Com. v. Perez-Rodriguez, R. ( 2023 )

J-S24032-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAPHAEL E. PEREZ-RODRIGUEZ :
:
Appellant : No. 1381 MDA 2022
Appeal from the Judgment of Sentence Entered April 22, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002261-2020
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 31, 2023
Appellant, Raphael E. Perez-Rodriguez, appeals from the judgment of
sentence entered in the Court of Common Pleas of Berks County following his
conviction by a jury on the charges of first-degree murder, burglary, robbery,
aggravated assault, two counts of receiving stolen property, and two counts
of firearms not to be carried without a license.1 After a careful review, we
affirm.
The relevant facts and procedural history are as follows: The charges in
the instant matter stem from a traffic stop of Appellant, which then led to an
investigation and the arrest of Appellant for the murder of Dennis Fink (“the
____________________________________________
* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 2502(a), 3502(a)(1)(i), 3701(a)(1)(i), 2702(a)(1), 3925,
and 6106, respectively.
J-S24032-23
Victim”), who had been stabbed to death, as well as the burglary of the
Victim’s residence.
On December 11, 2020, Appellant filed a counseled omnibus pre-trial
suppression motion wherein he sought the suppression of all evidence seized
from the Victim’s house, which is located on Tully Lane in Reading,
Pennsylvania. Appellant averred the police improperly entered and conducted
an unconstitutional warrantless search of the Victim’s house. The
Commonwealth, in response, averred Appellant lacked a reasonable
expectation of privacy in the Victim’s home. Further, the Commonwealth
asserted the police properly entered and conducted a warrantless search of
the Victim’s residence due to exigent circumstances.
On January 25, 2021, Appellant proceeded to a suppression hearing at
the commencement of which the Commonwealth moved for the transcript
from Appellant’s preliminary hearing to be marked as an exhibit, and Appellant
indicated he had no objection. N.T., 1/25/21, suppression hearing, at 4. The
Commonwealth then offered the testimony of Vincent Caruso, who is the
system administrator for the inmate telephone system at the Berks County
jail, and Berks County Detective Ivan. R. Martinez. The suppression court,
indicating it adopted the testimony and evidence from the preliminary hearing,
as well as the suppression hearing, aptly summarized the relevant evidence
as follows:
At approximately 7:40 p.m., in the evening on July 16,
2020, Officer Eric Koller of the City of Reading Police Department
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was on patrol in the 500 block of Washington Street in the City of
Reading when he observed a black Honda CRV (“the Vehicle”) with
a Minnesota license plate that appeared to be altered. N.T.,
8/26/20, preliminary hearing, at 4-5. Having noticed the allegedly
altered license plate, Officer Koller checked the registration
information electronically, which returned a result that the Vehicle
was reported stolen. Id. at 5. Officer Koller continued to follow
the Vehicle, but before he could initiate a traffic stop, the Vehicle
parked in the 100 block of North 3rd Street, whereupon the driver,
later identified as [Appellant], exited the Vehicle. Id. at 5-6.
Backup [officers] arrived shortly thereafter, and [Appellant] was
detained in handcuffs until the patrol wagon arrived, and
[Appellant] was placed therein. Id. at 7.
Loud music continued to play from a wireless speaker inside
the Vehicle, and Officer Koller reapproached the Vehicle to turn off
the music. Id. As Officer Koller reached into the Vehicle to turn
the speaker off, he noticed a small, blue, Ziplock bag containing a
white, powdery substance located in the handhold of the driver’s
side door. Id. Officer Koller recovered the bag and continued to
search the rest of the Vehicle. Id. Under the driver’s seat, Officer
Koller found two loaded handguns—a semi-automatic and a
revolver. Id. at 8. Two knives were found between the driver’s
seat and the door jamb. Id. In the cargo area, police found a rifle
and semi-automatic shotgun, as well as a bubble envelope
addressed to the Victim containing CO2 cartridges for a BB gun
and several bank cards in the Victim’s name. Id.
Officer Koller later performed a NARK-2 field test on the
suspected drugs from the vehicle, which indicated a positive result
for cocaine. Id. at 9. A [records] check also indicated that
[Appellant] did not have a valid license to carry the firearms. Id.
When [Appellant] was arrested, he was found in possession of
several personal items belonging to the Victim, including a high
school ring, an Air Force Academy graduation ring, several
wedding bands, and a tie bar. Id. at 15.
Officer Koller informed Eric Sweitzer, a criminal investigator
with the Reading Police Department (“C.I. Sweitzer”), about the
stolen Vehicle investigation and notified C.I. Sweitzer about items
found in the stolen Vehicle belonging to the Victim. Id. at 16.
C.I. Sweitzer researched the Victim’s name and found an
individual who was listed as living at the property located at **
Tully Lane in Reading, Pennsylvania (“the Property”). Id. C.I.
Sweitzer visited the Property, observed that some exterior and
interior lights were on, and then attempted to make contact with
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the owner. Id. at 17. However, C.I. Sweitzer was unsuccessful
and left his business card in the door. Id. at 18. C.I. Sweitzer
returned to the Property the next day and noticed that the
Property looked to be in exactly the same condition as the night
before, including his business card still stuck in the door. Id. C.I.
Sweitzer, along with Criminal Investigator Scott Errington, then
walked to the rear of the residence to attempt contact, but they
were unsuccessful. Id. at 19. C.I. Sweitzer then contacted the
local police department and requested an officer onsite so that a
welfare check could be performed. Id. at 20.
After the local officer arrived, C.I. Sweitzer entered the
Property through an unlocked door of the kitchen/dining room.
Id. Once inside, C.I. Sweitzer announced himself, but he found
no one was inside; however, he found a small, black dog in a cage,
alive and barking. Id. at 21. C.I. Sweitzer observed that the
cabinet doors in the kitchen were open, and the house seemed
unkempt. Id. at 21-22. Making their way through the home
looking for the Victim or anyone else, the investigators noticed
that closets were left open with lights on, and the house looked
like it had been ransacked. Id. at 22. Likewise, the garage and
basement lights were left on, and a blue Tesla vehicle was still in
the garage. Id. Sensing that something was not right, C.I.
Sweitzer was leaving the Property to contact possible family
members when he noticed a duffle bag, in which he could see,
without manipulation, a baseball cap and a glass jar containing
suspected marijuana. Id. at 22-23.
C.I. Sweitzer was unable to garner further information on
the Victim’s whereabouts from family members, so he applied for
a search warrant for the Property to retrieve the suspected
marijuana, which was then approved. Id. During the search, [the
Victim’s] decomposing body was found in the wooded area
abutting the Property. Id. at 24-25.
***
On July 16, 2020, [before the traffic stop involving
Appellant], Jeffrey Neubauer, an individual living in the same
neighborhood as the Victim, noticed a young girl with a lost dog
outside of his home. Id. at 37-38. Mr. Neubauer took the dog,
called the phone numbers on the dog’s tags, and found out the
address listed for the dog was ** Tully Lane. Id. at 38. Mr.
Neubauer and his girlfriend then traveled to the Property to return
the dog. Id. When Mr. Neubauer and his girlfriend approached
the Property, they noticed it appeared unkempt. Id. at 39. Upon
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ringing the doorbell twice and knocking on the door, a man, whom
Mr. Neubauer identified as [Appellant], answered the door
wearing cargo shorts, a muscle t-shirt, and a red-brimmed cap[.]
Id. at 39-40. [Appellant] only opened the door halfway. Id. Mr.
Neubauer did not remember whether [Appellant] answered in the
affirmative when asked whether the lost dog was his, but he
recalled [Appellant] grabbed the dog. Id. at 40. When Mr.
Neubauer’s girlfriend asked [Appellant] if he was “Dennis,”
[Appellant] responded with “Yes.” Id. at 61. Mr. Neubauer noted
that the interaction seemed odd because [Appellant] did not
appear to be happy to have his dog returned. Id. at 42. Mr.
Neubauer checked on Facebook and found that the Victim, Dennis
Fink, was actually an older white male. Id. The next day, Mr.
Neubauer was presented with a photo lineup whereupon he
identified [Appellant] as the individual he saw at the Property the
day prior. Id.
On July 17, 2020, Detective Ivan Martinez (“Detective
Martinez”), who was with the Berks County District Attorney’s
Office, was called to the Property for a body that had been found.
Id. at 46-47. Detective Martinez arrived at the Property and
proceeded to the wooded area adjacent to the rear where there
was a body lying face down and covered in brush. Id. at 47. The
body was later identified as the Victim, who was the owner the
Property. Id. at 48. The next day, after preparing a search
warrant that was approved, Detective Martinez participated in the
search of the Property, during which he observed that the home
appeared to have been ransacked. Id. at 48-49. A bag, that did
not appear to be the Victim’s, was found containing a gun, money,
and coins. Id. at 49. Also seized was the baseball cap and
suspected marijuana. Id. at 51-52.
On July 20, 2020, Detective Martinez, along with Detective
Sergeant Brett Forry, met with [Appellant] at the Berks County
Jail System for an interview. Id. at 52-53. During the interview,
[Appellant] told Detective Martinez that he came from New Jersey
to Reading because of his business, [which involved] buying and
reselling guns, coins, and other odds and ends. Id. at 53.
Initially, when Detective Martinez showed a photograph of the
Property to [Appellant], [Appellant] acted as if he did not
recognize the house. Id. at 54. When Detective Martinez
mentioned that someone could place [Appellant] at the Property,
[Appellant] admitted that he had been to the Property, but he
specified that he stopped at a yard sale and was led inside the
home by a black male, named “Bu,” and that the house looked
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ransacked when he entered. Id. at 54-55, 58. [Appellant]
described the Property with detail, including the presence and
situation of objects in the garage area. Id. at 55. [Appellant]
indicated that he had been driving around the neighborhood
looking for yard sales because he knew that rich people lived in
the area. Id. at 54. [Appellant] further told the detectives that
the items found in the Vehicle did come from the Property, but he
insisted that he had purchased the items from “Bu” for $1,500.00.
Id. at 56. [Appellant] also admitted that he had told Mr.
Neubauer’s girlfriend that he was the Victim when the dog was
returned. Id. at 57. However, [Appellant] denied ever seeing the
Victim. Id.
Detective Martinez testified at the preliminary hearing that
he had reviewed a phone call that [Appellant] placed from the
Berks County Jail on July 31, 2020, in which [Appellant] relayed a
different story regarding his involvement in the Victim’s death.
Id. at 60-62. In the phone call, [Appellant] told his mother and
sister that the Victim, who [Appellant] claimed was a marijuana
customer of [Appellant’s], owed [Appellant] money, and owed a
Mexican cartel money in relation to human trafficking of
prostitutes. Id. at 62. [Appellant] continued that the Mexican
cartel ordered him to kill the Victim or [Appellant] himself would
be killed. Id.
***
Vincent Caruso, the system administrator of the inmate
telephone system at the Berks County Jail System,…explained
that prior to an inmate making a phone call from the prison, a
message is played informing both parties that the phone call is
being recorded. N.T., 1/25/21, suppression hearing, at 8-9. Mr.
Caroso likewise stated that upon booking, prisoners are provided
with an Inmate Telephone ID Release Form (“T.I.D. Form”),
containing the prisoner’s personal identification number for phone
calls, as well as a provision indicating that phone calls are
monitored and recorded, which the prisoner then signs. Id. The
Commonwealth introduced [Appellant’s] signed T.I.D. Form,
which was printed in both English and Spanish, that [Appellant]
had signed. Id. at 9-11.
Suppression Court Opinion, filed 3/29/21, at 2-6.
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By order entered on March 29, 2021, the suppression court denied
Appellant’s omnibus pre-trial suppression motion. Thereafter, on April 18,
2022, Appellant, who was represented by counsel, proceeded to a jury trial.
The trial court has summarized at length the testimony and evidence
offered at the jury trial. See Trial Court Opinion, filed 2/27/23, at 2-25. The
trial court has provided citations to the record for each finding, and we
conclude the findings are supported by the record. Accordingly, we adopt and
rely on the trial court’s summary.
At the conclusion of the trial, the jury convicted Appellant of the offenses
indicated supra, and on April 22, 2022, the trial court imposed an aggregate
sentence of life in prison. On May 2, 2022, Appellant filed a timely counseled
post-sentence motion seeking a judgment of acquittal on the basis the
evidence was insufficient to sustain his convictions, as well as a new trial on
the basis the jury’s verdict was against the weight of the evidence.
By order entered on August 26, 2022, the trial court denied Appellant’s
post-sentence motion, and this timely counseled appeal followed on
September 23, 2022. The trial court directed Appellant to file a Pa.R.A.P.
1925(b) statement, Appellant timely complied, and the trial court filed a
responsive opinion on February 27, 2023.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Presented” (verbatim):
A. Whether the evidence adduced at Suppression was insufficient
to establish that [Appellant] lacked an expectation of privacy
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at the residence searched, whether an exigency existed
sufficient to justify the warrantless search subsequently
conducted, and whether the subsequently obtained Search
Warrant was obtained with probable cause based, in part, from
things observed during said warrantless search that was
illegally obtained?
B. Whether the evidence adduced at trial was insufficient to
establish beyond a reasonable doubt that Appellant committed
a premeditated, willful and deliberate killing, or an aggravated
assault, or a robbery where there was no evidence that
[Appellant] had at any time come into contact with the victim,
other than conjecture that [Appellant’s] mere presence at the
victim’s home [sic] he must have killed the victim?
C. Whether the Court erred by not granting a new trial on the
basis that the verdict of guilt for murder of the first degree was
contrary to the weight of the evidence, where there was
literally no physical or circumstantial evidence produced at
trial?
Appellant’s Brief at 10 (suggested answers omitted).
Initially, we address Appellant’s sufficiency of the evidence claim.2
Appellant contends the evidence was insufficient to sustain his convictions for
first-degree murder, aggravated assault, and robbery. Specifically, Appellant
does not dispute that someone committed these crimes against the Victim;
however, he contends there is no evidence that he was the perpetrator of the
crimes.
____________________________________________
2 For the ease of discussion, we address Appellant’s sufficiency of the evidence
and weight of the evidence claims before addressing his suppression claim
since, if Appellant should succeed on one of these claims, we need not address
his suppression claim. Commonwealth v. Shamberger, 788 A.2d 408, 412
(Pa.Super. 2001).
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Initially, we note this Court’s standard of review when considering a
challenge to the sufficiency of the evidence requires us to look at the evidence
in a light most favorable to the Commonwealth, as verdict winner, and
determine whether the evidence presented, actual and/or circumstantial, was
sufficient to enable a fact-finder to find every element of the crime charged,
beyond a reasonable doubt. See Commonwealth v. O'Brien, 939 A.2d 912(Pa.Super. 2007).
In applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition, we
note that the facts and the circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant’s guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be drawn from the
combined circumstances.
Id. at 913–914 (quotation omitted). The jury, as the finder of fact, is free to
believe all, some, or none of the evidence presented and is free to determine
the credibility of the witnesses. Commonwealth v. Dailey, 828 A.2d 356(Pa.Super. 2003). In conducting review, the appellate court may not weigh
the evidence and substitute its judgment for the fact-finder. Commonwealth
v. Baumgartner, 206 A.3d 11, 14-15 (Pa.Super. 2019).
As indicated supra, Appellant's argument is specific in nature. Rather
than challenge the sufficiency of the evidence to support any of the applicable
elements of the offenses, Appellant contends the evidence was insufficient to
prove that he was the person who robbed the Victim and stabbed the Victim
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to death before dumping his body in the woods behind his home.3 As such,
we need not conduct a thorough review of the evidence to determine whether
it can support a finding that all of the elements of the offenses have been
met.4 Rather, we will focus on the specific sufficiency issue raised by
Appellant: whether the evidence was sufficient to establish that Appellant was
____________________________________________
3 Appellant presents no argument challenging his convictions for burglary or
two counts of firearms not to be carried without a license. Appellant suggests
his conviction for receiving stolen property is insufficient on the basis the
Commonwealth allegedly failed to adduce evidence as to valuation. See
Appellant’s Brief at 44. However, Appellant’s one-paragraph argument
presents bald assertions without any citation to relevant authority. See id. at
44-45. Since Appellant has not properly developed this claim, we conclude it
has been waived. See Pa.R.A.P. 2119. Alternatively, the trial court has aptly
addressed and rejected Appellant’s sufficiency challenge to his conviction for
receiving stolen property, and we find no error. See Trial Court Opinion, filed
2/27/23, at 32-33.
4 The relevant criminal statutes provide:
§ 2502. Murder
(a) Murder of the first degree.--A criminal homicide constitutes
murder of the first degree when it is committed by an intentional
killing.
18 Pa.C.S.A. § 2505(a) (bold in original).
§ 3701. Robbery
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of committing a
theft, he:
(i) inflicts serious bodily injury upon another[.]
18 Pa.C.S.A. § 3701(a)(1)(i) (bold in original).
§ 2702. Aggravated assault
(a) Offense defined.--A person is guilty of aggravated assault if
he:
(1) attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life[.]
18 Pa.C.S.A. § 2702(a)(1) (bold in original).
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the perpetrator of the robbery, aggravated assault, and first-degree murder
of the Victim.
This Court has recognized that:
[E]vidence of identification need not be positive and certain to
sustain a conviction. Commonwealth v. Jones, 954 A.2d 1194,
1197 (Pa.Super. 2008)[.] Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Commonwealth v.
Minnis, 458 A.2d 231, 233–34 (Pa.Super. 1983). Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh. Id.
at 234. Given additional evidentiary circumstances, “any
indefiniteness and uncertainty in the identification testimony goes
to its weight.” Id. at 233.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super. 2011) (en banc)
(quotation marks omitted).
Here, in addressing and rejecting Appellant’s sufficiency of the evidence
claim, the trial court relevantly indicated the following:
Appellant claims that the Commonwealth failed to present
sufficient evidence that Appellant was ever at the [Tully Lane]
residence at the same time as the Victim to present such an
opportunity to commit the crimes, or that he was ever in a position
to threaten or touch the Victim personally. Appellant further
claims that no evidence or testimony eliminated the possibility of
another perpetrator having committed the crimes and that law
enforcement only investigated Appellant to the exclusion of other
possible suspects.
***
When initially stopped [in the Honda], Appellant was found
in possession of multiple items belonging to the Victim, including
the Victim’s Tesla car fob, graduation rings, laptop, wallet,
identification cards, and various credit and debit cards. After
finding these items, law enforcement proceeded to the residence,
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and when unable to make initial contact, made various attempts
to reach the Victim. Upon entering the residence, officers found
the rooms, drawers, and closets disheveled as if they had been
ransacked. Alarm panels were found ripped off of the wall and on
the floor. When they returned with a search warrant for the
residence, they discovered the Victim deceased in the [woods at
the] rear of the residence.
Dr. Hoffman concluded that the Victim died from
exsanguination and internal bleeding caused by multiple stab
wounds to the Victim’s neck and chest. Dr. Hoffman testified that
the nature and varying direction of the injuries indicated that the
bodies were in close contact and in motion, signaling a struggle
occurred during the infliction of the wounds. Further, while Dr.
Hoffman suggested that the maggot activity he observed w[as]
indicative that the Victim’s time of death was approximately thirty
to forty-hours prior to discovery, he noted that information
provided by law enforcement allowed him to narrow that period to
between 8:45 a.m. and 12:00 p.m. on July 16, 2020.
During his interview with detectives, [Appellant initially
denied recognizing the residence; however,] Appellant [then]
admitted that he had been to and was able to describe the
residence in detail. In a phone call with his sister and mother,
Appellant admitted being involved in the murder of the Victim but
claimed that the Victim purchased drugs from him[,] the Victim
was involved in human trafficking[,] and the Victim’s murder was
directed by a Mexican cartel.
Cell phone records tracked Appellant’s movements from
Paterson, New Jersey and arriving in the area of the residence
around the time of the Victim’s murder and remaining until the
afternoon. Several people observed an individual matching
Appellant’s description and clothing at or around the residence,
including several people who returned the Victim’s wandering dog
and found the individual’s response as odd or apathetic. Jeffrey
Neubauer identified Appellant as the individual he saw at the
residence when [he] was presented with a photographic array,
and he told law enforcement officers that he noticed the individual
at the residence was wearing the same branded underwear as was
later recovered from Appellant.
While no evidence was found regarding the actual murder
weapon, there was genetic evidence linked to the Victim found on
Appellant’s shoes, which were found at the residence.
Additionally, the Victim’s DNA was found on Appellant’s shirt.
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Viewing the evidence presented at trial in totality, the
Commonwealth presented sufficient evidence to place Appellant
at the residence at the time of the Victim’s murder, including cell
phone records and eyewitnesses who either identified Appellant or
described an individual matching Appellant’s description as being
present at the residence on the date of the Victim’s death and
even posing as the Victim himself. Blood and DNA evidence was
found on Appellant’s shoes and clothing. Appellant confessed to
being at the residence to law enforcement and admitted to his
sister and mother of, at least, being involved in the Victim’s
murder. Again, Dr. Hoffman’s testimony concluded that the Victim
died as a result of the stab wounds and noted that the direction
and severity of the wounds indicated a struggle. Moreover, the
location of the stab wounds to the neck and chest evinces both
malice and an intent to kill. Given the reasonable inferences that
could be drawn from the evidence presented, [the trial court]
find[s] that Appellant’s challenge[s] to the sufficiency of the
evidence to support his conviction[s] for first-degree murder[,
aggravated assault, and robbery] lack merit.
Trial Court Opinion, filed 2/27/23, at 28-30.
