered were

identified as having chambered nine-millimeter Luger projectiles. Id. at

197.

McKeesport police already knew Herring and knew he was also known

by the name “Magic.” Id. at 311. They were also aware that Coburn

frequented Hi-View. Id. at 311-12. McKeesport police handed their

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2
The trial transcript was compiled into one transcript and was not
separately paginated for each day of trial.

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investigation off to the Allegheny County Police, led by Detective Daniel

Mayer. Id. at 314.

Detective Mayer and Herring spoke at UPMC on the afternoon of the

11th.3 Id. at 318. Detective Mayer did not record the conversation but took

notes. Id. at 363-65.4 Detective Mayer testified that during the interview,

Herring told Detective Mayer that Coburn was the person who shot him. Id.

at 323. Using prior information recovered from the crime scene, as well as

security camera footage of Hi-View, Detective Mayer had identified Coburn

as a suspect and brought a color photograph of Coburn obtained from the

Pennsylvania Justice Network (“JNET”). Id. at 324. Detective Mayer

testified that Herring circled and initialed Coburn’s photograph. Id. at 325.

Detective Mayer then received a call from Detective Stephen Hitchings,

who stated that he was in Pittsburgh’s North Side neighborhood attempting

to contact Stefon Dixon, who was identified as a suspect from the video

footage. Id. at 327. Upon arriving at the North Side address, Detective

Mayer found a blue Ford Mustang, which Hi-View security guards had seen

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3
Allegheny County Police Homicide Division Detective Jarret
Kaspryszyn went to the hospital before Detective Mayer attempted to
contact Herring. N.T. Trial at 316. Detective Kaspryszyn was unable to
speak with Herring at that time because Herring was undergoing emergency
surgery. Id. at 317. Detective Mayer was the first detective who actually
spoke to Herring. Id.
4
Detective Mayer stated that he did not give Herring an opportunity to
review these notes. N.T. Trial at 366.

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the suspects enter, drive into the area of the shooting, and exit the

apartments at a high rate of speed after the shooting. Id. at 29-30; 328.

Detective Mayer secured the blue Mustang, in which he saw a fired cartridge

casing on the rear passenger seat. Id. at 328-29. Detectives Mayer and

Hitchings took Dixon into custody. Id. at 329-30. After waiving his

Miranda5 rights, Dixon admitted that he was at Hi-View to visit friends and

drove his blue Mustang while intoxicated. Id. at 339. Dixon stated that he

heard the gunshots at close range and immediately sped off from the

apartments. Id. at 340. Dixon declined to provide a formal statement but

reviewed and signed Detective Mayer’s notes. Id. at 343.

Police subsequently applied for and received arrest warrants for Dixon

and Coburn. Id. at 346. On June 29, 2014, police went to serve the arrest

warrant on Coburn at Coburn’s sister’s residence.6 Id. at 374-75. When

they attempted to serve the warrant, Coburn fled on foot.7 Id. at 463-64.

Police stopped Coburn when he ran into a patrol car. Id. at 464. Police

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5
Miranda v. Arizona, 384 U.S. 436 (1966).
6
Coburn’s father, who was also present, stated that Coburn had been
sleeping at the residence. N.T. Trial at 382.
7
Dixon also fled when police attempted to serve an arrest warrant on
him. N.T. Trial at 389. Police found Dixon hiding behind a furnace in the
home where police had made contact with him before. Id. at 390-91. After
obtaining the homeowner’s consent, police searched the home and
recovered clothing similar to that seen on the video footage and described
by the Hi-View security guards. Id. at 391-94.

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received consent from Coburn’s sister to search the residence. Id. at 376,

382. Upon searching the home, Detective Hitchings of the Allegheny County

Police recovered a Glock nine-millimeter pistol. Id. at 397. An extended

magazine, capable of holding 30 rounds, was attached to the pistol and

contained six rounds of live ammunition made by several manufacturers.

Id. at 399.

Coburn and Dixon waived their rights to a jury trial and proceeded to a

joint bench trial, which was held on April 13-16, 2015.

The Commonwealth called Robert Demuth, a Hi-View security guard

who was on duty on the night of June 11, 2014. Demuth recalled hearing a

disturbance between 12:30 and 12:45 a.m. near building two. Id. at 20-21.

