Com. v. Romero, F. ( 2022 )

J-A03045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FIDEL ROMERO :
:
Appellant : No. 1082 EDA 2020
Appeal from the Judgment of Sentence Entered February 24, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001036-2017
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 21, 2022
Fidel Romero (Appellant) appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
convictions of attempted murder1 and related offenses. He argues: (1) the
trial court erred in admitting evidence of prior bad acts, under Pa.R.E. 404(b),
to show motive for the instant shooting; (2) the court erred in denying his
request for a Kloiber jury instruction;2 (3) and the verdicts were against the
____________________________________________
1 18 Pa.C.S. §§ 901(a), 2502.
2 See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). “A Kloiber
instruction informs the jury that an eyewitness identification should be viewed
with caution when either the witness did not have the opportunity to view the
defendant clearly, equivocated on the identification of the defendant, or had
difficulties identifying the defendant on prior occasions.” Commonwealth v.
Williams, 255 A.3d 565, 577 n.15 (Pa. Super. 2021).
J-A03045-22
weight and sufficiency of the evidence, when he was never identified as the
shooter. We affirm.
I. Facts
The underlying shooting occurred on April 1, 2016, around 1:30 a.m.,
on Lindley Avenue, between 5th and Fairhill Streets in Philadelphia. The
Commonwealth alleged that Appellant walked up to a parked, black Chrysler
300 limousine and fired a gun six times at the driver. The driver, Lisa Julia
(the Victim) was not struck and was able to drive to her nearby home. The
Victim had consumed beer and, as we discuss in detail infra, was afraid she
would be charged with driving under the influence. See N.T. Trial, 12/12/19,
at 88. She ultimately gave varying statements to police about the shooter’s
description, but admitted at trial these were not true. Additionally, the Victim
did not identify Appellant in a photo array.
Philadelphia Police Detective Timothy Hartman obtained seven
surveillance videos from nearby businesses and residences. See N.T. Trial,
12/13/19, at 81. He compiled them into one chronological video, which was
played at trial and showed the following: At 1:17 a.m., an individual left the
house at 521 Ashdale Street, which is where Appellant and his mother lived.
See id. at 59-60. At 1:22, a vehicle parked on the north side of the 500 block
of Lindley Avenue. See id. at 61-62. At 1:34, an individual entered 521
Ashdale Street, and exited again at 1:40. Id. at 62-63. This individual walked
northward on 5th Street to the southeast corner of 5th and Lindley, where
-2-
J-A03045-22
they lit a cigarette or cigar and “[hung] around” for three minutes. Id. at 64,
66, 68, 85. The individual then crossed to the southwest corner of that
intersection and walked along the south side of Lindley. Id. at 69. Due to
“the shadows and the darkness[, it was] hard to see what happen[ed] to [the
individual] for a brief period of time.” Id. at 91. At trial, Detective Hartman
described: “The individual [came] from the shadows [on] the south side and
crosse[d] the street to the north side[,]” returned to the south side, and then
walked to “the middle of the street.” Id. at 70. The video then showed at
least one muzzle flash near the car that was parked earlier. Id. The car left
the parking space. Meanwhile, the individual ran off and “disappear[ed]
behind [a] telephone pole,” before entering 521 Ashdale. Id. at 71. Detective
Hartman testified to his belief that when the individual entered the home, they
appeared to be holding “what could be a firearm.” Id. at 88.
On cross-examination, Detective Hartman acknowledged the image
quality of the video was “not so good,” such that a viewer could not “see
definitely whether [the] individual [was] wearing a hat or [had] white sneakers
on[.]” N.T., 12/13/19, at 94-95. When asked whether the video could be
depicting “two different people,” Detective Hartman conceded, “It could be.”
Id. at 96. Nevertheless, the detective disagreed with Appellant’s counsel’s
suggestion that immediately before the shooting, there was additional
“movement between” other cars. Id. at 93-94. Detective Hartman testified:
. . . I watched the video from [the time] the car parked until [the
shooting]. Nothing significant happens at the car. Nobody
-3-
J-A03045-22
appears to leave or exit the car. I don’t see anybody else in
the frame.
