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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAKE KNIGHT,
Appellant No. 379 WDA 2017
Appeal from the Judgment of Sentence November 17, 2016
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0006386-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 29, 2017
Appellant, Jake Knight, appeals from the judgment of sentence
imposed after his jury conviction of second degree murder, conspiracy to
commit burglary, burglary, and three counts of recklessly endangering
another person.1 We affirm.
We take the following facts and procedural history from the trial
court’s May 8, 2017 opinion and our independent review of the certified
record.
On the evening of April 10, 2014, Tailyn Howard and
Janelle Jones invited Lee Williams, Wesley Francis, and Roneka
Baker to their apartment (17H) in Hawkins Village, in the
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(b), 903, 3502(a)(1), and 2705, respectively.
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Borough of Rankin, Allegheny County. (See N.T. Trial Volume I,
August 23-24, 2016, at 48; N.T. Trial Volume II, August 25-26,
2016, at 354-55, 415-16, 433). Francis and Baker arrived
together, but Baker left shortly thereafter to check on her
children in another apartment in Hawkins Village. Once Williams
arrived, he, Francis, Howard, and Jones sat in the living room
with the front door open, awaiting Baker’s return. (See N.T.
Trial Volume II, at 356, 416-17, 434, 436-37).
At approximately 8:00 P.M., Appellant and another
individual entered Building 17, each armed with a gun, and each
wearing a half-mask and all-black clothing. They ran up the
staircase to Apartment 17H, and stood in the entrance to the
living room. (See N.T. Trial Volume I, at 47[-48]; N.T. Trial,
Volume II, at 356, 358-59, 364, 417-19, 437-39). Appellant
and his accomplice pointed their guns at the individuals in the
living room, and Appellant commanded them to “lay down.”
(N.T. Trial Volume II, at 360, 419-20). Williams and Francis
stood up and told the masked intruders to “get the [F] out,” but
Appellant and his accomplice remained in the apartment with
their guns pointed at Francis, Williams, Jones, and Howard. (Id.
at 361; see id. at 421).
Williams picked up the coffee table that was in the middle
of the room, and threw it towards Appellant and his accomplice.
At the same time, Williams, Francis, Howard, and Jones fled
towards the rear of the apartment, and Appellant shot Williams
in the chest. Francis and Howard ran into separate bedrooms,
and Jones ran into the laundry room; they closed their
respective doors and hid. Wounded by the gunshot, Williams
managed to run into the bathroom and close the door. (See
N.T. Trial Volume I, at 63, 320; N.T. Trial Volume II, at 362-63,
365-66, 398, 400-402, 421-22, 440).
Appellant and his accomplice immediately fled from
Building 17 and ran to the rear of Building 35. Appellant resided
in Apartment 35B with his mother, who was known in the
neighborhood as Miss Roxie. (See N.T. Trial Volume I, at 48,
80; N.T. Trial Volume II, at 422-23, 441).
After Appellant and his accomplice fled, Williams, Francis,
Howard, and Jones slowly emerged from their hiding spots.
Williams was bleeding profusely, and collapsed as he made his
way into the kitchen. Francis, Jones, and Howard attempted to
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stop the bleeding, but Williams continued to bleed profusely as
he lay on the kitchen floor, choking on his own blood. (See N.T.
Trial, Volume I, at 63; N.T. Trial Volume II, at 363, 366, 441).
Francis called 911, and paramedics arrived shortly thereafter.
[In the ambulance, Williams died from gunshot wounds to the
chest. (See N.T. Volume II, at 367, 441)].
Police officers from the Allegheny Housing Authority and
detectives from the Allegheny County Police Homicide Division
responded to the scene and canvassed the area for the two
masked gunmen. During their search, they recovered two
firearms beneath the rear steps to Building 35, one Glock Model
31 .357 pistol and one Kel-Tec Model P-11 9mm Luger caliber
pistol, each with a partially loaded magazine, and each with a
cartridge in the chamber. (See N.T. Trial Volume I, at 48, 56,
80, 82, 85, 134-35). The firearms were not there when Chief
Mike Vogel of the Allegheny County Housing Authority searched
under the same steps earlier in the day while on routine patrol.
