Com. v. Cannon, D. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DONTE CANNON, : No. 1342 EDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, March 28, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0008426-2010
BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014
Appellant challenges the judgment of sentence imposed following his
conviction for second degree murder, two counts of robbery, criminal
following his conviction, appellant was sentenced to life imprisonment for
second degree murder, and concurrent sentences of 10 to 20 years for each
robbery, 10 to 20 years for criminal conspiracy, 2½ to 5 years on the VUFA,
and 2½ to 5 years on the PIC. We affirm.
The facts, as summarized by the trial court, are as follows:
Police Officer Eric Riddick testified that on
January 23, 2010, at approximately 10:00 P.M., he
and his partner responded to a report of gunshots on
the 5500 block of Beaumont Street in Philadelphia.
He saw two women, later identified as Diane Stewart
* Retired Senior Judge assigned to the Superior Court.
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and Shande Stewart, exit 5537 Beaumont Street and
walk towards his patrol car. Shande Stewart told
Officer Riddick that an incident had occurred on the
block. Officer Riddick got out of his patrol car to
inspect the area. He saw a male, later identified as
Philippe Koukoui, lying face-down with a gunshot
wound to the back of his head and to the back part
of his neck in the back of a vacant lot at
5527 Beaumont Street. Officer Riddick went through
the backpack that had been removed from the
to Philippe Koukoui; a scale; a cell phone; Ziploc
baggies; and, a small amount of marijuana. He
walked across the street to where there was a
smaller vacant lot at 5531 Beaumont Street and
recovered three shell casings. Officer Riddick then
entered an alleyway that ran behind Beaumont
Street and Litchfield Street where he recovered a
black patent leather Nike sneaker.
While at the scene, Officer Riddick was
approached by a male who identified himself as
James Henderson. Henderson told Officer Riddick
that he had been the victim of a robbery and that he
had been with Philippe Koukoui, hereinafter referred
to as the decedent, and Shande Stewart. Henderson
was transported to the Homicide Unit to be
interviewed.
James Henderson testified that the decedent
had been his friend for five (5) to six (6) years. He
testified that on January 23, 2010, he went with the
decedent to the 5500 block of Beaumont to visit
Shande Stewart, whom the decedent knew, and to
smoke marijuana. The decedent and Henderson
approximately ten (10) minutes. The decedent,
Henderson and Shande Stewart then left the house
to walk to a nearby store. They walked down
Beaumont Street towards 55th Street. Henderson
was walking in the street, ahead of the decedent and
Shande Stewart, talking on his cell phone. A male
pointing a gun jumped out at Henderson, grabbed
him, and started going through his pockets.
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Henderson looked back toward where the decedent
and Shande Stewart were walking and saw that
another male had grabbed the decedent and had a
gun pointed at him. The male that was holding
Henderson told him to turn around, not to look back,
and to run through an alleyway towards 56th Street.
heard gunshots. His sneaker came off as he was
running. When he reached the end of the alley, he
heard more gunshots. He went to his house, put on
another pair of sneakers and then walked back to
[the] scene. He saw the police and told them that
he and his friend were just robbed.
Henderson gave a statement wherein he
described the male that pointed the gun at him and
robbed him as a boy, about 17 or 18 years old,
wearing a tan snap cap with a brim that was pulled
down to his eyes and a black hoodie. In his
statement Henderson indicated that the gun that was
pointed at him was silver, but he did not know if it
was a revolver or an automatic. At trial, he testified
that he did not remember giving those answers.
Shande Stewart testified that she knew the
decedent from buying marijuana from him on
two (2) occasions. She knew his cell phone number
and had stored his number in her cell phone. On
January 23, 2010, she called the decedent. She
wanted to buy five (5) bags of marijuana for $20.00.
The decedent came to her house at 5537 Beaumont
Street with another male approximately ten (10)
minutes later.