Demuth and his partner, Michael Acrie, walked out to a grassy area in front

of building three, where he heard Kaleel Herring and another man

boisterously talking and using explicit language. Id. at 22-25. He told

Herring and his friend that they had to leave because they were not

residents of the apartments. Id. at 26.

Demuth then testified that Herring, while leaving, ducked between

buildings one and two and gained access to building two. Id. at 27-28.

Demuth then saw three black males leave building three, walk to the parking

lot, and enter a blue Ford Mustang. Id. at 28-29. Demuth described the

three men and identified Coburn as having been seated in the front

passenger seat. Id. at 29-33, 49, 55. Demuth then saw the car leave the

parking lot headed toward the front of the Hi-View property, continue left

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past the exit, and come back around towards building four. Id. at 34-36.

About four seconds after that, Demuth heard a number of gunshots and ran

across the property to find Herring lying on the sidewalk in front of building

four. Id. at 36-37. Demuth called 911 immediately. Id. at 41.

Michael Acrie corroborated Demuth’s testimony and testified that he

saw the blue Ford Mustang earlier in the day. Id. at 83-84. After asking

Herring and his associate to leave the apartment complex, Acrie went to the

steps near the breezeway between buildings three and four. Id. at 85.

Acrie saw the blue Mustang heading toward building four. Id. at 86. He

then heard multiple shots fired from the area near building four. Id. at 87.

Acrie ducked behind a wall when he heard the shots, and re-emerged to see

the blue Mustang come past the breezeway and exit the apartment complex

onto 6th Street at a high rate of speed. Id. at 88-89. Acrie ran over to the

scene, where he found Demuth and Herring on the sidewalk in front of

building four. Id. at 90.

The Commonwealth also called Derek Ambush, who testified that he

went to Hi-View with Dixon in the blue Mustang on the night of the shooting.

Id. at 129-32. Ambush stated that they visited a few female acquaintances

of Dixon and that he and the others were under the influence. Id. at 132-

34. Ambush stated that he saw someone that may have been Coburn when

they arrived, but he did not see Coburn again that evening. Id. at 137-38.

When shown the video footage from the day of the incident, however,

Ambush stated that the three men in the video were himself, Dixon, and

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someone that looked like Coburn. Id. at 145-46. Ambush stated that he

could not remember how he got home that evening, but did recall what he

had been drinking and the drugs he had taken. Id. at 154, 157, 176. He

also stated that he did not possess a handgun that evening. Id. at 149.

Ambush testified that when they got into the car to leave Hi-View, Dixon

said he was making a “jitney trip,” giving Coburn a ride from Hi-View to

another location. Id. at 162-65. When confronted on cross-examination

with a fired cartridge casing recovered from the rear passenger seat of the

blue Mustang, Ambush could not explain how the casing ended up in the car.

Id. at 165-66.

The Commonwealth also called Wilkinson, who testified about the fired

cartridge casings and projectiles recovered from the scene. After police

seized Dixon’s blue Mustang, Wilkinson also processed the evidence found in

that car, including a nine-millimeter fired cartridge casing in the center

console.8 Id. at 211-13. Wilkinson was unable to obtain DNA evidence from

the vehicle. Id. at 215-16.

The Commonwealth then called Herring, who testified that he had

been drinking during the day on June 11th and went to see his “girl” at Hi-

View. Id. at 245-47. Herring then went to the apartment of Dontell Victor,

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8
The Commonwealth also called Detective Kasprysyzn, who stated
that, when Wilkinson processed the car, a second fired cartridge casing was
found on the rear passenger seat of the vehicle. N.T. Trial at 443.

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where he began shouting and was told to go outside. Id. at 250-51. He

then began to talk to the women in Victor’s apartment while standing in the

middle courtyard of the Hi-View complex, at which point Demuth and Acrie

came over and told Herring and his friend that they had to leave. Id. at

253-54. Herring said he then began walking toward the parking lot, heard

shots, and started running. Id. at 255-56. His body then “gave out” and

his face smacked the ground. Id. at 258.

Herring next remembered waking up in the hospital. Id. at 261.