(See id. at 93-95).
Officers interviewed Francis, Howard, and Jones. All three
individuals identified Appellant as one of the masked gunmen.
(See id. at 153-55; N.T. Trial Volume II, at 361, 367-68, 424,
445). This information was relayed to officers on scene. (See
N.T. Trial, Volume I, at 155). A search warrant for Appellant’s
apartment was secured and executed at approximately 11:45
P.M. Appellant answered the door after several minutes, and the
officers entered the apartment to conduct the search. (See id.
at 97-99, 104, 121, 128-29). Appellant stated that he had been
sleeping when the officers knocked. Chief Vogel observed fresh
condensation on the bathroom walls and water beads in the
shower, as if someone had recently showered. (See id. at 99,
101). Several articles of black clothing were seized, including a
black neoprene half-mask, which was submitted to the crime lab
for testing. (See id. at 123-25, 128).
Appellant was detained and transported to homicide
headquarters for an interview. (See id. at 155-56). A gunshot
residue kit was performed on Appellant’s hands, a DNA swab
was obtained, and his clothes were collected for testing at the
crime lab. (See id. at 156, 161). During Appellant’s interview,
he indicated that he had invited friends over to his apartment
that evening, and that he was in his apartment until police
arrived. Appellant again stated that he had taken a shower
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earlier in the day, not that evening. When asked about the
firearms that were found under the steps to Building 35,
Appellant stated that they had nothing to do with him. (See id.
at 158-60, 162-63).
A gunshot residue kit was performed on Appellant’s hands
and jeans. The crime lab was unable to determine whether the
components on Appellant’s hands were gunshot residue because
they were only single components and not characteristic
particles, but the crime lab was able to determine that
Appellant’s jeans were positive for gunshot residue. (See id. at
311).
One .357 SIG shell casing was recovered from the living
room of Apartment 17H. It was submitted to the crime lab for
testing, along with the recovered firearms and a deformed
hollow point 9mm projectile recovered from Williams during
autopsy. The crime lab was able to determine that the
recovered shell casing was discharged from the .357 Glock, and
the projectile, while too damaged to make a precise match, was
of the same class as the test projectile fired from the Glock.
(See id. at 65, 324, 327, 337). Following a national database
search, the Glock was also matched to a shell casing recovered
from an incident in Hawkins Village [ten days earlier,] on March
30, 2014. In that incident Appellant was identified as being
involved in a shootout in Hawkins Village, and similarly removing
a firearm from his person behind Building 35. (See N.T. Trial
Volume II, at 347, 349, 369, 371).
(Trial Court Opinion, 5/08/17, at 6-11) (some record citation formatting
provided; footnotes, some quotation marks, and some record citations
omitted).
On August 26, 2016, the jury convicted Appellant of the above-
mentioned charges. The court sentenced him on November 17, 2016 to a
term of life imprisonment on the second degree murder charge, plus an
aggregate sentence of not less than one nor more than two years on the
conspiracy and reckless endangerment charges, to be served concurrently.
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No further penalty was assessed on the burglary conviction. Appellant filed
timely post-sentence motions that the trial court denied on February 15,
2017. Appellant timely appealed on March 6, 2017.2
Appellant raises three questions for our review:
[I.] Did the [trial court] err in finding that [Appellant] has
waived the issue of witness competency?
[II.] Did the [t]rial [c]ourt err in allowing the Commonwealth to
present evidence of an alleged prior bad act, when [Appellant’s]
role in the alleged act was completely unknown, in violation of
Pa.R.E. 404(b)?
[III.] Did the [t]rial [c]ourt err in denying [d]efense [c]ounsel
the opportunity to examine the source code for the “TrueAllele”
software used to perform DNA combination analysis?
(Appellant’s Brief, at 3).
In his first issue, Appellant argues that the trial court erred in finding
Ms. Jones and Mr. Francis were competent to testify, and that he waived this
issue on appeal. (See id. at 12-21). We agree with the trial court that
Appellant’s issue is waived.