Shande Stewart further testified that before
she called the decedent, the Defendant was in her
house and she had a conversation with him about
robbing the decedent. She heard the Defendant
make a telephone call after which the Co-Defendant,
While sitting in the living room of her house,
Shande Stewart, the Defendant and Co-Defendant
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talked about robbing the decedent. The Defendant
and Co-Defendant told her to call the decedent and
tell him that she wanted five (5) for $10.00. The
Defendant and Co-Defendant told her that they were
going to be in the basement of the house and were
going to leave the house from the back door in the
basement to rob the decedent. The decedent called
and told her he was outside of her house. She let
the decedent and Henderson into the house. The
decedent told her he was not going to sell her the
marijuana for the price she asked. Shande Stewart,
Henderson and the decedent then left the house
through the front door and walked down Beaumont
Street towards 55th Street. She then saw the
Defendant come out of a vacant lot located at
5527 Beaumont Street. The Co-Defendant came out
from the other side of the street. The Defendant
was holding a gun and grabbed the decedent by his
shirt. The Co-Defendant was holding a gun and
grabbed Henderson by his shirt. She ran towards
her house. Henderson was running and the
Co-Defendant shot at him. As she ran inside her
house, she heard more gunshots. She ran down to
the basement where she saw the Defendant and the
Co-Defendant. She heard the Defendant say,
her mother that that [sic] the boys she was with
were robbed. She then went outside with her
mother and saw a police car coming down the street.
She told the police that she had heard the gunshots.
She was transported to Homicide for investigation.
At the Homicide Division, Shande Stewart told
the detectives about the robbery and the
-
consented to a search of her cell phone. She was
then taken into custody.
On April 27, 2011, Shande Stewart entered
into a Memorandum of Agreement with the District
herein she would plead to two (2)
counts of robbery and conspiracy and the murder
charge would be nolle prossed. At the time of trial,
she had not yet been sentenced.
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Detective Timothy Bass testified that based on
information received from Shande Stewart, he went
to 5537 Beaumont Street and transported the
Defendant to the Homicide Division. Detective Bass
the Defendant told Detective Bass in summary: that
he did not know the decedent or James Henderson;
that he and the Co-Defendant talked about robbing
the two (2) men; that Shande Stewart called him
and told him that the two (2) males they were going
to rob did not carry guns; and, that he knew the
Co-Defendant probably had a gun. He indicated
further that: he was in the house with Shande
Stewart and the Co-Defendant when the two (2)
one of the two men outside; grabbed him; and,
started fighting with him. He got two (2) cigarettes
from the male he robbed. He saw that the other
male had a backpack and saw that male try to run
away from the Co-Defendant who was standing at
the end of the lot. He heard four (4) to five (5)
gunshots. The Defendant further indicated that after
the incident, the Co-Defendant called him and asked
him if anyone was shot; the Defendant told him that
somebody was dead. The Defendant told the
Co-
house. The Co-Defendant told him that he was
going on the run.[Footnote 1]
[Footnote 1] When the statement was
read to the jury, references to the
Co-Defendant were redacted and read as
statement being read, the trial court
cautioned the jury that the statement
could be used as evidence only against
the Defendant.
Detective Bass testified that the cell phones of
Shande Stewart, the Defendant and the decedent
were recovered. The Co-Defendant was arrested on
June 22, 2011.
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Corey Williams testified that he has known the
Co-Defendant for more than ten (10) years. On
January 23, 2010, he was with the Co-Defendant
when the Co-Defendant received a phone call from
Shande Stewart. The Co-Defendant told him that he
-Defendant was gone for
approximately twenty (20) minutes. When the
Co-Defendant returned, he admitted to
Corey Williams what had occurred and a male was
dead.
Williams testified that he had seen the
Co-Defendant with guns on multiple occasions and
that the last gun he saw the Co-Defendant with was
a chrome and black semi-automatic.
Dr. Gulino, Chief Medical Examiner for the City
of Philadelphia, testified that the decedent had
suffered three (3) gunshot wounds: one gunshot
wound entered his head in the left back; the second
was a through and through gunshot wound of the
right arm which fractured the humerus; the third
was a graze wound along the back of the neck.
Dr. Gulino opined that the decedent died as a result
of a gunshot wound to the head and the manner of
death was homicide.
Dr. Gulino testified that hypothetically the
was consistent with the decedent being in a
squatting position and the shooter standing behind
the decedent, pointing the gu[n] down towards the
his head being forward and pointed at the ground.
Detective Christopher Tankelewicz testified
that he is the director of the Philadelphia District
his unit handles computer forensics, cell phone
forensics, audio and video forensics.
Detective Tankelewicz testified that he extracted
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one on
February 7, 2011. That information provided that on
January 23, 2010, at 9:54:21 P.M., Shande Stewart
texted the Co-
Officer Gregory Welsh, assigned to the
Firearms Identification Unit testified that the
three (3) 9 mm Luger fired cartridge casings
recovered from the scene were fired from the same
firearm. He testified that he examined the bullets
that were turned over to his unit by the Medical
clothing. He testified that it was possible that the
three (3) fired cartridge casings and the two (2)
bullets were fired by the same gun.
