Com. v. Wilkinson, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWARD ERIC WILKINSON :
:
Appellant : No. 333 EDA 2018
Appeal from the Judgment of Sentence January 10, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010593-2015
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: JANUARY 8, 2021
Edward Eric Wilkinson appeals from his January 10, 2018 judgment of
sentence of an aggregate term of six to twenty years of incarceration followed
by two years of probation, which was imposed after a jury found him guilty of
aggravated assault, carrying a firearm without a license, possession of an
instrument of crime (“PIC”), and recklessly endangering another person
(“REAP”). After careful review, we affirm.
We glean the relevant factual and procedural history from the trial
court’s Pa.R.A.P. 1925(a) opinion and the certified record. The instant case
concerns the non-fatal shooting of Kenyata Brown (“the victim”), which
occurred on August 6, 2015. On that day, the victim was on the porch of his
home located at 5206 Sheffield Street in Philadelphia, Pennsylvania, with his
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* Retired Senior Judge assigned to the Superior Court.
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girlfriend, Khadijah Warren, and their minor children. At some point, Aleya
Perry and Shabira Perry (collectively, “the Perry sisters”) approached the
victim and his family. The Perry sisters were well-known to the victim and his
family, as they were the adult children of Ms. Warren’s cousin, Sebrena
Wilkinson. On this day, however, familial amity gave way to conflict as an
argument erupted amongst the Perry sisters and Ms. Warren.1 At some point
during this conflict, a cell phone call was made summoning Appellant, who
was Ms. Wilkinson’s husband, and Ms. Wilkinson to the scene.
After a protracted verbal altercation, the Perry sisters physically
attacked Ms. Warren, and the victim intervened to break-up the fight. After
a short break in hostilities, Appellant and Ms. Wilkinson arrived on the scene
in a white Mercedes SUV, parked near the victim’s home, and approached the
combatants. Ms. Wilkinson immediately began to quarrel anew with Ms.
Warren on her daughters’ behalf, while Appellant approached the victim,
pulled out a gun, and shot him in the leg.2 Afterwards, Appellant and his
family fled the scene in the aforementioned vehicle.
Members of the Philadelphia Police Department were alerted to the
shooting and responded quickly:
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1 This argument seems to have originally stemmed from concerns that Aleya
Perry had regarding the victim’s treatment of Ms. Warren. See, e.g., N.T.
Trial, 10/24/17, at 68. Thereafter, the situation escalated dramatically.
2 Specifically, it appears that Appellant and Ms. Wilkinson were angered that
the victim had “put his hands” on their adult children in an effort to break up
the above-described altercation. See, e.g., N.T. Trial, 10/24/17, at 88, 92.
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Philadelphia Police Officer Edward Oleyn testified . . . that on the
night of August 6, 2015, he and his partner, Officer Michael
Berkery, had been on routine patrol in a marked police car and in
uniform when they . . . received radio calls of a shooting. The
immediately responded to a chaotic scene filled with a myriad of
people screaming. They observed [the victim] suffering and
bleeding from a serious gunshot wound on the front porch of [his
residence].
Trial Court Opinion, 6/6/19, at 4-5. As the officers were preparing to rush the
victim to a nearby hospital, Ms. Warren identified the shooter as a “bald, black
man in his forties that went by the name of Eric Wilkinson who had fled the
scene in a white Mercedes Benz.” Id. at 5. As a result of the above-described
altercation, Ms. Warren suffered muscle strains, cuts, and bruises. The victim
sustained a single gunshot wound from a .40-caliber handgun. Id. at 4.
Thereafter, the police secured and executed warrants for Appellant’s
arrest and a search of his home:
When subsequent search and arrest warrants were served by
investigators . . . eleven firearms were confiscated from the
residence that Appellant admittedly shared with his wife and step-
daughters [on] the day after the shooting. Although proof of
Appellant’s purchase and ownership of a [.40-caliber] semi-
automatic firearm that matched the caliber of weapon used to
shoot the victim was retrieved, the actual firearm matching that
description was not discovered [amongst] the guns confiscated.
Id. at 4. Appellant was charged with, inter alia, the aforementioned offenses.