It is well-settled that:
The admission of evidence is committed to the sound discretion
of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
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2
Pursuant to the trial court’s order, Appellant filed a timely statement of
matters complained of, on March 28, 2017. The court filed an opinion on
May 8, 2017. See Pa.R.A.P. 1925.
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Commonwealth v. Akrie, 159 A.3d 982, 986-87 (Pa. Super. 2017)
(citation omitted).
Further:
Consistent with . . . Pa.R.E. 103(a), a motion in limine may
preserve an objection for appeal without any need to renew the
objection at trial, but only if the trial court clearly and definitively
rules on the motion. Once the trial court enters a definitive
ruling on the record, either prior to or during trial, “a party
need not renew an objection or offer of proof to preserve a claim
of error for appeal.” Pa.R.E. 103(b).
Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa. Super. 2017) (case
citation and most quotation marks omitted; emphasis added).
Here, in his motion in limine, Appellant raised the issue of the
competence of Ms. Jones and Mr. Francis to testify. (See Appellant’s Motion
in Limine, 5/13/15, at 3-8). However, the docket and the record are devoid
of any ruling on the motion, and the record citation Appellant provides,
Docket Entry 10, does not contain any order or finding by the court on this
issue. (See Trial Court Docket Number CP-02-CR-0006386-2014, at 8-12).
Therefore, because the certified record does not reflect any definitive pre-
trial ruling on Appellant’s motion, Appellant was required to renew his
competency objection at trial to preserve the issue for appeal. See McGriff,
supra at 866.
If a party is in doubt as to the competency of a witness, he
should examine him in that regard, and the court should make a
determination thereon preliminarily when the witness is
produced. So, ordinarily, the competency of a [witness] is to be
determined at the time he is offered as a witness. . . . [C]ross-
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examination, coupled with the failure to object at any time
during the trial, constitutes a waiver of objection as to the
competency of [a] witness. . . .
Commonwealth v. McKinley, 123 A.2d 735, 737 (Pa. Super. 1956)
(citations and quotation marks omitted).
Here, Appellant failed to raise any objection to the competency of Ms.
Jones and Mr. Francis when they were offered as witnesses at trial. (See
N.T. Trial Volume II, at 353, 432). He also cross-examined them both fully.
(See id. at 373-408, 412, 446-459). Therefore, we agree that Appellant’s
issue is waived.3 See McKinley, supra at 737.
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3
Moreover, we note briefly that the issue would not merit relief. “The rule is
well-established in Pennsylvania that the party seeking to challenge the
competence of a witness has the burden of proving that the witness is not
competent.” Commonwealth v. Stoner, 425 A.2d 1145, 1150 (Pa. Super.
1981) (citation omitted). Appellant has not met his burden. He argues that
Ms. Jones and Mr. Francis were incompetent to testify because their
identification of who committed the shooting was speculative and unreliable
where they did not actually witness the firing occur. (See Appellant’s Brief,
at 13-18). First, this claim goes to the weight to be afforded the
identification testimony, not its admissibility, and it was within the province
of the jury to weigh the evidence. See Commonwealth v. Orr, 38 A.3d
868, 874 (Pa. Super. 2011) (en banc), appeal denied, 54 A.3d 348 (Pa.
2012) (“[A]ny indefiniteness and uncertainty in [] identification testimony
goes to its weight.”) (citation omitted); see also Commonwealth v.
Sanchez, 36 A.3d 24, 26-27 (Pa. 2011), cert. denied, 568 U.S. 833 (2012)
(“The finder of fact—here, the jury—exclusively weighs the evidence,
assesses the credibility of witnesses, and may choose to believe all, part, or
none of the evidence.”) (citation omitted). Additionally, the trial court
instructed the jury on both witness credibility and identification testimony,
which the panel is presumed to have followed. (See N.T. Trial Volume II, at
549-54); see also Commonwealth v. Chmiel, 30 A.3d 1111, 1147 (Pa.
2011) (“The jury is presumed to have followed the court’s instructions.”)