Herring stated that he remembered being interviewed by Detective Mayer,

but that he had not seen anything and he was “drugged up” and felt

pressured by Detective Mayer. Id. at 267-68. The Commonwealth

confronted Herring with statements that he allegedly made to Detective

Mayer, which Herring either denied or indicated that he was so “drugged up”

that he could not have given a truthful answer. Id. at 266-71, 274-82, 286-

87, 296-302, 304-08. Herring remembered being shown the photograph of

Coburn, but stated that if he circled and signed the photograph, it was

because he was scared of Detective Mayer. Id. at 274, 280-82.

The Commonwealth then called Detective Mayer, who testified that

Herring was cooperative and that he never raised his voice or threatened

Herring during the interview at UPMC. Id. at 321. The Commonwealth then

asked about the content of Herring’s statements:

[COMMONWEALTH]: What did [Herring] have to say about
who had shot him at the time?

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[DIXON’S COUNSEL]: I am going to object to hearsay.9

THE COURT: I am assuming that – well, I am assuming
you are offering it as a prior consistent statement?

[COMMONWEALTH]: Right, prior statement, inconsistent
with what Kaleel Herring has said in court.

THE COURT: It is overruled. Go ahead.

Id. at 322. Detective Mayer then disclosed that Herring said he had seen a

blue Mustang with its engine running in the center parking lot and

recognized it as Dixon’s car. Id. at 322. He also stated that Coburn opened

the window, reached his right hand out and opened fire on him. Id. at 323.

When shown the photograph, Herring indicated that Coburn was the shooter,

circled the photograph and placed his initials on it. Id. at 323-24. He then

testified as to his contact with Dixon as described above.10 Id. at 325-46;

supra at 3-4.

The Commonwealth also called Thomas Morgan of the Allegheny

County Medical Examiner’s Office, who is a firearms and tool-mark

identification expert. N.T. Trial at 414-15. Morgan testified that he

examined the 13 fired cartridge casings recovered and the Glock pistol
____________________________________________

9
Coburn’s counsel later joined this objection. N.T. Trial at 333-34. At
that time, the trial court indicated that the objection was overruled as a prior
inconsistent statement. Id. at 334.
10
The Commonwealth also called Detective Michael Caruso of the
Allegheny County Police Homicide Division, who testified that Coburn fled as
they attempted to serve the arrest warrant, he had consent from Coburn’s
sister to search the residence, and he recovered the Glock pistol. N.T. Trial
at 375-99.

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recovered from Coburn’s sister’s residence. He stated that these were of the

same caliber and test firings of the seized firearm confirmed that the 13

casings recovered were fired from the seized firearm. Id. at 416-429.

The Commonwealth also played two phone calls recorded in the

Allegheny County Jail. The first call was between Coburn and Heid

Nothdurft, wherein Coburn indicated that he was mad that his sister had

given police consent to search her residence and Nothdurft told Coburn that

Dixon was awaiting his phone call:

NOTHDURFT: Basically he just, just call him. He knows
you’re going to be calling him.

COBURN: Hmm. But now, I got back to the bullpen. I
don’t even give a fuck. I don’t even give a fuck about that
pistol. Like, now they got to put it in my hand and the
crime scene. They got to tell you I’m the one who fired
that gun without nobody testifying on me. That’s going to
be hard as fuck.

NOTHDURFT: And they don’t have a fucking victim either
so.

COBURN: Huh.

Cmwlth.’s Ex. 91(A). The second call introduced was between Coburn and

Dixon, wherein Coburn accused Dixon of giving a statement that resulted in

the charges and talked to Dixon11 about the pending charges:

COBURN: What’s up? What’s the deal when we going over
next week dog.

DIXON: Man I already told [yo]u what the deal was game.
____________________________________________

11
Dixon was on house arrest when this call was recorded.

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COBURN: Right. Now my lawyer was saying some other
shit. Some whole other shit. Now he said now everything
is official but before when I went over, when we went over
last night. He said some other shit until he went back up
and came back down and said what he said.

DIXON: Naw, I told [yo]u dog. That shit that they gave
[yo]u dog. That wasn’t right. That was none of me dog.

