Com. v. Rodriguez, M.

J-A25003-17

2017 PA Super 364

COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MIGUEL ANGEL RODRIGUEZ :
: No. 210 EDA 2017
Appellant

Appeal from the Judgment of Sentence February 12, 2016
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003835-2014

BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 15, 2017

This is an appeal from the judgment of sentence entered in the Court of

Common Pleas of Northampton County following Appellant’s conviction by a

jury on the charge of first degree murder, 18 Pa.C.S.A. § 2502(a). After a

careful review, we affirm.

The trial court has extensively set forth the factual and procedural

history underlying this appeal as follows:

[Following a Grand Jury investigation, Appellant was
arrested and charged with Criminal Homicide.] The
Commonwealth provided discovery[,] and defense counsel filed
[an] omnibus pretrial motion on April 28, 2015, seeking additional
discovery and suppression of [Appellant’s] statements to the
police. A suppression hearing was held on June 11, 2015, to
address a number of issues raised by [Appellant] in his omnibus
pretrial motions.
***

____________________________________
* Former Justice specially assigned to the Superior Court.
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Following the pretrial hearing, both parties submitted briefs
to the court. On September 10, 2015, the court denied
[Appellant’s] motions to suppress statements he made to the
police and his motion to reveal the identify [of the
Commonwealth’s confidential informant]. On the same day, the
Commonwealth issued subpoenas to twenty-seven witnesses
whose addresses and phone numbers were not disclosed [in
order] to ensure their safety. Defense counsel was given an
opportunity to meet with these witnesses at the Courthouse.
The [jury] trial in this case[, at which Appellant was
represented by counsel,] began on February 1, 2016[,] and ended
on February 5, 2016. The jury returned a verdict of guilty to one
count of Criminal Homicide-First Degree Murder....The following
evidence was presented at trial in support of this verdict.
On February 9, 2013, Easton Police responded to a report of
shots fired at Eddie G’s bar in Easton. [N.T., 2/2/16, at 8-9.]
Officer Brian Burd of the Easton Police Department was the first
officer on the scene. [Id. at 9.] Officer Burd was directed to the
“Employee’s Only” area of the bar, where he observed the victim,
Damien Robinson, lying on the floor. [Id. at 10.] At the time of
the officer’s arrival, the victim was still alive, but he was
unconscious and his breathing was shallow. [Id. at 12.] Jennifer
Delgado, an employee at Eddie G’s and a witness, was
administering CPR to the victim. [Id. at 10-11.] Officer Burd
directed her to stop CPR so that he could check the victim’s vital
signs and administer life saving measure[s]. Id. Officer Burd
then radioed for backup[,] EMS[,] and Fire. [Id. at 12.] While
treating the victim, Officer Burd observed a gunshot wound to the
victim’s left upper chest area and a gunshot [wound] at his right
armpit. [Id. at 14.]
Once backup officers, [F]ire[,] and EMS arrived, they
managed to secure the scene and began looking for a gun. [Id.
at 16.] The victim was removed from the scene and taken to the
hospital. [Id. at 16-17.] Officer Burd then began interviewing
witnesses, including Ms. Delgado, Darryl Williams, Rico Garnet,
and Mike King. [Id.] Of those witnesses, only Mr. King saw the
shooting and could provide a description of the shooter. [Id. at
17.] Mr. King worked as a bouncer at Eddie G’s. Id. He described
the shooter as a five feet, eight inch[] tall black male with
medium-toned skin. [Id. at 18.] The shooter was wearing a dark
hoodie with the hood up and dark sweatpants. Id. He described
the gun as a black semi-automatic handgun. Id.

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Officer Burd [] observed a shell casing outside the
“Employee’s Only” door leading [to] the back room where the
victim was found. [Id.] On the left side (if entering through the
“Employee’s Only” door) of the room, officers observed a cartridge
casing with an unfired round, an empty shell casing, and a bag of
what was suspected to be marijuana. [Id.] In the same room
was another closed door with a bullet hole through it. [Id. at 18-
19.] Officers found two bullets inside the room behind the door.
Id. Officers further observed a broken cell phone and a sweatshirt
near the rear door of the building. [Id. at 19.]
Next, Dr. Zhongxue Hua testified as an expert in forensic
pathology. [Id. at 57-58.] Dr. Hua reported the findings of his
autopsy to the jury. This included the discovery of two gunshot[]
wounds on the victim, one of which was fatal, and their trajectory
through the body. [Id. at 65-67.] Dr. Hua opined that the cause
of death was a gunshot wound to the chest with no contributing
factors. [Id. at 92.] During this testimony, two colored pictures
of the injuries were presented to the jury, one of the victim’s chest
wound and one of the victim’s back where exit wounds were
observable. [Id. at 52.] These photographs were entered into
evidence over the objections of [Appellant]. [Id. at 51.] The
pictures were displayed for approximately a minute while in use
by Dr. Hua to describe the location of entry and exit wounds on
the victim. [Id. at 63-64.] An instruction was given to the jury
by the court prior to the introduction of the photographs,
explaining their purpose and instructing the jury to not allow their
emotions to prejudice [Appellant]. [Id. at 61-62.]
Detective Darren Snyder was responsible for processing the
crime scene at Eddie G’s bar. Along with evidence observed by
Officer Burd, Detective Snyder also collected another 9mm Luger
casing, an orange lighter, and bullet fragments. [Id. at 114, 141-
42.] Detective Snyder also collected DNA samples from a blood
smear on a closet door, the push bar of the “Employee’s Only”
door, the rear exit door, and from the cell phone discovered by
Officer Burd. [Id. at 125-26, 128, 132, 181.]
Corporal Jeffery Dietz of the Pennsylvania State Police
Regional Crime Lab testified at trial as an expert in firearm and
tool mark examination. [Id. at 254.] He asserted that all three
cartridge casings recovered from the scene were fired from the
same firearm. [Id. at 261.] He also compared the two intact
bullets and the fragments found at the scene and discovered that
all three items were fired from the same gun. [Id. at 264-66.]