The case proceeded to a jury trial from October 23 to October 30, 2017.
On the first day of testimony, Officer Oleyn testified on behalf of the
Commonwealth. During his direct examination, he stated that Ms. Warren
had positively identified the shooter as Appellant and provided his name to
law enforcement. See N.T. Trial, 10/24/17, at 44. This testimony did not
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provoke an objection from Appellant. However, the prosecutor also undertook
the following line of questioning:
Q. When you first responded to the scene, who else was there
aside from [the victim] and Ms. Warren?
A. There was about five or six people out there, family members
and such, outside the front of the house on the porch. It was a
lot of yelling and screaming. I couldn’t get too much information
off them.
Q. Just the porch at [5206] or was it neighboring porches as well?
A. All I remember was 5206, everyone on the porch there.
Q. While you were there did anyone approach you aside from Ms.
Warren to give you information about what had taken place that
night?
A. A couple other people gave me information about the
40-year-old black male, bald.
Id. at 47-48 (emphasis added). Appellant objected, asserted that this
testimony should be struck, and requested a mistrial at sidebar. Id. at 48-49
(“It was a hearsay identification by four unidentified people with no notice. . . .
I think it’s worthy of a mistrial.”).
Ultimately, the trial court concluded that the Commonwealth had not
properly laid a foundation for the above-quoted testimony and sustained
Appellant’s objection. Id. at 52. However, the trial court denied Appellant’s
request for a mistrial. Id. When the jury returned, the Commonwealth
elicited testimony from Officer Oleyn establishing that the unnamed witnesses
that provided a description of the shooter were “yelling and screaming” about
the victim’s condition at the time these identifications were given. Id. at 53.
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Appellant entered another objection, which the trial court overruled on the
ostensible basis that the identifications were “excited utterances.” Id.
Ms. Warren also testified extensively at Appellant’s trial on behalf of the
Commonwealth. In addition to confirming that Appellant was the man who
shot the victim, id. at 89-90; see also N.T. Trial, 10/25/17, at 9, Ms. Warren
also described a series of threatening text messages that she received
immediately after the incident from phone numbers that she did not recognize.
See N.T. Trial, 10/25/17, at 13-16. The Commonwealth provided a copy of
these text messages to Ms. Warren, who reviewed them during her testimony
without objection from the defense.
However, when the Commonwealth attempted to publish the text
messages to the jury, Appellant’s counsel objected on the grounds that there
was no “authentication” connecting these communications to Appellant and
that the text messages were irrelevant. Id. at 16, 19-20. The Commonwealth
averred that the evidence was being offered for its impact upon Ms. Warren
and the victim, who was hesitant to cooperate with law enforcement at the
beginning of the case.3 Id. at 17-18. Ultimately, the trial court overruled
Appellant’s objection and permitted the at-issue text messages to be
published to the jury. Id. at 19-20, 27-28.
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3 Ms. Warren testified that she shared the texts with the victim. See N.T.
Trial, 10/25/17, at 18.
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Thereafter, the victim took the stand, testified in a manner that
corroborated Ms. Warren’s version of events, and also identified Appellant as
the shooter. Id. at 71, 81. Additionally, the victim explained that he had
refused to cooperate with law enforcement in the immediate aftermath of the
shooting and claimed that he could not identify the shooter because he initially
wanted to seek retribution on his own. Id. at 76-77, 92-93. Ultimately, the
victim’s mother4 convinced him to “do the right thing” by cooperating with the
investigation and identifying Appellant as the shooter while recovering in the
hospital. Id. at 80-81, 92-93.
On the third day of testimony, a salesperson at a local gun shop testified
for the Commonwealth.5 See N.T. Trial, 10/26/17, at 26-37. Specifically, she
identified Appellant as an individual to whom she had previously sold firearms
and stated that Appellant had purchased a.40 caliber Kahr pistol from the
store on June 10, 2015. Id. at 30-33.
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4 The victim’s mother, Doris Scott, also testified on behalf of the
Commonwealth. See N.T. Trial, 10/25/17, at 101-06. Her testimony was
limited to confirming that she was present when the victim identified Appellant
as the shooter in the hospital. Id.