COBURN: So that shit that they typed up and shit, you
ain’t say none of that shit?

DIXON: Naw, I told them I was doing a jit[n]ey trip dog.

COBURN: Ehhh.

DIXON: I told you what I said dog.

COBURN: My lawyer and them niggas tried to make it
seem like something else . . . put you under that door and
said you just blatantly just saying my name and shit.

DIXON: Naw dog. I said I didn’t know who [yo]u was.

COBURN: Huh?

DIXON: I said I ain’t know who [yo]u was. I said
(inaudible) . . . someone asked me for a ride. They said
which way did [yo]u go? I said I went towards century
three.

* * *

COBURN: Listen, listen, listen, listen . . . . They don’t got
nothing against neither one of us. They need someone.
They need a witness to testify on both of us. If no one is
testifying, the homicide detectives can’t testify. They can’t
say they was there. It’s hearsay. They can’t convict us.
They need Magic to come testify. Magic told them mother
fuckers I’m not testifying when I’m done w[ith] this case.
The paperwork said he was drunk. Remember he said the
police made him say, made him say my name. He said the
police made me say he saw the blue mustang and he saw
me. He said in there, they made him lie which is
consistent with an innocent man was incarcerated and he
wants all charges dropped towards both of us. My lawyer
said DA don’t know he got it yet. But he’s bringing it to

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trial. He is going to show them at the last minute. They
haven’t talked to [M]agic since last June . . . . Since he
was in the hospital. When he got released, they haven’t
heard from him since. Magic gotta come testify for anyone
to get convicted. Magic’s not coming to testify. Reepe is
not going to testify. They gotta convict me. They gotta
put the gun in my hand at trial. They can’t do that cause
they don’t got no finger prints on it. They don’t got
nothing linking me to the fucking scene. They don’t go
nothing, Camera. When I had my prelim, no one could
identify me on camera. Nobody.

DIXON: Right.

COBURN: Except the homicide detectives, the homicide
detectives said I think it’s him. Man we don’t gotta do
nothing but go there and see what they got. They don’t
got nothing. They got a pistol. Okay. And the discovery
says the shells . . . [t]hey don’t know if the shells were
shot from that gun or not. Cause they don’t, the rain
fucked up the shells. The[y] don’t got shit dog. That’s
why I am like damn.

Cmwlth.’s Ex 91(B). Coburn also indicated that he had spoken to Herring

while Herring was in the hospital:12

COBURN: . . . . I talked to Magic when he was in the
hospital. He called me and said you better check your co-
d[efendant] I am leaving this shit in the streets. I’m like
yeah dog sounds good. I am gonna see when I get locked
up and see the paperwork and shit. So now I gotta get
money up for my shit. Come to find out, my bond is
20,000. I’m stuck like. I’m stuck. Then I get to work
magic’s but. Bang. Then I get my discovery. It got your
statement and his statement.

____________________________________________

12
Before resting, Coburn’s counsel called Herring. Herring testified
that, while incarcerated in the Allegheny County Jail, he wrote Coburn a
letter through a “kite,” in which he stated that in August 2014, he told the
Allegheny County District Attorney that there were inaccuracies in a police
report the District Attorney’s Office had shown him. N.T. Trial at 522-25.

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Id.

The Commonwealth also called Detective Michael Feeney of the

Allegheny County Police Homicide Division. Detective Feeney testified as to

the video footage recovered from Hi-View’s surveillance system. Id. at 493-

95. Detective Feeney stated that the video directed detectives towards

projectiles recovered from building four. Id. at 496-98. He then led the

trial court through the video footage, showing: three males leave building

three headed towards the parking lot and vehicle headlights turn on; a

vehicle passing the front entrance area and returning to the parking area,

where a figure walked towards the vehicle; two sparks and a figure running

out of view of the camera facing the parking area; and a vehicle leaving the

complex. Id. at 498-504.

On April 16, 2015, the trial court convicted Coburn of the

aforementioned offenses and found him not guilty of conspiracy to commit

homicide. On July 15, 2015, the trial court sentenced Coburn to 9 to 18

years’ incarceration on the criminal attempt – homicide conviction. The trial

court imposed no further penalty on the remaining convictions.