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Detective Matthew Rush, the affiant in the present case,
testified regarding his investigation at trial. Specifically, Detective
Rush spoke about his conversations with [Appellant] at the Easton
Police Department. At an interview on February 21, 2013,
[Appellant] stated that he had arrived at Eddie G’s on the night of
the incident around 9:00 pm and had not witnessed the gunshots.
(Commonwealth Ex. 76). He also denied ever being in the back
room of the bar. [Id.] [Appellant] also denied losing his phone
at Eddie G’s and insisted it was at his house, but later in the
interview said that a man named Devol James borrowed his phone
and lost it. [Id.]
On March 11, [2013,] Detective Rush obtained a search
warrant for [Appellant’s] DNA to be compared with the evidence
at the scene. [N.T., 2/4/16, at 42-45.] The DNA sample was
collected from [Appellant] at which time [Appellant] told Detective
Rush he had gone to New York for a few days before coming back
to Easton. [Id. at 46.] The two spoke again on April 29, 2013[,]
and [Appellant] denied having anything to do with the homicide.
[Id. at 47-48.] [Appellant] testified before the Grand Jury on June
27, 2013. In his testimony, [Appellant] stated that he has two
cell phones and sometimes gives one of them to a man identified
as “Hood” for drug transactions. [Id. at 58.]....[Appellant
admitted that on the night in question he was] at Eddie G’s
wearing a grey sweat suit. [Id. at 61, 69.] He claimed that Hood
had told him that he lost the cell phone [that Appellant] gave him
at Eddie G’s. [Id. at 89.] He testified that he stayed at the
Ramada Inn briefly after the shooting and then went to New York
around February 12, 2013[,] for a few days. [Id. at 100-02.]
[Appellant] denied having a gun that night. [Id. at 91.]
The Commonwealth also called Catherine Palla, who was
qualified as an expert in DNA profiling. [Id. at 166-67.] She
tested the known samples from [Appellant] with the various
collected samples found at the crime scene. [Id. at 174.] The
bag of marijuana found at the scene had DNA from two people,
one of which was [Appellant]. [Id. at 175.] None of the casings
had enough DNA to test. [Id. at 176.] The cell phone contained
a mixture of three different DNA profiles, with a major contributor
of the mixture being [Appellant]. [Id.]
The Commonwealth called a number of eyewitnesses, the
two most significant of which was Jennifer Delgado and Mike King.
Mike King worked as a bounced [sic] at Eddie G’s on the
night of the shooting. He testified that he recalled seeing

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[Appellant] and Hood at Eddie G’s on the night in question. [N.T.,
2/3/16, at 7-10.] He saw [Appellant] and Hood arguing with a
man known as “La[l]a,” who was at the bar with the victim, known
as “Head.” [Id. at 11-12.] Mr. King was required to break up the
argument between the two groups. [Id. at 15.] Mr. King was
called to break up a fight in the back later that night, which was
taking place on the other side of the “Employee’s Only” door. [Id.
at 19-20.] When he entered the back area through the door, he
saw [Appellant] pulling a gun up in his right hand. [Id. at 20-21.]
He heard three gunshots. [Id. at 17-24.] He then went into the
back room and observed the victim, leaning against the closet
door trying to breathe. [Id. at 26.] He then ran back to the bar
and called an ambulance. [Id. at 27.] When speaking to the
police that night, Mr. King did not identify [Appellant] because he
says [that] he was scared of retaliation and did not want
[Appellant] to be arrested. [Id. at 30.] Mr. King testified twice
in front of the Grand Jury, the first time he did not identify
[Appellant]. The second time, his testimony changed and he
identified [Appellant] as the shooter. [Id. at 42]. Mr. King
state[d] the reason his testimony changed is because his girlfriend
became pregnant with twins and he did not want to risk going to
jail. [Id.]
Jennifer Delgado was a bartender at Eddie G’s that night.
At the time of the shooting, Ms. Delgado was “hooking up” with a
friend of [Appellant,] known as “City,” whom she had known for
about a year. [Id. at 123-24.] She was behind the bar when she
heard two or three gunshots that night. [Id. at 136-37.] While
the police were on the scene, Ms. Delgado was contacted by City
and ordered to sneak out of the bar. [Id. at 144.] She then went
to the Ramada Inn where she met up with City, Hood, and
[Appellant], as well as three other men. [Id. at 146-47.] The
next day, before going to speak to the police who were looking for
her, she went with City to look for the gun down by Eddie G’s. [Id.
at 151.] After being instructed by City on what to say, Ms.
Delgado told the police that Lala was the shooter. [Id. at 153-
54.] Ms. Delgado then drove [Appellant] to New York to get him
out of town. [Id. at 155.] During the drive[,] [Appellant] told her
that he was scared[,] [he] thought the victim was going to pull
something[,] and [the victim] was bigger than [Appellant]. [Id.
at 157.]
In June of 2013, Ms. Delgado spoke to Detective Rush after
she had been stabbed ten times by friends of [Appellant]. [Id. at
158-69.] At this time[,] Ms. Delgado began giving more

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information to the police. [Id. at 159.] The District Attorney’s
Office dismissed a pending DUI [charge] against Ms. Delgado and
gave her immunity for her role in the homicide. [Id. at 160-62.]
Ms. Delgado testified to this information before the Grand Jury.