5 Prior to this testimony, Officer Edward Seislove of the Philadelphia Police
Department appeared on behalf of the Commonwelath. See N.T. Trial,
10/26/17, at 10-25. Officer Seislove was a secondary responder who arrived
on the scene as the victim was being evacuated to the hospital. In relevant
part, he described finding a shell casing and a blood trail at the scene. Id.
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Detective Robert Hagy of the Philadelphia Police Department was the
next witness. He informed the jury that he recovered a spent shell casing
from the scene of the shooting and testified regarding the search warrant that
he secured and executed at Appellant’s home. Id. at 58-62. The search
resulted in the seizure of “multiple weapons, a rifle, shotguns, [and]
ammunition.” Id. at 62. Neither the Kahr pistol nor any other .40-caliber
handgun was recovered from Appellant’s home, but ammunition suitable for
use in such weapons was seized.6
The admission into evidence of the firearms and ammunition seized from
Appellant’s home was a source of significant contention during the
proceedings. Prior to trial, Appellant presented an oral motion in limine to
exclude this evidence on the grounds that it was irrelevant and not sufficiently
tied to the crimes charged. See N.T. Trial, 10/24/17, at 13-14. The trial court
disagreed, and denied the motion after concluding that the firearms and
ammunition were relevant, circumstantial evidence of Appellant’s alleged
ownership of the weapon used to shoot the victim. Id. at 16. The various
firearms and the “loose” .40 caliber ammunition seized from Appellant’s home
were admitted into evidence over these objections.
Finally, Officer Kelly Walker of the Philadelphia Police Department took
the stand for the Commonwealth as an expert in firearms identification. See
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6 A white Mercedes registered to Appellant’s name and address was also
seized, searched, and later returned. See N.T. Trial, 10/26/17, at 80-85.
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N.T. Trial, 10/27/20, at 13. In pertinent part, she testified that: (1) the shell
casing recovered from the scene of the shooting belonged to a .40 caliber
weapon that was not recovered from Appellant’s home; and (2) the shell
casing recovered from the scene matched ammunition seized from Appellant’s
home. Id. at 24-25, 28-29. Thereafter, the Commonwealth rested.
Appellant’s case began with Janell Robinson, who testified that she did
not see who shot the victim. Id. at 71, 92. Thereafter, Appellant took the
stand in his own defense. He denied shooting the victim and suggested that
police had surreptitiously taken his .40 caliber Kahr handgun during the search
of his home and intentionally failed to note it on the property receipt. Id. at
104-08, 118-20. Ultimately, Appellant conceded that he took no action prior
to trial regarding this allegedly missing gun because he “thought it would fall
on deaf ears.” Id. at 135. Following the conclusion of Appellant’s testimony,
the defense rested.
On October 30, 2017, the jury found Appellant guilty of the above-noted
offenses and not guilty of attempted murder. On January 10, 2018, the
above-recited sentence was imposed by the trial court. Appellant filed a timely
notice of appeal to this Court. Both Appellant and the trial court have complied
with their obligations pursuant to Pa.R.A.P. 1925.
Appellant has raised three issues for our consideration:
I. Did not the lower court abuse its discretion in denying a mistrial
for improperly admitting evidence of out-of-court statements of
identification by unknown declarants against Appellant where
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Appellant had not received notice of those statements as a matter
of mandatory discovery?
II. Did not the lower court abuse its discretion in admitting
unauthenticated, irrelevant and unfairly prejudicial text messages
against Appellant?
III. Did not the lower court abuse its discretion in admitting
irrelevant and unfairly prejudicial evidence of unrelated guns
against Appellant?
Appellant’s brief at 2.
At the outset of our substantive analysis, we note that all three of
Appellant’s claims concern the evidentiary rulings of the trial court. The
following legal principles will guide our review:
As our Supreme Court has explained, “[t]he admissibility of
evidence is a matter solely within the discretion of the trial court.