But like I said earlier, in all fairness, when the individual walks
on the south side of the sidewalk, once he gets to the darkness
and shadows, you kind of lose him. You can’t see what he’s doing
or coming from when he comes back.
Id. at 97-98 (emphasis added). The individual in the video wore a sweatshirt
that said, “[I]n loving memory of Goldie.” See id. at 78.
Seven days after the shooting, the Philadelphia Police executed a search
warrant at 521 Ashdale Street, where Appellant lived with his mother. In the
basement, police recovered gun cleaning rods, live ammunition, a sweatshirt
matching the above description, and a baseball hat. See Trial Ct. Op.,
3/22/21, at 4-5; N.T., 12/13/19, at 18-19. The sweatshirt was tested and
found to have gunshot residue on the sleeves and sides, as well as Appellant’s
DNA on the inside collar. Trial Ct. Op. at 6; N.T. Trial, 12/17/19, at 17.
At trial, Appellant admitted he was the person walking in the compilation
surveillance video, Trial Ct. Op. at 6, but argued the shooter was another
person. Appellant testified that around 1:20 or 1:30 a.m., he walked to the
corner of 5th Street and Lindley Avenue to buy marijuana from someone
named Rob, waited a few minutes, and smoked a cigarette. N.T., 12/18/19,
at 61-62. Appellant crossed to the other side of Lindley Avenue to look for
Rob, “waited another minute or two,” but left when Rob did not appear. Id.
at 64. As he was walking home, Appellant heard gunshots and “immediately
ran home.” Id. He denied carrying a firearm and stated instead that he was
-4-
J-A03045-22
holding a cell phone. Trial Ct. Op. at 6. Appellant also explained the
sweatshirt he was wearing — that was later found to have gunshot residue —
belonged to his cousin, who was often at their house. See id. at 6-7.
Appellant denied knowing anything about the live ammunition and gun
cleaning kit recovered from the basement. Id. at 7.
II. Procedural History
Appellant was charged with attempted murder, aggravated assault,3 and
related offenses. On December 16, 2018, the Commonwealth filed a motion
in limine to admit evidence of Appellant’s prior bad acts under Pa.R.E. 404(b).
The motion alleged the following: In October of 2012, almost three and a half
years before the shooting in this case, Appellant attacked Adolfo Mateo,4 who
dated Appellant’s mother and lived across the street from Appellant and his
mother. Mateo, like the Victim, drove a black Chrysler 300 limousine and
often parked in the area of 5th and Lindley.5 Appellant’s mother got into an
argument with another woman Mateo was dating. Appellant approached with
three men punched and kicked Mateo, breaking his ribs. Mateo reported this
____________________________________________
3 18 Pa.C.S. § 2702.
4 This witness is also referred to as Adolfo Mateo-Medina in the pleadings and
Appellant’s brief. We adopt the name, “Mateo,” that is set forth in in the trial
transcript for his testimony. See N.T. Trial, 12/16/19, at 4.
5 The Commonwealth averred the Victim and Mateo both worked for the same
limousine company, High Class Limo. Commonwealth’s Motion in Limine at 2.
-5-
J-A03045-22
incident to the police, which resulted in Appellant being charged and held in
custody. Commonwealth’s Motion in Limine, 12/16/18, at 2. The
Commonwealth argued this prior incident would show Appellant’s motive to
shoot the driver of a black Chrysler 300 limousine: “On April 1, 2016,
[Appellant] saw his chance to get even with the man who had him locked up
three-and-a-half years earlier.” Id. at 4.
A brief suppression hearing was held on May 13, 2019, before the
Honorable Giovanni Campbell.6 Appellant’s counsel pointed out that in
2017 — after the shooting in this case — Mateo recanted his accusation
against Appellant. See N.T. 404(B) Motion, 5/13/19, at 6. Mateo told police
he knew Appellant was not one of the attackers, but Appellant’s cousins were,
and Mateo believed that identifying Appellant would lead to the cousins. Id.
The Commonwealth maintained the evidence was admissible under Rule
404(b) to show Appellant’s motive to shoot the driver of a Chrysler 300
limousine — that Mateo had Appellant “locked up falsely.” Id. at 7. The
suppression court granted the Commonwealth’s motion and permitted
introduction of the evidence. Id. at 8.