(citation omitted). Therefore, the trial court did not abuse its discretion in
(Footnote Continued Next Page)
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In his second issue, Appellant maintains that “the trial court erred in
allowing the Commonwealth to present evidence of an alleged prior bad act,
when [Appellant’s] role in the alleged act was completely unknown in
violation of Pa.R.E. 404(b).” (Appellant’s Brief, at 18) (unnecessary
capitalization and emphasis omitted). He argues that “the suggestion that
[he] was involved in a prior shooting provides a basis for the jury to engage
in baseless speculation about [his] character.” (Id. at 21). This issue lacks
merit.
As stated previously, the admission of evidence is in the sound
discretion of the trial court. See Akrie, supra at 986-87.
In determining whether evidence should be admitted, the trial
court must weigh the relevant and probative value of the
evidence against the prejudicial impact of the evidence.
Evidence is relevant if it logically tends to establish a material
fact in the case or tends to support a reasonable inference
regarding a material fact. Although a court may find that
evidence is relevant, the court may nevertheless conclude that
such evidence is inadmissible on account of its prejudicial
impact.
Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2017), appeal
denied, 2017 WL 3393565 (Pa. filed Aug. 8, 2017) (citation omitted).
Pursuant to Pennsylvania Rule of Evidence 404(b)(1): “Evidence of a
crime, wrong, or other act is not admissible to prove a person’s character in
_______________________
(Footnote Continued)
allowing the testimony, and, even if not waived, Appellant’s first issue would
lack merit. See Akrie, supra at 986-87.
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order to show that on a particular occasion the person acted in accordance
with the character.” Pa.R.E. 404(b)(1).
However, evidence of prior bad acts is admissible for other
purposes, including proof of an actor’s plan or proof of his
identity, where the probative value of the evidence outweighs its
potential for prejudice. Pa.R.E. 404(b)(2)[,] (3). . . .
* * *
. . . [Rule] 404(b) is not limited to evidence of crimes that have
been proven beyond a reasonable doubt in court. It
encompasses both prior crimes and prior wrongs and acts, the
latter of which, by their nature, often lack definitive proof. . . .
Commonwealth v. Lockcuff, 813 A.2d 857, 860-61 (Pa. Super. 2002),
appeal denied, 825 A.2d 638 (Pa. 2003) (citing Pa.R.E. 404(b)(2))
(quotation marks, case citation, and footnote omitted; emphasis in original).
“Where evidence of a defendant’s prior bad acts is admitted, the defendant
is entitled to a jury instruction that the evidence is admissible only for a
limited purpose.” Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa.
2015) (citation omitted).
Here, the Commonwealth introduced evidence of a March 30, 2014
shootout that involved the same firearm that was used to kill the victim, Lee
Williams, in this case. The March incident occurred only ten days prior to
the Williams shooting, and also happened at Hawkins Village. Wesley
Francis identified Appellant as being present during the March incident, and
stated that Appellant fled to the rear of Building 35, where he dumped a
firearm and removed his mask. (See N.T. Trial Volume II, at 347, 370-71).
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After the Commonwealth presented this evidence, the trial court instructed
the jury on its limited use for the purpose of identity only. (See id. at 554).
Based on the foregoing, we conclude the evidence of a prior bad act
properly was used where it was relevant for the limited purpose of
establishing Appellant’s identity. See Lockcuff, supra at 860-61. After the
evidence’s introduction, the trial court appropriately issued the jury an
instruction on its limited use, thus reducing the possibility that they would
“engage in baseless speculation about [Appellant’s] character.” (Appellant’s
Brief, at 21); see Solano, supra at 1178; see also Chmiel, supra at
1147. Therefore, the trial court properly exercised its discretion in allowing
the introduction of the prior bad act evidence. See Rashid, supra at 842.
Appellant’s second issue lacks merit.
In his third claim, Appellant maintains that “the trial court erred in
denying defense counsel the opportunity to examine the source code for the
TrueAllele software used to perform DNA combination analysis.” (Appellant’s
Brief, at 21) (unnecessary capitalization, quotation marks, and emphasis
omitted). This issue lacks merit.