Coburn filed post-sentence motions on July 27, 2015, asking the trial

court to reconsider his sentence and asserting that he was entitled to a new

trial because the verdict was against the weight of the evidence. On August

18, 2015, the trial court granted Coburn’s counsel leave to withdraw and

appointed Coburn a new attorney for his post-sentence motions. On

September 15, 2015, Coburn’s new counsel moved for an extension of time

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to file supplemental post-trial motions. The trial court granted this request

and set the deadline for 21 days after counsel received the trial transcripts.

Coburn filed supplemental post-sentence motions on October 23, 2015,

arguing that his jury trial waiver was deficient. The trial court held a hearing

on these post-sentence motions on December 11, 2015, and denied the

motions that same day. On January 6, 2016, Coburn filed his notice of

appeal.

Coburn raises two issues on appeal:13

1. Did the trial court err in permitting Detective Meyer [sic] to
testify, over an objection to hearsay, as to what the victim,
Kaleel Herring, told him when interviewed at Herring’s
hospital room where:

a. The testimony was not proffered for a limited scope,
nor did the court indicate upon the record it was
being received for a limited scope, where the
requisites for admission of the evidence as
substantive evidence were not present;

b. The testimony did not constitute proper
impeachment evidence;

c. The testimony of Kaleel Herring, if it was received
solely for impeachment and was admissible for that
purpose, its admission was still in error as its
prejudicial impact greatly outweighed its probative
____________________________________________

13
In his Pennsylvania Rule of Appellate Procedure 1925 statement,
Coburn also raised an issue regarding his motion to suppress the seized
handgun and a sentencing issue pursuant to Apprendi v. New Jersey, 530
U.S. 466 (2000). However, Coburn has abandoned these issues in this
Court. See Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa.Super.
2011) (concluding that questions presented in appellant’s Rule 1925(b)
statement but not subsequently developed in his brief are abandoned).

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value as impeachment evidence, particularly when
Herring was subject to substantial impeachment
relating to the inconsistencies between his trial
testimony and what he told Detective Mayer at the
hospital.

2. If the testimony of Detective Mayer relating to what Kaleel
Herring told him at the hospital, admitted as an
“inconsistent statement,” was received solely as
impeachment evidence, then the evidence was insufficient
to support the convictions for attempted homicide,
aggravated assault and recklessly endangering another
person as the evidence was not sufficient to establish that
[Coburn] fired the gun which inflicted the various gunshot
wounds the victim suffered.

Coburn’s Br. at 4 (sub-argument lettering added).

Coburn’s first issue contains three arguments that the trial court erred

as a matter of law by permitting Detective Mayer to testify as to statements

made by Kaleel Herring in the hospital. Our standard of review on

evidentiary challenges is well settled:

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. Dent, 837 A.2d 571, 577 (Pa.Super. 2003) (internal

quotations and citations omitted).

Coburn first argues that the trial court should have indicated that it

was receiving Mayer’s testimony for the limited purpose of impeaching

Herring with a prior inconsistent statement, as the testimony received by the

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trial court did not meet the prerequisites for admission as substantive

evidence. Coburn’s Br. at 15-16. Because the trial court did not state on

the record how it was receiving the evidence, Coburn asserts that we must

“presume[] that [the testimony] was not received in a limited scope by the

trial court.” Id. at 16-17.

The Commonwealth agrees “that Herring’s prior inconsistent

statements were not admissible substantively,” Cmwlth.’s Br. at 18, but

argues that the trial court was not required to state in what capacity it was

receiving the prior inconsistent statement testimony, because “the trial

court, sitting as the trier of fact, is presumed to know the law, ignore

prejudicial statements, and disregard inadmissible evidence,” Id. at 22

(quoting Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.Super.),

app. denied, 145 A.3d 724 (Pa. 2016)) (internal quotation omitted).