The case proceeded to a jury trial, but on May 16, 2019, Judge Campbell
declared a mistrial for the failure of Appellant’s counsel, an assistant public
____________________________________________
6The suppression hearing transcript, including the cover page, spanned eight
pages.
-6-
J-A03045-22
defender, to appear for trial. The court appointed Appellant’s current counsel,
Jules Szanto, Esquire, to represent him, and the case was reassigned to the
Honorable Roxanne Covington.
A jury trial commenced on December 12, 2019. The Victim admitted
that she previously gave false, inconsistent statements to the police, because
she was “afraid” and “nervous” she would be “lock[ed] up for driving” under
the influence. N.T., 12/12/19, at 84. Defense counsel extensively cross-
examined her about these prior false statements. Id. at 95-120. The Victim
testified she did not “get a good look” at the shooter’s face and she did not
identify anyone at trial as the shooter. See id. at 83.
Philadelphia Police Detective Brian Boos testified that he showed the
Victim a photo array, which included Appellant’s photograph. N.T., 12/13/19,
at 11. However, the Victim did not identify anyone, including Appellant, as
the shooter. Id.
Consistent with the trial court’s Rule 404(b) ruling, Mateo testified to
the following: he accused Appellant of attacking him in October of 2012. N.T.,
12/16/19, at 14. However, in April of 2017, Mateo told police Appellant was
not one of the attackers. Id. at 15-16. We note the trial court did not issue
any cautionary instruction to the jury, either immediately after the evidence
-7-
J-A03045-22
was introduced, or in its full jury charge following the presentation of evidence.
See id. at 17; N.T. Trial, 12/19/19, at 3-41.7
The Commonwealth also played a recording of a prison telephone call,
made on June 19, 2016, two days after Appellant’s arrest. See N.T.,
12/18/19, at 34, 73. Appellant told his mother, “[M]ake sure this lady don’t
come to court,” and “[I]f she comes to court, I’m fucked[.]”8 Id. at 74, 86.
When asked what he meant, Appellant responded, “I was just scared. . . .
I’m being [falsely] accused of these [serious] charges.”9 Id. at 74-75, 86.
Appellant testified as summarized above. He acknowledged that as a
result of the prior criminal charges involving Mateo, he was imprisoned for two
weeks. N.T., 12/18/19, at 83. Nevertheless, Appellant denied having any
“problems” with Mateo and described him as “always . . . a good neighbor.”
____________________________________________
7 The transcripts dated December 19, 2019, and December 20, 2019, are
identical, and it is not clear which date is correct. For citation purposes only,
we use the December 19th date when referring to the transcript.
8 While the recordings were played at trial, they were not transcribed to the
trial transcript. See N.T., 12/18/19, at 34. However, Appellant was asked
about them on both direct and cross-examination, and we glean the telephone
call statements from those portions of his testimony. See N.T., 12/19/19, at
74-75, 85-87.
9 The Commonwealth also played a second telephone call, made that same
day. Appellant’s sister asked “[W]hat is going to happen if she comes to
court[.]” N.T., 12/18/19, at 75. The transcript does not indicate if or how
Appellant replied, but at trial, Appellant again explained he was “surprised and
shocked” by the serious charge of attempted murder against him. Id.
-8-
J-A03045-22
Id. at 71. He also denied he was the person depicted in the video shooting
the Victim. Id. at 75.
The jury found Appellant guilty of all charges: attempted murder,
aggravated assault, simple assault, recklessly endangering another person,
possessing instruments of crime, firearms not to be carried without a license,
and carrying firearms on public streets in Philadelphia. 10 Appellant was also
found guilty of persons not to possess a firearm.11
The trial court conducted sentencing on February 24, 2020. Appellant
made an oral motion for the court to set aside the jury’s verdict, arguing there
was a lack of identification evidence and, furthermore, all the evidence that
was presented was circumstantial. The trial court denied this motion and
imposed an aggregate sentence of eight to 16 years’ imprisonment.12
____________________________________________
10 18 Pa.C.S. §§ 2702(a), 2701(a), 2705, 907(a), 6106(a)(1), 6108,
respectively.