We agree with the trial court’s sound reasoning. As indicated supra,
“[e]vidence of identification need not be positive and certain to sustain a
conviction.” Commonwealth v. Ovalles, 144 A.3d 957, 969 (Pa.Super.
2016) (citation omitted). As our Supreme Court has held, “circumstantial
evidence is sufficient to sustain a conviction so long as the combination of the
evidence links the accused to the crime beyond a reasonable doubt.”
Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 635 (1991)
(quotation and quotation marks omitted).
In the case sub judice, the jury, as the finder of fact, heard the
testimony of all witnesses, was free to make credibility determinations, and
determined the evidence linked Appellant to the crimes beyond a reasonable
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doubt. Given our standard of review, we find no error in this regard and
conclude there is no merit to Appellant’s sufficiency of the evidence claim. See
Baumgartner, supra (setting forth this Court’s standard of review for
sufficiency of the evidence claims).
We next address Appellant’s claim that the jury’s verdicts for first-
degree murder, aggravated assault, and robbery were against the weight of
the evidence. Specifically, Appellant contends there is no credible evidence
that Appellant was the perpetrator of the crimes. He avers the jury’s
conclusion he was the perpetrator is based on mere speculation and
conjecture. Thus, he avers the jury’s verdict shocks one’s sense of justice
such that the trial court erred in failing to order a new trial.5
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
____________________________________________
5 Appellant adequately preserved his weight of the evidence claim as to his
first-degree murder, aggravated assault, and robbery convictions in the lower
court and in his Rule 1925(b) statement. See Pa.R.Crim.P. 607; Pa.R.A.P.
1925(b). Appellant presents in his appellate brief an undeveloped weight of
the evidence claim, without citation to authority, regarding the jury’s verdict
for receiving stolen property. See Appellant’s Brief at 47. He suggests the
evidence regarding the value of the stolen items was incredible. See id. We
dispose of this claim simply by noting the jury was free to accept the
Commonwealth’s evidence regarding the value of the stolen property.
Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.Super. 2000).
Appellant has presented no weight of the evidence challenge to his convictions
for burglary and firearms not to be carried without a license.
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129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation
omitted). 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). It is well-settled that we cannot substitute our
judgment for that of the trier of fact. Talbert, supra.Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id.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 court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Id. (quotation marks and quotation omitted).
Here, in rejecting Appellant’s weight of the evidence claim, the trial court
relevantly stated the following:
At trial, the jury heard all of the testimony and was
presented [with] the evidence. The Commonwealth presented
evidence that Appellant was stopped in a stolen vehicle with a
substantial amount of the Victim’s valuables and belongings on his
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person and in the vehicle. The jury heard evidence tracking
Appellant’s location from Paterson, New Jersey, where the vehicle
had been stolen, and to the area of the [Tully Lane] residence.
When law enforcement arrived at and later searched the
residence, they found the home ransacked and the alarm panels
ripped from the walls. The Victim’s Tesla vehicle, to which
Appellant had the fob on his person, was still in the garage. Dr.
Hoffman testified the Victim’s time of death was between 8:45
a.m. and noon on July 16, 2020, which was around the same time
that Appellant arrived and remained in the area of the residence.
Several eyewitnesses place Appellant, or at least an individual
resembling Appellant, at the residence on July 16, 2020, and even
identifying himself as the Victim. Dr. Hoffman further testified as
to the extent of the Victim’s injuries and the conclusions drawn
from both bruising and abrasions observed on the Victim, and
from the direction and severity of the stab wounds. The
Commonwealth also presented blood and DNA evidence from the
Victim found on Appellant’s sneaker and shirt. Despite Appellant’s
contention otherwise, the phone call to his mother and sister, at
a minimum, implicated Appellant in the Victim’s murder,
regardless of his various justifications or suggestion of other
unnamed individuals. Based on all of the evidence presented, it
is clear that the trial court did not abuse its discretion in denying
Appellant’s post-sentence challenge to the weight of the evidence.
The jury’s verdict indicates that they lent credibility to the
Commonwealth’s witnesses and did not choose to accept the
Defense witness’ dispute of the blood and DNA evidence. The
verdicts rendered by the jury were not against the weight of the
evidence. Further, Appellant’s attack on the deliberation period
of the jury as somehow demonstrative of a lack of diligence on the
party of the jury is absurd. The jury spent four days observing
the testimony and evidence and was properly charged by the court
in its analysis of the evidence. [The trial court] draw[s] no
inference from the fact that the jury was able to come to a decision
in what Appellant deemed a relatively short amount of time.
Therefore, [the trial court] find[s] Appellant’s claim that the court
abused its discretion as to the weight of the evidence to be without
merit.
Trial Court Opinion, filed 2/27/23, at 37.
- 16 -
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We agree with the trial court’s sound reasoning, and we find no abuse
of discretion in this regard. Talbert, supra. Simply put, the jury considered
the evidence linking Appellant to the burglary and stabbing death of the
Victim. The jury found the Commonwealth’s witnesses credible while rejecting
Appellant’s witnesses and defense theories. To the extent Appellant requests
that we re-weigh the evidence and assess the credibility of the witnesses
presented at trial, we decline to do so as it is a task that is beyond our scope
of review. See Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super.
2013) (stating that “[a]n appellate court cannot substitute its judgment for
that of the finder of fact”). Thus, we find no merit to Appellant’s weight of the
evidence claim.
We next address Appellant’s suppression issue. Appellant contends the
Commonwealth bore the burden of demonstrating Appellant did not have a
legitimate expectation of privacy in the Victim’s residence and, since “[t]he
Commonwealth at [the] suppression [hearing] offered no additional evidence
or testimony regarding the defendant’s expectation of privacy, other than
admitting the transcript of the testimony taken at the preliminary hearing[,
the Commonwealth did not meet its burden].” Appellant’s Brief at 16.
In reviewing Appellant’s suppression claim, we are mindful that:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are correct.
We are bound by the suppression court’s factual findings so long
as they are supported by the record; our standard of review on
- 17 -
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questions of law is de novo. Where, as here, the defendant is
appealing the ruling of the suppression court, we may consider
only the evidence of the Commonwealth and so much of the
evidence for the defense as remains uncontradicted. Our scope
of review of suppression rulings includes only the suppression
hearing record and excludes evidence elicited at trial.
Commonwealth v. Yandamuri, 639 Pa. 100, 159 A.3d 503, 516 (2017)
(citations omitted).
Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution “guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation omitted). In
Pennsylvania, a defendant charged with a possessory offense has “automatic
standing” to pursue a suppression motion under Rule 581.6 Commonwealth
v. Burton, 973 A.2d 428, 435 (Pa.Super. 2009) (en banc). Nevertheless, “in
order to prevail, the defendant…must show that he had a privacy interest in
the area searched.” Id. at 434.
Our Supreme court has clarified that challenges to a defendant’s
expectation of privacy involve shifting burdens of proof. Commonwealth v.
Enimpah, 630 Pa. 357, 106 A.3d 695, 700-01 (2014). The Commonwealth
has the initial burden to “present evidence that the defendant’s constitutional
rights were not infringed.” Id. at 701. If the Commonwealth presents
evidence which shows the defendant “lacked a privacy interest, the burden
____________________________________________
6 Here, Appellant was charged with possessory offenses.
- 18 -
J-S24032-23
shifts to the defendant to demonstrate he had a reasonable expectation of
privacy in the area searched.” Id. Thereafter, it is incumbent on the
suppression court to consider all of the evidence to determine whether the
Commonwealth met its burden of production, and, if so, whether the
defendant met his burden of persuasion that he possessed a reasonable
expectation of privacy in the area searched by the police.7 See id.
“The expectation of privacy is an inquiry into the validity of the search
or seizure itself; if the defendant has no protected privacy interest, neither
the Fourth Amendment nor Article I, § 8 is implicated.” Id. at 699.
An expectation of privacy will be found to exist when the individual
exhibits an actual or subjective expectation of privacy and that
expectation is one that society is prepared to recognize as
reasonable. In determining whether a person’s expectation of
privacy is legitimate or reasonable, the totality of the
circumstances must be considered and the determination will
ultimately rest upon a balancing of the societal interests involved.
The constitutional legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual asserting the
right but on whether the expectation is reasonable in light of all
the surrounding circumstances.
____________________________________________
7 If the Commonwealth’s evidence conclusively establishes that the defendant
had no expectation of privacy in the area searched, then the Commonwealth
has met its burden of proving that the evidence was properly obtained, and
the suppression motion challenging the search must be denied. See
Enimpah, supra, 106 A.3d at 702 (noting that the Commonwealth’s burden
is “to give the [suppression] court evidence allowing” the court to conclude a
defendant lacked a reasonable expectation of privacy); Pa.R.Crim.P. 581(H)
(providing that “[t]he Commonwealth shall have the burden of going forward
with the evidence and of establishing that the challenged evidence was not
obtained in violation of the defendant’s rights”).
- 19 -
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Commonwealth v. Viall, 890 A.2d 419, 422 (Pa.Super. 2005) (citations and
quotation marks omitted).
“[T]he Fourth Amendment does not shield only those who have title to
the searched premises.” Bostick, 958 A.2d at 552 (quotation and quotation
marks omitted). Rather, “a defendant must establish a possessory interest, a
legitimate presence, or some factor from which a reasonable and justifiable
expectation of privacy could be deduced to prove that this subjective
expectation of privacy is legitimate.” Id. (quotation and quotation marks
omitted). Thus, even if not an owner or lessee of the premises, “a defendant
who is more than a casual visitor to the...dwelling [searched by police] has
the right under the Fourth Amendment to the United States Constitution...to
challenge the search [of the dwelling] and seizure of [evidence therefrom].”
Commonwealth v. Rodriguez, 679 A.2d 1320, 1325 (Pa.Super. 1996)
(citation omitted).
Relevantly,
In Commonwealth v. Govens, 632 A.2d 1316 (Pa.Super. 1993)
(en banc), this Court reiterated that…an occupant other than the
owner or lessee of a [residence] [must] demonstrate a significant
and current interest in the searched premises in order to establish
an expectation of privacy. Govens, 632 A.2d at 1319[.] We
further stated that,
[f]actors to be considered in determining whether a
defendant has a legitimate expectation of privacy in
another person’s home include: (1) possession of a
key to the premises; (2) having unlimited access to
the premises; (3) storing of clothing or other
possessions on the premises; (4) involvement in
- 20 -
J-S24032-23
illegal activities conducted on the premises; (5) ability
to exclude other persons from the premises; and (6)
expression of a subjective expectation of privacy in
the premises.
Bostick, 958 A.2d at 553 (citation and quotation marks omitted).
Initially, Appellant contends the Commonwealth conceded and/or did
not challenge whether he had an expectation of privacy in the Victim’s home
such that his burden to rebut was never triggered. While Appellant is correct
that the Commonwealth may concede the defendant has an expectation of
privacy, or otherwise not challenge the expectation of privacy such that it
waives any objection/challenge thereto for appellate review, such did not
occur in the case sub judice. Commonwealth v. Skipper, 277 A.3d 617,
620 (Pa.Super. 2022). Rather, here, in both its response to Appellant’s pre-
trial suppression motion, as well as during the suppression hearing, the
Commonwealth specifically argued Appellant did not have an expectation of
privacy in the Victim’s home on Tully Lane. See Commonwealth Response,
filed 1/14/21, at 8-9; N.T., 1/25/21, suppression hearing, at 7.
Appellant next suggests the Commonwealth did not present any
evidence demonstrating he lacked an expectation of privacy in the home on
Tully Lane, and thus, the burden never shifted to Appellant to persuade the
suppression court he had a reasonable expectation of privacy in the searched
premises.
In rejecting Appellant’s claim, the suppression court indicated the
following:
- 21 -
J-S24032-23
[Appellant] argues that the Commonwealth has failed to
fulfill its burden of production in demonstrating that he lacked an
expectation of privacy in the [premises searched on Tully Lane].
[Appellant] notes that the Commonwealth failed to present any
further testimony or evidence, other than that which was
presented at the preliminary hearing,[8] in support of its
burden....[Appellant] concludes that his failure to establish a
reasonable expectation of privacy is inconsequential because the
Commonwealth was unsuccessful in its initial burden of
production. We disagree.
When [Appellant] was stopped in a stolen vehicle with bank
cards and an envelope displaying the Victim’s name, C.I. Sweitzer
researched the Victim’s name and found that he lived at the
Property [on Tully Lane]. After a first unsuccessful attempt to
contact the Victim, C.I. Sweitzer returned the next day and, after
the arrival of local law enforcement, entered the Property in order
to perform a welfare check on the Victim. [Appellant] was not
present at the Property when law enforcement entered the
premises. Once inside, C.I. Sweitzer [noticed] the Property [was]
disheveled and appeared as if he had been ransacked. Likewise,
law enforcement observed that a blue Tesla was still parked in the
____________________________________________
8 To the extent Appellant contends the Commonwealth was not permitted to
introduce the notes of testimony from the preliminary hearing in establishing
that Appellant lacked a privacy interest in the Victim’s home, we note
Appellant has waived this claim. During the suppression hearing, the following
relevant exchange occurred:
[ADA]: Your Honor, as a preliminary matter, I have marked the
transcript from the Preliminary Hearing as Commonwealth’s
Exhibit number 1, and I would move for its admission.
THE COURT: [Defense Counsel,] do you have a position with
regard to that exhibit?
[DEFENSE COUNSEL]: No objection, Your Honor.
THE COURT: [Defense Counsel,] is that the same document that
is attached to your motion?
[DEFENSE COUNSEL]: It is, Your Honor.
THE COURT: All right. Commonwealth’s [Exhibit] 1 is admitted.
N.T., 1/25/21, suppression hearing, at 4-5 (bold added). Based on this
exchange, Appellant has waived the issue of whether the preliminary hearing
transcript was properly admitted during the suppression hearing for purposes
of establishing Appellant lacked a legitimate expectation of privacy in the
Victim’s home. See Pa.R.A.P. 302(a).
- 22 -
J-S24032-23
garage of the Property….After contacting relatives of the Victim,
who could provide no further information on the Victim’s
whereabouts, and based on his observation of suspected
marijuana [in the Property], C.I. Sweitzer applied for a search
warrant that was thereafter approved.
Jeffery Neubauer testified that he and his girlfriend returned
[a] lost dog to the Property [at or around the time of the Victim’s
death, and Appellant] answered the door and took the dog. When
asked by Mr. Neubauer’s girlfriend if he was “Dennis,” [Appellant]
replied that he was.
During a post-arrest interview with Detective Martinez,
[when Appellant was shown a photograph of the Property,]
[Appellant] initially responded that he did not recognize the
Property, but [he] eventually relented, admitting that he had been
to the Property, but stating that he was there for a yard sale
because he conducts a business where he buys and resells guns,
coins, and other odds and ends. [Appellant] claimed to
investigators that he was granted access to the Property by an
unidentified black male going by “Bu,” who then sold [Appellant]
the items later found in the stolen vehicle.
Based on the evidence and testimony provided at the
preliminary hearing [and] the pre-trial suppression hearing[,] [the
court] finds that the Commonwealth did fulfill its burden. C.I.
Sweitzer’s research indicated that the Victim resided at the
Property. There was no evidence that [Appellant] leased or that
he was licensed to occupy any portion of the Property. [Appellant]
was not found in possession of a key to the Property. When asked
about the Property, [Appellant] initially denied recognition and
then only admitted that he had been to the Property [looking for
a yard sale] to conduct limited business in purchasing items for
resale. While one may [view] [Appellant’s] actions and behavior
when Mr. Neubauer and his girlfriend returned the lost dog to the
Property as suggestive of some ability to exclude [others] from
the premises, his affirmative answer to whether he was the Victim
is a clear manifestation that any such ability was solely premised
on a falsehood. Finally, Detective Martinez testified that
[Appellant] had left a duffle bag with some shoes and a hat at the
Property, but this could hardly be construed as [Appellant] storing
clothing or other possession at the Property, but mere incidental
of the crime alleged.
The expectation of privacy must be more than simply
subjective but must be reasonable and legitimate. As the [United
- 23 -
J-S24032-23
States Supreme Court] noted in Rakas v. Illinois, 439 U.S. 128,
99 S.Ct. 421 (1978), “[a] burglar plying his trade in a summer
cabin during the off season may have a thoroughly justified
subjective expectation of privacy, but it is not one which the law
recognizes as ‘legitimate.’” Rakas, 439 U.S. at 143 n.12, 99 S.Ct.
at 430 n.12. The resolution of this issue depends upon the totality
of the circumstances and ultimately rests upon a balancing of the
societal interests involved.
Having found that the Commonwealth sufficiently satisfied
its burden, we now must assess whether [Appellant] has
presented any evidence to rebut the lack of an expectation of
privacy in the Property. As noted, [Appellant] relies [primarily]
on an argument that the Commonwealth failed its burden and
acknowledges that he has provided nothing to support his own
expectation of privacy in the Property. [Appellant] states…that
his “motion must be granted, regardless of whether he could
ultimately establish a reasonable expectation of privacy.”
[Appellant’s Suppression] Memo at 9. [The trial court] finds this
to be unconvincing.
Based upon the totality of the circumstances and balancing,
as [the trial court] must, the societal interests involved, the [trial]
court finds no evidence to demonstrate [Appellant’s] reasonable
expectation of privacy in the Property.
Suppression Court Opinion, filed 3/29/21, at 13-15 (footnote added) (some
quotation marks and quotations omitted).
We conclude the suppression court’s factual findings are supported by
the record, and we find no error in its legal analysis. Yandamuri, supra.
The suppression court properly found the Commonwealth produced evidence
demonstrating that Appellant lacked a privacy interest in the Victim’s Tully
Lane home, and Appellant did not rebut this evidence. For example, the
Commonwealth produced evidence the Victim resided in the Tully Lane home,
and Appellant had no “significant and current interest” in the home. Govens,
632 A.2d at 1319. As the suppression court determined, Appellant’s
- 24 -
J-S24032-23
connection to the home was in furtherance of committing the crimes at issue,
including the burglary and first-degree killing of the Victim. Certainly, any
privacy interest Appellant subjectively demonstrated in the Tully Lane home
for the purposes of burglarizing the home and killing the homeowner is not an
“expectation…that society is prepared to recognize as reasonable.” Viall, 890
A.2d at 422. Accordingly, we find the suppression court properly denied
Appellant’s suppression motion on the basis he did not possess a reasonable
expectation of privacy in the searched premises.9
For all of the foregoing reasons, we affirm Appellant’s judgment of
sentence. We direct the parties to attach the trial court’s February 27, 2023,
opinion in the event of further proceedings in this matter.
Affirmed.
____________________________________________
9 Appellant also contends the warrantless search of the Victim’s home was
unconstitutional, and all evidence flowing therefrom is “fruit of the poisonous
tree,” including evidence later seized upon execution of a search warrant.
However, we decline to review these issues. See Enimpah, supra, 106 A.3d
at 701-02 (indicating if the evidence of the Commonwealth, the party with the
burden of production, shows the defendant lacked a privacy interest, the
Commonwealth need prove no more).
- 25 -
J-S24032-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/31/2023
- 26 -
Circulated 07/18/2023 11:21 AM
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA IN THE COURT OF COMMON
PLEAS OF BERKS
BERMS COUNTY
: PENNSYLVANIA
PENNSYLVANIA
V. CRIMINAL DIVISION
NO. CP-06-CR-0002261-2020
RAPHAEL PEREZ-RODRIGUEZ, : M. THERESA JOHNSON,
Appellant.
Appellant. :; PRESIDENT JUDGE
1925(a) OPINION
1925() OPINION February 27, 2023
Appellant's Statement of Errors Complained of on Appeal. For the
Before the court are Appellant's
that
reasons set forth herein, we find that all alleged errors lack
lack merit.
merit
BACKGROUND AND PROCEDURAL HISTORY
FACTUAL BACKGROUND
Raphael Perez-Rodriguez
Raphael Perez-Rodriguez ("Appellant")
(Appellant") was charged with Murder of the First Degree',
Degree,
Degree'-,Murder of the Third Degree',
Murder of the Second Degree', Degree 3,Burglary',
Burglary4,Robbery',
Robbery 5,Aggravated
Assault
Assault,6,two counts of Receiving Property,
Receiving Stolen Property, two counts of Firearms Not to be
be Carried
Without aaLicense,
License s,Altered, Forged or Counterfeit Documents and Plates,
Plates", Abuse of Corpse",
Corpse °,
Possession_ of aa Controlled
Possession_of Controlled_ Substance!',
Substance ) , and
and aa summary charge of Drivers Required to
1 to be
Licensed'
Licensed!-.The charges
charges stemmed from an initial traffic
traffic .stop
stop of Appellant, which then led to an
investigation of the )murder
investigation murder of Dennis Fink ("the
("the Victim") and the burglary of the Victim's
residence.
Appellant, through
Appellant, through Adam Bompadre,
Bompadre, Esq.
Esq. ("Defense
("Defense Counsel"), filed an omnibus pretrial
seeking dismissal of the criminal information and suppression of evidence. A
motion seeking A hearing on
January 25,
the motion was held on January 25, 2021, and on March 29, 2021, this court denied the motion.
18 Pa.C.S.A. §$ 2502(a)
1 18PCS.A, 2502()
'18PAC.SA.
18 Pa:C.S.A. $§ 2502(6)
2502(b)
3 18 Pa.C.S.A. §
'18Pa.C.SA. 2502(c).
$ 2502(¢)
18 Pa.C.S.A. §$ 3502(a)(1Xi)
'1$Pa.C.S.A.