Trial court opinion, 3/17/13 at 2-8.
Appellant and his co-defendant, Aaron McCallum, were tried before a
jury. The trial began on March 21, 2012, and concluded on March 28, 2012.
Both men were found guilty of the aforementioned charges.1 A third
co-defendant, Shande Stewart, in return for her cooperation, had murder
charges withdrawn; she pled guilty to robbery charges. Post-trial motions
order to file a Rule 1925(b) statement. Appellant raises five issues on
weight of the evidence.
1
McCallum filed a direct appeal with this court docketed at No. 1464 EDA
sentence.
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Appellant challenges the sufficiency of the evidence to convict him.
Specifically, he claims he was not present and did not commit the crimes.
Appellant contends the evidence was inconsistent, conflicting, and
In reviewing the sufficiency of the evidence, we view
all the evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to determine whether there is sufficient evidence to
enable the factfinder to find every element of the
crime established beyond a reasonable doubt.
Commonwealth v. Thomas, 867 A.2d 594y
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
Id. at 597. And
while a conviction must be based on more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty. Id.quoting Commonwealth v. Coon, 695 A.2d 794,
797 (Pa.Super.1997). This Court is not free to
substitute its judgment for that of the fact-finder; if
the record contains support for the convictions they
may not be disturbed. Id. citing Commonwealth v.
Marks, 704 A.2d 1095, 1098 (Pa.Super.1997) and
Commonwealth v. Mudrick, 510 Pa. 305, 308, 507
A.2d 1212, 1213 (1986). Lastly, the factfinder is
free to believe some, all, or none of the evidence.
Id.Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).
Resolving contradictory testimony and questions of credibility are matters for
the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917
(Pa.Super. 2000). Notably, questions concerning inconsistent testimony and
improper motive go to the credibility of the witnesses, not the sufficiency of
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the evidence. Commonwealth v. Davido, 868 A.2d 431, 442 (Pa. 2005),
cert. denied, 546 U.S. 1020 (2005); Commonwealth v. DeJesus, 860
A.2d 102, 107 (Pa. 2004) (holding that questions concerning inconsistent
testimony go to the credibility of the witness, and hence, implicate the
weight, rather than the sufficiency, of the evidence).
Second degree murder is defined as follows:
A criminal homicide constitutes murder of the second
degree when it is committed while defendant was
engaged as a principal or as an accomplice in the
perpetration of a felony.
18 Pa.C.S.A. § 2502(b).
A person is guilty of robbery if, in the course of
committing a theft, he (1) inflicts serious bodily
injury upon another.
18 Pa.C.S.A. § 3701.
Conspiracy is defined as follows:
(a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to
commit a crime if with the intent of promoting
or facilitating its commission he:
(1) Agrees with such other person or
persons that they or one or more
of them will engage in conduct
which constitutes such crime or an
attempt or solicitation to commit
such crime;
or
(2) Agrees to aid such other person or
persons in the planning or
commission of such crime or of an
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attempt or solicitation to commit
such a crime.
18 Pa.C.S.A. § 903(a).
must establish the defendant: 1) entered into an agreement to commit or
aid in an unlawful act with another person or persons; 2) with a shared
criminal intent; and 3) an overt act was done in furtherance of the
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa.Super.
2011). The law is well established that circumstantial evidence may provide
of circumstances including, but not limited to, the relation between the
parties, knowledge of and participation in the crime, and the circumstances
Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa.Super. 2005).
arising from the facts and circumstances and not by mere suspicion or
Commonwealth v. Savage, 566 A.2d 272, 276 (Pa.Super.
1989). The law also recognizes that circumstances taken together in
context, like an association between alleged conspirators, knowledge of the
commission of the crime, presence at the scene of the crime, and/or
participation in the object of the conspiracy, may be sufficient to prove a
conspiracy when each standing alone is insufficient. Commonwealth v.
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Thoeun Tha, 64 A.3d 704, 710 (Pa.Super. 2013); Commonwealth v.
Swerdlow, 636 A.2d 1173, 1177 (Pa.Super. 1994).
person commits a misdemeanor of the first degree if he possesses any
instrument of crime with intent t
shall carry a firearm, rifle or shotgun at any time upon the public streets or
upon any public property in the city of the first class . .