11 18 Pa.C.S. § 6105(a)(1). While the trial court did not charge the jury with
this count, the certified record does not definitively indicate that it was the
court that found Appellant guilty. See N.T., 12/19/19, at 28-38 (jury
instructions on elements of offenses).
12The trial court imposed: (1) eight to 16 years for attempted murder; (2) a
concurrent term of five to 10 years for persons not to possess a firearm; and
(3) no further penalty on the remaining counts.
-9-
J-A03045-22
Appellant did not file a post-sentence motion, but filed a timely notice
of appeal. He also filed one timely Pa.R.A.P. 1925(b) statement, as directed
by the trial court.13
III. Statement of Questions Involved
Appellant raises four issues for this Court’s review:
1. Whether the Motion Court erred in granting the
Commonwealth’s “Prior Bad Acts” Motion by admitting evidence of
an incident nearly four years prior to the instant action, in which
Appellant was misidentified as the perpetrator, and such evidence
was overly prejudicial to Appellant.
2. Whether the evidence was insufficient to sustain Appellant’s
convictions for Attempted Murder and related firearms offense,
and whether the Trial Court erred in denying Appellant’s motion
for judgment of acquittal.
3. Whether the weight of the evidence is against Appellant’s
convictions for Attempted Murder and related firearm offenses.
____________________________________________
13 On June 9, 2020, the trial court directed Appellant to file a Rule 1925(b)
statement within 21 days, or by June 30th. Appellant timely filed a statement
on June 29th, which raised vague challenges to the weight and sufficiency of
the evidence, the admission of the Rule 404(b) evidence, and the trial court’s
denial of his request for a Kloiber instruction. See Appellant’s Supplemantal
[sic] Statement of Errors Complained of on Appeal, 6/29/20 (“The verdict of
‘guilty’ was against the weight of the evidence presented at trial.”).
More than seven months later, on January 19, 2021, Appellant filed a
purported supplemental Rule 1925(b) statement, which raised the same
issues but provided supporting explanation. However, because Appellant did
not first seek leave to file this supplemental statement, it is untimely, and we
do not consider it. See Commonwealth v. Woods, 909 A.2d 372, 378 (Pa.
Super. 2006) (“[An appellant must] obtain an order granting the request for
the extension before the issues raised in an untimely 1925(b) statement will
be preserved for appeal to this Court.”) (footnote omitted).
- 10 -
J-A03045-22
4, Whether the Trial Court erred in failing to include a Kloiber
charge in the Jury instructions.
Appellant’s Brief at 7.
IV. Admission of Prior Bad Acts
Appellant first challenges the trial court’s admission of the prior bad acts
evidence under Pa.R.E. 404(b). “The admission of evidence is a matter vested
within the sound discretion of the trial court, and such a decision shall be
reversed only upon a showing that the trial court abused its discretion.”
Commonwealth v. Gilliam, 249 A.3d 257, 270-71 (Pa. Super. 2021)
(citation omitted). “Abuse of discretion is not merely an error of judgment,
but rather 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. Golphin, 161 A.3d 1009, 1021
(Pa. Super. 2017) (citation omitted).
This Court has explained:
Generally, evidence of prior bad acts or unrelated criminal activity
is inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2). . . .
To establish one of the exceptions set forth in Rule
404(b)(2), there must be “a close factual nexus sufficient to
demonstrate the connective relevance of the prior bad acts to the
crime in question[.]” Additionally, the term “unfair prejudice” in
Rule 404(b)(2) “means a tendency to suggest a decision on an
improper basis or to divert the jury’s attention away from its duty
of weighing the evidence impartially.” “[W]hen weighing the
- 11 -
J-A03045-22
potential for prejudice, a trial court may consider how a cautionary
jury instruction might ameliorate the prejudicial effect of the
proffered evidence.”
* * *
[T]he trial court must assure that the probative value of
the evidence is not outweighed by its potential prejudicial
impact upon the trier of fact. To do so, the court must
balance the potential prejudicial impact of the evidence
with such factors as the degree of similarity established
between the incidents of criminal conduct, the
Commonwealth’s need to present evidence under the
common plan exception, and the ability of the trial court
to caution the jury concerning the proper use of such
evidence by them in their deliberations.