This Court will reverse an evidentiary ruling only where a clear
abuse of discretion occurs.” Commonwealth v. Johnson, 638
A.2d 940, 942 (Pa. 1994) (citation omitted). “Generally, an
appellate court’s standard of review of a trial court’s evidentiary
rulings is whether the trial court abused its discretion; however,
where the evidentiary ruling turns on a question of law our review
is plenary.” Buckman v. Verazin, 54 A.3d 956, 960 (Pa.Super.
2012).
Commonwealth v. Woeber, 174 A.3d 1096, 1100 (Pa.Super. 2017). In this
context, “[a]n abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record.” Commonwealth v. LeClair,
236 A.3d 71, 78 (Pa.Super. 2020). Furthermore, before a ruling on evidence
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constitutes reversible error, it must have been harmful or prejudicial to the
complaining party. See Lykes v. Yates, 77 A.3d 27, 32 (Pa.Super. 2013).
Appellant’s first issue implicates the bystander identifications testified
to by Officer Oleyn. See N.T. Trial, 10/24/17, at 47-51. Ultimately, the trial
court permitted the testimony to be admitted as “excited utterances” after the
Commonwealth laid a proper foundation. Id. at 51-53. Appellant’s argument
on appeal is straightforward: “The lower court erred in admitting evidence of
[an] out-of-court identification by unknown declarants. Furthermore, the
lower court erred in failing to grant a mistrial for the Commonwealth’s . . .
improperly admitted statements of identification, when they had been
improperly withheld from the defense[.]” Appellant’s brief at 7.
We discern that Appellant is actually raising two separate issues under
this claim: (1) that the trial court erred in admitting the hearsay identification
evidence as “excited utterances” under Pa.R.E. 803(2); and (2) the
Commonwealth committed a discovery violation under Pa.R.Crim.P. 573 by
failing to provide this identification evidence to Appellant before trial. We will
address these issues seriatim.
The following legal principles will guide our review of Appellant’s
arguments concerning hearsay:
Hearsay is an out of court statement offered to prove the truth of
the matter asserted. Pa.R.E. 801(C). Generally, it is not
admissible, as it “lacks guarantees of trustworthiness fundamental
to [our] system of jurisprudence.” Commonwealth v. Smith,
681 A.2d 1288, 1290 (Pa. 1996). In order to guarantee
trustworthiness, the proponent of a hearsay statement must
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establish an exception to the rule of exclusion before it shall be
admitted.
Commonwealth v. Manivannan, 186 A.3d 472, 480 (Pa.Super. 2018).
Specifically at issue in this case is the excited utterance hearsay exception,
which the Pennsylvania Rules of Evidence delineates as follows: “A statement
relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused. When the declarant is unidentified,
the proponent shall show by independent corroborating evidence that the
declarant actually perceived the startling event or condition.” Pa.R.E. 803(2).
“While the excited utterance exception has been codified as part of our
rules of evidence since 1998 . . ., the common law definition of an excited
utterance remains applicable.” Commonwealth v. Murray, 83 A.3d 137,
157 (Pa. 2013). Our Supreme Court has recited that definition as follows:
[A] spontaneous declaration by a person whose mind has been
suddenly made subject to an overpowering emotion caused by
some unexpected and shocking occurrence, which that person has
just participated in or closely witnessed, and made reference to
some phase of that occurrence which he perceived, and this
declaration must be made so near that occurrence both in time
and place as to exclude the likelihood of its having emanated in
whole or in part from his reflected faculties . . . . Thus, it must
be shown first, that [the declarant] had witnessed an event
sufficiently startling and so close in time as to render her
reflective thought processes inoperable and, second, that
her declarations were a spontaneous reaction to that
startling event.
Id. at 157-58 (emphasis added) (citing Commonwealth v. Sherwood, 982
A.2d 483, 495-96 (Pa. 2009)).
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Appellant asserts that the Commonwealth failed to present evidence
that the unnamed declarants observed a startling event and that their
declarations were spontaneous. See Appellant’s brief at 9. In reviewing the
testimony proffered by Officer Oleyn in support of the hearsay exception, we
have significant concerns about the cursory nature of his testimony. 7 See
N.T. Trial, 10/24/17, at 53. However, even if this testimony was admitted in
error, it was harmless.