According to the Commonwealth, the trial court “was aware that Det[ective]

Mayer’s testimony was being offered as a prior inconsistent statement, and

it may be presumed . . . that he equally was aware that the prior

inconsistent statement did not meet the . . . test[14] for admission as

substantive evidence.” Cmwlth’s Br. at 22.
____________________________________________

14
Pennsylvania Rule of Evidence 803.1(1) governs the admissibility of
prior inconsistent statements of a declarant-witness:

(1) Prior Inconsistent Statement of Declarant-
Witness. A prior statement by a declarant-witness that is
inconsistent with the declarant-witness's testimony and:
(Footnote Continued Next Page)

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We agree with the Commonwealth. As noted above, we presume that

“a trial court, acting as the finder of fact, is presumed to know the law,

ignore prejudicial statements, and disregard inadmissible evidence.”15

Commonwealth v. Smith, 97 A.3d 782, 788 (Pa.Super. 2014) (emphasis

added). Further, the trial court’s Rule 1925(a) opinion makes clear that the

court considered this portion of Detective Mayer’s testimony solely for

impeachment of Herring, and not as substantive evidence. See 1925(a) Op.

at 14-16 (noting distinction between Pa.R.Evid. 803.1(1) and Pa.R.Evid. 613,

and stating that “Detective Mayer’s testimony was a very effective use of

impeachment testimony on the behalf of the prosecution”). Therefore,

Coburn’s first argument is meritless.

Coburn next argues that Detective Mayer’s testimony was not

admissible for impeachment purposes. According to Coburn, “a witness may
_______________________
(Footnote Continued)

(A) was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in a
deposition;

(B) is a writing signed and adopted by the declarant;
or

(C) is a verbatim contemporaneous electronic,
audiotaped, or videotaped recording of an oral
statement.

Pa.R.E. 803.1(1). Rule 803.1(1) adopted prior Pennsylvania case law on the
substantive admission of prior inconsistent statements. See id. cmt.
15
We also note that, in its closing statement, the Commonwealth did
not use the substance of Herring’s prior inconsistent statements. N.T. Trial,
at 557-69.

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be impeached with evidence that witness has made an inconsistent

statement but that impeachment is not, by itself, a basis for admission of an

inconsistent statement that is hearsay.” Coburn’s Br. at 17-18. Coburn

asserts that Herring’s statement was only admissible as impeachment

evidence if it “was made under oath, in writing and adopted by the

declarant, or a verbatim contemporaneous recording.” Id. at 18-19.

Further, Coburn argues that the “statement” was actually Detective Mayer’s

note of a witness’s interview, which, to be used for impeachment, must be

adopted by the witness. Id. at 19. Because Herring did not adopt Detective

Mayer’s notes, Coburn argues that the trial court inappropriately received

Detective Mayer’s testimony on Herring’s prior inconsistent statements. Id.

at 19-20. We disagree.

Pennsylvania Rule of Evidence 613(b) sets forth the requirements for

using extrinsic evidence of a witness’s prior inconsistent statement:

(b) Extrinsic Evidence of a Witness’s Prior
Inconsistent Statement. Unless the interests of justice
otherwise require, extrinsic evidence of a witness’s prior
inconsistent statement is admissible only if, during the
examination of the witness,

(1) the statement, if written, is shown to, or if not written,
its contents are disclosed to, the witness;

(2) the witness is given an opportunity to explain or deny
the making of the statement; and

(3) an adverse party is given an opportunity to question
the witness.

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Pa.R.E. 613(b). In Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super.

2011), abrogated on other grounds by In re L.J., 79 A.3d 1073, 1087 (Pa.

2013), we addressed the admissibility of prior inconsistent statements, for

impeachment, as testified to by others. The statement at issue in

Charleston involved a conversation between the appellant’s mother and her

friend, in which the mother told the friend that appellant said he planned to

rob the victim. Id. at 526-27. After mother denied having the conversation

with the friend, the Commonwealth called the friend, for the purpose of

“impeach[ing the mother’s] testimony wherein she denied ever having a

conversation with [her friend] regarding [a]ppellant’s intent to rob the

victim.” Id. at 527. Appellant objected, arguing that such testimony was

hearsay, and the Commonwealth countered that the evidence was only

being introduced to impeach the mother’s credibility. Id.