4 3502(a)(1)(i)
5 18 Pa.C.S.A. §
+18Pa.C.SA. 37o1(a)(1)(i)
8 3701(a)610)0)
18 Pa.C.S.A. §$ 2702(3X1
6 18Pa.C.S.A. 2702(a)(1)
7 18 Pa.C.S.A. $3925(a)
718Pa.C.SA. §39 2 5(a) Vad'AO SY:FF9
8 18 Pa.C.S.A. §
'1PAC.SA. 6106(a)(1)
$ 6106(a(1)
9 75 Pa.C.S.A. §
'75PA.C.SA. 7122(1)
$ 7122(1
10 18 PA.CS.A.
818 Pa.C.S.A. $ § 5510
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11 35 P.S. $
"35PR.S. § 780-1136a)016)
780-113(a)(16)
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75 Pa.C.S.A.
Pa.C.SA. sec 15o1(a)
1501(a) $10OD JOE5ID
SIIJUC"
I
Prior to trial, the Commonwealth moved to withdraw the counts of Altered, Forged or
Counterfeit Documents and Plates, Abuse of Corpse, Possession of aaControlled Substance, and
Drivers Required to be Licensed. The court granted the dismissal.
The matter proceeded to trial on April 18, 2022. The Commonwealth first called the
Victim's son, Michael Fink, who testified that his father was aatwenty-year veteran of the United
States Air Force who lived at 88Tully Lane, in Reading, Berks County, Pennsylvania. Notes of
Testimony o£ April
Testimony of April 18-20, 2022, Trial Trial
"Trial NT."
N.T." at 105-06. Mr. Fink further noted that his
father owned aablack Porneranian
Pomeranian dog named
named "Sophie" and that he drove aaTesla Model SSelectric
N.T. at 106-07. Mr. Fink also identified various exhibits, including an Air Force
vehicle. Trial N.T,
Academy graduation
Academy graduation ring,
ring, aahigh
high school graduation ring, aawedding band, and aaturquoise belt, as
well as insurance documentation for the rings. Id. at 109-10.
Mr. Fink continued that the Victim was active on social media, especially as to the subjects
of nutrition and health, including Id. at
including on Facebook. Id, at 111-12. Mr. Fink then identified aapost that
the Victim made on July 16, 2020, at 8:37 a.m. Id. at 112.
Eric Koller, an eight-year veteran of the Reading
The Commonwealth next called Officer Erie
Police Department,
Department, who testified that on July 16, 2020, at approximately 7:40 p.m., he was on duty
. - -
in aamarked patrol
patrol vehicle when he observed a
ablack Honda CR-V with what
what. appeared to be an
altered Minnesota license plate.
altered plate. Id. at 118. Officer Koller then initiated aatraffic stop on the Honda
after running
running the registration and learning that it was reported stolen out of New Jersey. Id. at 118-
later identified as Appellant, exited the vehicle, Officer
19. After the driver of the Honda CR-V, later
Koller
Koller ordered him to the ground and waited for backup to arrive. Id. at 119. Officer Koller reached
reached
inside the Honda to turn
tuns off the stereo system, which was playing very loud music and when he
did so, he observed aasmall, blue Ziploc bag in awhite powdery
in the driver's side door containing a
substance and two knives located between the seat and the door]jamb.
doorjamb. Id. at 120.
The officers on scene proceeded to search the Honda. Id.
proceeded to Id. Under the driver's seat, they
found two loaded handguns
handguns---
- aa9mm and aa .38 12.1. in
.38 revolver. Id. at 121. In the cargo area of the Honda,
officers found aaRemington model 742 30-06
30-06 rifle, aaWinchester 1400 semiautomatic shotgun, aa
crossbow, asword, CO2 cartridges in an envelope with the Victim's name on the label, and various
crossbow,a
debit and credit cards in the Victim's name. Id. at 122-23. Appellant was taken into custody and
the Honda was towed to the Department's sally port. Id. at 121-23.
22
Criminal Investigator Eric Sweitzer
Investigator Erie Sweitzer ("C.I.
(C.I. Sweitzer") of the Reading Police Department
next testified that
next testified that on July
July 16, 2020, Offic
16, 2020, Officer
er Koller
Koller informed him
him tthat during aatraffic stop,
hat during stop, several
C.I. Sweitzer performed some
items with the Victim's name had been located. Id. at 129-30. C.I
research
research and found
found an individual by
by the name of Dennis Fink who lived just outside the City of
Reading, in
Reading, in Bern Township. Id. at
Ber Township. at 130. CI.
C.T. Sweitzer and
and another criminal investigator, David
Lehman, then traveled to tthe
Lehman, he Victim's residence, at 88Tully Lane, Reading, Pennsylvania
Pennsylvania ("the
("the
Residence") in an attempt to make contact. Id.
Id, at 130-31.
As
As the investigators
investigators pulled
pulled into the driveway of the Residence, C.I. Sweitzer noticed that
the recycling
recycling can was located at the end of the
the driveway and that the exterior lights of the Residence
were Id. at 132. Upon
were on. Id. Upon arriving
arriving at
at the Residence, CI.
C.I. Sweitzer rang the doorbell and
and knocked
on the front door several times with no response. Id. 131. After several minutes with no
Id, at 13.
response, CI.
response, C.I. Sweitzer left his business -card in the door in the hopes that someone would contact
him. Id. at 132.
day, after receiving no contact from anyone regarding the Residence, C.I
The next day, C.I.
Sweitzer returned
retumed to the Residence, with Criminal Investigator Errington and found that his
business
business card was still stuck in the door, the recycling can was still at the edge of the driveway,
the same
the same exterior lights
lights were on,
on, and aapackage
package had been delivered. Id. at 133. C.I. Sweitzer also
garage door was slightly ajar, and he could see that there was aavehicle inside
observed that the garage
garage. Id.
the garage. Id. at 133. C.I. Sweitzer knocked on the front door several times, with no response,
133, CL
and then moved to the rear of the Residence and knocked on the rear doors, but no one answered.
134. CL.
Id. at 134. C.I. Sweitzer then began checking the
the doors and windows and found an unlocked door
through aascreened-in porch
through porch but did not proceed
proceed into the house. Id. at 135.
13 5. Instead, C.I. Sweitzer
contacted the
contacted the Bera
Bern Township
Township Police
Police Department
Department ("Bern P.D."), in
(Ber P.D."), in whose
whose jurisdiction
jurisdiction the
the
Residence was located. Id. at 135.
Once aapatrolman
Once patrolman from
from the Bern P.D. arrived, C.I. Sweitzer, along with the patrolman and
C.I. Errington,
C.I. Errington, proceeded
proceeded to open the door
to open door slightly and announced their presence. Id,
Id. at 1353)6.
135-36.
Hearing response, C.I.
Hearing no response, C.I. Sweitzer entered the Residence through the kitchen and observed aasmall
black dog
black dog in
in aacage
cage with aabowl of water and acting
acting alert and normal. C.I. Sweitzer
normal. Id. at 136. CI.
described the Residence as being
described being unkept,
unkept, with mess and clutter,
clutter, but also noted that items looked
out of place.
place. Id. C.I. Sweitzer noted that several cabinet doors in the kitchen were left open, and
33
lights were on in the closets throughout the Residence, and it appeared as if both
that the lights both the
had been gone
cabinets and the closets had gone tthrough removed. Id. at 136-37. The investigators
hrough and items removed.
moved into the garage and observed that the lights were on and aablue Tesla was parked in the
garage. Id. at
garage. at 137. CL.
C.I. Sweitzer testified that he decided to leave and try to
to locate a
a family member
of the Victim,
of Victim, but as he was leaving
leaving the Residence, he noticed aaduffle bag with aaflat brim
brim hat that
had aamarijuana
marijuana leave embroidered on the hat. Id. at 137, 144. CI.
C.I. Sweitzer said that
that the hat
caught his
caught his eye
eye because
because it did not fit
fit in with the d~cor
decor of the Residence and was not something he be
would anticipate the Victim having
would anticipate having in his
his possession.
possession. Id. Apart
Apart from the hat,
hat, CI.
C.I. Sweitzer
Sweitzer could
glass jars containing suspected marijuana. Id. at 18
also see glass 138.
C.I. Sweitzer then made attempts
CL attempts to contact family members of the Victim. Id. However,
none of the family
family members he contacted had any information on the Victim's whereabouts. Id.
C.I. Sweitzer asked that a
a further search of the Honda
Honda be
be performed and began preparing aasearch
began preparing
warrant for the duffle bag at the Residence. Id.
C.I. Sweitzer
CI Sweitzer returned later that evening with personnel from the Berks County District
Attorney's Office,
Attorney's Office, and before
before entering the Residence, he could detect the smell of decomposition
emanating from
emanating from. the wooded area behind the Residence. Id. at 139. Sergeant Schade, who
who had
accompanied C.I. Sweitzer, then
accompanied then located the Victim's
Victim's decomposing body Id.
Julie Patton next testified that in the summer of 2020, she was living with her partner, Mike
Gamber, at
Gamber, at 4
4Allison Road in Reading, Pennsylvania,
Pennsylvania, which is to Tully Lane, and that
is located next to
she knew the Victim from the neighborhood.
neighborhood. Id. at 147-48. Ms. Patton also knew that the Victim
had aasmall, black Schipperke dog.
dog. Id. at 148-49.
On the moraing
On morning of
o£ July
July 16, 2020, Ms. Patton noticed the Victim's dog running loose in the
16, 2020,Ms.
neighborhood and decided to return the dog with Mr. Gamber. Id. at 149. Arriving at the Residence
neighborhood
at approximately 9:30
at approximately 9:30 a.m., Ms.
Ms. Patton observed that the screens were open and so she began to
to
yell
yell the
the Victim's
Victim's name through
through the open
open windows. Id.
Id. at
at 149-50.
149-50. Ms. Patton rang the doorbell and
knocked on
knocked on the door, but
the door, response, and she assumed that the
but there was no response, the Victim was out looking
for the dog. Id.
the dog. Id, at 150. Ms. Patton farther
further noticed aadark SUV,
SW, that she did not recognize, parked
in the driveway
in driveway of the Residence. Id. With no answer, Ms. Patton then took
took the dog to her sister,
Marilyn
Marilyn James' house with instructions to
to see if the Victim was.home
was home later. Id. at 150-51. Ms.
44
the
Patton noted that she did not notice any yard sales occurring on the morning of July 16, 2020, and
did not see any items on the lawn of the Residence. Id. at 151
151.
Marilyn James, Ms.
Marilya James, Ms. Patton's sister and neighbor, knew the Victim from
from the neighborhood
and knew that he had aasmall, black Schipperke
Schipperke dog. Id. at 153. On July 16, 2020, while at sa
friend's house,
house, Ms. James heard from Ms. Patton regarding finding the Victim's dog and her
unsuccessful efforts to contact the Victim. Id. at 154. On her way home at
at approximately 10:00
10:90
a.m., Ms.
a.m., Ms. ,Tames stopped at the Residence to check on the Victim, but when she knocked on the
James stopped
door, an individual --— aaHispanic male with dark brown hair
door, hair - that was not the Victim answered the
door. Id. at 154-55. Ms. James described the individual as wearing aat-shirt, aamask, shorts, and
either barefooted or wearing
wearing flip
flip flops.
flops. Id. at 156. Ms. James further noted that she knew the
been aafoster parent
Victim had been teenagers, so she did not think that the individual was
parent to several teenagers,
supposed to be at the Residence. Id. She noticed that aadark SUV was parked on the side of
not supposed
the Residence. Id. at 155.
Ms. James asked the individual if the Victim's dog was missing, and the individual
answered in the affirmative.
affinnative. Id. Ms. James then retrieved the dog from her home and returned to
the Residence with the dog,
dog, and the individual took the dog from her. Id. She noted that the
eeined "`a
dog"seemed
exchange when she returned the dog "a little bit weird,"
weird," as the individual
individual only opened the
door about forty-five return of the dog. Id. at
forty-five degrees and did not seem excited or relieved at the return
157.
157. Ms. James likewise confirmed that she did not see any items on the lawn of the Residence
Resdi ence or
any yard
that any yard sales were occurring in the neighborhood. Id.
Id.
Jeffrey Neubauer testified that in July of2020,
Jeffrey of 2020, he lived with his partner, Chery!
Cheryl Takach, at
1703 Road, in Bern Township,
1703 Golf Road, Township, which is about aablock and aahalf from the
the Residence. Id.
Id. at
159-60. On the morning
159-60. morning of July
July 16,
16, 2020,
2020, Mr. Neubauer was painting
painting his front porch
porch when two
young girls approached
young girls approached him with aasmall,
small, dark-colored dog and asked if it was his dog. Id.
Id, at 160.
Mr.
Mr. Neubauer did not recognize
recognize the dog but took the dog inside and began to figure out the owner
dog based on information from the dog's
of the dog dog's collar. Id.
Id, at 160-61.
160-61. He
He was able to find out that
dog's owner lived at the Residence, and so he took
the dog's took the dog to
to the Residence. Id.
As
As Mr. Neubauer and Ms. approached the
Ms. Takach approached the Residence, Mr. Neubauer
Neubauer described the
the
grass as overgrown
grass overgrown with weeds and aaflower bed that looked unkempt. Id, at 161-62. When they
approached and knocked on the door, an individual who Mr. Neubauer described as being aatall,
approached
55
Hispanic man wearing
Hispanic wearing beige/white
beige/white cargo
cargo shorts, aatank top,
top, no shoes, and aaball cap, answered the
door. Id.
door. at 162.
Id. at 162. Mr. Neubauer
Neubauer further
further noted
noted that
that the
the individual's
individual's feet
feet appeared to
to be
be dirty
dirty and that
the individual's undergarments
undergarments were exposed,
exposed, and he could see that the brand of his underwear
Tommy Hilfiger.
was Tommy Hilfiger. Id. at 162-63. When the door opened, Mr. Neubauer
Neubauer noticed soine items on
noticed some
the floor
the floor including
including aabow
bow and
and arrow
arrow and
and aacan
can of
of Mr.
Mr. Bubbles
Bubbles bathroom
bathroom spray
spray cleaner.
cleaner. Id. at
at 164.
164.
Ms. Takach asked the
the individual dog was his and the individual
individual if the dog individual answered in the
the
affirmative. Id. at
affirmative. at 163.
163. Ms.
Ms. Takach
Takach then
then asked the
the individual if he
individual if he was Dennis and
was Dennis and he stated that
he stated that
he was. Id.
Id, at 163. Mr. Neubauer stated that he found the exchange odd as the individual did not
grateful to have
seem grateful have the dog returned
the dog retumed or even aware that the Id. at 164. The
the dog was missing. Id,
next day,
next day, in speaking with
in speaking with investigators,
investigators, Mr.
Mr. Neubauer
Neubauer was
was presented
presented with
with aaphoto array lineup
photo array lineup
and indicated on aaphotograph
photograph of Appellant.
Appellant. Id. at 165; Comm.'s Ex. IH.
11.
Timothy Koch testified that in the summer of 2020, he lived at 7
Timothy 7 Allison Road in Bern
Ber
Township, which
Township, which was
was next door to
next door to the Residence,
Residence, and
and that he knew
that he the Victim,
knew the Victim, but not that well.
but not well.
Id. at 170-71.
170.71. Mr. Koch was not aware that the Victim owned aadog but noticed
noticed, aasmall black
animal in his back yard
yard on the evening
evening of July
July 16, 2020.Id.
Id. at 171. The next morning, Mr. Koch
Koch
saw the same
saw same dog
dog loose in the neighborhood
loose in neighborhood and
and nearly
nearly ran the dog over
the dog over with
with his
his car. Id.
Id.
early evening
In the early evening of July
July 16,
16, 2020,
2020, Mr. Koch observed someone walking around the
garage of the Residence that he did not recognize. Id. at 172. Mr. Koch described the individual
garage
as aamale wearing aalight
male wearing light blue shirt. Id.
Id. Mr. Koch
Koch further stated that
that he did not
not see any items
strewn on the lawn as if aayard
yard sale were occurring on that day. Id. at 173.
Commonwealth next
The Commonwealth next called
called Officer
Officer Katelyn
Katelyn Super
Super ("Officer Super"), a
(OfSeer Super"), athree-year
three-year
veteran
veteran of the Reading Police Department,
the Reading Department, who testified that on July 16, 2020, at approximately
testified that
p.m., she was on duty
7:40 p.m., duty when
when she responded
responded to aatraffic stop
stop on aapossible stolen vehicle. Id. at
at
175-76.
175-76. When she
When she arrived
arrived on
on scene,
scene, Officer
Officer Super
Super observed
observed aablack
black Honda
Honda CR-V
CR-V with
with aa
Minnesota license
Minnesota license plate
plate that
that had
had aanumber
number that had
had been Id. at
been altered. Id, at 176.
176. Officer
Officer Super
Super was
was
tasked with
tasked photographing the
with photographing the Honda
Honda while she and
while she and Officer
Officer Koller
Koller began to search the
began to the vehicle.
vehicle. Id.
at 177.
at 177. The Commonwealth
The Commonwealth introduced
introduced photographs taken during
photographs taken during the
the search
search into evidence
into evidence
depicting items
depicting items found, including
including aabaggie
baggie containing
containing suspected narcotics,
narcotics, aaknife, aacell phone, aa
loaded Heckler
loaded and Koch
Heckler and 9mm handgun,
Koch 9mm handgun, aaloaded
loaded ..38
38 Special
Special revolver,
revolver, aabusiness
business card
card with
with the
the
Remington rifle, aaWinchester shotgun, aabox containing empty casings and
Victim's name on it, aaRemington
66
shotgun rounds,
shotgun rounds, aabag containing
containing various boxes of ammunition, aabow and arrow, and aabusiness
card from aaT-Mobile
card T-Mobile store in
in Paterson,
Paterson, New Jersey,
Jersey. Id. at
at 182.85.
182-85. The evidence
evidence was
was left
left in the
the
Honda and the vehicle
vehicle was then towed to the sally
sally port at
at City Hall with
with an officer escort to ensure
Id. at 185.
chain of custody. Id,
Ryan Solecki ("Officer
Officer Ryan Solecki"), a
("Officer Solecki"), a five-year
five-year veteran of the Reading Police
Department testified that July
Department July 16, 2020, at approximately 8.00
8:00 p.m., he was on duty when he was
dispatched to aatraffic stop
dispatched stop in progress.
progress. Id. at I88-89,
188-89. Arriving
Arriving on scene, Officer Solecki observed
aaHonda
Honda CR-V
CR-V that
that was
was being searched by
by officers
officers on
on scene,
scene, and
and he saw that
that the
the driver
driver had
had been
sitting on the sidewalk. Id. Officer Solecki described the inside of the vehicle
removed and was sitting
appearing as
appearing as if someone had
if someone had been living in
been living in the vehicle, with
the vehicle, with aalot
tot of
of objects,
objects, and
and he
he specifically
specifically
bags.. Id. at 189. After the search had been completed, Officer
remembered two Army green duffel bags.
Solecki was tasked
Solecki tasked with
with watching
watching the Honda
Honda as the towing company
the towing company hitched
hitched the
the vehicle
vehicle and then
then
following as the vehicle was
following was transported back sally port at City Hall, and
back to the sally and then secured in the
garage. Id. at
garage. at 189-90.
189-90.
Criminal, Investigator
Criminal Investigator Steve
Steve Valdez
Valdez ("C.I.
("C.I Valdez"), eight-year veteran
Valdez"), an eight-year of the
veteran of Reading
the Reading
Police Department,
Police testified that
Department, testified that on
on July
July 17,
17, 2020,
2020, he
he was
was contacted
contacted by C.T. Sweitzer
by C.I. Sweitzer to
to assist
assist in
in
investigation, and
an investigation, and to accompany
accompany Officer James Yeasted in the search of aablack
black Honda
Honda CR-V
in the
the garage
garage at
at City
City Hall.
Hal. Id. at 191-92.
Id. at 191-92. During
During this search, C.I. Valdez
Valdez found several knives,
found several knives, aa
machete,
machete, and several financial cards with the Victim's
Victim's name on them. Id. at 194-95.
194-95,
The Commonwealth next called Dr. Neil Hoffman, M.D.
M.D. ("Dr.
("Dr. Hoffman"), who was
qualified as an expert
qualified expert in the field of forensic pathology.
pathology. Id. at 211-16. Dr. Hoffman performed an
autopsy on the Victim on July 19,2020,
autopsy 19, 2020,- and produced aareport of the autopsy, which was submitted
Id., at 216-17; Comm.'s Ex. 116. Dr. Hoffman's autopsy report indicated that the
into evidence. Id.
Victim's death
Victim's death was caused by
was caused by exsanguination,
exsanguination, or
or bleeding outside of
bleeding outside of the
the body, internal
body, and internal
bleeding due to
bleeding due multiple stab wounds,
to multiple wounds, with contributory factors of
with contributory of cardiomyopathy
cardiornyopathy and
and osteopenia.
osteopenia.
Id. at 218-19.
Id. at 218-19. Dr.
Dr. Hoffman
Hoffman explained
explained that
that cardiomyopathy
cardiomyopathy is aadisease
disease with
with multiple in
multiple causes, in
which "the
which heart muscle
"the heart ceases to
muscle ceases to function
function normally and its
normally and its contraction
contraction are
are not
not as
as efficient."
efficient." Id. at
at
219. Dr. Hoffman further noted that aacontributory
contributory cause meant that the condition "didn't
the condition didn't really
start the cascade of causation in this case,
in this case, but probably means that [the
but probably [the Victim] was less able to
defend himself from the person
person who was wielding
wielding the knife or wielding the weapon," and that the
77
Victim "was less able to withstand the effects of the of those injuries that were inflicted by the
weapon." Id. Likewise, Dr. Hoffman described osteopenis
weapon." osteopenia as aacondition in which
which "the
"the bones have
protein, and where they become more easily fractured." Id. at 220. Dr.
less calcium and less protein,
Hoffman continued that the injuries
injuries he observed included stab wounds that penetrated into bone,
which then tore into the pleural cavity on the right side of the Victim's chest. Id. This
pleural cavity This "allowed
bleeding into the inside of the chest[,] which would [sic]
bleeding [sic] made it
it more immediately effective or to
disable and kill the man." Id.