Trial Court Opinion, filed 12/28/16, at 1-8.

Following the jury’s verdict, on February 12, 2016, the trial court

sentenced Appellant to a term of life imprisonment without parole. On that

same date, Appellant was given his post-sentence and appellate rights. See

Post Sentencing Colloquy, filed 2/12/16. On February 17, 2016, Appellant

filed a timely, counseled post-sentence motion1 in which he presented

numerous claims, and on February 18, 2016, the trial court ordered that the

necessary notes of testimony be transcribed.

On March 21, 2016, Appellant filed a counseled motion averring that,

despite having ordered the necessary transcripts, he had not yet received the

transcripts, and therefore, under Pa.R.Crim.P. 720(B)(3)(b), he sought a

thirty-day extension of time in which to supplement his post-sentence motion.

By order entered on that same day, the trial court granted Appellant’s request,

indicating that, pursuant to Pa.R.Crim.P. 720(B)(3)(a), a thirty-day extension

would be added to the 120-day decision period. Thus, the post-sentence

____________________________________________

1 The record contains a copy of Appellant’s motion, which is labeled an
“Omnibus Post-Sentence Motion Pursuant to Rule 720(B)[.]” We note the
certified docket entries mistakenly indicate that, on February 17, 2016,
Appellant filed an “Omnibus Pre-Trial Motion.”

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motion decision period was extended to July 18, 2016.2 See Pa.R.Crim.P.

720(B)(3)(a), (b).

On June 24, 2016, prior to the expiration of the extended period, the

Clerk of Courts purported to deny Appellant’s post-sentence motion by

operation of law. On June 27, 2016, Appellant received the requested

transcripts and, on June 29, 2016, having received the Clerk of Court’s notice,

Appellant filed a motion requesting permission to file a supplemental post-

sentence motion nunc pro tunc. Therein, Appellant averred that he had

recently received the necessary transcripts, and he believed that he had or

should have had additional time to file a supplemental post-sentence motion

pursuant to the trial court’s previous order.

By order entered on June 29, 2016, the trial court granted Appellant’s

request to file a supplemental post-sentence nunc pro tunc and directed

Appellant to file his supplemental post-sentence motion within seven days of

the order (by July 6, 2016). On June 30, 2016, the trial court additionally

directed Appellant to file a brief addressing his post-sentence motions within

twenty days of the date of the order.

On July 6, 2016, Appellant filed a supplemental post-sentence motion

nunc pro tunc raising additional claims. On October 3, 2016, Appellant filed a

____________________________________________

2The 150th day fell on Saturday, July 16, 2016, and thus, the post-sentence
motion decision period was extended to Monday, July 18, 2016. See 1
Pa.C.S.A. § 1908 (“Computation of time”).

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brief in support of his motion, as well as a motion for the trial court to accept

the brief late. By order entered on December 28, 2016, the trial court entered

an order denying Appellant’s post-sentence motion. This counseled appeal

followed on January 5, 2017. The trial court directed Appellant to file a

Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the trial court

filed a responsive Pa.R.A.P. 1925(a) opinion.

On appeal, Appellant presents the following issues, which we set forth

verbatim:

I. Did the trial court erroneously deny Appellant’s motion for a
new trial where the verdict was so contrary to the weight of
the evidence as to make the awarding of a new trial
imperative?
II. Did the trial court erroneously deny Appellant’s request for
access to identifying and contact information regarding over
50 eyewitnesses interviewed by the police, where the
alternative approach adopted by the trial court virtually
guaranteed that none of these witnesses would discuss their
information with the defense and where withholding this
information denied Appellant his constitutional right to
prepare and present a defense?
III. Did the trial court erroneously permit a prosecution witness
to testify that she was stabbed by “acquaintances of the
defendant” and that acquaintances of the defendant killed
her friend, where no evidence indicated that Appellant had
any involvement in these alleged attacks or that he was
acquainted with the attackers?
IV. Did the trial court erroneously permit a detective to provide
hearsay testimony to the effect that (1) Appellant’s
girlfriend and her mother would not corroborate Appellant’s
claim that Appellant was at his girlfriend’s home at the time
of the incident, and (2) that an alternative suspect denied
Appellant’s claim that Appellant had given his cell phone to
the alternative suspect immediately prior to the incident?

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V. Did the trial court erroneously deny Appellant’s request to
inform the jury of the penalty for first degree murder in
Pennsylvania, where that information was probative of the
alternat[e] suspects’ reasons for either refusing to testify or
denying any participation in the shooting?
VI. Did the trial court erroneously impose a sentence of life
imprisonment without the possibility of parole upon an 18
year old defendant, in violation of the Eighth Amendment
and Miller v. Alabama, 567 U.S. 460 [ ] (2012)?

Appellant’s Brief at 6-7.

As a preliminary matter, we consider whether Appellant filed his notice

of appeal in a timely manner. “In cases where no post-sentence motions...are

filed, a defendant must file an appeal within 30 days of imposition of

sentence[.] If a defendant files a timely post-sentence motion, the appeal

period does not begin to run until the motion is decided.” Commonwealth

v. Capaldi, 112 A.3d 1242, 1244 (citations omitted).

Under Pa.R.Crim.P. 720(A), a post-sentence motion is timely if it is filed

no later than ten days after the imposition of sentence. Pa.R.Crim.P. 720 sets

forth the procedure to be followed when a timely post-sentence motion is filed.