Under Pennsylvania law, the harmless-error doctrine “recognizes the
principle that the central purpose of a criminal trial is to decide the factual
question of the defendant's guilt or innocence and promotes public respect for
the criminal process by focusing on the underlying fairness of the trial rather
than on the virtually inevitable presence of immaterial error.”
Commonwealth v. Hamlett, 234 A.3d 486, 491 (Pa. 2020). Harmless error
may exist if the reviewing court is convinced from the certified record that,
inter alia, the erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the erroneously
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7 Cf. Commonwealth v. Upshur, 764 A.2d 69, 75-76 (Pa.Super. 2000)
(“The mere fact that the police officer inferred from the statements that the
declarant must have witnesses the [startling event], or that the declarant said
he witnessed the [startling event], does not lend any more credence or
trustworthiness to the out-of-court statements. In order to justify the
admissibility of such testimony, it is incumbent upon the party seeking its
admission to persuasively and convincingly demonstrate by the use of other
corroborating evidence that the declarant actually viewed the event of
which he speaks.” (emphasis in original)); Pa.R.E. 803(2).
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admitted evidence. See, e.g., Commonwealth v. Fulton, 179 A.3d 475,
493 (Pa. 2018). Generally speaking, the burden of persuasion with respect to
establishing harmlessness rests upon the Commonwealth. Id.; but see
Commonwealth v. Hamlett, 234 A.3d 486, 492 (Pa. 2020) (“[T]he
availability of discretionary sua sponte review in appropriate cases serves as
an exception to the ordinary rule that the government bears the burden of
persuasion relative to harmless error.”).
Assuming, arguendo, that the trial court erred in permitting Officer
Oleyn to testify regarding the unnamed bystanders’ general descriptions of
the shooter, this evidence was merely cumulative of an identical hearsay
description of the shooter provided by Ms. Warren and earlier testified to by
Officer Oleyn. See N.T. Trial, 10/24/17, at 43 (“At that point we got a brief
description of the male. It was a black male, 40s, bald head.”).
Appellant did not object to this testimony. Moreover, we note that Ms.
Warren’s description would be admissible pursuant to the excited utterance
exception at Rule 803(2), as independent corroborating evidence
demonstrated that Ms. Warren had provided this spontaneous description of
the shooter immediately after witnessing her husband being shot. See N.T.
Trial, 10/24/17, at 90-92; N.T. Trial, 10/25/17, at 9-10. In addition to Ms.
Warren’s own testimony, a recording of her 911 call was also played for the
jury, providing further corroboration of her having witnessed the shooting.
See N.T. Trial, 10/24/17, at 8-10. Thus, any description of the shooter
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provided by these bystanders was merely cumulative of Ms. Warren’s
unchallenged and properly admitted identification testimony.8
Turning to the second portion of Appellant’s first issue, we note that
Rule 573(B)(1)(d) provides that: “[i]n all court cases, on request by the
defendant, and subject to any protective order . . . the Commonwealth shall
disclose to the defendant’s attorney . . . the circumstances and results of any
identification of the defendant by voice, photograph, or in-person
identification.” Pa.R.Crim.P. 573(B)(1)(d) (emphasis added). Appellant
asserts that the Commonwealth’s failure to disclose the existence of the
bystander identifications constituted a violation of Rule 573(B)(1)(d), and that
the trial court erred in not granting a mistrial. See Appellant’s brief at 10.
Appellant’s argument on this issue spans a single paragraph, and is most
notable in what it omits. Specifically, Appellant does not even suggest that
he ever requested identification evidence from Commonwealth. The text of
Rule 573 requires the Commonwealth to furnish mandatory discovery
materials only upon receipt of a request from the defendant. See Pa.R.Crim.P.
573(B)(1); see also, e.g., Commonwealth v. Miller, 560 A.2d 229, 231
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8 Furthermore, both the victim and Ms. Warren positively identified Appellant
in open court and testified that they: (1) were personally acquainted with
Appellant; and (2) had named him as the shooter to law enforcement prior to
trial. See N.T. Trial, 10/24/17, at 43; N.T. Trial, 10/25/17, at 9, 71, 81.