Dr. Hoffman then explained
explained that generally,
generally, he will list the injuries to aavictim in order of
severity. Id.
severity. injury was aaright
I. The first injury right to left stab wound to the Victim's chest in the area above
the collar
the collar bone right side with "a
bone on the right "awound path
path that went into the
the base
base of the
the neck and then
then
behind the collar bone and sternum," and into the topmost area of the chest. Id. at 221. This jab
sliced one of the
sliced largest arteries supplying
the largest supplying blood to
to both and brain and
both the neck and and caused aacomplex
complex:
fracture to
to the collarbone and right
right first
first nib.
rib. Id. The injury would also
also result in blood from the cut
artery to
artery cavity. Id. The next wound to the Victim was aastab wound to the left front
to fill the chest cavity.
side of the
the neck
neck that punctured the Victim's
that punctured Victim's larynx and would
would have
have impeded his
his ability to
to breathe.
Id. right. Id. at 223. The third
Id, at 222-23. This wound was oriented left to right. third wound was aaslice to
the
the Victim's cheek that "perforated the very
that "perforated very thin bone of the
the maxilla."
maxilla." Id.
Id, at 224.
224. The wound was
was
deep and oriented left to right. Id.
deep
The fourth stab
stab wound was to the back of the left side of the chest and was transversely
oriented, meaning
oriented, meaning that it "went slightly
it "went slightly from left to right but upward
upward as well." Id. at 224-25. This
wound
wound fractured the Victim's tenth rib. Id. at 225. The fifth wound to the Victim was to
to the area
below
below the left collarbone. Id. at 225-26. The stab "proceeded approximately three inches down
the left side of the
the chest," and into the musculature of the chest. Id. at 226. The Victim's sixth
wound was aastab wound to the lower chest area that moves from front to back. Id. The stab sliced
between
between the sixth and seventh rib and into the pleura that lines the chest cavity but did not go into
the lung.
lung. Id. Dr. Hoffman clarified that the direction of the different wounds --— that there are
multiple angles
multiple angles and positions
positions -— is indicative of one or both bodies being in motion at the time of
infliction. Id.
ld.
explained that the injuries he observed would have resulted in both external
Dr. Hoffman explained
bleeding. Id,
and internal bleeding. Id, at 226-27. Dr. Hoffman
Hoffman also noted that there
there was blunt impact observed
8
resulting in
resulting in aafracture to the left
left forearm,
forearm, which is most commonly caused by aaperson trying to
break their
break their fall to the ground. Id. at
to the at 227.
227. Dr. Hoffman also noted
Hoffman also noted that there were
that there were abrasions
abrasions to
to the
the
hands and
hands and to the knees of the Victim. Id.
M. at 227-28. While he could not determine conclusively
which abrasions to
which to the Victim's hands may have
hands may Hoffinan stated
have been caused postmortem, Dr. Hoffman stated.that
that.
the
the knee abrasions occurred before death and were consistent with the Victim moving his legs
across aarough
across rough surface
surface as
as aaresult of either
result of either falling or being
falling or being pushed or by
pushed or having someone
by having someone on
on top
top of
of
him. Id,
him. Id. at
at 228-29. Dr. Hoffman also found abrasions on the Victim's chest that were consistent
with falling
falling or being pushed and were large areas of irregularities that would result from bushes
bushes,,
branches, or rocks. Id.
branches, or Icy. at
at 229.
229. Dr. Hoffman continued that
Hoffman continued that the
the abrasions
abrasions suggest
suggest that the
the Victim
Victim
had both
had both fallen and then was moving across aarough
was moving rough surface. Id. at 230. The Victim also had
evidence of bruising chest .and
bruising of the chest and fracturing
fracturing of ribs that "were caused by heavyweight or an
impact being
impact being placed
placed on the front of the chest or with aaheavyweight or impact
impact on the back of the
being supported by the ground." Id,
chest with the chest being Id. at 231.
Finally, Dr. Hoffman.
Finally, Hoffman described that the Victim's body
body was
was in aa state of moderate
decomposition and that there was extensive maggot
decomposition activity in many of the wounds. Id. at 231-32.
maggot activity
Based on the maggot
Based on activity, and other information
maggot activity, regarding body and scene conditions, Dr.
information regarding
Hoffinan opined that the Victim's
Hoffman opined death occurred approximately
Victim's death approximately 30
30 to
to 48
48 hours prior
prior to the
to the
discovery of the body.
discovery body. Id. at 233. Dr.
Dr. Hoffman postulated, based in part on information provided
postulated, base
by law
by law enforcement,
enforcement, that the time of death of the Victim was between 845
8:45 a.m. and 12:00 p.m. on
12.00p.m.
July 16,2020.Id.
July 16, 2020. Id. Moreover,
Moreover, toxicology indicated "negative for various drugs or substances
toxicology results indicated
of abuse." Icl.
Id. at 234.
Dr. Hoffman
Dr. Hoffinan acknowledged
acknowledged on cross-examination that he was
was not provided any of the
knives
knives from
from the Victim's' home to compare
compare against
against the stab wounds. Id. at 245. However, Dr.
Hoffman concluded that the stab wounds were caused by
Hoffman by "a
"a sharp-edged instrument like aaknife.
It had
It had aablade length on the order of three inches.
blade length inches, The blade width was approximately one half
Id. at 246.
inches long." Id,
Sarah Kase,
Sarah Kase, aaserologist
serologist with
with the Bethlehem
Bethlehem Crime
Crime Lab of
of the Pennsylvania State
the Pennsylvania State Police,
Police,
next testified that
next testified that she "analyze[s]
"analyze[s] items of evidence
items of evidence in serology for
in serology for the presence of
the presence of body fluids;
fluids;
mainly bloods,
mainly semen, saliva,
bloods, semen, saliva, feces, and urine," and that she "prepare[s] probative samples for
99
DNA and have those sent to the DNA lab. Id. at 248. She also noted that she will examine hairs
to determine whether they are animal or human. Id.
Ms. Kase then testified to the report that she authored regarding various items of evidence
that were collected and sent to her for testing and analysis. Id. at 249-50; Comm.'s Ex. 119. Ms.
Kase first concluded that aaswab from
from the basement sliding glass door of the Residence and aadried
sample from
blood sample from. the Victim were not processed for serology and were repackaged solely for
DNA
DNA testing. at 253.
testing. Id. at 253. Ms. Kase next concluded that chemical testing
testing indicated the presence of
blood on the Victim's left-hand fingernail. Id. at 254. On the Victim's
Victim's right-hand fingernail
sample, there was insufficient quantity
sample, quantity of the sample to conduct testing as to the identification of
blood,
blood, but debris. Id. at 257-58.
but Ms. Kase did identify insect-like debris.
Ms. Kase concluded that a
a black and orange face mask found at the Residence was tested
and confirmed the presence
presence of saliva on the mask. Id. at 258. Ms. Kase testified that there was an
insufficient quantity
insufficient quantity of
of aasample
sample on
on aapair
pair of
of blue and black
blue and black gloves
gloves to
to conduct confirmatory
confirmatory testing
testing
for blood and the sample was
was packaged 25.9. There were blood stains identified
packaged for return. Id. at 259.
on the heel and bottom left side and shoelaces of aaleft foot Adidas Boost sneaker and samples
samples.
analysis. Id. at 259-60. No blood was detected on the blade or
were swabbed and sent for DNA analysis.
handle.of
handle of aakitchen
kitchen knife, aafolding another knife that were collected, but swabs were
folding knife, and anoter
made and forwarded for DNA analysis. Id. at 260-61. Chemical testing indicated the presence of
blood was detected on the zipper
zipper area, front leg area, and back right pocket of Appellant's shorts,
but there was an insufficient quantity
quantity of the sample to conduct further testing for identification. Id.
at 261. Chemical testing
testing on aablue Versace shirt
shirt likewise indicated the presence of blood on the
outside front and inside left sleeve cuff, but the sample was insufficient for identification of blood.
Id. at 262. Kase explained
Ms. Kase explained that even where there was an insufficient sample for blood
identification, the samples
identification, samples were repackaged
repackaged and forwarded
forwarded as DNA testing and analysis may still
be
be performed
performed on the sample. Id.
Officer James Yeasted,
Yeasted, aaten-year
ten-year veteran of the Reading Police Department
Department testified
testified that
that
he is detailed to the
the crime scene unit, which
which entails processing evidence and responding to major
homicide and shootings
homicide and shootings cases,
cases. Id. at 273-74. On July 17, 2020, Officer Yeasted was
was contacted by
C.I. Sweitzer
CL Sweitzer regarding
regarding an
an ongoing
ongoing investigation and requested
investigation and Officer Yeasted
requested Officer Yeasted to
to assist
assist in
in
conducting aasearch of aaHonda CR-V. Id.
conducting Id. at 274. Officer Yeasted and Criminal Investigator Steve
10
Valdez conducted the search
search, of the Honda. Id. Officer Yeasted described the
Ofieer the protocol of the
search, including
search, taking photographs
including taking photographs of the exterior beginning at the driver's side and then
proceeding and do
proceeding counterclockwise around the vehicle and do the same thing
thing again with the doors to the
vehicle opened. Id. Once photographs
vehicle opened. photographs are taken, collection of evidence will begin. Id. at 275.
Officer Yeasted described the interior of the Honda as being very cluttered. Id.
Id, The
Commonwealth then introduced photographs
Commonwealth photographs taken during the search of the Honda. Id,
Id. at 277;
Exs. 39-103.
Comm.'s Exs, 39-103. During
During the search of the Office Yeasted testified that they found
the Honda, Ofice
one knife underneath the driver's side seat,
seat, and another jammed in the side, aapurple Metro T-
Mobile
Mobile bag
bag in the rear driver's side, aagreen
green military style bag in the passenger rear seat, aacell
phone
phone in the center console area, aapicture of an Egyptian frame on the rear passenger floor. Id. at
278-79;
278-79; Comm.'s Exs. A metal
Es. 41-47. A metal box was found on the front passenger seat,
seat, which contained
various papers and coins. Id.
Id, at 279; Comm.'s Exs. 49-50.
laptops were
Boxes of ammunition and two laptops were found
found on the rear
rear seat, with laptops
with one of the laptops
having aasticker
having sticker with the Victim's name
name on it. Id,
Id. at 280; Comm.'s Exs. 56.-60.
56-60. AA beige pouch was
found
found in
in the interior of the driver's side door that contained aakey holder with the Victim's name
on it. Id,
on Id. at 281;
281; Comm.'s Exs. 63-64. In the same door pocket, Officer
officer Yeasted located a
a rifle
cartridge and aaspent
cartridge spent cartridge
cartridge underneath the driver's side seat. Id,
Id. at 281-82; Comm.'s Ex. 66,
68. Business
68. Business cards with the Victim's name and address on them were located in
in the driver's side
door as well. Id. at 282; Comet's. Exs. 69-70.
282; Comm's. 69-70. A
A machete in aasheath was found on the floor of the
front driver's side area. Id.; Comm.'s Exs. 71-72.
In
In the
the rear hatch trunk of the Honda were found aanight stick with baton, aawooden model
plane,
plane, aadigital
digital camera,
camera, and aamanilla envelope
envelope with the Victim's name printed on the side. Id. at
at
282-83; Comm.'s Exs.
282-83; 73-78. Inside of the envelope were found three credit cards and aadebit
Exs, 73.78.
card with the Victim's name on them and CO2 cartridges. Id. at 283-84; Comm.'s Ex. 79-81. A
card A
carpet knife,
carpet knife, two arrows, aasword, and aacrossbow were also found in the trunk,
trunk. Id. at 284-85;
Comm.'s Exs. 83.89.
83-89. Two
Two bags
bags -— one red and one tan -— were found
found in the trunk of the Honda. Id
Id.
at 285-86;
at 285-86; Comm.'s Exe.
Exs. 92-92.
92-92. A
A box
box found was
was- found in the rear
rear passenger side that
that contained
contained
pistol magazines and shotgun cartridges. Id. at 286; Comm.'s Exs. 93-94.
two pistol
I1
11
A notebook found in the front passenger
A passenger glove box included the Victim's name inside. Id.
at 286;
286; Comm.'s Exs. 95-96. On the floor of the front passenger area was aaBlue Cross'Blue
Cross/Blue Shield
of Texas card with the
the Victim's name on it.
it. Id.; Comm.'s Ex$.
Exs. 100-01.
Officer Yeasted testified that two days later, on July 19, 2020, he met with Detectives
Martinez,
Martinez, Shade, and Rentschler of the Berks County Detectives Office, and Bern
Ber Township
Sergeant Brett Forry
Detective Sergeant Fony in the evidence section. Id. at 287-88. At that time,
time, the three
three knives
found in the Honda were relinquished into the control of the detectives. Id.
On July 28, 2020, Officer Yeasted examined the
the contents of the bags found in the Honda.
Id. at 294. In the red bag, Officer Yeasted found aahatchet, first aid kit, cell phone, flip phone,
binoculars, several wristwatches, and two compasses.
compasses. Id. at 295; Comm.'s Ex. 105. Miscellaneous
items, including aatoy airplane, two straight-edge knives, and three folding knives, were found in
the beige
beige bag retrieved from the Honda. Id. Exs. 106-107.
Id, at 295; Comm.'s EKs. 106-1 ,
07. In the
the green duffel
bag
bag with the Victim's last name on it were found various boxes of firearm ammunition, television
remotes, and toy
toy planes. Cormn.'s Exs. 108-110. On August 5, 2020, Officer Yeasted
planes. Id. at 296; Comm.'s
and his supervisor met with Detectives Martinez and Shade at the evidence section to transfer all
items collected as evidence from the Honda. Id. at 297-98.
Officer Yeasted further described two cell phones
phones that were found during the search of the
Honda. Id. at 299-300. The first was aagray LG cell phone that was found on the front dash of the
phone tbat
Id, at 299, 303; Comm.'s Ex. 236. The second was aablack cell phone with aagray cover
Honda. Id.
that was found on the two cup
cup holders attached to the center console of the Honda. Id. at 300, 303;
Comm.'s Ex. 237.
Fasolka ("Sergeant
Sergeant Andrew Fasolka Fasolka"), a
("Sergeant Fasolka"), asix-year veteran of the Berks County
Sheriffs Department,
Sheriff's Department, testified that on July 16, 2020, he was working in the booking center of the
Sherriff soffice when Appellant
Sheriff's Appellant was processed through. Id,
Id. at 307-09; Comm.'s Ex. 122. Sergeant
Fasolka continued that,
that, as part
part of the booking
booking process, an inventory was taken of the personal
Appellant had
items Appellant had on his person,
person, which
which included aabelt, aawatch, four rings, four necklaces, one
hat,
hat, one toilet cleaner pack,
pack, one lighter,
lighter, one MP3 player, one set
set of keys, miscellaneous papers,
pin, and
one tie pin, and $15.25
$ 15.25 in cash and coins. Id. at 309; Comm.'s Ex. 122.
Sergeant Gerardo Vega
Sergeant Vega ("Sergeant
("Sergeant Vega"),
Vega"), aathirty-year law enforcement veteran, and aa
detective with County Detectives' Office testified that on July 17, 2020, he
with the Berks County he responded
12
to
to aacall at 88Tully
Tully Lane in Bern.
Ber Township, Berks County, where he was briefed as to attempts to
ascertain items
ascertain items in the stolen vehicle that Appellant
Appellant was driving at the time of his arrest. Id. at 311-
12. Sergeant
12. Sergeant Vega
Vega proceeded
proceeded to
to.the SherriffsOffice where he seized the clothing
the Berks County Sheriffs
that Appellant
that Appellant was
was wearing
wearing at the
the time of his arrest for evidence purposes. Id. at 312. At
At the time,
Sergeant Vega
Sergeant Vega tools photographs depicting
took photographs depicting Appellant in
in the clothing that was later seized. Id. at
313-14; 240. The clothing
313-14; Comm.'s Ex. 240, clothing seized included aablack muscle shirt, aapair
pair of tan/beige
tan/beige
shorts, aapair
shorts, flip flops,
pair of flip flops, and later,
later, aapair light blue Tommy Hilfiger underwear. Id. at 313-18.
pair of light
On August
On August 11, 2020, after applying
11, 2020, applying for
for and receiving aasearch warrant, Sergeant Vega
proceeded to the Berks County
proceeded County Jail System
System (`BCJS"),
(BCJS"), where Appellant was being held, and seized
the items that were collected upon
the upon his arrest. Id. at 321. Sergeant Vega specified that one of the
rings seized was an Air Force graduation
rings graduation ring
ring and another was aahigh school graduation ring, along
with aaU.S. Air Force hat. Id,
Id. at 323-24. The set
set of keys seized from Appellant included key fobs
for aaFord and aaTesla motor
motor vehicle. at 326. Sergeant Vega further
vehicle, Id. at further noted
noted that
that while
while the device
seized was listed as an MP3 player,
seized player, it was actually aarecorder. Id. at 329. Sergeant Vega stated
stated
that the Tesla key
that key fob was transferred to Detective Martinez to determine whether the fob was
associated with the Tesla at the Victim's Residence. Id. at 331. Sergeant Vega observed that they
did activate the Tesla at the Residence. Id.
lsam Al-Barghouthy testified that around July 14, 2020, he
Isam A!-Barghouthy he lived
lived at 14 River Road,
Road,
Elmwood Park, New Jersey, and that he owned aa2011 Honda CR-V and aa2006 Toyota Camry.
Id. 338-39. Mr.
Id, at 338.-39. Mr. Al-Barghouthy
A!-Barghouthy stated that he purchased the Honda approximately six to eight
months
months prior placed his
prior in New York and that he placed his Minnesota
Minnesota license
license plates Id. at
plates on the Honda. Id. at.
339. Mr.
339. Mr. A-Barghouthy
Al-Barghouthy had
had lived
lived in
in Minnesota for
for seventeen years had planned on moving
years and had
back, so he registered
back, registered the Honda in Minnesota. 339-40. On the evening of July 14, 2020,
Minnesota, Id. at 339-40,
Mr. Al-Barghouthy
Mr. Al-Barghouthy came home late and parked
parked the Honda, which his son had just cleaned, in his
driveway. Id. at
driveway. at 340. The next moming,
morning, on July 15, 2020, he noticed that the Honda was gone and
immediately reported
immediately reported it stolen. Id. at
at 340-41. Mr. Al-Barghouthy
Al-Barghouthy also testified that the license
testified that
plate
plate that he had on the Honda ended in aa9. Id. Al-Barghouthy stated that when he
Id, at 341. Mr. AF-Barghouthy
last drove the Honda,
Honda, there were no weapons, including firearms or knives, inside of the vehicle.
Id. at 341-32.
13
of 2020, she resided in Lancaster County, Pennsylvania,
Anne Traceski testified that in July of2020,
with her husband, Thomas, and her son,
son, Nathan. Id. at 344-45. Ms. Traceski stated that she was
unfamiliar with the Residence and did not know the Victim. Id. at 345. In October of 2021, the
County Detectives' Office contacted Ms. Traceski regarding the faet
Berks County fact that her Google
account had appeared in aasearch warrant. M.
had appeared Id. at 344. Ms.
Ms. Traceski testified that on July 16, 2020,
walking the
she had been walking the trails around the Reading Museum
the Reading at 345-46. After
Museum with her son. Id. at
walking
walking the trail,
trail, Ms.
Ms. Traceski and her son went
her son eat at
went to eat at Elevation Burger. Id,
Elevation Burger. Id. at
at 346.
346.
Sergeant Albert Schade
Sergeant Schade ("Sergeant
("Sergeant Schade"), aatwenty-three-year veteran of the Berks
Berks
County Forensic Services Unit,
County Unit, testified that on July 17, 2020, he
he proceeded to the
the Residence with
regarding the investigation
C.I. Sweitzer regarding investigation of recovered property.
property. Id. at 349.50,
349-50. Upon arrival, they
proceeded door, where Sergeant
proceeded to the back door, Sergeant Schade stated that he "smelled something
decomposing in
decomposing the back."
in the back." Id. at
at 350.
350. As
As aaresult
result.of detecting the
of detecting the odor,
odor, Sergeant
Sergeant Schade
Schade and
and C.I
C.I.
Sweitzer started
Sweitzer started down
down aafoot trail in the back
trail in back yard
yard that
that led
led toward the river.
toward the at 351.
river. Id. at 351. They
They located
located
along the left side of the trail situated approximately ten feet from the property
the Victim's body along
and about
line and about ninety-six
ninety-six feet from
from the Residence.
Residence. Id,
Id. at
at 351-52.
351-52. Once
Once the
the Victim's
Victim's body was
was
located, Sergeant
located, Sergeant Schade
Schade called
called Lieutenant
Lieutenant Shenk
Shenk and
and had
had the
the Reading Police contact
Reading Police contact the Berks
Berks
Coroner. Id.
County Coroner. Id. at 352.
at 352.
Sergeant Schade described the body
Sergeant body as being by bamboo and indicated that there
being covered by
had been
had been significant
significant insect
insect damage
damage to
to the
the face and chest. Id. To
face and To identify
identify the
the body, they
they took
took aa
print of the Victim's right
print right thumb that was later verified through aafingerprint card from the
Victim's military
military service. Id. at 351-52. The Victim's body was then removed from the Residence.