We concluded that the trial court did not abuse its discretion in

admitting the friend’s testimony solely for impeachment purposes:

Upon review, we conclude the court did not abuse its
discretion in admitting the evidence under Rule 613(b).
Subsection one of the rule was complied with because the
Commonwealth disclosed to [the mother] the contents of
her statement to [her friend]. The Commonwealth also
complied with subsection two because it asked [the
mother] if she made the statement and she denied making
it. Finally, subsection three was satisfied, as the defense
was given an opportunity to question [the mother].
Therefore, [the friend’s] testimony in which she relayed
[the mother’s] prior inconsistent statement was proper[l]y
admitted for purposes of impeachment.

Id.

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Here, we similarly conclude that the trial court did not abuse its

discretion in admitting Detective Mayer’s testimony on Herring’s prior

inconsistent statements to impeach Herring. The Commonwealth complied

with subsection one of the rule by disclosing the contents of each statement

to Herring during his direct testimony. N.T. Trial, at 266-71, 274-82, 286-

87, 296-302, 304-08. Similarly, the Commonwealth met subsection two of

the rule because Herring was given (and took) the opportunity to deny

making the statements in question to Detective Mayer. Id. Finally,

Coburn’s counsel was given an opportunity to question Herring. Id. at 295-

310. As in Charleston, the trial court here appropriately allowed the

Commonwealth to elicit testimony from Detective Mayer regarding Herring’s

prior inconsistent statements to impeach Herring.

Further, Coburn’s argument that Herring was not given an opportunity

to review or adopt the statements made to Detective Mayer is without merit.

The Commonwealth did not impeach Herring with notes or the statement,

which would require some form of authentication, see Commonwealth v.

Simmons, 662 A.2d 621, 638 (Pa. 1995), but instead used Detective

Mayer’s testimony to impeach Herring. Under these circumstances, there

was no statement to authenticate and Coburn’s means of testing the

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veracity of these prior inconsistent statements was to cross-examine

Detective Mayer.16

Coburn next argues that even if Mayer’s testimony was proper for

impeachment purposes, the trial court should have found that the

testimony’s “prejudicial effect greatly outweighed its probative value as

impeachment evidence” under Pennsylvania Rule of Evidence 403. Coburn’s

Br. at 20. According to Coburn, the Commonwealth’s inquiry into Herring’s

state of mind and the truthfulness of his interview with Detective Mayer was

“essentially . . . a cross-examination of a Commonwealth witness,” and, as

such, the Commonwealth elicited answers that showed Herring provided

answers to Detective Mayer that were inconsistent with his trial testimony.

Id. at 21. Coburn asserts that the Commonwealth effectively impeached

Herring by other means and “[t]he only point served by admission of the

hearsay was to put in front of the factfinder direct evidence incriminating

[Coburn.]” Id. at 22.

We conclude that Coburn waived this Rule 403 argument by failing to

raise it before the trial court. When Coburn objected to Detective Mayer’s

testimony on Herring’s statements, he joined Dixon’s prior hearsay

objection, which did not contain a separate prejudice ground. N.T. Trial at

322 (“I am going to object to hearsay.”). It is well settled that “a party

____________________________________________

16
Coburn’s counsel cross-examined Detective Mayer regarding
Herring’s hospital statements. N.T. Trial at 356-367.

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complaining, on appeal, of the admission of evidence in the [c]ourt below

will be confined to the specific objection there made.” Commonwealth v.

Cousar, 928 A.2d 1025, 1041 (Pa. 2007). Thus, where the grounds for

objection are stated, “all other unspecified grounds are waived and cannot

be raised for the first time on appeal.” Commonwealth v. Bedford, 50

A.3d 707, 713 (Pa.Super. 2012). Thus, when Coburn joined Dixon’s

objection to Detective Mayer’s testimony as hearsay, he failed to preserve

his Rule 403 claim.17

In his second issue, Coburn claims that, if Detective Mayer’s testimony

was received strictly for impeachment purposes, the evidence presented by

the Commonwealth was insufficient to sustain Coburn’s convictions for

criminal attempt – homicide, aggravated assault (serious bodily injury

inflicted), and REAP. Coburn’s Br. at 24. According to Coburn, “the

evidence established only that [he] was one of three individuals seated in a

blue Mustang from which the shots that struck Kaleel Herring were fired.”