Under this Rule, the trial court must decide the post-sentence motion within

120 days of the filing of the motion. Pa.R.Crim.P. 720(B)(3)(a). The trial

court may grant one 30-day extension for a maximum of 150 days.

Pa.R.Crim.P. 720(B)(3)(b). If the trial court fails to decide the post-sentence

motion within this time period, it is deemed denied by operation of law. Id.

When a post-sentence motion is denied by operation of law, the Clerk of

Courts is directed to enter an order on behalf of the court and “furnish a copy

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of the order...to...the defendant(s) and defense counsel....” Pa.R.Crim.P.

720(B)(3)(d).

In the case sub judice, Appellant filed a timely post-sentence motion on

February 17, 2016. Furthermore, prior to the expiration of the 120-day

period, since the necessary notes of testimony had not yet been transcribed,

Appellant filed a motion on March 21, 2016, seeking a 30-day extension with

regard to his post-sentence motions. The trial court granted Appellant’s

extension request, thus indicating a 30-day extension would be added to the

120-day decision period. Accordingly, at this point, the trial court had 150

days from February 17, 2016 (or until July 18, 2016) to rule on Appellant’s

post-sentence motion.

However, prior to the expiration of the 150-day mark, the Clerk of

Courts prematurely deemed Appellant’s post-sentence motion to be denied by

operation of law on June 24, 2016, which was 128 days after Appellant filed

his post-sentence motion. Since the Clerk of Court’s denial of the post-

sentence motion was in contravention of the court-approved extension, we

deem the Clerk of Court’s action to be a “breakdown in the system.” See

Commonwealth v. Perry, 820 A.2d 734 (Pa.Super. 2003) (holding that,

where the Clerk of Courts does not follow the Rules of Criminal Procedure,

such constitutes a breakdown in the lower court’s processes).

This breakdown by the Clerk of Courts led to Appellant filing another

motion seeking an extension of time in which to file a supplemental post-

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sentence motion, and the trial court directed Appellant to file his supplemental

post-sentence motion by July 6, 2016. Thereafter, on July 6, 2016, Appellant

filed a supplemental post-sentence motion; however, the trial court did not

rule on the motion by July 18, 2016 (150 days after the filing of Appellant’s

original post-sentence motion). Moreover, the Clerk of Courts did not provide

proper notice after the 150-day mark indicating that the post-sentence motion

was denied by operation of law. Rather, on December 28, 2016, the trial court

entered an order denying Appellant’s post-sentence motion, and within thirty

days thereof, on January 5, 2017, Appellant filed a notice of appeal.

Under these circumstances, we are constrained to find that Appellant’s

facially untimely appeal was caused, at least in part, by a breakdown of the

processes of the court below, and thus, we decline to quash this appeal on the

basis it was untimely filed. See Commonwealth v. Khalil, 806 A.2d 415

(Pa.Super. 2002) (declining to quash appeal that was facially untimely due to

breakdown in the court’s system). Accordingly, we will address the issues

presented by Appellant.

In his first issue, Appellant contends the jury’s verdict is against the

weight of the evidence.3 Specifically, Appellant contends that the jury’s

verdict is unreliable since it is based upon the testimony of a single

____________________________________________

3Appellant adequately preserved his weight of the evidence claim in his post-
sentence motion and court-ordered Pa.R.A.P. 1925(b) statement. See
Pa.R.Crim.P. 607; Pa.R.A.P. 1925

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eyewitness, Mike King, and, thus, “[t]his mater belongs to a troubling subset

of criminal cases that continues to confound the criminal justice system: the

one-witness ID case.” Appellant’s Brief at 28. Further, Appellant contends

Mr. King’s identification of Appellant as the shooter at trial was inherently

unreliable since Mr. King failed to identify Appellant as the shooter on the night

of the crime and in his initial testimony before the Grand Jury.

Additionally, he contends that the testimony presented at trial from Mr.

King and Jennifer Delgado was untrustworthy given the fact that both

witnesses sought leniency and/or feared perjury charges if they did not testify

favorably for the Commonwealth. He further contends that, since there were

over 50 people in the bar at the time of the shooting, and thus, there existed

several alternate suspects, the jury’s verdict concluding that Appellant was

the shooter “shock’s one’s sense of justice.” Finally, he contends that the

verdict is against the weight of the evidence since the Commonwealth’s “DNA

evidence showed only that [Appellant] at one point held [a] phone and [a]

bag containing drugs.” Appellant’s Brief at 33.

The Supreme Court has set forth the following standard of review for

weight of the evidence claims:

The essence of appellate review for a weight claim appears
to lie in ensuring that the trial court’s decision has record support.
Where the record adequately supports the trial court, the trial
court has acted within the limits of its discretion.
***
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion

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of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice.
***
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court. Appellate review of a weight
claim is a review of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight of the
evidence.

Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054-55 (2013)

(quotation marks, quotations, and citations omitted). In order for an appellant

to prevail on a challenge to the weight of the evidence, “the evidence must be

so tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa.Super. 2003)

(quotation marks and quotations omitted).

Initially, with regard to Appellant’s broad assertion that a jury’s verdict

of guilt, which is based upon the testimony of a single eyewitness, is inherently

suspicious or unreliable, we disagree. Rather, as with all testimony and

evidence offered at trial, in passing upon the credibility of a single eyewitness,

the jury is free to believe all, part, or none of the witness’s testimony.

Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa.Super. 2002) (en

banc). Further, contrary to Appellant’s assertion, in the case sub judice, the

jury was presented with direct and circumstantial evidence of Appellant’s guilt

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beyond that presented by Mr. King, i.e., Ms. Delgado’s testimony and DNA

evidence left at the scene.

With regard to Mr. King’s reluctance in identifying Appellant as the

shooter, Mr. King admitted on direct-examination that he did not inform the

police that he observed Appellant shoot the victim because he does not like to

cooperate with the police, he thought Appellant was otherwise “a good kid,”

and he was worried about retaliation. N.T., 2/3/16, at 29-30. Mr. King also

admitted at trial that he initially lied to the Grand Jury about the identity of

the shooter; however, he indicated that, when he testified the second time

before the Grand Jury, he decided to tell the truth and identify Appellant. Id.

at 40-41. Mr. King explained at trial that he decided to tell the truth because

he had just found out that he was going to be a father and he did not want to

risk going to jail for perjury. Id. at 41. We find the trial court did not abuse

its discretion in concluding that, while Mr. King’s identity of Appellant as the

shooter was not entirely consistent throughout his interaction with the police

and presentation of Grand Jury testimony, the “jury was in the best position

to view the demeanor of [Mr. King] and [ ] assess [his] credibility.” Trial Court

Opinion, filed 12/28/16, at 12 (citation omitted).

With regard to Appellant’s assertion that Mr. King’s and Ms. Delgado’s

trial testimony was untrustworthy since both witnesses sought leniency and/or

feared perjury charges if they did not testify favorably for the Commonwealth,

the jury was made aware of each witness’s criminal history, the

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Commonwealth’s promises of leniency, and the witness’s fear of perjury. See

N.T., 2/3/16, at 31-32, 41 (Mr. King admitted he had pending criminal charges

but that the Commonwealth had not made any promises to him in exchange

for his testimony, and he explained his fear of being charged with perjury);

Id. at 186-90 (Ms. Delgado admitted that, in exchange for her trial testimony,

her DUI charge was withdrawn by the Commonwealth, she was given

immunity for her part in transporting Appellant to New York after the murder,

and she was hoping to gain leniency with regard to a pending theft charge,

although the Commonwealth had not made any promises to her with regard

to the theft charge). Appellant, in essence, asks us to reweigh the testimony

in his favor. However, we find no abuse of discretion in the trial court’s

conclusion that the weight to be given to Mr. King’s and Ms. Delgado’s

testimony, and the consideration of their motives to lie, was a matter of

credibility rightfully left to the jury. See Trial Court Opinion, filed 12/28/16,

at 12.

With regard to Appellant’s claim that the jury’s verdict is against the

weight of the evidence since there were over 50 people in the bar at the time

of the shooting, and thus, there existed several alternate suspects, we

conclude the jury was free to weigh and consider this fact in rendering its

verdict. Contrary to Appellant’s assertion, the fact Appellant chose to commit

the murder in “a loud nuisance bar, filled with drug buyers and sellers” does

not require a finding that no reliable, credible eyewitness was available. See

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Appellant’s brief at 33. Here, the jury clearly chose to believe Mr. King’s

testimony that he observed Appellant shoot the victim, as well the

Commonwealth’s DNA evidence and other circumstantial evidence of guilt.

With regard to Appellant’s final specific weight claim, Appellant suggests

the jury’s verdict is against the weight of the evidence since there is an

absence of corroborating DNA evidence. He suggests the “DNA evidence

showed only that [Appellant] at one point held [a] phone and [a] bag

containing drugs.” Appellant’s Brief at 33. As with the testimonial evidence

presented at trial, the jury was free to weigh the significance of the DNA

evidence. An appellate court cannot substitute its judgment for that of the

finder of fact, and we find no abuse of discretion in the trial court’s rejection

of Appellant’s weight of the evidence claim. See Clay, supra.

In his second issue, Appellant contends the trial court erred in denying

his request for access to information identifying over 50 witnesses, who were

interviewed by the police. Appellant admits that the Commonwealth provided

him with the names of the witnesses, but he contends the trial court erred in

failing to direct the Commonwealth to also provide “addresses or any other

information which would [have] enable[d] the defense to contact and

interview these people.” Appellant’s Brief at 37.

Moreover, while Appellant admits the trial court attempted to

accommodate Appellant by gathering all of the witnesses in open court to be

interviewed at a pretrial hearing, Appellant contends the trial court’s approach

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was inadequate since it “virtually assured that everyone would adhere to the

‘street’s rule’ of silence and that no one would speak [in public] to the

defense.” Appellant’s Brief at 41. Appellant avers the Commonwealth’s

withholding of the witnesses’ contact information prevented his investigators

from speaking to the witnesses in private, and thus, denied him the

constitutional right to prepare and present a defense. He also suggests the

trial court abused its discretion under Pa.R.Crim.P. 573 by failing to require

the Commonwealth to reveal the addresses and other contact information of

the eyewitnesses.

Initially, we note that our standard of review of claims that a trial court

erred in its disposition of a request for the disclosure of an eyewitness’s

address and other contact information is confined to an abuse of discretion.

See Commonwealth v. Washington, 63 A.3d 797, 801 (Pa.Super. 2013).

Pa.R.Crim.P. 573 provides, in relevant part, the following:

In all court cases, except as otherwise provided in Rules 230
(Disclosure of Testimony Before Investigating Grand Jury) and
556.10 (Secrecy; Disclosure), if the defendant files a motion for
pretrial discovery, the court may order the Commonwealth to
allow the defendant’s attorney to inspect upon a showing that they
are material to the preparation of the defense, and that the
request is reasonable:
(i) the names and addresses of eyewitnesses[.]