The standard of review applicable to denial of a discovery
motion is whether the trial court abused its discretion. Under
Pa.R.Crim.P. Rule 573(B)(2)(a), upon a defendant’s motion for
pretrial discovery, the trial court “may order the Commonwealth
to allow the defendant’s attorney to inspect and copy or
photograph” certain requested items (enumerated in the Rule)
“upon a showing that they are material to the preparation of the
defense, and that the request is reasonable.” Within the
enumerated list of items a defendant may request is “any other
evidence specifically identified by the defendant, provided the
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defendant can additionally establish that its disclosure would be
in the interests of justice.” Pa.R.Crim.P. 573(B)(2)(a)(iv).
Commonwealth v. Snell, 811 A.2d 581, 591 (Pa. Super. 2002), appeal
denied, 820 A.2d 162 (Pa. 2003) (case citation omitted).
In this case, the trial court explains:
Here, Appellant sought to compel discovery of the source
code for Dr. Mark Perlin’s TrueAllele software program. This
request was denied by the [the trial court]. Several courts of
concurrent jurisdiction have addressed the discoverability of
TrueAllele’s source code. Here, [the court] relied on the
reasoning of the Honorable Jill E. Rangos in one such case, and[,
pursuant to Appellant’s motion,] incorporated that decision and
record in denying Appellant’s request herein. (See Orders,
3/28/16; Order, 4/11/16; Appellant’s Motion to Incorporate
Proceedings into the Record, 2/18/16). In her memorandum
opinion, Judge Rangos relied on Commonwealth v. Foley, 38
A.3d 882 (Pa. Super. 2012), appeal denied, 60 A.3d 535 (Pa.
2013), and held that TrueAllele was not novel science, the
reliability of TrueAllele could be determined without the source
code, and “the source code [was] not material to defendant’s
ability to pursue a defense.” Commonwealth v. Robinson,
Docket No. CC 201307777, Memorandum Order, 2/04/16, at 2.
[The trial court] found that the source code itself was not
material to the credibility of Dr. Perlin and the reliability of
TrueAllele, and that those were matters properly addressed by
cross-examination.[a] . . . See Foley, supra at 889-90 (release
of TrueAllele’s source code is unnecessary to test its reliability,
TrueAllele has been tested and validated without release of the
source code, and there is no legitimate dispute over Dr. Perlin’s
methodology).
[a]
At trial, Dr. Perlin explained the methodology of
TrueAllele, and was subjected to extensive and
thorough cross-examination on the reliability and
testability of TrueAllele. (See N.T. Trial Volume I, at
265-89).
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(Trial Ct. Op., at 16-17) (some record and case citation formatting
provided).
We agree with the findings of the trial court and conclude that
Appellant failed to prove the source code was “material to the preparation of
the defense, and that [his] request [was] reasonable.” Snell, supra at 591
(citations omitted). In fact, this Court has observed that “scientists can
validate the reliability of a computerized process even if the ‘source code’
underlying that process is not available to the public.” Foley, supra at 889.
Also, in conformity with the confrontation clause, Appellant had a full and
fair opportunity to cross-examine Dr. Perlin about the reliability of
TrueAllele. See Commonwealth v. Wilson, 602 A.2d 1290, 1296 (Pa.
1992), cert. denied, 504 U.S. 977 (1992) (the confrontation clause
guarantees “an opportunity for effective cross-examination, not cross-
examination that is effective whatever way, and to whatever extent, the
defense might wish.”) (citation omitted).
Accordingly, the source code for TrueAllele was not material to
Appellant’s defense and his request to compel its production was not
reasonable. See id. Hence, the trial court did not abuse its discretion in
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denying Appellant’s motion to compel. See Snell, supra at 591.
Appellant’s third issue lacks merit.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2017
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4
Moreover, we are not legally persuaded by the cases Appellant relies on for
his confrontation clause argument. (See Appellant’s Brief, at 21-26). The
cases are not pertinent where none of them hold that a prosecution must
provide a computer source code in discovery to provide a defendant with his
confrontation clause rights. (See id. at 22-23).
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