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(Pa.Super. 1989) (“[A] defendant must first request the item(s) of
information deemed mandatory under the Rule.” (emphasis in original)).9
Our review of the certified record has uncovered no indication that either
any request for such discovery materials was ever submitted prior to or during
trial. As such, Appellant has failed to demonstrate a pre-requisite for
establishing a discovery violation by the Commonwealth. Id. Accordingly, no
relief is due on this claim.10
Appellant’s second issue alleges that the Commonwealth failed to
authenticate the threatening text messages received by Ms. Warren.11 See
Appellant’s brief at 10-11 (“The admission of unauthenticated text messages
is a clear abuse of discretion.”) (citing Commonwealth v. Koch, 39 A.3d
996, 1005 (Pa.Super. 2011) (holding that text messages were not properly
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9 This Court’s holding in Commonwealth v. Miller, 560 A.2d 229, 231
(Pa.Super. 1989), adjudicated a dispute arising under a prior iteration of
Pa.R.E. 573. See Pa.R.Crim.P. 305. However, as Rule 573 contains the same
manner of language requiring a discovery request be submitted by defendants
to trigger the Commonwealth’s obligation, this precedent remains valid.
10 Even assuming, arguendo, that the Commonwealth violated Pa.R.Crim.P.
573(B)(1)(d), we would deem this error harmless in conformity with our
earlier discussion of Appellant’s hearsay-related argument.
11 To the extent that Appellant seeks to address additional issues beyond the
authentication of these text messages, we hold that such claims are waived
by Appellant’s complete failure to develop any meaningful discussion in the
body of his argument. See, e.g., Pa.R.A.P. 2119(a). Indeed, Appellant’s
discussion of the discrete authentication issue discussed above is dangerously
threadbare in that it incorporates one pertinent legal authority and a single
citation to the reproduced record. See Appellant’s brief at 10-11.
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authenticated where a police officer transcribed messages from a criminal
defendant’s phone and the transcripts were admitted at trial)).
The Pennsylvania Rules of Evidence provide that, “[u]nless stipulated,
to satisfy the requirement of authenticating or identifying an item of evidence,
the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Pa.R.E. 901(a). As a general matter,
“[a]uthentication entails a relatively low burden of proof; in the words of Rule
901 itself, simply ‘evidence sufficient to support a finding that the item is what
the proponent claims.’” Commonwealth v. Murray, 174 A.3d 1147, 1157
(Pa.Super. 2017). “Proof of any circumstances which will support a finding
that the writing is genuine will suffice to authenticate the writing. . . . A
proponent of a document need only present a prima facie case of some
evidence of genuineness in order to put the issue of authenticity before the
factfinder.” Gregury v. Greguras, 196 A.3d 619, 633 (Pa.Super. 2018) (en
banc) (emphasis added).
We emphasize that these text messages were admitted for the limited
purpose of establishing their effect upon the listener, and the jury was so
instructed by the trial court. See N.T. Trial, 10/25/17, at 33 (“[F]or the
record, jurors, I want you to understand that the admission of these text
messages is solely for the affect upon the listener, not for any other truth of
the matter asserted.”). Specifically, the Commonwealth offered these text
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messages as an explanation for any reluctance on the part of Ms. Warren and
the victim, both of whom viewed them.12 Id. at 17-20, 34-35.
The limited purpose of this evidence undercuts much of Appellant’s
arguments concerning the unreliability of these texts. See Schmalz v.
Manufacturers & Traders Trust Co., 67 A.3d 800, 803 n.3 (Pa.Super. 2013)
(“[W]here the statement is being offered to show its effect on a listener, it is
not being offered for the truth of the matter and is non-hearsay.”).
Additionally, this limited admission distinguishes the instant circumstances
from other cases where the authorship of text messages is relevant to
authentication. Cf. Commonwealth v. Koch, 39 A.3d 996, 1006 (Pa.Super.
2011) (holding that authentication of the authorship of text messages was
necessary where “[t]he only relevance of the text messages and precisely the
reason the Commonwealth sought to introduce them was because they
demonstrated [the defendant’s] intent to deliver [narcotics]”).
Here, Ms. Warren was the recipient of the at-issue text messages and
directly corroborated the facsimiles produced by the Commonwealth at trial.