Gilliam, 249 A.3d at 271-72 (emphasis added and citations omitted).
Appellant argues the suppression court abused its discretion in
admitting the Rule 404(b) evidence of prior bad acts. In support, he presents
the following arguments. The October 2012 assault on Mateo was too remote
in time to establish motive for the April 2016 shooting. See Appellant’s Brief
at 27. The probative value of the evidence was far outweighed by its prejudice
to Appellant. Additionally, there is no record of the suppression court’s
“deliberation on the matter, or [its] findings as to the prejudicial effect on
Appellant,” and the court “granted the Commonwealth’s motion without
limitation or explanation.” Id. Finally, “[m]ost egregious[ly],” the
Commonwealth lacked candor in filing its motion in limine despite knowing
Mateo had informed police that Appellant was not one of his assailants. Id.
We decline to find an abuse of discretion.
- 12 -
J-A03045-22
We first address Appellant’s argument that the suppression court, Judge
Campbell, made no record of its findings. See Pa.R.Crim.P. 581(I) (court shall
enter, on the record at the conclusion of a suppression hearing, “a statement
of findings of fact and conclusions of law as to whether the evidence was
obtained in violation of the defendant’s rights . . .”). As stated above, the
hearing was relatively brief. The only statements made by court at the
suppression hearing were a question to the Commonwealth, “Is the
Commonwealth alleging that [Mateo] was targeted?,” and its ruling, “All right,
thank you. The 404(b) motion is granted.” N.T., 5/13/19, at 4, 8.
However, the Commonwealth’s sole argument, in both its written motion
and at the hearing, was that the evidence was admissible under Rule 404(b)
to show Appellant’s motive: to avenge Mateo for falsely accusing him of
assault, which led to criminal charges and imprisonment. The Commonwealth
explained that both Mateo and the Victim drove black Chrysler 300 limousines
and parked them in the neighborhood around 5th Street and Lindley Avenue.
N.T., 5/13/19, at 4. While we agree the suppression court did not state
findings of fact on the record, we conclude that, under the particular
circumstances of this case, we may glean the court’s reasoning from the
context of the parties’ arguments and the court’s confirmation of the
Commonwealth’s claim — that Mateo “was targeted[.]” See id.. The court
permitted the evidence on the only ground requested by the
Commonwealth — to show motive for shooting at the driver of a black Chrysler
- 13 -
J-A03045-22
300 limousine parked in his immediate neighborhood. Furthermore, Judge
Covington’s Rule 1925(a) opinion provided reasons why this Court should
affirm. Thus, the suppression court’s lack of a more formal or complete
statement is not fatal to our review. See also Commonwealth v. Reppert,
814 A.2d 1196, 1200, 1202 (Pa. Super. 2002) (en banc) (although trial court
did not state findings of fact on the record at suppression hearing, this Court
could review trial court’s Rule 1925(a) opinion’s discussion of suppression
issue, and thus we reached merits of the defendant’s suppression challenge,
based “[u]pon consideration of [the] circumstances as documented in the
record of the suppression hearing”).
On the merits of Appellant’s claim, we find no abuse of discretion. The
trial court reasoned: “Here, the prior bad acts were admissible to show
motive. The evidence revealed why Appellant harbored ill will towards the
driver of a black limousine, which was the same make and model as the one
into which Appellant fired six gunshots.” Trial Ct. Op. at 13. The trial court
further reasoned Appellant was not unduly prejudiced, as a “trial court is not
required to sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration[.]” Id., citing Commonwealth v. Hairston, 84 A.3d 657, 666
(Pa. 2014). We agree. See Pa.R.E. 404(b)(2) (evidence of prior bad acts or
unrelated criminal activity may be admissible to prove motive). The
suppression court’s ruling is not manifestly unreasonable and does not indicate
any partiality, prejudice, bias or ill will. See Golphin, 161 A.3d at 1021.