6108.
sufficient to support a conviction for felony murder and the related offenses
appe
Id.) Such a challenge based on inconsistent
testimony is a veiled attack on the weight of the evidence. Commonwealth
v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (an attack on the reliability and
credibility of the evidence is a weight claim, not a sufficiency claim).2
2
The trial court concluded the evidence was sufficient for a jury to have
found that the elements of the crimes charged were proven beyond a
reasonable doubt. (Trial court opinion, 3/17/13 at 11.) Viewing the
evidence in the light most favorable to the Commonwealth, as our standard
of review requires, the evidence along with the testimony presented by the
-defendant,
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Our standard of review for evaluating a weight of the evidence claim is
well-established:
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. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or denying a
motion for a new trial based on a challenge to the
weight of the evidence is unfettered. In describing
mports the
exercise of judgment, wisdom and skill so as to
reach a dispassionate conclusion within the
framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of
reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion
is abused where the course pursued represents not
Aaron he decedent and Henderson
and that Shande Stewart called him and told him that the two males they
were going to rob did not carry guns. The decedent and Henderson walked
into a trap and were ambushed by appellant and McCallum. In the course of
the robbery, Henderson fled, gunshots were fired, and the decedent died of
multiple gunshot wounds. See Commonwealth v. Munchinski, 585 A.2d
471, 483 (Pa.Super. 1990) (evidence sufficient to establish second degree
murder where crime began as a robbery and ended in a homicide).
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merely an error of judgment, but where the
judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or
ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the
original) (citations omitted).
Here, the trial court summarized the testimony as well as the physical
evidence, and found that the verdict was not against the weight of the
evidence. (Trial court opinion, 3/17/13 at 8-10.) Appellant complains that
[I]t matters not whether
appellant finds a
solely within the province of the jury as trier of fact and, as such, will not be
Commonwealth v. Poindexter, 646
A.2d 1211, 1214 (Pa.Super. 1994), appeal denied, 655 A.2d 512 (Pa.
1995).
careful analysis of the weight of the evidence issue. While appellant asserts
that there was no one who identified him as being involved other than
Shande Stewart, that testimony, if believed by the fact-finder, is enough.
See Commonwealth v. Kunkle, 623 A.2d 336 (Pa.Super. 1993)
(uncorroborated testimony of a single witness is sufficient for conviction).
ions concerning
inconsistent testimony and improper motive go to the credibility of the
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witnesses. See Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super.
2004), appeal denied, 959 A.2d 928 (Pa. 2008). Based upon the evidence
presented, the trial court
weight of the evidence claim.
Next, appellant argues that the trial court abused its discretion in
permitting the expert testimony of Detectives Tankelewicz and Glenn.
ing to appellant, Detective Tankelewicz was
qualified as an expert witness, but Detective Glenn was not. Appellant
complains that both were allowed to testify as to the phone records and
extraction of information and text messages from the cell phones of
appellant, Stewart, and McCallum. (Id.)
Commonwealth v. Page, 59 A.3d
1118, 1135 (Pa.Super. 2013). Expert testimony is governed by Pa.R.E. 702,
which reads,
Rule 702. Testimony by experts
If scientific, technical or other specialized knowledge
beyond that possessed by a layperson will assist the
trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or
education may testify thereto in the form of an
opinion or otherwise.
Pa.R.E. 702.
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Whether a witness is qualified as an expert is within the sound
discretion of the trial court and will not be disturbed on appeal absent an
abuse of that discretion. See Commonwealth v. Jennings, 958 A.2d 536,
539 (Pa.Super. 2008). Pennsylvania applies a liberal standard for the
qualification of an expert witness. Commonwealth v. Ramos, 920 A.2d
range of training, knowledge, intelligence, or exp Jennings, 958
to specialized knowledge on the subject under investigation he may testify,
Commonwealth v. Harris
established that an expert may render an opinion based on training and
Ramos, supra at
1256.
Here, the record indicates that there was much discussion concerning
whether Detective Tankelewicz should be qualified as an expert in the field
of digital forensics with regard to cellular phones. The detective stated his
qualifications; for example, he is the Director of the Philadelphia District
128.) He testified that he has over 1,000 hours of training in digital
forensics which include several certifications. (Id. at 129.) He was also
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assigned to the FBI in their Joint Terrorism Task Force for four years. (Id.
at 130.)