Id. at 25. Further, Coburn argues that the trial court relied on the jail

phone calls to identify him as the shooter, noting that his co-defendant,

Stefon Dixon, made similar comments about “leaving the matter in the
____________________________________________

17
Even if Coburn had preserved this issue for appeal, we would
conclude that it lacks merit. Similar to Coburn’s earlier issue regarding the
substantive admission of Detective Mayer’s testimony on Herring’s prior
inconsistent statements, we presume that the trial court knew the law and
considered the statements in question only for their proper purpose. See
Konias, 136 A.3d at 1022.

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streets” and such comments “are also completely consistent with an

individual concerned because he was arrested for a crime to which he was in

proximity.” Id. at 26. Coburn also asserts that: his flight from police is not

indicative of his guilt; the seizure of the weapon in his sister’s home does

not prove he was the shooter; and the photograph shown to Herring does

not indicate him as a shooter without the hearsay testimony of Detective

Mayer. Id. at 27-28. In addition, Coburn argues that the jail calls and his

flight from arrest are not indicative of his guilt because Dixon was also

recorded on the jail calls and fled from police, yet Dixon was found not guilty

of all charges lodged against him. Id. at 26-27.

This Court’s standard for reviewing sufficiency of the evidence claims is

well settled:

We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the
trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.

The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the fact-
finder. The Commonwealth’s burden may be met by
wholly circumstantial evidence and 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.

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Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

“A person commits an attempt when, with intent to commit a specific

crime, he does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa.C.S. § 901(a). To establish attempted

murder, the Commonwealth must show that the defendant took “a

substantial step towards the commission of a killing, with the specific intent

in mind to commit such an act.” In re R.D., 44 A.3d 657, 678 (Pa.Super.

2008). The Commonwealth may establish a mens rea of specific intent to

kill solely through circumstantial evidence. Id. Further, “[t]he use of a

deadly weapon on a vital part of the body is sufficient to establish the

specific intent to kill.” Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.

2007).

“A person may be convicted of aggravated assault graded as a first

degree felony if he ‘attempts to cause serious bodily injury to another, or

causes such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life.’”

Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa.Super. 2006)

(quoting 18 Pa.C.S. § 2702(a)(1)). “Serious bodily injury” is “bodily injury

which creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S. § 2301.

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A person may be convicted of REAP “if he recklessly engages in

conduct which places or may place another person in danger of death or

serious bodily injury.” 18 Pa.C.S. § 2705. “Thus, the crime requires (1) a

mens rea recklessness, (2) an actus reus some ‘conduct,’ (3) causation

‘which places,’ and (4) the achievement of a particular result ‘danger,’ to

another person, of death or serious bodily injury.” Commonwealth v.

Trowbridge, 395 A.2d 1337, 1340 (Pa.Super. 1978).

Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence to support Coburn’s convictions. The Commonwealth

presented evidence that Coburn was present at the scene of the shooting,

seated in the passenger seat of a blue Mustang. Multiple witnesses testified

that the blue Mustang pulled out of the parking lot, passed by the only exit,

and then returned to the parking lot. These witnesses then heard several

shots from the vicinity of the parked car and saw the blue Mustang exit the

apartment complex at a high rate of speed. Security video footage similarly

shows flashes of light near the car. The police found a number of nine-

millimeter fired cartridge casings in the blue Mustang and the parking lot,

which, according to expert testimony, were discharged from the firearm

seized from Coburn’s sister’s residence. Police also recovered a number of

projectile fragments lodged in cars and buildings from the area where the

car was parked.

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In addition, the jail phone calls made by Coburn are strongly

corroborative of guilt, indicating that Herring and Coburn intended to leave

this matter out of the courts; that Coburn believed that he could not be

convicted because the Commonwealth did not find his fingerprints on the

gun; and that Coburn thought that Dixon may have spoken to the Police.

Further, when police attempted to serve an arrest warrant on Coburn, he

fled. The fact that Dixon was also recorded on the jail calls and fled from

police is of no moment, as Dixon’s actions do not bear on Coburn’s

culpability. We conclude that the Commonwealth presented sufficient

evidence to support Coburn’s convictions for criminal attempt – homicide,

aggravated assault (serious bodily injury inflicted), and REAP.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/8/2017

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