Id. at 352.
Sergeant Schade
Sergeant Schade retumed
returned to
to the
the Residence
Residence on
on July
July 18,
18, 2020,
2020, for processing of
for processing of the
the scene.
scene.
Id. at
Id. at 357.
357. Sergeant
Sergeant Schade
Schade described
described the Residence
Residence to be unkempt
unkempt and stated that
that it
it looked as if
if
it had not been cleaned in aawhile. Id. Further, Sergeant
Sergeant Schade noted that the Residence appeared
to
to have been ransacked
have been ransacked with dresser drawers
with dresser drawers pulled out and
pulled out and items
items thrown on the
thrown on the floor
floor in
in the
the
bedrooms. Id. at 357.58.
bedrooms. Id, 357-58. Sergeant
Sergeant Schade testified that while processing the
while processing the scene, he
he did not find
find
blood evidence
blood evidence inside
inside of
of the
the Residence. Id. at
at 358-59. While outside
358-59. While outside of
of the
the Residence, Sergeant
Residence, Sergeant
Schade observed that aagarden
garden hose on the steps
steps that was leaking. Id,
Id. at 361. During Sergeant
testimony, the Commonwealth presented
Schade's testimony, presented photographs that he
he took during his processing
14
scene while Sergeant
of the scene Sergeant Schade narrated the descriptions of the
the descriptions the photographs.
photographs. Id. at 359-73;
Comi-
n.'s Exs. 150-234,
Comm.'s 150-234. When asked what he was specifically
specifically looking
looking f
for
ro during his walkthrough,
Sergeant Schade responded:
Sergeant responded: "I
I was
was looking
looking for anything broken, furniture that was
for anything was out of place,
place,
or IIwas looking for
was looking for blood. So IIdidn't
didn't know if he was shot or whatever,
whatever, So IIwas looking
looking for
casings, I
casings, I was looking
looking for anything
anything that would have given
given me aasign
sign of where the homicide actually
happened." Id.
happened." Sergeant Schade continued that he had not found anything of interest.
Id, at 373-74. Sergeant
374.
Id. at 374,
Sergeant Schade testified that he collected aapair
Sergeant pair of Adidas Boost shoes and the black and
orange facemask
orange faceinask from the Residence. 375-77. After learning
Residence. Id. at 375.-77, learning of the autopsy results, Sergeant
Schade returned to the
the Residence to search for possible knives, but no weapons were found at the
Residence. Id. at 379-81,
379-81. Furthermore, no indicia of blood was found at the Residence. Id. at 381.
Sergeant Schade also met with Officer Yeasted
Sergeant YYeasted and collected
collected the evidence retrieved from the
379-80.
search of the Honda. Id. at 379.80.
July 23, 2020, Sergeant
On July Sergeant Schade, along
along with Detective Rentschler, conducted aasearch
of the Honda at the forensics lab garage.
garage. Id.
Id, at 383-84. During.the
During the search of the Honda, they
collected aablue Versace shirt, which Sergeant
Sergeant Schade believed might
might had blood evidence on it, aa
bag containing
Metro T-Mobile bag containing various items belonging
belonging to the registered owner of the Honda, and
the registered
aapaper
paper receipt
receipt for Appellant
Appellant for an LG Aristo
Aristo_4 phone activated on July 15, 2020. Id. at 385-
4 cell phone
86.
Kyle Rentschler ("Detective
Detective Kyle (Detective Rentschler"), aatwo-year veteran of the Berks
Berks
County Detective's Officer who has been in law enforcement for twenty-two years, testified that
County
July 17,
on July 2020, he was called to the Residence by
17, 2020, Sergeant Schade to process the crime scene.
by Sergeant
at 399.
Id. at Detective Rentschler
399. Detective Rentschler took
took photographs
photographs at
at the
the Residence along with
Residence along Sergeant Schade.
with Sergeant Schade.
Id. at 401-02. Detective Rentschler also assisted in sealing
sealing the Victim's body in
in the body bag and
noted that the Victim's left wrist was either dislocated or broken. Id. at 404.
The next
The next day,
day, on
on July
July 18, 2020, Detective
18, 2020, Detective Rentschler
Rentschler returned
returned to the Residence
to the Residence with
with
Sergeant Schade and took further photographs
Sergeant photographs of the Residence. Id. at 404-07. Included therein
were photographs panel and door chime that were ripped
photographs of the alarm panel ripped off of the wall and laying
on the floor. Id. at 406-07; Comm.'s Exs. 261-265. While at the Residence, Detective Rentschler
noted that
noted that the
the garage
garage doors
doors were
were unlatched
unlatched so
so that
that the
the doors
doors could
could be
be opened
opened freely,
freely. Id. at
at 408-09.
408-09.
15
Detective Rentschler further observed tthat
hat the Residence appeared very messy and dirty and that
it looked like items had been rummaged
it rummaged through, that closets and drawers
drawers were opened, and clothes
409. Detective Rentschler also pulled aapartial palmprint and swabbed
were strewn about. Id at 409,
DNA from aasliding
sliding glass
glass door in the
the basement. Id. at 410
410.
July 19,
On July 19, 2020,
2020, Detective Rentschler returned to the Residence with Sergeant Schade to
search for blood or other related evidence. Id.
Id. at 411. However, they found no such evidence. Id.
Id.
Detective Rentschler also
Detective Rentschler also participated
participated in
in the
the search
search of
of the
the Honda
Honda during
during which
which he collected the
he collected
blue Versace shirt with suspected blood on it. Id. at 412-13.
On July
On July 21, 2020, Detective Rentschler, along with Sergeant Schade, reviewed and took
farther photographs
further photographs of the collected evidence .form the Residence and the Honda at the forensic
science unit. Id. at 414. A Baylor
414. A Baylor college
college of medicine bag was recovered from the kitchen at
at the
Residence that contained aapair
pair of Adidas sneakers, aapiece of scuba gear, binoculars, aasock, aacell
phone,
phone, aaCrown Royal
Royal bag,
bag, a
a possible
possible hard drive, and aabottle of suspected marijuana. Id. at 415-
16: Detective Rentschler took aacloser photograph
16. photograph of
of suspected blood
blood on the heel
heel of the Adidas
sneaker. Id.
sneaker. at 415;
Id. at 415; Comm.'s
Comm.'s Ex.
Ex.. 273.
273. A red and
A red and black
black hat
hat with
with aadepiction
depiction of
of aamarijuana leaf
marijuana leaf
was also in the bag. Id. at 417-18. A
bag. Id, A wallet was found and photographed, which included aadebit
card, aacredit card,
card, card, blank checks, aavehicle
vehicle registration card, aaMedicare insurance card,
card, and aa
USAA vehicle insurance card for aa2017 Tesla all in the Victim's name. Id. at 416-17; Comm.'s
Exs. photographing the evidence, Detective Rentschler testified that he secured
Exes. 276-281. After photographing
the evidence in proper
proper packaging
packaging as per protocol. Id. 417-19.
Id. at 417-19
On cross-examination, Detective Rentschler admitted that examined the alarm panel for
fingerprints but
fingerprints but found no latent prints.
prints. Id.
Id. at 422. Detective Rentschler further reiterated that after
testing throughout
testing throughout the Residence, both inside and and outside, there were no signs of blood found. Id.
at 423-24.
Taylor Richart,
Taylor Richart, a DNA scientist with the Pennsylvania State Police, who was
a forensic DNA' 13
qualified as an expert
qualified expert in DNA profiling, first explained the process of extracting DNA from
from bodily
fluids. Id. at 432-36. Ms. Richart produced aalab
lab report based on her analysis of samples provided,
including aadried blood sample
including sample from the Victim, aabuccal swab from Appellant, two swabs from
'peox
13 yribonucleic Acid
Deoxyribonucleic Acid.
16.
16
the basement sliding
sliding glass
glass door, left- and right-hand
right-hand fingernail
fingernail clippings from the Victim, aapiece
orange and black mask, aaswab from
of the orange from the heel of the Adidas sneaker, two swabs from inside
tongue of the Adidas sneaker, swabs from the blade and handle of the kitchen knife
heel and tongue
collected, swabs from the blade and handle
collected, handle of another knife collected, swabs from the
the blade and
handle of
handle of the
the folding knife collected,
folding krife collected, aapiece
piece of
of the
the zipper
zipper area
area from
from the
the shorts
shorts Appellant
Appellant was
was
wearing, and
wearing, and aapiece cut from
piece cut from the
the blue Versace shirt.
blue Versace shirt. Id. at 439-42,
Id. at 439-42.
Ms. Richart
Ms. Richart first
first noted
noted that
that the
the swabs
swabs received from the
received from the blade of the
blade of the kitchen
kitchen knife, the
blade of the
blade of the second
second knife,
knife, the
the blade and handle
blade and of the
handle of the folding
folding knife, and the
knife, and the basement
basement sliding
sliding glass
glass
provided an insufficient quantity
door provided quantity of DNA. Id. at 444-45. Therefore, she was not able to
provide
provide an interpretable profile based on the samples provided.
interpretable profile provided. Id.
Ms. Richart continued that the nail clippings
clippings from both the left and right hand of the Victim
were matched to the DNA profile
profile of the Victim. Id. at 445. This confirmed that the samples were
provided from
provided from the same person.
the same person. Id.
Next, Ms. Richart concluded that the sample
Nert, sample from the black and orange mask provided aa
DNA
DNA profile
profile consistent with aamixture of two individuals. Id,
Id. at 44546.
445-46. Moreover, Appellant
could not be excluded as aapotential
could indicating that it is
potential contributor indicating is 130 octillion"
octillion more likely that
14
it originated
it originated from
from Appellant and another
Appellant and another unknown
unknown individual
individual than from two unknown
than from unknown persons.
persons. Id.
Plainly, Ms. Richart
at 446. Plainly, Richart indicated that
that his meant
meant that it was
was highly likely that Appellant was
one of
one of the contributors to
the contributors to the DNA
DNA profile.
profile. Id. at
at 447.
447. It
It was further determined
was further determined that
that the
the Victim
Victim
could not be included as aacontributor. Id.
Next, the swab from the heel and left side of the left Adidas sneaker yielded aaresult that
Next,
Appellant nor the Victim could be excluded as contributors to the profile. Id. It was
neither Appellant
determined that the Victim was 110 octillion more times likely aacontributor and Appellant was
1.5 million times
1.5million times more
more likely
likely aacontributor
contributor than
than either
either individual
individual against
against two
two unknown individuals.
unknown individuals.
Id. at
Id, at 447.48.
447-48. Likewise,
Likewise, there
there were results consistent
were results consistent with
with aaprofile
profile from
from four
four individuals
individuals derived
derived
samples from the inside heel and tongue
from the samples tongue of the
the Adidas sneaker and both
both Appellant and
the Victim
the could not
Victim could not be excluded as
be excluded as contributors.
contributors. Id,
Id. at
at 449.
449. The
The profile
profile was 60 billion
was 60 billion times
times more
more
Ms. Richart explained that an octillion is a number followed by twenty-seven zeros.
14 Ms. Richart explained that an octillion is anumber followed by twenty-seven zeros.
17
likely to have originated
likely originated from the Victim and 20 octillion times more likely to have originated
from Appellant
from Appellant than from either contributor with three other unknow individuals. Id.
The swab
The swab from
from the handle of the kitchen knife
knife yielded aaDNA prolife consistent with three
Id. at 450. Appellant
individuals. Id, Appellant was determined to be 26 sextillion'
sextillion more times likely aa
t5
contributor, to the profile
contributor profile than against three unknown individuals.
than against The Victim could
individuals. Id. The could not be
not be
included as aacontributor. Id.
Id. A sample from the second knife
A sample knife was consistent with aaDNA profile
consistent with two individuals. Id.
Id, at 450-51. Appellant could not be excluded as aacontributor
with aafactor of 68 billion more times likely he was aacontributor than against two unknown
individuals. Id. at 450. The Victim could not be included as aacontributor. Id. at 451. Also included
sample swab was an additional allele, but Ms. Richart stated that there was insufficient DNA
in the sample
material to
to interpret
interpret results. Id. at 450-51
450-51.
sample from the pair
The cut sample pair of shorts yielded aaDNA profile
profile consistent with aamixture of
three individuals. Id. Both Appellant
three Appellant and the Victim could not be excluded as contributors. Id. at
Richart noted that the analysis of the shorts sample was distinct because Appellant was
451. Ms. Richart
in possession of the shorts when they
in possession they, were collected, so
so he was assumed
assumed as aacontributor to the
Id. at 451-52.
DNA profile. Id,
sample from the blue Versace polo
The sample tested and aaDNA profile consistent with
polo shirt was tested
aamixture of two individuals was obtained. Id. at 452. Appellant and the Victim could not
not be
as contributors. Id. The profile indicated that it
excluded as it was 85 octillion times
times more likely to
have originated
originated from the Victim and an unknown individual, and 4.9 million more times likely to
to
originated from Appellant
have originated Appellant and an unknown individual than as against
against two unknown
individuals. Id.
Jennifer Bracamontes, aaDNA analyst with Cybergenetics, aaPittsburgh-based technology
company that specializes
company specializes in
in computer DNA analysis and probabilistic genotyping, who was
qualified as an expert
qualified expert in DNA analysis,
analysis, testified that Cybergenetics uses TrueAllele, which "a
which is "a
computer system
computer system that takes DNA data from what is produced by laboratories that is from physical
evidence items. Id,
evidence Id. at 477.83,
477-83. The system
system then separates out DNA profiles from the evidence and
compares those profiles
compares profiles to known standards to calculate match statistics. Id. at 483. TrueAllele
M.s Richart testified that aasextillion is aanumber followed by twenty-one zeros.
I'Ls
15
18
had been tested in over forty validation studies with results likewise published and validated in
peer-reviewed journals,
peer-reviewed journals, and Ms. Bracamontes has analyzed over 2,500 different mixture items
using TrueAllele. Id.
analyze electronic data provided to Cybergenetics
Ms. Bracamontes used TrueAllele to analyze
the blade of the knife, swabs from the folding knife, along with reference
from the swabs of the
samples from dried blood of the Victim and the buccal sample from Appellant. Id. at 491-92. The
samples
results from the knife blade indicated that aamatch between Appellant and the sample was 60.5
results
billion times more probable
probable than aacoincidental match with an unknown African American person,
16.3 billion times more probable
probable than
than aacoincidental match with an unknown Caucasian person,
23 billion times more probable
and 23 probable than aacoincidental match with an unrelated Hispanic person-
person.
Id. at 497.98.
497-98. The system
system indicated that the Victim was an exclusionary match as to the knife
at 498.
blade. Id. at
Ms. Bracamontes
Ms. testified that
Bracamontes testified analysis of
that analysis of the
the data
data from
from the
the blade
blade of
of the
the folding
folding knife
knife
indicated aamatch with the Victim as 2.78 thousand times more probable than coincidence as to an
unrelated person. Id. at 498, 50I.
unrelated Caucasian person. 501. Likewise, the data analysis revealed that it was 18.8
thousand more times probable
probable that the Victim
Victim was a
a match than aacoincidental match with an
unrelated African American individual, and 3.27 thousand times more probable aamatch
match than aa
coincidental match with an unrelated Hispanic person. Id. at 50L
501.
Ms. Bracamontes further testified that while the PSP testing had aacertain threshold for
DNA material below which they would not test due to insufficient data, TrueAllele is able to go
down to the baseline and that there is no threshold or cut off point. Id. at 502. Ms. Bracamontes
clarified that TrueAllele "has been validated all the way down to the baseline and is able to use
clarified use
that information in its modeling to
to separate out those contributors."
contributors." Id.
On cross-examination,
On cross-examination, Ms. Bracamontes explained that TrueAllele is considered aa
probabilistic genotyping software because
probabilistic genotyping because "it
it is not definitely[,]" instead
not just pulling things out definitely[,""
qi]t is assigning
"iht assigning them some probability Id. at 504. Ms.
probability or chance of explaining the data." Id,
Cybergenetics does not analyze the actual samples, but interprets data
Bracamontes reiterated that Cybergenetics data
produced
produced by
by another laboratory from an evidence sample. Id. at 505.
Detective Ivan Martinez
Martinez ("Detective
("Detective Martinez"), aatwelve-year veteran detective of the
County District Attorney's
Berks County Attorney's Office, testified that on July 20, 2020, he, along with Detective
19
Brett Forry, conducted an interview with Appellant System ("BCJS").
Appellant at the Berks County Jail System (BCJS"). Id.
at 517-18. Because both
both Detective Martinez and Appellant speak English
English and Spanish, during the
interview, Detective Martinez would translate those portions that were conducted in Spanish into
English for his partner. Id. at 518.19,
English 518-19. The Commonwealth admitted into evidence, and then
published jury, aavideo
published to the jury, Id. at 5519-20;
video and audio recording of the interview. Id, 19-20; Comm.'s Ex.
293. In
293. In the
the interview, Appellant stated that he Residence from
he had traveled to the Residence from Paterson, New
Jersey and that he had been
been searching for
fro yard sales, and indicated that another, unidentified black
male going by
male by ""Bu"
Bu" was
was at
at the Residence
Residence and
and, holding
holding a yard sale.
a yard sale.
July 17, 2020, Detective Martinez arrived at the Residence and proceeded to the
Late on July
area where the Victim's body
body was located and assisted in securing and removing
removing the body. Id. at
521-22. Detective Martinez further observed Sergeant Schade collect fingerprints from the
Victim's body. Id. at 522.
On July 18, 2020, at approximately 1:30 a.m., Detective Martinez
1:30 a.m., Martinez met
met with Appellant at
Central Processing.
Central Processing. Id.
Id, at 522-23.
522-23. At that time,
At that time, Appellant was wearing aablack
Appellant was black tank or
or muscle
shirt, aapair pink shorts, and aapair of green
pair of pink green flip Id. at 523. Detective Martinez noted that
flip flops. Id,
the shorts that Appellant was wearing
wearing were dirty and ripped. Id. During
During his conversation with
Appellant, Appellant
Appellant, Appellant asked Detective Martinez to call his mother, Belkis
Belkis Rodriguez, and Detective
Martinez did so. Id. at 524.
On July
On July 18, 2020, Detective
Detective Martinez applied for and was approved for aasearch
search warrant
warrant
for the Residence. Id. During the execution
Id, at 525. During execution of
of the search warrant,
warrant, Detective Martinez's
Martinez's
observations were Sergeant Schade and Detective Rentschler. Id. at 525-
were consistent with those of Sergeant
26. Detective Martinez also attended the autopsy
autopsy of the Victim at Reading Hospital and observed
fingernail clippings from the Victim. Id. at 526. Detective Martinez
the collection of blood and fingernail
met with Appellant again on July 21, 2020, at the BCIS
BCJS and, pursuant to aasearch warrant, collected
aabuccal
buccal swab
swab from Appellant. Id.
Id, at 528-29.
July 24,2020,
On July 24, 2020, Detective Martinez placed another five-to-ten-minute telephone call with
Appellant's
Appellant's mother. Id. at 530. Detective Martinez prepared aacriminal
On July 29, 2020, Detective
complaint and later served the complaint on Appellant at BCJS,
complaint BCIS, whereupon Detective
Detective Martinez
showing "[h]ardly
described Appellant showing indicating that Detective
"[h]ardly any emotions[,]" and indicating DetectiveMartinez
needed to deal with information Appellant
Appellant provided
provided regarding aa Mexican cartel
cartel "[a]nd that
that
20
relationship
relationship [Appellant]
[Appellant] had with the
the Mexico cartel was more important
important than," the
the charges against
Appellant, including murder.
Appellant, including murder. Id. at
at 531-32.
531-32.
July 31,
On July 31, 2020,
2020, Appellant placed aaphone
Appellant placed phone call to his
his mother and sister,
sister, Leticia Perez
Perez!t6 ,
which
which Detective Martinez listened
Detective Martinez listened to
to later, and then
later, and then translated Spanish into
translated from Spanish into English. at
English. Id. at
533-34, .536;
533-34, Comrn.'s Ex. 295. Detective Martinez reviewed translations that were previously
516; Comm.'s
prepared by
prepared court-certified interpreters, but
by court-certified testified that, according
but testified according to
to him,
him, the other
other translations
translations
were not completely
completely accurate,
accurate, because of differing
differing Spanish
Spanish dialects. Id. at 534-35. Specifically,
Detective Martinez
Detective testified that
Martinez testified that he had spent
he had spent time
time in Texas and was
in Texas was familiar
familiar with
with the
the Mexican
Mexican
dialect of
dialeet of Spanish
Spanish and
and with certain idiosyncrasies
with certain idiosyncrasies of
of the
the dialect.
dialect. Id. at
at 535.
535. A
A video and audio
video and audio
presentation of the
presentation of the telephone
telephone conversation
conversation between Appellant and his
between Appellant his mother and
and sister
sister that was
was
prepared by
prepared by Detective Martinez, interpretation of the conversation into English,
Martinez, and included his interpretation
was published to
was published jury. Id. at 53
to the jury. 8-39; Comm.'s E.
538-39; Ex. 297. Detective Martinez's
Martinez's translation.of the
conversation included
conversation included Appellant's admission that he
Appellant's admission he was
was involved in the
involved in the killing
killing of
of the Victim
Victim and
and
stated that he did it due to his involvement with aaMexican cartel and telling his mother and sister
that if
if he did not kill the Victim,
Victim, that the cartel would
would have killed Appellant. Comm.'s Ex.
Ex, 295.