Cellebrite in performing his work. (Id. at 136.) According to appellant, the
detective indicated that, depending on the make and model of the phone,
the computer program did all the work. (Id.) The detective testified he was
not involved in the making of the computer program, and he could not
estimate a percentage of error that might be in the program. (Id. at 143.)
T
continuing objection. Defense counsel claimed that the detective put the
device into a computer which resulted in a print-out; essentially, there was
no expertise involved. (Id. at 149-150.)
The record indicates that the trial court initially allowed
Detective Tankelewicz to be qualified as an expert. (Id. at 129, 150.)
During the next day of the trial, during a sidebar discussion with counsel,
to call [Detective Tankelewicz] an
expert, either. [Although] I think he had more training [than Detective
-18.) During jury instructions,
the trial court stated:
I have permitted Dr. Gulino, Police Officer Welsh [to
testify]. Dr. Gulino is a medical examiner.
Police Officer Welsh is the Firearms Identification
Unit ballistics expert, and Police Officer Tankelewicz
to testify as expert witnesses. Now, I have to say
that you heard some back and forth about
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Police
science, you know. They download these cell
phones. I permitted him to testify as an expert.
Police Officer Tankelewicz, because he had some --
he had some knowledge about this new technology
and he knows the
done. However, I do want to caution you that he
plugged the phone into the computer and the
present you with an opinion as the other experts did.
They both gave opinions.
Notes of testimony, 3/28/12 at 48-49.
As Detective Tankelewicz did not offer any expert opinion, but merely
presented the data that he had downloaded from a cell phone, we see no
prejudice to appellant by allowing his testimony. Detective Glenn was not
qualified as an expert and merely testified regarding the information that
23-66.). We see no error here.
Appellant argues th
the assistant district attorney repeatedly showed the autopsy photograph of
We review claims of prosecutorial
misconduct according to the following standard:
Our standard of review for a claim of prosecutorial
misconduct is limited to whether the trial court
abused its discretion. In considering this claim, our
attention is focused on whether the defendant was
deprived of a fair trial, not a perfect one. Not every
inappropriate remark by a prosecutor constitutes
do not occur in a vacuum, and we must view them in
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improper, they generally will not form the basis for a
new trial unless the comments unavoidably
prejudiced the jury and prevented a true verdict.
Commonwealth v. Bedford, 50 A.3d 707, 715 716 (Pa.Super. 2012)
(internal citations and quotations omitted).
According to appellant, the prosecutor had no valid reason for showing
the photo because there was no dispute as to the cause of death. The
Commonwealth argues it was proper to show the photograph because the
photo had been admitted into evidence and was used to show the track of
the bullet that killed the decedent. Our review of the record reveals that the
evidence and published to the jury. (Notes of testimony, 3/26/12 at 111.)
We see no error in the prosecution calling attention to properly admitted
evidence.
Appellant argues the testimony of Corey Williams regarding
statements made by co-defendant McCallum was inadmissible and
prejudicial. He acknowledges, however, that the statement was redacted in
compliance with Bruton v. U.S., 391 U.S. 123 (1968).
the admission was an abuse of discretion. Commonwealth v. Hardy, 918
A.2d 766, 776 (Pa.Super. 2007). An abuse of discretion is not a mere error
in judgment but, rather, involves bias, ill-will, partiality, prejudice, manifest
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unreasonableness, or a misapplication of law. Commonwealth v. Hacker,
959 A.2d 380, 392 (Pa.Super. 2008).
During trial, the Commonwealth called Corey Williams, who identified
himself as a friend of co-defendant McCallum. (Notes of testimony, 3/26/12
at 75.) According to Williams, he had been hanging out with McCallum and
(Id. at 77.) Williams
Id.) Williams testified McCallum was gone for
- Id. at 81.) Williams was asked to explain
what McCallum said when he returned to the house. He stated that
McCallum told him:
[McCallum] was waiting for the guy to come. The
guys came. He hopped out on the guys. One guy
took off. Shots got fired. The other guy, he got
grabbed, he got threw [sic] to the ground. Shots got
Id. at 82-83.
Williams was asked if McCallum mentioned the name of the girl who
and he was getting ready to wal Id.
a police photo. (Id. at 85-86.) The name connected to the photo was
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Shande Stewart. (Id. at 86.) During his testimony, Williams never
prejudiced the jury against appellant. He also claims that the statement was
hearsay and in violation of the right to confront a witness. Our review
indic
addressed the issue in its opinion and we will adopt its discussion as our
own. (See trial court opinion, 3/17/13 at 12-13.)
nts, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
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