- 14 -
J-A03045-22
We further agree with the trial court that even if the suppression court
erred, such error was harmless. As the trial court pointed out, Mateo clearly
testified that he knew Appellant was not one of his assailants, but
nevertheless told police he was, under the belief that it would lead to
identification of the true assailants. See N.T., 12/16/19, at 14. Defense
counsel cross-examined Mateo on this false allegation against Appellant.
Meanwhile, Appellant testified that despite the criminal charges and
imprisonment, he harbored no ill will against Mateo. N.T., 12/18/19, at 82,
85. The jury was free to weigh all of this testimony, and believe all, part, or
none of this evidence. See Commonwealth v. Williams, 255 A.3d 565, 580
(Pa. Super. 2021) (citation omitted).
Additionally, “Appellant’s convictions were supported by abundant
evidence,” where he admitted he was the person walking in the surveillance
video. See Trial Ct. Op. at 13-14. His theory, that there was another person
in the video who committed the shooting, was introduced during his cross-
examination of Detective Hartman. However, while the detective testified it
is not clear what the individual did when he disappeared in the “shadows,” the
detective stated he did not see anyone else “in the frame.” See N.T.,
12/13/19, at 97-98. Moreover, the video was played for the jury, which could
make its own findings as to whether another person was present during the
shooting. For the foregoing reasons, no relief is due.
- 15 -
J-A03045-22
V. Weight & Sufficiency of Identification Evidence
Next, Appellant asserts the evidence was insufficient to sustain his
convictions beyond a reasonable doubt, where he “was never identified as the
shooter.” Appellant’s Brief at 27. He then “incorporates [his] sufficiency
argument” to also aver the verdict was against the weight of the evidence.
Id. at 32.
We first remind counsel that “[a] challenge to the weight of the evidence
is distinct from a challenge to the sufficiency of the evidence[. T]he former
concedes that the Commonwealth has produced sufficient evidence of each
element of the crime, but questions which evidence is to be believed.” See
Commonwealth v. Kinney, 157 A.3d 968, 971 (Pa. Super. 2017) (citation
omitted). A claim —
that the evidence was insufficient because [the defendant] was
wrongly identified as the perpetrator of the crimes based on
“unbelievable identification testimony” of the victim [—] goes to
the credibility of the witness’s testimony, and is, therefore, not an
attack on the sufficiency of the evidence, but an allegation
regarding the weight it should have been afforded.
Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013). See also
Kinney, 157 A.3d at 971 (claim challenging “any indefiniteness and
uncertainty in . . . identification testimony goes to its weight”) (citation
- 16 -
J-A03045-22
omitted). Accordingly, we construe Appellant’s argument to be a challenge to
the weight, not sufficiency, of the evidence.14
We note the relevant standard of review:
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the fact, 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.
On appeal, our purview is extremely limited and is confined
to whether the trial court abused its discretion in finding that the
jury verdict did not shock its conscience. Thus, appellate review
of a weight claim consists of a review of the trial court’s exercise
of discretion, not a review of the underlying question of whether
the verdict is against the weight of the evidence.
Williams, 255 A.3d at 580 (citation omitted & paragraph break added).
In support of his claim that there was no evidence identifying him as the
shooter, Appellant presents numerous arguments, which we address seriatim.
First, he emphasizes the Victim did not identify him in a photo array.
Appellant’s Brief at 30. The compilation surveillance video “was too unclear
to get a clear image of the shooter.” Id. Detective Hartman acknowledged
____________________________________________
14Appellant has preserved this weight claim by raising it in an oral motion at
the sentencing hearing. See Pa.R.Crim.P. 607(A)(1) (“A claim that the verdict
was against the weight of the evidence shall be raised with the trial judge in
a motion for a new trial[,]” inter alia, “orally, on the record, at any time before
sentencing[.]”).
- 17 -
J-A03045-22
that “when the individual walks on the south side of the sidewalk, once he
gets to the darkness and shadows, . . . [y]ou can’t see what he’s doing[.]”
Id. (citation omitted). Although Appellant was the person “walking around
the block and smoking a cigarette,” Detective Hartman conceded that another
person could have been the shooter. Id. at 30-31. “[T]here was no evidence
that Appellant carried a firearm” that night, and no firearm was recovered.