Pa.R.Crim.P. 573(B)(2)(i).

If materiality and reasonableness are proven [by the
defendant], then the courts must balance the public interest in the
police’s ability to obtain information against the defendant’s right
to prepare his defense. In this connection, we consider the crime,
the potential defense, and the significance of the [witness’s]

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testimony....Furthermore, the safety of the [witness] can be a
controlling factor in determining whether to reveal a [witness’s]
identity.

Commonwealth v. Jordan, 125 A.3d 55, 63 (Pa.Super. 2015) (en banc).

In the case sub judice, in addressing Appellant’s issue, the trial court

indicated the following in its opinion:

[Appellant] filed a motion for supplemental discovery as part
of his Omnibus Pretrial Motion. [Appellant] avow[ed] that the
discovery provided by the Commonwealth in this case [was]
incomplete particularly with respect to the disclosure of the
identity of the Commonwealth’s witnesses. Specifically,
[Appellant] petition[ed] th[e] [trial] court to direct the
Commonwealth to disclose “the names, addresses, and phone
numbers of the witnesses interviewed by the Easton Police
Department” in preparation of his defense.
It is unquestioned that the United States Constitution
assures the right of an accused to be provided with an adequate
opportunity to present his version of the incident to the trier of
fact. Washington v. Texas, 388 U.S. 14, 18 S.Ct. 1920 (1967).
With respect to the discovery of eyewitnesses,...there is no
requirement that identifying information of eyewitnesses be
disclosed by the Commonwealth under the mandatory disclosure
provisions of Rule 573. See Pa.R.Crim.P. 573; Commonwealth
v. Hood, 872 A.2d 175 (Pa.Super. 2005). However, th[e] [trial]
court may exercise [its] discretion and direct the Commonwealth
to provide such information if [the court] deem[s] it material to
the preparation of [a defendant’s] defense.
[The trial court’s] review of the record indicates that the
Commonwealth, through informal discovery,...provided
[Appellant] with a police report which include[d] the names of
approximately fifty-six (56) witnesses or individuals who[]
provided statements to the Easton Police Department in this case.
The Commonwealth, in the interest of public safety[,]...provided
only the witnesses’ names to [Appellant] and...removed their
addresses and other contact information. At the time of the
omnibus pretrial hearing, the Commonwealth stated that it “has
concerns about the safety of the witnesses and that is not
generalized. We have concerns.” See N.T., 6/77/15, at 13. The
Commonwealth further recounted for [the trial] court how the

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witnesses in this homicide case “fear for their safety.” Id. at 15.
Specifically, “that a witness, Jennifer Delgado, was stabbed in an
assault or stabbed by a known associate of [Appellant], that’s Carl
Willbright[,] in large part as she was cooperating with the police
in this homicide.” Id. at 13-14. In addition, “[Appellant] had a
preliminary hearing scheduled...in an unrelated attempted
homicide case,” and “there were associates of [Appellant] in
court” and “outside the courthouse in three strategic places.” Id.
at 14. “The victim of that attempted homicide, [Eric Edwards],”
“did not show up because he feared for his and his family’s safety.”
Id. Under [these] circumstances, [the trial court agreed] with the
Commonwealth’s position that, in the interests of the witnesses’
safety[,] [ ] their addresses and other contact information,
including telephone number[,] [should] not be disclosed to
[Appellant].
However, [the trial court] firmly believe[d] that counsel for
[Appellant] should have access to the Commonwealth witnesses
to present an effective defense. [The trial court] recognize[d] that
[Appellant] [was] charged with homicide and that counsel should
have the ability to conduct an investigation into the incident which
led to the charges. [Appellant was] provided with the names of
all witnesses interviewed. [The trial court] was “concerned about
access to [defense counsel]” and, as such, [the trial court]
directed the Commonwealth to “make the witnesses available to
[defense counsel] and/or his investigator.”
***
As such, [the trial court] stated on the record...that the
Commonwealth [was] directed to make th[e] “eyewitnesses
available for [defense counsel] for interviews.” Id. at 18.....[The
trial court indicated that, if] some witnesses were reluctant to be
interviewed by defense counsel for safety concerns, [the trial
court] would direct the Commonwealth to provide a brief summary
of that witness’s statement to defense counsel. The
Commonwealth indicated its agreement with this procedure [while
defense counsel argued the trial court’s solution had a “coercive
effect” and would not yield the same information as was provided
in the police reports.]
On September 10, 2015, [the trial court] held a hearing[4]
as discussed [supra]. All investigative resources—possible
____________________________________________

4 We note that this Court has not been provided with a transcript pertaining
to the September 10, 2015, hearing.

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witnesses—were subpoenaed by the Commonwealth to show up
for the hearing, and [Appellant] and defense counsel were able to
ask each witness that showed up if they would like to give their
information and speak with defense counsel privately about the
incident. Several witnesses [ ] indicate[d] a willingness to speak
to counsel, many did not. With respect to the discovery of
potential witnesses, as outlined [above], there is no requirement
that identifying information of potential witnesses be disclosed to
the Commonwealth under the mandatory disclosure provisions of
Rule 572. See Pa.R.Crim.P. 573; [Hood, supra.] Therefore, the
Commonwealth [was] not required to disclose the identifying
information of the witnesses, and the [trial court] provided
[Appellant] with the ability to speak with the witnesses in a safe
environment for all....Therefore, this argument is not grounds for
a new trial[.]