August 5, 2020,
On August 2020, Detective met with
Detective Martinez met with Officer Yeasted of the
Yeasted and received all of
Sergeant Schade then
evidence collected and Sergeant possession of the
then took possession the evidence. Id. at 539-40. Or
On
August 12, 2020,
August Detective Martinez entered the evidence collected from Appellant at BCJS
2020, Detective BOIS and
entered the evidence into property. Id. at 540.
Detective Martinez testified that on August
August 17, 2020, based on the invoice for aacell phone
found in the Honda,
Honda, attempted
attempted to acquire
acquire information regarding an LG Aristo 4
4cell phone with
the number
the number 551-280-4729
551-280-4729 ("the Cell Phone
(the Cell Phone Number").
Number"), Id. at
at 540.41.
540-41. Detective Martinez.
Detective Martinez
attempted to call
attempted call the
the store
store in
in Paterson, New Jersey,
Paterson, New Jersey, where the invoice
where the invoice noted
noted that
that the
the cell
cell phone had
phone had
purchased, but it was not fruitful. Id. at 54142.
been purchased, 541-42.
7, 2020,
On October 7, 2020, Detective Martinez then traveled to Paterson, New
New Jersey with
City of Paterson Police Department
detectives from the City Department to
to the Metro PCS store. Id. at 542. The
Paterson detectives
Paterson detectives were then able
were then able to retrieve
retrieve information
information from
from the store
store employees
employees regarding the
regarding the
" Detective Martinez testified that he had several conversations with Appellant's mother, Belkis Rodriguez, and
16
Appellant's
Appellant's sister, Leticia Perez,
Pere, and was able to recognize the voices of both individuals. Id.
Id, at 533.
21
Cell Phone Number while Detective Martinez observed from aavantage point viewing the computer
Cell
screen subsequent printing
screen and the subsequent printing of the information, which was provided to Detective Martinez.
Id. at
Id. at 54243,
542-43. The Commonwealth then entered aareprinted receipt and payment invoice from
Metro
Metro PCS indicating
indicating that the LG Aristo cell phone with the Cell Phone Number was purchased
by a
by acustomer
customer named Raphael
Raphael Perez from the Metro PCS store in Paterson, New Jersey on July
15,
15, 2020.
2020. Id. at 543-45; Comm.'s Ex. 298.
298. Detective Martinez then identified the LG Aristo cell
phone that was recovered from.
phone from the Honda. Id. at 545.
January of 2021,
In January 2021, Detective Martinez requested
requested and was granted aasearch warrant
warrant for
Facebook account records for both Appellant and the Victim.
Facebook Victim. Id. at 545-46. While Detective
Martinez was unable to find any
Martinez any relevant information regarding Appellant's Facebook account and
was not able to find any
was not any communication between Appellant and the Victim, Detective Martinez
was
was able to verify
verify that the last post
post from the Victim was on July 16, 2020 at 8:37 a.m. Id. at 547.
On July
On July 16,
16, 2021,
2021, Detective Martinez applied
applied for and was granted aasearch warrant for
for the
LG
LG Aristo cell phone
phone recovered from the Honda. Id.
Id, at 547. Upon executing the search, Detective
Martinez
Martinez was able to
to confirm that the number from the cell phone matched the Cell Phone Number
also included
also included on the Metro PCS receipt
receipt and invoice. Td.
Id. at 548. On June 28, 2021, pursuant to aa
order, Detective Martinez requested
court order, requested cell phone records from T-Mobile regarding the Cell
Phone Number
Phone Number from July
July 15, 2020, through
15, 2020, July 17, 2020. Id.
through July Id. at
at 549.
549. Specifically, Detective
Detective
requested aaCDR mediation report and aadata report",
Martinez requested report', which would provide the locations
that
that the cell phone
phone traveled through during the relevant time period. Id. at 549-50.
Detective
Detective Martinez described using
using aacomputer
computer program
program called CellHawk, which analyzes
uploaded from the data report
data uploaded report to provide the travel location of aaspecific device. Id.
Id. at 557.
Detective Martinez testified that the information derived through CellHawk indicated that
Detective
Appellant's cell phone
Appellant's phone first appeared on the Bern Township cell tower location in the Greenfields
first appeared
area, at
area, at approximately
approximately 8.39
8:3 9a.m. and remained in the area into the afternoon. Id.
Id, at 562-63.
The Commonwealth
The Commonwealth then
then introduced
introduced aadocument
document from
from the
the PSP
PSP indicating on the
indicating that on the date
Appellant
Appellant was initially stopped in the Honda, he did not possess aavalid license to carry aafirearm
initially stopped
l' Detective
17 Detective Martinez described aacall detail report
Martinez described report (CDR)
(CDR) mediation as providing any and all phone calls, text
messages
messages that
that are executed
executed with
with a
a specific
specific device,
device, and aadata
data report
report as
as providing
providing which
which cell towers have been
towers have
communicating with the device itself. Id. at 550.
communicating
22
in the Commonwealth. Id. at 563; Comm.'s Ex. 303. Detective Martinez confirmed that he was
in
familiar with these
these forms and that it comported with the PSP licensing status
with the status forms that he had
received in previous investigations. Id,
Id. at 563-64,
563-64.
On cross-examination, Detective
On Detective Martinez admitted
admitted that
that during interviews
interviews with
with Appellant
shortly after his
shortly his apprehension, Detective Martinez did not believe the that Appellant was
the story that
relaying that another person
relaying person was at the Residence and sold
Residence and sold him the found in
the items that were later found
with Appellant.
the Honda with Appellant. Id. at 567-68. Detective Martinez
Id. at Martinez clarified
clarified that Appellant purchased
the LG
the cell phone
LG cell on July
phone in Paterson on July 15, 2020, at
15, 2020, at 4:55
4:55 p.m, and appeared
p.m. and appeared to
to remain
remain in that area
area
until approximately
approximately 11:57 p.m. id. at 576. Appellant's cell
cell phone
phone then traveled
traveled into Pennsylvania
via Intestate 78 and down Route 222,
222, arriving Reading around 2:42 a.m. on July 16, 2020, Id.
arriving in Reading
at 577. Appellant's cell phone appeared in the area of the Residence around 8:37 a.m. and stayed
phone appeared
until approximately 3:07
until approximately 3.07 p.m.
p.m. Id.
Id.
Defense first called Sonia Schlamowitz who, at the time, was employed as the chief court
interpreter
interpreter with the Court of Common Pleas of Berks
Berics County,
County. Id. at 587-88. Ms. Schlamowitz
testified that she completed aatranslation
testified that translation transcription,
transcription, from Spanish
Spanish into English, along with
with Mr.
Urdaneta from the interpreter's office,
office, of the telephone
telephone call
call.that
that Appellant placed from BOIS.
Appellant placed BCJS. Id.
at 590-91. Ms.
at Ms. Schlamowitz
Schlamowitz further explained
explained that
that in
in her process, she first
first translates
translates the phone
the phone
call in written format,
format, and then she goes through again and interprets including
through the phone call again
Id. at 591. Defense then entered Ms. Schlamowitz's
nuance into the interpretation. Id, Schlainowitz's interpreted
document into evidence. Id, at 592-93; Def. Ex. 55 &
& 6. On cross-examination, Ms. Schlamowitz
clarified that an
clarified an initial
initial translation
translation was
was done
done by
by Mr. Urdaneta,
Urdaneta, and that
that the District Attorney's
the District Attorney's
Office requested
Office requested that she revise
revise the
the translation. Id. at 593-96.
The Defense next called
called Arthur Young, aa forensic biology specialist
forensic biology specialist with Guardian
with Guardian
Forensic Sciences,
Sciences, who was qualified
qualified as an expert
expert in the field of forensic DNA analysis. Id. at 600-
12. Mr. Young prepared
Mr. Young prepared aareport
report based
based on
on documentation
documentation and
and data
data received
received regarding evidence
regarding the evidence
analysis. Id. at
analysis. at 613-14.
613-14. Mr. Young
Young first discussed his analysis
analysis of the swab from the
the basement
sliding door using
sliding using electrophoresis, which produces an electropherogram that Mr. Young then
Id. at 615-16.
interprets. Id. 61.5-16. Mr. Young noted that the PSP DNA laboratory determined that there was
insufficient DNA material
insufficient material from which to produce interpretable
interpretable results. Id. at
at 614.
614. However,
However, Mr.
Young continued that
Young continued he reviewed
that he the data provided by
reviewed the the PSP lab
by the and found conflicting results
lab and results
23
sliding door swabs. Id. at 627. Specifically, according to Mr. Young, the DNA data
as to the sliding
actually excluded both Appellant and the Victim as contributing the DNA found in the swab of the
actually
sliding door and was indicative of DNA from an unknown male. Id. at 627-28. Mr.
basement sliding
Young explained that the PSP lab needed five genetic markers in order to draw aaconclusion, but
Young explained
he only needed one genetic marker for purposes of elimination. Id. at 628-29.
Mr, Young
Mr. Young then reiterated the PSP lab results regarding the sample from the Adidas sneaker
Appellant and
wherein both Appellant and the Victim could not be excluded as against an unknown and unrelated
against each. Id.
individual against at 631. However, Mr.
Id, at Mr. Young opined that if both individuals were
were to
to
detennining the results, then there should be no remaining DNA material that was
be included in determining
inconsistent with both individuals, but that was not the case,
inconsistent case. Id.
Id. at 632. Using charts from
from his
his
report, Mr. Young
report, Young explained that there were genetic markers that were not consistent with either
Appellant
Appellant or the Victim should indicate genetic material
indicate genetic from
material from another individual,
individual, and specifically
from an unknown male. Id,
Id. at 634-38. Moreover, as Mr. Young elucidated, modern DNA analysis
enough o
is sensitive enough odetect genetic
genetic material even through transference and so the tests cannot
determine how the DNA material got onto whatever item is tested. Id. at 637-38.
Mr..Young
Mr. Young then discussed the PSP results from the inside tongue and heel of the Adidas
sneaker and those results indicated aamixture of genetic material from four individual contributors,
Appellant and the Victim not excluded as contributors. Id. at 638. However, upon reviewing
with Appellant
the data from all of the genetic markers, Mr. Young opined that the Victim should be excluded as
aacontributor to the mixture found on the inside heel and tongue of the Adidas sneaker because
there were
there were markers
markers listed from the Victim's sample
listed from sample that
that were
were not
not found in the
the swabs from those
at 643-48.
areas. Id. at
Mr. Young moved
Mr. Young moved on
on to the results
to the results from the
the swabs
swabs of
of the handle of
the handle of the
the second
second knife, which
which
the PSP lab found aamixture of DNA from two individuals and concluded that Appellant could not
be excluded as aacontributor and the Victim could not be included as aacontributor. Id. at 652-53.
Mr. Young
Young testified that his interpretation
interpretation of the data reached aadifferent result. Id.
Id, at 655-56.
Notably, Mr.
Notably, Young indicated
Mr. Young indicated that
that there was
was aagenetic
genetic marker include din the swab that was
was
consistent with
consistent with that
that of
of the
the Victim
Victim such
such that
that he
he would
would not
not conclude
conclude that
that the
the Victim would be
Victim would be
excluded as aa-possible
possible contributor to the DNA profile, or at best, that the results are inconclusive.
656-58.
Id. at 656-58
24
As to the sample from the blue Versace shirt, Mr. Young noted that the PSP found aamixture
mixture
of DNA material from two individuals and concluded that both Appellant and the Victim could
not be excluded as possible Id. at 657-58. Again, though, Mr. Young
possible contributors to the profile. Id,
disagreed with the conclusion because the individuals were compared as against another unknown
disagreed
individual and not
not as the two sole contributors, which, according to Mr. Young, would have
produced results inconsistent with aamixture only from Appellant
produced Appellant and the Id. at 659. Thus,
the Victim. Id,
Mr. Young
Young posits that the conclusion, when the profiles are analyzed as only Appellant and the
Victim as contributors, would result in
in being mutually exclusive. Id.
Id, at 659. Mr. Young continued
tthat comparing more
hat when comparing genetic material
more genetic material markers, the alleles that are shared between
between both
Appellant and the Victim were attributed to both, even where Appellant could be excluded as to
Appellant
additional alleles that Icy. at 661-62. Thus, the statistical weight is affected in adding
that should appear. Id.
the shared alleles to the analysis. Id. at 662.
On cross-examination, Mr. Young
Ona Young agreed with Ms. Richart's conclusion that Appellant
could not be excluded as aacontributor to the genetic material
material, found on the black and orange mask.
Id. at 683. Mr. Young
Id. at Young further noted
noted that
that while
while he disagreed with Ms. Richart's conclusion that
he disagreed
Appellant could not be excluded as aacontributor to the DNA profile of the swabs found on the
Appellant
heel and left side of the Adidas
Adidas sneaker, he did agree that the Victim was not excluded. Id.
heel swabs, Mr. Young agreed that Appellant was not
Moreover, as to the inside tongue and heel
excluded as aapotential
potential contributor but disagreed that the Victim should be included. Id. at 684.
Likewise, Mr. Young
Young agreed that
that neither Appellant nor the Victim could be excluded as
contributors to the DNA profile from the sample from the shorts. Id. at 685-66. Finally, while Mr.
Young opined
Young opined that
that Appellant should be excluded as
as 'aa contributor to the profile mixture found on
the blue Versace shirt, he agreed that the Victim would not be excluded. Id.
Id, at 686.
At
At the conclusion of the trial on April 21, 2022, the jury found Appellant guilty of Murder
Murder
of the First Degree",
Degree ,Burglary",
Burglary ,Robbery,
18 Robbery20 ,
19 Aggravated Assault' s,
Aggravated Assault", two counts of Receiving Stolen
Property2'
Property,-,and two counts of Firearms Not to be Carried
Carried Without aaLicense.
License' . -3
18 Pa.C.S.A. §$ 2502(a)
"18PLC.SA.
18
18 Pa,C.S.A. §$3502()01K
18PaCSA. 3502(a)(1)(i)
2-0 18 Pa,C.S.A. 83701(a)01¥9
18PC.SA. § 3701(a)(1)(i)
18 Pa.C.S.A §$27026)(1)
!18PAC.SA
21 2702(a)(1)
218 Pa.C.S.A. §$3925(a)
1gPaCSA.
222 3925(a) (Honda CR-V); 18 Pa.C.S.A.
(Honda CR-V) Pa.CS.A. §$ 3925()
3925(a) (Lenovo
(Lenovo Laptop Computer)
18 Pa.C.S,A. §$ 6106a)
18PAC.S.A.
2-3 6106(a)
25
On May
May 2, 2022, Appellant
Appellant filed aapost-sentence motion challenging the weight and
sufficiency of the evidence and alleging error of
sufficiency of the court in permitting
pennitting electronically obtained
documents from
from T-Mobile and limiting the
the scope of the Defense expert's testimony at trial. On
March
March 21, 2022, A
21, 2022, A hearing
hearing on the motion
motion was held on July 29, 2022, and both parties filed briefs
in support
in support of their respective
respective positions.
positions. By order dated August 25, 2022, the court denied
Appellant's post sentence motion.
Appellant's
On September
Oa September 23,
23, 2022,
2022, Appellant
Appellant filed aaNotice of Appeal with the Superior Court.
Court. On
On
September 27, 2022, entered an order directing Appellant to file aaConcise Statement of Matters
September
Complained of on Appeal pursuant to Pa.R.A,P,
Complained Pa.R.A.P. 1925(b). Appellant filed aaConcise Statement of
Matters Complained
Complained of -on Appeal on October 18, 2022, in which he sought review on the
following issues:
1.
L. The evidence adduced
adduced. at trial was legally insufficient to support Appellant's
convictions for Homicide, Aggravated Assault and Robbery, where, inter alia,
convictions
there was no testimony or circumstantial proof at all
- that
that [Appellant] the [V]ictim
[Appellant] and the [VJictim were ever in the latter's house at the same
time, so as to make any of those crimes
crimes possible;
- that Appellant ever touched or threatened
Appellant ever threatened [the
[the Victim] personally, or was
ever in aaposition to do so;
- that some burglar
burglar or assailant or acquaintance other than Appellant was
was not
perpetrator of these gravamens
the perpetrator gravamens in or near the [V]ictim's house, even if
Appellant might
Appellant present therein or stolen something therefrom at
might have been present
other time, before
some other or after
before or after the
the [V]ictim's
[VJictim's murder.
Nothing in the record
Nothing in record excludes the possibility
possibility of an alternative perpetrator;
perpetrator,
inexplicably, the police
inexplicably, police did not attempt to investigate the possibility of another
perpetrator, even in the face of abundant evidence that
perpetrator, even there was
that there was at
at least
least one:
and cases almost factually
factually identical or at least corresponding to this one in all
points will show that under such nebulous circumstances these
essential points
convictions of Appellant cannot stand.
2. The evidence was legally
legally insufficient to support
support Appellant's conviction of
Receiving Stolen Property,
Receiving Property, when no facts on record established the value of the
items stolen, and it could not be confidently inferred what the value of the stolen
26
26
items were or what burglar
burglar was responsible for which theft.
theft. The
The conviction
therefore had to have been impermissibly based on idle speculation.
3. All Appellant's convictions were based on evidence derived from an illegal
search of the [V]ictim's
[VJictim's house, in which the did not
the Commonwealth did not show or
even attempt to show that Appellant had no expectation of privacy. Once
challenged, the
the Commonwealth has an affirmative
has an affirmative duty to justify
justify an otherwise
otherwise
illegal search
illegal search by
by showing
showing that the
the defendant has no expectation of privacy,
privacy,
the court gratuitously assumed this
instead the in it's decision
this burden sua sponte in decision on
Appellant's pretrial suppression-motion.
4. All guilty verdicts went against the weight of the evidence, much for the same
reasons as
as those mentioned above
above with regard to
to evidentiary sufficiency, but
also, inter alia, because of the inexplicable lack of police investigation into
other possible culprits; because Appellant's supposedly self-inculpatory phone-
other
call from prison was so obviously exculpatory in nature, though it was
perversely inculpatory weight,
perversely accorded inculpatory weight, even though he implicated some
unnamed others; and because in general all testimony purporting to incriminate
was so
Appellant was so weak wispy that to dismiss any
weak and wispy any reasonable doubts
doubts as to
his innocence after three or four days of trial
trial but only ninety minutes of
supposed deliberation --— aahomicide trial --— is preposterous.
5. At
At the very least, aa new
new trial is warranted,
warranted, because by upholding
upholding the
Commmonwealth's objection and not allowing
Commonwealth's allowing [Appellant's] Expert Witness to
[Appellant's] Expert
testimony of the Commonwealth's
answer questions regarding the testimony Commonwealth's expert from
Cybergenetics the lower court critically impaired Appellant's ability and right
to defend himself. This was an abuse of discretion and contrary to elementary
evidence.
rules of evidence.
6. Also warranting aa new trial is the lower court's improvident admission of
unauthenticated hearsay evidence from Detective Martinez,
unauthenticated hearsay Martinez, namely
namely documents
electronically from T-Mobile that led to
obtained electronically to the admission of other
evidence that prejudiced Appellant. Detective Martinez received the
documents electronically, did not see the author sign them, otherwise had no
27
personal knowledge regarding
personal knowledge the sender, and had he
regarding the he any
any personal knowledge
knowledge
of the business practices
practices of T-Mobile Telekom.
Appellant's
Appellant's Concise Stmnt. ¶T1-6.
Upon review of the record, we find that all alleged
Upon alleged errors lack merit. We submit this
opinion pursuant
opinion pursuant to Pa.R.A.P.
Pa.R.A.P, 1925(a).
DISCUSSION
DISCUSSION
L
I. of the Evidence
Sufficiency of
Appellant contends
Appellant contends that
that the
the evidence
evidence presented by the
presented by Commonwealth was
the Commonwealth was insufficient
insufficient to
to
establish his
establish conviction on
his conviction on the
the cbarges
charges of
of homicide,
homicide, aggravated
aggravated assault,
assault, and
and robbery
robbery at
at trial.
trial.
Specifically, Appellant
Specifically, Appellant claims
claims that
that the
the Commonwealth
Commonwealth failed to present
failed to present sufficient
sufficient evidence
evidence that
that
Appellant
Appellant was
was ever at the
the Residence at the same time as the Victim
Victim to present
present such an opportunity
to commit the crimes, or that he was ever in aaposition
position to threaten or touch the Victim personally.
Appellant further claims
Appellant further claims that
that no
no evidence
evidence or
or testimony
testimony eliminated
eliminated the
the possibility
possibility of
of another
another
perpetrator having committed the crimes and that law enforcement only investigated Appellant
perpetrator having Appellant to
the exclusion
the exclusion of
of other
other possible suspects.
possible suspects.
Appellant
Appellant likewise challenges
challenges the sufficiency
sufficiency of the evidence to support the convictions of
receiving stolen property.
receiving property. Appellant
Appellant claims that the evidence was insufficient to establish the
who stole them.
value of the items stolen evidence or who
In reviewing
In reviewing aaclaim
claim that
that the
the evidence
evidence was insufficient to
was insufficient support the
to support the verdict, our Superior
verdict, our Superior
Court has stated that:
that:
[Q]ur standard
[O]ur standard of
of review of sufficiency
review of sufficiency claims
claims requires
requires that we
we evaluate
evaluate the record
record
in the light
light most favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence. Evidence will be
support the verdict when it establishes each material element
deemed sufficient to support
of the
of the crime
crime charged
charged and
and the commission
commission thereof by the
thereof by the accused, beyond
beyond aa
reasonable doubt. Nevertheless, the the Commonwealth need not establish guilt to aa
mathematical certainty.
certainty. Any
Any doubt about the defendant's guilt is to be resolved by
the fact finder unless the evidence is so weak and inconclusive that, as aamatter of
law, no probability
law, no probability of
of fact can be
fact can drawn from
be drawn from the combined circumstances.
the combined circumstances.