Id. at 31, 33. His hat and sneakers were not tested for gunshot residue, but
if they had, the absence of gunshot residue “would surely [have] exonerate[d]
him.” Id. at 31. Appellant concludes that the Commonwealth only established
his presence in the general area of a shooting, and the jury’s verdict shocks
one’s sense of justice. Id. at 31-32. We disagree.
All of Appellant’s points above — including the Victim’s lack of
identification and the quality of the video — were presented to the jury, which
was free to evaluate the weight to be given to the evidence. See Williams,
255 A.3d at 580. Importantly, while Appellant conceded he was the person
seen walking in the video, his defense theory was that someone else shot at
the Victim. On cross-examination of Detective Hartman, Appellant’s counsel
pointed out where there could have been additional “movement between . . .
cars[.]” N.T., 12/13/19, at 93-94. The jury was free to weigh the detective’s
response that he did not see “movement,” id. at 94, and furthermore free to
determine from its own viewing of the video whether there was any second
person.
- 18 -
J-A03045-22
Additionally, we agree with the trial court’s analysis of Appellant’s weight
challenge:
The jury heard testimony from numerous witnesses, including the
[V]ictim, about the shooting. The jury also received expert
testimony regarding the ballistics evidence — gun powder residue
on the sweatshirt, which Appellant admitted he wore on the night
of the shooting. Finally, the jury received Appellant’s testimony
wherein he acknowledged that he was the person in the
surveillance video, which the jury viewed. He also explained why,
on a phone call from jail, he told someone that if the [V]ictim
testifies at the trial, Appellant is “fucked.” However, the jury
rejected Appellant’s self-serving testimony as lacking credibility.
The jury assessed each witness’s credibility. In evaluating
the testimony and evidence utilized to identify the shooter, the
jury had the full opportunity to assess each witness and then make
relevant factual determinations. Thus, the jury’s verdict was not
“so contrary to the evidence as to shock one’s sense of justice.”
See Trial Ct. Op. at 8-9. We find no abuse of discretion on the trial court’s
part in denying Appellant’s oral challenge to the weight of the evidence. See
Williams, 255 A.3d at 580.
We briefly address Appellant’s remaining arguments. He also avers,
“The Commonwealth’s entire case was based on manipulated video and
incomplete forensic analysis.” Appellant’s Brief at 30. He maintains the
Commonwealth presented the compilation video “through a lay witness, rather
than an expert.” Id. Appellant also complains that while Detective Hartman
testified that the time stamps on the surveillance videos were not entirely
accurate, but rather “off[ ]” by a couple minutes, he did not explain “how one
balances the allegedly inaccurate time against the Naval Observatory time.”
Id.
- 19 -
J-A03045-22
Appellant’s arguments go to the admission of the compilation video, not
the weight of the evidence supporting the jury’s verdict. In any event, they
are waived for our review for failure to raise any objection at trial. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”); Commonwealth v. Baker, 24 A.3d
1006, 1034 (Pa. Super. 2011) (where defendant failed to object to admission
of evidence before the trial court, they cannot raise that issue on appeal).
Appellant also contends “the Police conducted an incomplete
investigation[, as] they never spoke with another obvious suspect, Niko
McBride.” Appellant’s Brief at 29. The Victim’s initial description of the
perpetrator — even though it was “made up” — “was so specific and distinct
that that an officer had a clear image of a person who fit that description and
lived within a couple blocks of the shooting.” Id. at 29-30.
At this juncture, we summarize that on the night of the shooting, the
Victim described the perpetrator to a police officer. Trial Ct. Op. at 4. Based
on this description, the officer “showed her a prison release photo of” Niko
McBride, and the Victim said, “[T]hat’s him 100%.” See id., citing N.T.,
12/12/19, at 126. “Later that night, the [officer] learned he ‘wasn’t supposed
to do that.’” Trial Ct. Op. at 4 (citation omitted). However, the Victim later
recanted this description and identification. At trial, when
asked why she made an identification, though she did not see the
shooter’s face[, t]he [V]ictim testified that she was afraid because
she had been drinking and was worried the officers would arrest
her for drinking and driving.
- 20 -
J-A03045-22
Id. at 3-4.