See 10/25/17, at 15 (“Yes. They’re the same ones.”). As a person with direct
knowledge, Ms. Warren’s testimony was sufficient to authenticate these
communications for the limited purpose that they were offered by the
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12 We gather from the certified transcripts that Ms. Warren was very nervous
while testifying. We also note that the victim initially refused to cooperate
with law enforcement. As such, we discern that the Commonwealth’s concerns
about the jury’s perception of these issues was not mere chicanery.
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Commonwealth. See, e.g., Commonwealth v. Mangel, 181 A.3d 1154,
1160 (Pa.Super. 2018) (citing Pa.R.E. 901(b)(1)) (“Testimony of a witness
with personal knowledge that a matter is what it is claimed to be can be
sufficient.”). In sum, Appellant’s arguments concerning authenticity fail.
Appellant’s final claim relates to his assertion that “the lower court erred
in admitting evidence of eleven guns unrelated to the crime.” Appellant’s brief
at 11. Specifically, Appellant has structured his argument on this point to
emphasize the potential for prejudice created by the Commonwealth’s
evidence concerning Appellant’s extensive ownership of firearms. Id. at 12
(“The admission of this evidence only placed Appellant in a negative light to
illustrate that he is a person who associates with guns.”).
However, no objection on the grounds of alleged prejudice was ever
made by Appellant in the trial court. See N.T. Trial, 10/24/17, at 13-14
(presenting a motion in limine to exclude evidence of the firearms seized from
Appellant’s house on relevancy grounds); see also N.T. Trial, 10/26/17, at
67 (“We object to any of this, because we thought it was irrelevant.”
(emphasis added)). To the extent that Appellant is now arguing that this
evidence was unduly prejudicial, that claim has been waived. See
Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa.Super. 2006) (“A
defendant must make a timely and specific objection at trial or face waiver on
her issue on appeal.”) (citing Pa.R.A.P. 302(a)).
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Furthermore, we find Appellant’s remaining arguments concerning
relevancy to be specious. Under the Pennsylvania Rules of Evidence,
“[e]vidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence[.]” Pa.R.E. 401(a) (emphasis
added). The only objections entered at trial implicated by these claims
concerned the relevancy of the physical firearms and ammunition seized from
Appellant’s home. See N.T. Trial, 10/24/17, at 13-16; N.T. Trial, 10/26/17,
at 37-40; 64-68. The admission into evidence of weapons not expressly
utilized in the commission of a crime is disfavored under Pennsylvania law.
See Commonwealth v. Robinson, 721 A.2d 344, 351 (Pa. 1998) (“The
general rule is that where a weapon cannot be specifically linked to a crime,
such weapon is not admissible as evidence.”). However, such evidence may
be admissible where it is “relevant to the inquiry of whether the appellant had
a weapon or implement suitable to commit the instant crime.” Id. at 352.
Instantly, Appellant’s use, possession, and ownership of a .40-caliber
handgun was a material issue in this case. Despite evidence confirming that
Appellant had purchased such a weapon in 2015, none was recovered during
the search of Appellant’s home. In the absence of this weapon, Appellant
called into question the veracity and thoroughness of the police search. See
N.T. Trial, 10/26/17, at 37 (“In the opening statements it was identified by
[Appellant’s counsel] that for some reason the .40 caliber gun wasn’t picked
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up by police.”).13 Indeed, Appellant’s counsel explicitly demanded that the
Commonwealth leave no stone unturned in admitting the totality of the
firearms and ammunition seized from Appellant’s home. Id. at 67 (“[I]t’s
counsel’s case. I had objected to all of this originally. If you’re going to do
it, you have to do it completely.” (emphasis added)). Consequently, the
Commonwealth introduced all of the physical evidence seized from Appellant’s
home to demonstrate the completeness and competency of the police search
effort. Id. at 38-40; 64-68. Appellant’s chosen tact in challenging the police
search made the admission of all of the firearms and ammunition a relevant
part of the Commonwealth’s case-in-chief. Accordingly, no relief is due on
Appellant’s third claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/21
____________________________________________
13 Opening statements of counsel were not transcribed in this case.
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