Trial Court Opinion, filed 12/28/16, at 17-19 (citations to record omitted)

(footnotes added).

We agree with the trial court’s well-reasoned analysis and find no abuse

of discretion. See Washington, supra. Specifically, in ruling the

Commonwealth was not required to disclose the addresses and other contact

information of the witnesses, we agree with the trial court’s conclusion that

the safety of the eyewitnesses weighed against providing the information to

Appellant. Moreover, we note that, with regard to the trial court’s approach

of requiring the witnesses to appear in court so that defense counsel would

have access to the witnesses, Appellant speculates that the approach was

“doomed to fail” because the people who patronize Eddie G’s are the type of

people who “play by the street’s rules of keeping their mouths shut.” See

Appellant’s Brief at 38-39. Such speculation, however, does not persuade us

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that the trial court abused its discretion. See Washington, supra. Thus, we

find no relief is due on this issue.

In his third issue, Appellant contends the trial court erred in permitting

Jennifer Delgado to testify at trial that “acquaintances” of Appellant stabbed

her ten times five months after the shooting, as well as killed one of her friends

in New York. Appellant contends Ms. Delgado’s testimony constituted

evidence of Appellant’s “prior bad acts” and was improper since there was no

foundation for the assertion that Appellant was acquainted with the culprits.

In its Rule 1925(a) opinion, the trial court suggests Appellant’s issue is waived

for appellate review since he failed to lodge an objection to Ms. Delgado’s

testimony or otherwise present the issue to the trial court prior to the filing of

his Rule 1925(b) statement. We agree.

The record reveals the following relevant exchange between Ms.

Delgado and the prosecutor on direct-examination at trial:

Q: Eventually, Ms. Delgado, you came and spoke to Detective
Rush about the shootings?
A: Correct.
Q: Now, I think that might have been around June of 2013, does
that sound right?
A: Yeah.
***
Q: And were you willing to speak with him then?
A: I was hesitant.
Q: Did [the detective] keep at it?
A: Yes.
Q: Were you assaulted in June?

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A: I was stabbed 10 times.
Q: Who stabbed you?
A: Acquaintances of Dolo’s.[5]
Q: Do you know did City have anything to do with the stabbing?
A: Of course he had something to do with it.
***
Q: But after that, did you start opening up even more about what
you had observed?
A: Yes, because then they killed my friend Chi-Chi, so I wasn’t
like—it was just like, when is enough.
Q: And that was in New York?
A: Yeah.
Q: But you’re not saying Dolo did that?
A: No. No. I’m saying his acquaintances did that, just like his
acquaintances did that to me.

N.T., 2/3/16, at 158-61 (footnote added).

Our Pennsylvania Rules of Appellate Procedure and our case law provide

the well-established requirements for preserving a claim for appellate review.

It is axiomatic that “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “The absence

of a contemporaneous objection below constitutes a waiver” of the claim on

appeal. Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 423 (2008);

Tindall v. Friedman, 970 A.2d 1159, 1174 (Pa.Super. 2009) (“On appeal,

we will not consider assignments of error that were not brought to the

____________________________________________

5 Testimony at trial revealed that Appellant’s nickname was “Dolo.”

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tribunal’s attention at a time at which the error could have been corrected or

the alleged prejudice could have been mitigated.”) (citation omitted)).

In the case sub judice, during trial, Appellant did not lodge an objection

to the portions of Ms. Delgado’s testimony that he now challenges on appeal.

Accordingly, we agree with the trial court that Appellant has waived his issue

on appeal.6 See id.

In his fourth issue, citing to the notes of testimony from February 4,

2016, at pages 75, 80, and 98, Appellant contends the trial court erred in

permitting Detective Rush to provide hearsay testimony to the effect that (1)

Appellant’s girlfriend would not corroborate Appellant’s statement that he was

at his girlfriend’s home at the time of the shooting, (2) Devol James denied

having Appellant’s cell phone in his possession at the time of the shooting, (3)

the rumor on the street was that Appellant had something to do with the

shooting, and (4) Appellant’s girlfriend did not inform the police that Appellant

was with her at the time of the shooting. In its Rule 1925(a) opinion, the trial

court suggests Appellant’s issue is waived for appellate review since he failed

to lodge an objection to the testimony or otherwise present the issue to the

trial court prior to the filing of his Rule 1925(b) statement. We agree.

____________________________________________

6 Although Appellant included this issue in his Pa.R.A.P.1925(b) statement,
such inclusion does not “resurrect” a waived claim. Steiner v. Markel, 600
Pa. 515, 968 A.2d 1253 (2009).

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Initially, we note that in his fourth issue Appellant has mischaracterized

the record. Contrary to Appellant’s argument, the statements which Appellant

is now challenging on appeal were not statements made by Detective Rush.

Rather, at trial, the Commonwealth read into evidence excerpts from

Appellant’s testimony before the grand jury. The statements, which Appellant

contends were hearsay statements made by Detective Rush, were actually

questions posed by the prosecutor to Appellant during the grand jury

proceedings, which were then read to the jury at trial by the prosecutor.7 See

N.T., 2/4/16, at 53-108.

In any event, the transcript reveals that Appellant neither objected to

the specific statements at trial nor objected to the prosecutor reading to the

jury the portion of the grand jury transcript now at issue. In fact, the record

reveals that, during the jury trial, the prosecutor indicated he was reading

Appellant’s testimony from the grand jury hearing “by agreement.” See id.

at 53. Also, defense counsel specifically acknowledged that the prosecutor

was reading to the jury Appellant’s answers, as well as the prosecutor’s

questions, from the grand jury proceedings, and he had “no objection to that,

because I don’t think it hurt[s] our case.” Id. at 108. Accordingly, we agree

____________________________________________

7 In reading the relevant portion of Appellant’s grand jury testimony to the
jury at trial, the prosecutor “played the role of himself in the reading” and
“Detective Frank Jordan....play[ed] the role of [Appellant] for the reading[.]”
N.T. 2/4/16, at 53.