Appellant acknowledges the Victim admitted she made up the
description, which led to the police officer showing her a photograph of Niko
McBride. He offers no explanation why, despite McBride’s possible
resemblance to this concocted description, McBride would be an “obvious
suspect,” nor how he would be relevant to this investigation. See Appellant’s
Brief at 29. Accordingly, this argument is meritless.
Finally, Appellant claims the Victim described the shooter as wearing a
gray sweatshirt, and police recovered a gray sweatshirt, which she identified
as well. Appellant’s Brief at 30. Appellant mentions this sweatshirt “was left
[on the street] two hours before the shooting,” but points out “it was never
tested for DNA [or] gunshot residue[.]” Id. (emphasis added).
At trial, Detective Hartman explained that a sweatshirt was recovered
from 5th and Ruscomb Street, near the shooting. See N.T., 12/13/19, at 48.
The detective reviewed the surveillance videos, and determined the sweatshirt
was left there approximately two hours before the shooting. Id. at 51. He
determined the sweatshirt “had nothing to do with the shooting . . . and it
stayed there until the police recovered it.” Id. at 53. Appellant ignores this
testimony and offers no argument why the sweatshirt — which he
acknowledges was discarded two hours before the shooting — would be
relevant to this investigation. We conclude no relief is due.
- 21 -
J-A03045-22
VI. Kloiber Jury Instruction on Identification
In his last issue, Appellant alleges the trial court erred in denying his
request for a Kloiber jury instruction. Such a jury charge informs the jury
that an eyewitness identification should be viewed with caution when the
witness did not have the opportunity to view the defendant clearly,
equivocated on the identification, or previously had difficulties identifying the
defendant. Appellant’s Brief at 33, citing Williams, 255 A.3d at 577 n.15.
Appellant concedes he did not object after the jury charge, but contends his
pre-jury instruction “was thorough and robust enough [to] be functionally
equivalent to an objection, and therefore the issue should not be deemed
waived.” Appellant’s Brief at 34. We disagree.
This Court has explained:
[I]n order to preserve a claim that a jury instruction was
erroneously [omitted], the [a]ppellant must have objected to the
charge at trial. Pa.R.A.P. 302(b) (. . . “[A] general exception to
the charge to the jury will not preserve an issue for appeal.
Specific exception shall be taken to the language or omission
complained of.”); Pa.R.Crim.P. 647(B) (. . . “[N]o portions of the
charge nor omissions from the charge may be assigned as error,
unless specific objections are made thereto before the jury
retires to deliberate.”) . . .
Williams, 255 A.3d at 577 (citation omitted and emphasis added).
Following the Commonwealth’s case in chief, Appellant requested a
Kloiber charge. See N.T., 12/18/19, at 44-49. Following both parties’
arguments, the trial court denied the request. Id. at 52. Appellant raised no
objections after the court’s jury instructions. See id. at 41. Because he did
- 22 -
J-A03045-22
not raise this claim again before the jury retired to deliberate, it is waived for
our review. See Pa.R.A.P. 302(b); Williams, 255 A.3d at 577.
In any event, even if the issue were preserved, we would conclude no
relief is due. In Williams, the defendant acknowledged that none of the
witnesses at trial identified him as the shooter. Williams, 255 A.3d at 578
n.16.
Because the witnesses provided no in-court identification of [the
defendant] as the shooter, a Kloiber instruction was not
warranted. See [Commonwealth v. Sanders, 42 A.3d 325, 335
(Pa. Super. 2012)] (. . . a Kloiber instruction is not necessary
where the witness declines to identify the defendant in court). . . .
Id. Similarly, at trial, no witness definitively identified Appellant as the
shooter.15 Thus, we would agree with the trial court that Kloiber was not
applicable at this trial.
VII. Conclusion
Having concluded no relief is due on any of Appellant’s issues, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
____________________________________________
15 At trial, Appellant conceded the Victim did not identify him, but argued
Detective Hartman did identify him as the individual in the surveillance video.
N.T., 12/18/19, at 48-49. The Commonwealth responded that although the
detective “insinuate[d]” Appellant was the person in the video, such an
insinuation “is not an identification.” Id. at 50.
- 23 -
J-A03045-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2022
- 24 -