967 (Pa.Super.
Commonwealth v. Miklos, 159 A.3d 962, 967 (Pa.Super. 2017). Although aaconviction must be
based on more
based on more than
than mere
mere suspicion
suspicion or
or conjecture,
conjecture, the Commonwealth
Commonwealth need
need not
not establish
establish guilt
guilt to aa
certainty." Commonwealth v. Antidormi, 84 A,3d
mathematical certainty." A.3d 736, 756 (Pa.Super. 2014).
(Pa.Super. 2014)
28
"Moreover, if a
Moreover, afact
fact finder reasonably determines
finder reasonably detennines from
from the evidence that
that all of the necessary
elements of
elements of the
the crime
crime were
were establisbed,
established, then
then the
the evidence
evidence will
will be deemed
deemed sufficient
sufficient to
to support
support the
the
213, 215 (Pa.Super.
verdict." Commonwealth v. Heidler, 741 A.2d 213,215 (Pa.Super. 1999); see also Commonwealth
A.3d 602, 607
v. Ramtahal, 33 A.3d 607 (Pa.
(Pa. 2011(noting
2011)(noting that "the jury,
that "the jury, which
which passes
passes upon
upon the
the weight
weight and
credibility of
credibility of each
each witness's testimony, is
witness's testimony, is free to believe
free to believe all,
all, part, or none
part, or none of
of the
the evidence").
evidence").
Homicide
Homicide
In order
In order to
to convict
convict aaperson of first
person of first degree
degree murder,
murder, "the Commonwealth
Commonwealth must prove that
must prove that aa
human being
human being was unlawfully killed,
was unlawfully that the
killed, that the defendant
defendant perpetrated the killing,
perpetrated the killing, and that
that the
the
defendant acted with malice and aaspecific
specific intent to kill"
kill." Commonwealth v. Johnson, 107 A.3d
66 (Pa. 2014) cert.
52, 66(Pa. cent, denied sub nom. Johnson v. Pennsylvania, 577 U.S. 831, 136 S.CL.
S.Ct. 43, 193
52 (2015)(citation
L.Ed.2d 52 (2015(citation omitted). "It is well-settled that specific intent to kill can be established
through circumstantial evidence
through circumstantial evidence such
such as
as the use of
the use of aadeadly
deadly weapon on aavital
weapon on part of
vital part of the
the victim's
victim's
body." Id. "Malice,
body." "Malice, as well, may be inferred from the use of aadeadly weapon upon aavital part of
well, may
the
the victim's.body."
victim's body." Commonwealth v. Houser, 18 A.3d
A:3d 1128, 1134
1134 (Pa.
(Pa, 2011). Moreover, "proof
2011). Moreover, "proof
of motive
of motive is not necessary for aaconviction
not necessary conviction of
of first-degree
first-degree murder." 889
murder." Commonwealth v. Chmiel, 889
A.2d 501,517 (Pa.
A.24 501,517 (Pa. 2005).
initially stopped,
When initially stopped, Appellant
Appellant was found in possession
possession of multiple items belonging to
the Victim,
the Victim, including
including the Victim's Tesla
the Victim's Testa, car
car fob, graduation
graduation rings,
rings, laptop,
laptop, wallet,
wallet, identification
identification
cards, and various credit and debit cards. After finding
cards, finding these items, law enforcement proceeded
to the Residence,
Residence, and when unable to make initial contact, made various attempts to reach the
Victim. Upon entering the Residence,
Upon entering Residence, officers found the
the rooms, drawers, and closets disheveled
as if
as if they
they had
had been
been ransacked.
ransacked. Alarm
Alann panels
panels were
were found ripped
ripped off
off of
of the wall
wall and on
on the floor.
floor.
When
When they
they returned with aasearch
returned with search warrant
warrant for
for the
the Residence,
Residence, they
they discovered the Victim
discovered the deceased
Victim deceased
in the rear of the
the Residence.
Dr. Hoffman
Dr. Hoffman concluded
concluded that
that the Victim died from
Victim died from exsanguination
exsanguination and
and internal bleeding
internal bleeding
caused by
caused by multiple
multiple stab wounds to the
wounds to the Victim's
Victim's neck
neck and
and chest.
chest. Dr. Hoffman
Hoffman testified
testified tthat the
hat the
nature and varying
nature and direction of
varying direction of the
the injuries
injuries indicated
indicated that
that the
the bodies
bodies were
were in
in close
close contact
contact and
and in
in
motion, signaling aastruggle
motion, signaling struggle occurred
occurred during
during the infliction of the
the infliction the wounds. Further, while
wounds. Further, while Dr.
Dr
suggested that
Hoffman suggested that the maggot
maggot activity he observed were indicative that the Victim's time of
death
death was approximately thirty
was approximately thirty to
to forty-hours prior to
forty-hours prior to discovery,
discovery, he noted that
he noted that information
information
29
29
provided
provided by
by law enforcement allowed him to narrow that period
period to between 8:45 a.m. and 12:00
12.00
p.m. on
p.m. on July
July 16,
16, 2020.
2020.
interview with detectives,
During his interview detectives, Appellant
Appellant admitted that he had been to
to and was able
to describe the
the Residence in detail. In aaphone
phone call with
with his sister and mother, Appellant
Appellant admitted
being
being involved in
in the murder of the Victim but claimed that the Victim would purchase
purchase drugs from
him and was involved in human trafficking
trafficking and that the Victim's murder was directed by aa
Mexican cartel.
Mexican cartel.
Cell phone
phone records tracked Appellant's
Appellant's movements from Paterson, New Jersey and arriving
in the area
in the area of
of the
the Residence
Residence around
around the time of
the time of the
the Victim's
Victim's murder
murder and remaining
remaining until
until the
people observed an individual matching
afternoon. Several people matching Appellant's description and clothing
Appellant's description
at or around the Residence, including several who retuned the Victim's wandering dog and
and found
response as odd or apathetic.
the individual's response apathetic. Jeffery Neubauer identified Appellant as the
the
presented aa photographic array and he told law
individual he saw at the Residence when presented
enforcement officers that he noticed the individual at the Residence wearing the same branded
underwear as
underwear as was
was later
later recovered
recovered from Appellant.
Appellant.
While no evidence was found regarding the actual murder weapon, there was genetic
. .
evidence linked to
to the Victim found on Appellant's
Appellant's shoes that were found at the Residence.
Additionally, the Victim's
Additionally, the DNA was
Victim's DNA was found
found on
on Appellant's
Appellant's shirt.
Viewing the evidence
Viewing the evidence presented at trial in
presented at in totality,
totality, the
the Commonwealth
Commonwealth presented sufficient
presented sufficient
evidence to
evidence to place
place Appellant at the
Appellant at the Residence aathe
the time of the
time of the Victim's including cell
Victim's murder, including
phone records and eye
phone eye witnesses who either identified Appellant,
Appellant, or described an individual
matching Appellant's
matching Appellant's description
description as being
being present
present at the Residence on the date of the Victim's
death, and even posing
death, posing as the Victim himself. Blood and DNA evidence was found on Appellant's
clothing. Appellant
shoes and clothing. Appellant confessed being
being at the Residence to law enforcement and admitted
to his
his sister and mother of, at
mother of, at least, being
being involved in
in the Victim's
Victim's murder. Again,
Again, Dr.
Dr. Hoffman's
testimony concluded that the Victim died as aaresult
testimony result of the stab wounds
wounds and noted that
that the direction
and severity of the wounds indicated aastruggle.
struggle. Moreover, the location of the stab wounds
wounds to the
neck evinces both
neck and chest evinces and an intent to kill. Given the reasonable
both malice and reasonable inferences that
could be
could be drawn from
from the
the evidence
evidence presented,
presented, we
we find
find that
that Appellant's
Appellant's challenge
challenge to
to the
the sufficiency
sufficiency
support his conviction for murder of the first-degree lacks merit.
of the evidence to support
30
Aggravated
Aggravated Assault
Assault
Code, "[a]
Under the Crimes Code, "[a] person
person is guilty
guilty of aggravated
aggravated assault if he...(1)
he ... ( 1) attempts to
cause serious bodily
cause serious injury to
bodily injury another, or
to another, or causes
causes such
such injury
injury intentionally,
intentionally, knowingly or recklessly
knowingly or recklessly
under circumstances manifesting
under circumstances manifesting extreme
extreme indifference
indifference to
to the
the value of human
value of human Life."
life." 18 Pa.C.S.A. §$
18 Pa.CS.A.
2702(a)(1). "Serious
2702(a(1). bodily injury,"
"Serious bodily is defined
injury," is defined as
as "[b]odily
"[b]odily injury
injury which
which creates
creates aasubstantial
substantial risk
risk
of death or which causes serious,
serious, permanent
permanent disfigurement,
disfigurement, or protracted loss or impairment of the
any bodily
function of any bodily member or organ."
organ." 18 Pa.C.S.A. §$ 2301,
2301. "[W]here
"[W]here the victim suffers
bodily injury,
serious bodily injury, the Commonwealth need not prove
prove specific
specific intent[,]""
intent[,]" but
but."need
"need only prove
appellant acted recklessly
appellant recklessly under circumstances manifesting an extreme indifference to the value
of human life." Commonwealth v. Nichols, 692 A.2d 181, 185
185 (Pa.Super.
(Pa.Super. 1997). The degree of
recklessness required
recklessness under the
required under the aggravated
aggravated assault
assault is "such that
is "such that life threatening
threatening injury is essentially
injury is essentially
certain to occur,"
occur." Commonwealth v».v: O'Hanlon, 653
653. A,2d
A.2d 616, 618
618 (Pa.
(Pa. 1995).
support of Appellant's
Based on the evidence set forth above in support Appellant's conviction for murder, we
find the same supports
supports Appellant's
Appellant's conviction for aggravated
aggravated assault. The evidence places
Appellant at the
Appellant at the Residence
Residence at
at the time
time of
of the
the Victim's murder. Dr. Hoffinan
Victim's murder. testified as
Hoffman testified as to
to the
the
multiple
multiple stab wounds to the Victim's neck and chest --— vital areas of the body
body --— demonstrating, at
the very least, Appellant's
very least, Appellant's reckless
reckless behavior to the degree
degree that life-threatening injury was almost
Appellant's challenge
certain to result. Appellant's challenge to sufficiency of the
to the sufficiency the evidence for the conviction of
aggravated assault
aggravated
Robbery
Pennsylvania Crimes Code,
Under the Pennsylvania Code, "[a]
"[a] person
person is guilty
guilty of robbery if,
if, in the course of
committing a
committing a theft, he . .. (i)
he... () inflicts serious bodily injury upon another." 18 Pa.C.S.A.
Pa.CS.A. §$
3701(a)(1)(i). Furthermore,
3701(a)(1(). Furthermore, "[ a]n act
"[a]n act shall
shall be
be deemed
deemed `'in
in the of committing
course of
the course committing aatheft'
theft' if
if it
it
attempt to commit theft or in flight
occurs in an attempt flight after the attempt or commission." 18 Pa.C.S.A.
Pa.CS.A. §S
3701(a)(2). As
3701(a)02). stated above,
As stated above, "serious
"serious bodily
bodily injury,"
injury," is
is defined as"[b]odily
defined as injury which
[b]odily injury which creates
creates
aasubstantial risk of death or which causes serious,
serious, permanent
penmanent disfigurement,
disfigurement, or protracted loss or
impairment of
impairment of the function
function of
of any
any bodily
bodily member or organ."
member or organ." 18
18 Pa.CS.A.
Pa.C.S.A. §$ 2301
2301.
The testimony
The testimony and evidence
evidence presented
presented by
by the
the Commonwealth
Commonwealth at
at trial
trial demonstrated
demonstrated that
that
Appellant was in the
Appellant the area at the time
time of the Victim's murder
murder and was later found with various
various
valuables and
valuables and belongings
belongings of
of the
the Victim
Victim in the
the stolen
stolen vehicle
vehicle he
he was
was driving.
driving. Included in those
Included in those
31
31
items were the Victim's two graduation rings, his laptop,
laptop, debit and credit cards, coins, and aa
camera. As previously discussed, Dr. Hoffman testified as to the nature, extent, degree, and
direction of the Victim's stab wounds that were indicative of aastruggle
struggle and that the wounds were
to the Victim's chest and neck area, which were vital areas of the body. It
It.is
is clear that the
perpetrator caused serious bodily injury
perpetrator injury to the Victim,
Victim, who died as aaresult of his injuries.
injuries
cilia, that there
Appellant contends, inter alia, there was no evidence that Appellant
Appellant and the Victim
were both in the Residence at the time the offenses were committed
connnitted and that there is nothing
connecting Appellant
Appellant to any contact with the Victim.
Victim, However, the cell phone
phone records place
Appellant
Appellant in the area
in the area of
of the
the Residence at the
Residence at time of
the time of the
the Victim's murder. Several
Victim's murder. Several eyewitnesses
eyewitnesses
strongly resembling
described Appellant, or at least an individual strongly resembling Appellant
Appellant at the Residence
during the
during the time that the
the offenses were committed. Law enforcement noted that the condition of
including that the alarm panels
the Residence as being ransacked, including panels were ripped
ripped from the walls. Cell
phone
phone records further track Appellant as leaving the area in the afternoon, subsequent to the
Victim's murder.
Based on the evidence presented
presented at trial, we find the evidence sufficient for the jury to infer
that
that Appellant, committing aatheft, murdered the Victim by causing life-
Appellant, during the course of committing
threatening Appellant's challenge, therefore, must fail.
threatening injuries to vital areas of the body. Appellant's
Receiving Stolen
Stolen Property
Property
"In order to convict aa defendant of Receiving
Receiving Stolen Property
Property [("RSP")],
[("RSP")], the
Commonwealth must establish three elements: "( 1) intentionally
"(I) intentionally acquiring
acquiring possession
possession of the
movable property of another;
another; (2)
(2) with knowledge or belief that it was probably stolen; and
and (3)
() the
deprive permanently."
intent to deprive 224 A.3d 1095, 1099
permanently." Commonwealth v. Gomez,224 1.099 (Pa.Super.
(Pa.Super. 2019);
18 Pa.C.S.A. §$ 3925(a)
I8PAC.S.A. 3925(a).
Appellant's challenge
Based on this court's review of the Concise Statement, Appellant's challenge as to his
conviction for RSP only as to count seven for the items stolen from
RSP is only from the
the Victim's
Victim's Residence.
Residence.
Appellant claims that no evidence on the record established the value of the items stolen or who
Appellant who
stole which
which items. Appellant notes that because of this, the jury could only
items. Appellant only have
have reached its verdict
and assigned aavalue on pure speculation. We disagree.
At trial, the Commonwealth, through
through the Victim's son, introduced insurance documents
indicating the valuation of some of the items at the Residence. Included in that documentation
32
32
was aavaluation of the Victim's U.S. Air Force Academy graduation ring, which was assigned aa
value of
of $2,795.
$2,795. Trial N. T. at 110;
N.T, 110; Comm.'s Ex. 3.
3. - While the jury
jury could infer at least some value
stolen, including
to other items stolen, including the Victim's other jewelry,
jewelry, the credit and debit cards, and the
laptop, the valuation
laptop, the of the
valuation of Air Force
the Air Academy ring
Force Academy ring alone
alone was sufficient
sufficient to
to support
support the
the jury's
jury's
separate finding
separate finding that the value of the stolen items received and retained by Appellant exceeded
$2,000.
To the extent that Appellant that no evidence was demonstrative as to "what
Appellant contends that
burglar
burglar was responsible . for which theft." We find
was responsible find this claim is likewise unconvincing. The
Commonwealth placed
Commonwealth Appellant at
placed Appellant at the
the Residence cell phone
Residence through cell phone records eyewitness
records and eyewitness
identification. Appellant admitted being
Appellant being at the Residence. Appellant's explanation that he
obtained the items from an alleged
alleged yard sale purported to be held by some other unidentified
individual is
individual is not
not supported
supported by
by the
the evidence.
evidence. No
No other
other witness saw any
witness saw any yard
yard sales
sales occurring at
at the
the
neighborhood. Appellant
Residence or elsewhere in the neighborhood. Appellant was found in aastolen vehicle with items
belonging to tthe
belonging he Victim and with aaflimsy excuse for his possession of the items. The jury could
obviously infer from Appellant's
obviously Appellant's possession
possession of the items that he was aware that the items were
stolen, and
stolen, and that,
that, in
in fact,
fact, he
he stole
stole the
the items.
items. However,
However, evening
evening assuming
assuming arguendo
carguendo that
that Appellant
Appellant
was
was not the person
not the person who
who stole
stole the
the -items, conviction .for
items, his conviction for RSP
RSP would not be affected
would not affected as
as his
his
possession
possession of the stolen items, and his knowledge, which could be inferred, was sufficient to
sustain the conviction. As such, we
As such, we find that the alleged
alleged errors challenging the sufficiency of the
evidence are without merit.
IL
II. of Suppression
Pretrial Denial of , of Evidence
Suppression of
Appellant
Appellant next contends that the court erred in denying
denying his pretrial motion for suppression
of evidence
of evidence derived
derived from
from the
the search of
of the Residence. Specifically,
Specifically, Appellant claims that
Appellant claims that this.
this
court assumed the burden of the Commonwealth in addressing the issue of Appellant's expectation
privacy in its opinion
of privacy opinion in disposition
disposition of the pretrial
pretrial motions. Such an assertion is clearly
meritless. _
Challenges to aadefendant's expectation
Challenges expectation ofof privacy
privacy involve
involve shifting burdens of
initially bears the burden of producing evidence that
proof. The Commonwealth initially
shows the defendant lacked aareasonable expectation of privacy in the area
searched. If the Commonwealth produces
produces evidence placing the defendant's lack
of aareasonable
of reasonable expectation
expectation of
of privacy
privacy atat issue,
issue, then
then the
the burden
burden shifts
shifts to
to the
the
defendant to
defendant to persuade
persuade the suppression
suppression court
court that he
he has
has aa reasonable
reasonable
33
expectation of privacy
expectation privacy in the area searched. Where the Commonwealth
produces
produces evidence
evidence placing the
placing defendant's reasonable
the defendant's reasonable_ expectation
expectation of
of privacy
privacy at
at
issue, and the burden of persuasion
issue, has shifted, the defendant may, but is not
persuasion has
to, produce
required to, produce his own evidence to meet his burden to persuade the court
that he
he had aareasonable privacy
privacy interest in the area searched. Thereafter, it is
is
incumbent on the suppression court to consider all of the evidence to determine
whether the Commonwealth met its burden of production,
production, and, if so, whether
the defendant met his burden of persuasion
persuasion that he possessed aareasonable
expectation of privacy
expectation privacy in the car.
907 (Pa.Super. 2022)(internal
Commonwealth v. Jackson, 284 A.3d 907 2022(interal citations and quotation marks
omitted). See also Commonwealth v. Skipper, 277
omitted). 277 A.3d 617, 621 (Pa.Super.
(Pa.Super. 2022)(noting
2022{noting that
"Our Supreme
Our Supreme Court
Court has
has explained
explained that,
that, while the expectation
while the expectation of privacy be described
privacy can be described as aa
`preliminary' matter, Pa.R.Crim.P.
preliminary' 581(H) nevertheless
Pa.R.Crim.P. SI(H) nevertheless requires the
the Commonwealth
Commonwealth to
to both
both
challenge aadefendant's expectation
challenge expectation of privacy
privacy and demonstrate that the defendant lacked an
expectation of
expectation of privacy"(emphasis in original)).
privacy"(emphasis in original)). Similarly,
Similarly, our
our Supreme
Supreme Court has
has provided:
provided:
[T]he defendant's
[The defendant's ability
ability to
to meet
meet this
this burden
burden is is not
not aaprerequisite
prerequisite toto the
the
Commonwealth's initial burden of production,
production, aaburden it must satisfy in all
cases. See Pa.R.Crim.P. 581 cmt. Rule 581(H) 581(H) clearly
clearly states it is the
Commonwealth's burden
Commonwealth's burden to present evidence
to present evidence that the defendant's
that the defendant's constitutional
constitutional
rights
rights were
were not
not infringed.
infringed. The
The Commonwealth
Commonwealth may concede
concede the privacy
the privacy
interest, choosing to contest only the
interest, choosing the.legality'of
legality of police conduct; if it does
does.so,
so,
the defendant's "reasonable expectation of privacy"
the defendant's "reasonable expectation of privacy" need not need not be established.
established.
However,
However, if if the evidence
evidence ofof the Coma-onwealth, the
the Commonwealth, the party
party with
with the burden of
the burden of
production,
production, shows the defendant lacked such aaprivacy interest, the burden of
establishing the contrary
establishing contrary is
is on the defendant.
Commonwealth v.v. Enimpah,
Commonwealth Enimpah, 106
106 A.3d 695, 701
A.3d 695, 701 (Pa. Nevertheless, "[t]o
(Pa. 2014). Nevertheless, "[t]o be sure, under our
be sure, our
jurisprudence, the defendant bears the burden of persuasion
jurisprudence, persuasion with respect to his privacy interest[,]"
and "if
and privacy interest, the Commonwealth need prove no more;
if the evidence shows there was no privacy
in terns
terms of the court's review, it need go
go no further if it finds the defendant has not
not proven aa
reasonable expectation
reasonable expectation of
of privacy."
privacy." Id. at 701-02.
Id. at 701-02.