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with the trial court that Appellant has waived his fourth issue for review.8 See

Pa.R.A.P. 302(a); Powell, supra.

In his fifth issue, Appellant contends the trial court erred in denying his

request to charge the jury regarding the penalty for first degree murder.9

Specifically, Appellant contends that, since the defense presented evidence of

two alternate suspects (Jaquan Frazier and Devol James), the jury should have

been instructed regarding the “magnitude of the penalty” that Mr. Frazier and

Mr. James faced so that the jury was “able to assess fully the alternat[e]

suspects’ motivation to deny responsibility.”10 Appellant’s Brief at 56.

Initially, we note the following:

[W]hen evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing

____________________________________________

8 As indicated supra, Appellant’s inclusion of this claim in his Rule 1925(b)
statement did not “resurrect” the waived claim. Steiner, supra.
9 We note that, as one of his proposed points for charge, Appellant requested
the jury be instructed as to the mandatory penalty for first degree murder.
N.T., 2/4/16, at 117. Further, following the trial court’s instruction to the jury,
Appellant specifically objected to the omission of his proposed point from the
instruction. Id. at 158.

10 Mr. Frazier testified on direct-examination at trial that he did not see who
shot the victim, and he specifically denied that he shot the victim. N.T.,
2/3/16, at 106, 109. On cross-examination, defense counsel asked Mr. Frazier
if he would ever “admit to shooting and killing someone in open court in front
of a jury[.]” Id. at 109. Mr. Frazier indicated, “No, I wouldn’t.” Id. The
parties stipulated that, if Devol James were to testify, he would have invoked
his Fifth Amendment privilege. N.T., 2/4/16, at 157.

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its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration. Only where there is an abuse of discretion or
an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014)

(quotation and citation omitted).

Here, we conclude the trial court did not err in denying Appellant’s

request for a jury instruction as to the punishment for first degree murder.

This Court has held that “[t]he jury’s function is to determine guilt or

innocence.” Commonwealth v. Carbaugh, 620 A.2d 1169, 1171 (Pa.Super.

1993) (citation omitted). “[P]unishment is a matter solely for the court and

not for the jury to know or consider in its deliberations.” Commonwealth v.

Golinsky, 626 A.2d 1224, 1231 (Pa.Super. 1993) (citations, quotation marks,

and quotations omitted). Accordingly, the length of punishment Appellant, or

any other person convicted of first degree murder could receive, was not a

proper scope of inquiry for the jury, whose function was to act as factfinder

and, from those facts, determine guilt or innocence.11 Commonwealth v.

____________________________________________

11Moreover, even if properly within the scope of the jury’s inquiry, we are not
persuaded by Appellant’s argument that his proposed instruction would have
more fully assessed the alternate suspects’ motivation in denying
responsibility, and thus, Appellant would have benefited from the instruction.
In making its credibility determinations, the jury was free to surmise that a
suspect may lie about his involvement in a shooting simply because he would
not want to face the criminal charges associated therewith. Also, as the trial
court concluded, the potential influence to the jury by way of the jury
correlating this information regarding the potential penalties with the charges
Appellant was facing outweighed any potential benefit to Appellant.

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White, 504 A.2d 930 (Pa.Super. 1986). Thus, the trial court did not err in

denying Appellant’s proposed jury instruction.

In his sixth issue, Appellant contends the trial court erroneously imposed

a sentence of life imprisonment without the possibility of parole upon him in

violation of the Eighth Amendment and Miller v. Alabama, 567 U.S. 460

(2012).

Appellant presents a legality of sentencing claim.

It is [ ] well-established that [i]f no statutory authorization exists
for a particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated. Issues relating
to the legality of a sentence are questions of law[.]…Our standard
of review over such questions is de novo and our scope of review
is plenary.

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citations and quotations omitted).

On June 25, 2012, the United States Supreme Court held in Miller v.

Alabama that “mandatory life without parole for those under the age of 18 at

the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel

and unusual punishments.’” 567 U.S. 460, 132 S.Ct. 2455, 2460. However,

while the Supreme Court’s holding in Miller set forth a bright-line rule that

mandatory sentences of life imprisonment without the possibility of parole are

unconstitutional for juvenile offenders, it did not prevent a trial court from

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imposing such a sentence upon an individual such as Appellant, who had

already reached the age of eighteen at the time he committed the murder.12

Appellant acknowledges that he was eighteen years old at the time he

committed the murder; however, he argues, nevertheless, that he may invoke

Miller because his immature and/or impulsive brain made him similar to a

juvenile. Thus, Appellant seeks an extension of Miller to persons convicted

of murder who were older at the time of their crimes than the class of

defendants subject to the Miller holding. However, this Court has previously

rejected such an argument. See Commonwealth v. Furgess, 149 A.3d 90

(Pa.Super. 2016) (holding the nineteen-year-old appellant was not entitled to

relief under Miller; rejecting argument that he should be considered a

“technical juvenile”). Accordingly, we conclude Appellant’s issue is meritless.

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2017

____________________________________________

12Appellant was born on May 25, 1994, and he committed the instant murder
on February 9, 2013.

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