We begin by
We begin by noting
noting that
that the Commonwealth, in
in its response
response to Appellant's
Appellant's pretrial
pretrial motion,
raised
raised the
the issue expectation of privacy,
issue of his expectation privacy, and again
again in
in its post-hearing
post-hearing brief ,in
in support of
denial. The Commonwealth asserted that the testimony
testimony at both the preliminary hearing, and that
presented during the pretrial suppression
presented during suppression hearing,
hearing, demonstrated that Appellant
Appellant had
had no conceivable
privacy
privacy interest in the
interest in the Victim's Residence.
Victim's Residence.
34
As the court set forth in its opinion in disposition of Appellant's omnibus pretrial motions
dated March 29,2021,
29, 2021, the testimony at the pretrial hearing established that Appellant was initially
pulled over in the stolen Honda with items belonging to the Victim in the Honda with him.
Appellant
Appellant was not present at the Residence when law enforcement entered the
the. property. After
being arrested, Appellant initially denied that he had knowledge of the Residence, but later acceded
being
that he had been to the Residence for aayard sale and was admitted by aablack male identified as
"Bu" who sold the items found in Honda with Appellant. Appellant was not found to be in
Bu"
possession of aakey to the Residence and there is no indication that Appellant had the subjective
from, the Residence.
expectation of privacy or the ability to exclude others from
We stand by the court's March 29, 2021, opinion and the conclusion set forth therein. We
29,2021,
with Appellant
disagree with court
Appellant that the court usurped the burden of establishing that he lacked sufficient
expectation of privacy. It
expectation It is evident from the notes of testimony of the pretrial suppression hearing
that the Commonwealth satisfied its burden in presenting testimony that Appellant lacked aa
reasonable expectation of privacy in the Residence. Therefore, we find that
that Appellant's allegation
of error lacks merit.
III. Weight.of
Weight of the Evidence
Appellant next claims that the verdict was against the weight of the evidence. While
Appellant
Appellant cites to the reasons set forth in his challenge to the sufficiency, he also notes that law
enforcement failed to investigate any other possible perpetrators.
perpetrators. Appellant continues that his
statements during the phone call to his mother and sister were obviously exculpatory, but were
perverted to appear inculpatory, even though he implicated other unnamed parties in the Victim's
murder. Finally, Appellant claims that the relatively short deliberation period of the jury to reach
Finally, Appellant
its verdicts based on the
the "weak and wispy" evidence was
was "preposterous."
preposterous."
35
Where the weight of the evidence has been
the weight challenged, "[a]
been challenged, "[a] new trial should be
be granted
only where the verdict is so contrary
contrary to the evidence as to shock one's sense ofjustice?
justice. 24 "Davis v
Dais v.
773 A.2d
Mullen, 773 764, 766
A.24 764, 766 (Pa. 2001).
(Pa. 2001).
A motion
A motion for for new trial on
new trial on the
the grounds
grounds that that the
the verdict
verdict is contrary
contrary toto the
the
weight of the
weight the evidence, concedes that there is sufficient evidence to sustain
the verdict.
the verdict. Thus,
Thus, the
the trial court
court is
is under
under no no obligation
obligation toto view
view the
the evidence
evidence
light most favorable
in the light favorable to the the verdict winner. An allegation
allegation that the
verdict
verdict isis against
against the weight
weight ofof the
the evidence
evidence is is addressed to to the
the discretion
of the
of the trial
trial court.
court. AA new
new trial should not
trial should not be granted because
be granted because of of aamere
mere
the testimony
conflict in the testimony or because
because the judge
judge on the would have
the same facts would have
arrived at
arrived at aadifferent conclusion.
conclusion. A trial judge must
A trial must do do more
more than
than reassess
reassess
credibility of the
the credibility the witnesses and allegeallege that he would
would not have assented
to the
the verdict if he were
were aajuror.
juror. Trial judges,
judges, in reviewing aaclaim that the
in reviewing the
against the weight
verdict is against weight of the evidence do not sit as the thirteenth juror.
Rather, the
Rather, the role
role of
of the
the trial judge
judge is is to determine that
to determine that notwithstanding
notwithstanding all all the
the
certain facts are so clearly
facts, certain clearly of greater
greater weight
weight that to ignore them or
that to or to
give them
give weight with all the
them equal weight the facts is to deny justice.
to deny justice.
v.
Commonwealth v. Widmer, 744 A.2d 745, 751--52 (Pa. 2000)(internal citations and quotation
(Pa. 2000(internal
omitted). Likewise,
marks omitted). Likewise, "a
"atrial court's exercise of discretion in finding
finding that aaverdict is or is not
against the weight
against weight of the evidence is one of the least assailable reasons for granting or denying aa
new Commonwealth v.
new trial." Commorwealth v. Sullivan, 820
820 A.2d 795, 806
A.2d 795, 806 (Pa.Super. 2003). An
(Pa.Super. 2003). An appellate
appellate court's
court's
role "is to
role "is to review the trial
review the court's exercise
trial court's exercise of
of discretion
discretion in ruling on aaweight of
ruling on of the
the evidence
evidence
challenge," and "not
challenge," "not [to] underlying question
[to] review the underlying question of whether
whether the verdict is against the
weight of the evidence." Id.at 807.
weight
The verdict of the
verdict of the jury
jury will not be
will not be disturbed
disturbed "unless the weight
"unless the of the
weight of the evidence
evidence is
is so
so weak
weak
and inconclusive
and that, as
inconclusive that, as a
amatter
matter of
of law,
law, no
no probability
probability of
of fact can be drawn
fact can drawn from the combined
from the combined
Juray, 275
circumstances." Commonwealth v. Juray, 275 A.3d
A.3d 1037
1037 (Pa.Super. 2022). "The jury is
(Pa.Super. 2022). the
is the
ultimate fact-finder
ultimate fact-finder and
and the sole arbiter
the sole arbiter of
of the credibility of
the credibility of each of
of the
the witnesses," and "[a]
witnesses," and "[a] jury is
is
entitled to
to resolve any inconsistencies in the
the Commonwealth's evidence in the manner that it sees
fit." Commorwealth
ft" Commonwealth v. Clemons, 200 A.3d 441, 464
A.3d 441, 464 (Pa. 2019). "Issues
(Pa. 2019). "Issues of witness credibility
include questions
include questions of
of inconsistent testimony
testimony and
and improper
improper motive."
motive." Commonwealth v. 36
v. Sanchez, 6
Our courts
+ per
'-4 courts have stated that aaverdict
have stated shocks the conscience,
verdict shocks conscience, "[whhen
[when "the figure of
the figure of Justice
Justice toters
totters on
on her
her pedestal,
or when the jury's verdict, at the time of
o£ its rendition, causes the trial judge to lose his breath, temporarily, and causes
him
him to almost fall from the bench, then it is
the bench, is truly
truly shocking to the judicial
judicial conscience." Comtonwealtl
Commonwealth ».v. Davidson,
860 A.2d
A.24 575, 581
581 (Pa.Super.
(Pa.Super. 2004), affd, 938 A.2d 1982004), afr, 148 (Pa. 2007).
(Pa. 2007)
36
39 (Pa. 2011). Moreover,
A.3d 24, 39 Moreover, "[t]he weight of the evidence is exclusively
"[t]he weight exclusively for the finder of
fact who is free to believe all, part, credibility of the
part, or none of the evidence and to determine the credibility
witnesses." Commonwealth v.v. Lewis, 911 A.2d 558, 565
565 (Pa.Super.
(Pa.Super. 2006).
At the jury
At trial, the jury heard all
all of
of the
the testimony and was
testimony and was presented evidence.
presented the evidence. The
The
Commonwealth presented Appellant was stopped
presented evidence that Appellant stopped in aa stolen vehicle with aa
substantial amount of the Victim's valuables and belongings
belongings both on his person
person and in the vehicle.
jury heard evidence tracking
The jury tracking Appellant's Jersey, where
Appellant's location from Paterson, New Jersey, where the
the
vehicle had
vehicle had been stolen, and
been stolen, and to the area of
the area of the
the Residence. When law
Residence. When law enforcement
enforcement arrived
arrived at
at and
they found the home ransacked and the alarm panels
later searched the Residence, they panels ripped from the
walls. The Victim's Tesla vehicle, to which Appellant
Appellant had the fob on his person, was still in the
garage. Dr. Hoffman testified that the Victim's time of death was between 8:45 a.m. and noon on
garage.
July 16, 2020,
July 2020, which was
was around the
the same time
time that Appellant
Appellant arrived and remained in the area of
the Residence.
the Residence. Several eyewitnesses
Several eyewitnesses place
place Appellant, or at
Appellant, or at least an individual
least an individual resembling
resembling
Appellant at the Residence on July 16, 2020,
Appellant identifying himself as the Victim. Dr.
2020, and even identifying
Hoffman further
Hoffman further testified
testified as
as to the
the extent
extent of
of the
the Victim's
Victim's injuries
injuries and
and the
the conclusions
conclusions drawn
drawn from
both bruising and
both and abrasions
abrasions observed
observed on
on the
the Victim,
Victim, and from the direction
from the direction and severity
severity of
of the stab
wounds. The
wounds. Commonwealth also
The Commonwealth also presented blood
blood and DNA evidence from
DNA evidence the Victim
from the Victim found on
on
Appellant's sneaker
Appellant's sneaker and
and shirt.
shirt. Despite
Despite Appellant's contention otherwise,
Appellant's contention otherwise, the
the phone call to
phone call to his
his
sister and
sister and mother,
mother, at
at aaminimum,
minimum, implicated
implicated Appellant in the
Appellant in the Victim's
Victim's murder,
murder, regardless
regardless of
of his
his
justifications or suggestion
various justifications suggestion of other unnamed individuals. Based on all of the evidence
presented, it is clear that the trial court did not abuse its discretion in denying
presented, denying Appellant's
Appellant's post-
sentence challenge
sentence challenge to the weight of
the weight of the
the evidence.
evidence.
jury's verdict indicates that they
The jury's they lent credibility
credibility to the Commonwealth's witnesses and
did not choose to accept
accept the Defense's witness' dispute
dispute of the blood evidence. The
blood and DNA evidence,
verdicts rendered by against the weight
by the jury were not against weight of the evidence. Further, Appellant's
attack on the deliberation period of the jury as somehow demonstrative of aalack of diligence on
the
the part of the
part of the jury
jury is
is absurd.
absurd. The
The jury
jury , spent four days
days observing
observing the
the testimony
testimony and
and evidence
evidence and
was
was properly charged by
properly charged by the
the court
court in
in its analysis of
its analysis of the
the evidence.
evidence. We draw no inference
We draw inference from the
the
jury was able to come to aadecision in what Appellant
fact that the jury Appellant deemed aarelatively short amount
Appellant's claim that the court abused its discretion as to the weight
of time. Therefore, we find Appellant's weight
of the evidence to be
be without merit.
37
IV. Limitation on Appellant's Expert at Trial
Appellant
Appellant next claims that this court erred when
when it sustained the Commonwealth's
objection to his expert
objection expert witness.
witness. Specifically, Appellant
Specifically, by upholding the
Appellant contends that by
Commonwealth's objection,
Commonwealth's objection, and
and not allowing his
not allowing expert to answer
his expert answer questions
questions regarding the
the
expert from Cybergenetics,
Commonwealth's expert Cybergenetics, the court abused its discretion resulting
resulting in prejudice
Appellant. We disagree.
to Appellant. disagree.
At during direct examination of his
At trial, during expert witness,
his expert witness, Defense Counsel began to question
Young regarding
Mr. Young regarding data
data and
and information
information contained
contained in
in the Cybergenetics. However,
the report from Cybergenetics. However,
the Commonwealth objected
objected to Mr. Young
Young referring
referring to the Cybergenetics
Cybergenetics information because he
had not included the discussion of such in his report. The court sustained the objection. Defense
Counsel noted
Counsel noted his objection
objection on
on the record.
A trial court has
A has broad
broad discretion toto determine whether
whether evidence isis admissible and
aatrial court's ruling
riling on an evidentiary
evidentiary issue will be reversed only the court abused
only if
Accordingly, aaruling
its discretion. Accordingly, admitting evidence will not be
ruling admitting be disturbed on
appeal
appeal unless that ruling reflects manifest unreasonableness, or partiality,
partiality, prejudice,
bias, or ill-will,
bias, or ill-will, or
or such
such lack
lack of
of support
support toto be
be clearly
clearly erroneous.
erroneous.
Moreover, in cases involving
Moreover, involving the admission of expert
expert testimony:
testimony:
Generally speaking,
Generally speaking, the
the.admission expert testimony
admission of expert testimony is aamatter
matter left largely
largely to the
discretion of the trial
trial court,
court, and its rulings
rulings thereon
thereon will
will not be reversed absent an
expert's testimony
abuse of discretion. An expert's testimony is admissible when it is based on facts of
record and will not cause confusion or prejudice.
prejudice.
Where the evidentiary question
the evidentiary question involves aa discretionary
discretionary ruling, [an
[an appellate
scope of review is plenary,
court's] scope plenary, in that the appellate
appellate court may review
review the entire
record in
record in making
making its
its decision.
decision.
v. Huggins,
Commonwealth v. 68 A.3d
Huggins, 68 A.3d 962,
962, 966
966 (Pa.Super. 2013)(internal citations
(Pa.Super. 2013(internal citations and
and quotation
quotation
marks omitted).
marks
As noted,
noted, in the instant matter, the court sustained the Commonwealth's objection and
limited Young's testimony
limited Mr. Young's testimony as to
to the information
information and data from the
the Cybergenetics report. In
doing so, the court stated that ".
doing " . given that neither of these knives [referred
[referred to in the
Cybergenetics report] have been in any
Cybergenetics any way referred to as the murder weapon
weapon or aapotential murder
weapon
weapon in this case, the
the materiality of it
materiality of it is
is extremely
extremely small. If there is
If there is any
any materiality at all. The
materiality at The
objection sustained."
objection sustained." Trial
Trial N.T.
N.T. at
at 675.
38
38
In discussing aatrial court's limitation of testimony by aadefense expert witness, our
Superior Court has
has noted:
Although there
there are no rules of procedure in criminal cases precisely govering
governing the
scope of expert trial testimony, it cannot be asserted that either the Commonwealth
or aa defendant has carte blanche to allow an expert to testify beyond the
information contained in his or her report.
Commonwealth v. Williams, 241 A.3d 1094, 1106
1106 (Pa.Super. 2020).
In Commonwealth v. Stith, 644 A.2d 193 (Pa.Super.
(Pa.Super. 1994), the Superior Court discussed
the admissibility of expert testimony that exceeded the scope of disclosed reports. On appeal of
his conviction for driving under the influence, Stith challenged the admission of an expert witness'
testimony, in part,
testimony, part, on the allegation that the witness had testified beyond the scope of this report.
Id. at 197. While Stith conceded that "there
"there [were]
[were] no reported criminal cases which discuss the
appropriate remedy where the Commonwealth introduces expert testimony exceeding the scope of
appropriate
expert report[,]" he instead relied "upon civil rules and case law to support his notion that in
an expert
criminal cases, an expert is limited to testifying
testifying only to the facts contained in his or her report." Id.
197-98. Stith cited to Pa.R.C.P. 4003.5(c), which provides in relevant part: "To the extent that
at 197.98,
facts known or opinions held by an expert have been developed in discovery proceedings
the facts ....
proceedings..,»
the direct testimony of the expert at the -trial may not be inconsistent with or go beyond the fair
scope of his or her testimony." Pa.R.C.P, 4003.5(e).
scope 4003.5(c), The Court, in affirming
affinning Stith's judgment of
sentence, concluded that the expert did not testify beyond the scope of his report. Id,
Id. at 198.
In the unreported
unreported case of Commonwealth v. Reeves,
Reeves,7' 1566 WDA 2017,2019
2017, 2019 WL 3383703,
21 33 83703,
* 1 (Pa.Super.
at 1 (Pa.Super. July 25, 2019), the
25,2019), the Court cited to the Stith
Stith Court's decision and noted the
the reliance
reliance
on the civil rules in
in determining
detennining whether an expert's testimony exceeded the fair scope of his
report. Again, the Court found that the expert's report did not exceed the
report. the fair scope as there would
be a"fair
be a "' fair extension'
extension' of
of his
his reports,
reports, [which] would be
[which] would be to explain
explain the
the very findings, interpretations
very findings, interpretations
and diagnosis with which he agreed." Id. at *10.
10.
'-' "Non-precedential decisions filed after May I,2019,may
s«ea-precedential 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P.
Pa.R.A.P
126(b)."210
126() PA.Code $365.37.
210 Pa.Code
Pa.R.A.P. 126(b) provides
PAR.A.P, 126() "unpublished non-precedential
provides that "unpublished non-precedential memorandum decision of the Superior Court filed after
May 1, 2019 ... may be
May 1,2019,may be cited for their persuasive value."
39
It is clear from the above decisions that an expert's testimony
testimony at aacriminal matter is subject
same "fair scope" of his disclosed report as is consistent with the Civil Rules. Dr. Young's
to the same
report did
report did not
not discuss
discuss the
the Cybergenetics results or report. Therefore, the did not abuse
the trial court did
its discretion in precluding Dr. Young from testifying about the Cybergenetics report as it
it would
scope of his disclosed report.
exceed the fair scope report.
Moreover, as our
Moreover, as our Superior
Superior Court has stated,
stated, "[a] discovery violation
"[a] discovery violation and
and testimony
of the expert's report, as aaresult of
exceeding the scope of of court questioning,
questioning, do not automatically
automatically
command aanew trial. Appellant still must establish that the introduction of the expert testimony
caused him
bim prejudice
prejudice to the degree that it affected his trial strategy or likely
the degree likely affected
affected the outcome
v. Roles, 116 A.3d 122, 133 (Pa.Super.
of the proceedings." Commonwealth • (Pa.Super. 2015). The same
must be the case where aatrial court has
has precluded testimony beyond the scope of an expert's report.
Instantly, Appellant merely asserts that
Instantly, that preventing
preventing Dr. Young from testifying regarding
regarding the
the
Cybergenetics results was prejudicial
Cybergenetics prejudicial and requires
requires aanew trial to remedy the error. We disagree.
As nothing in
As the trial court noted, nothing in the Cybergenetics
Cybergenetics report was germane to the issue and
was germane
harm, was caused to Appellant
no harm Appellant in
in precluding
precluding Dr. Young
Young from providing
providing his opinions on
on results
fror,
from the two knives
the two knives that they were not
that demonstrated they weapons.
not the murder weapons. Consequently,
Appellant's allegation 'of
Appellant's allegation of error lacks merit.
merit.
V.
V. of T-Mobile
Admission of T-Mobile Documents
Appellant
Appellant finally contends that through Detective Martinez's testimony of
that the admission through
from, T-Mobile regarding the cell phone
documents from phone activity of Appellant's
Appellant's cell phone, over
Defense Counsel's objections, was prejudicial
prejudicial to Appellant.
Appellant. We find Appellant's
Appellant's argument
unavailing.
unavailing.
Comnrnonwealth sought
At trial, when the Commonwealth sought to introduce the Metro PCS records for the Cell
Phone Number, and in doing so, Detective Martinez read into the record aacertification from
Lauren Collins of the Law Enforcement Relations Group
Group with T-Mobile MetroPCS indicating
indicating that
the records were regular
regular business records and were produced
produced in compliance with Federal Rules of
Evidence and
Evidence and state
state equivalents,
equivalents, Defense Counsel objected.
Defense Counsel objected. During the
During the subsequent
subsequent sidebar
sidebar
conversation, the
conversation, following discussion
the following discussion occurred:
occurred:
40
[ASSISTANT DISTRICT ATTORNEY
[ASSISTANT ATTORNEY("ADA")]:
(ADA")]. Your Honor, in anticipation
anticipation of
being introduced on March 30th, 2022, I
this evidence being I sent Mr. Bompadre aaletter
informing
informing him of our intent to introduce these documents. And IIspecifically
mentioned that we Mr.—or excuse me, Detective
we had attached the document that Mr.or
Martinez isis currently
currently reading
reading from in order to
in order comply with
to comply with Rule of Evidence
Rule of Evidence
803 [(6)] and
803[(6)] and 902((11)]
902 [( 11)].
you receive any
THE COURT: Did you any response?
response?
ADA: IIdid
ADA: did not.
not.
DEFENSE COUNSEL:
COUNSEL Your Honor, the
Your Honor,
26: the documents
documents have
have toto still be reliable.
reliable.
business records that
These are business that were produced
produced by
by aacompany
company that
that they are relying
relying
on the
on the data that was sent to them,
them, and there
there is
is --— he doesn't have the
he doesn't the personal
knowledge
knowledge or the witness doesn't have personal knowledge.
knowledge.
THE COURT:
COURT: The same thing thing applies to
to aabill
bill from aacontractor,
contractor, IImean the
the rules
on this
are clear on stuff. Your
this stuff. Your objection
objection is
is overruled.
overruled.
Trial N.T. at 552-53.
THal
concerning the admissibility of evidence are within the sound discretion
Questions concerning
of the trial court and we will not reverse aatrial court's decision concerning
admissibility of evidence absent an abuse of the trial court's discretion. An abuse
admissibility
of discretion is not merely
merely an error of judgment, but is rather the overriding of or
misapplication
misapplication of the law, or the exercise of judgment judgment that is manifestly
unreasonable, or
unreasonable, or the result of
the result of bias,
bias, prejudice, ill-will or
prejudice, ill-will or partiality, as shown
partiality, as shown by
by the
evidence of record.
record. IfIf in reaching
reaching aa conclusion the trial court overrides or
misapplies law, discretion is then abused and it is the duty
misapplies the law, duty of the appellate
appellate court
to correct the
the error.
236 A.3d
Commonwealth v. LeClair, 236 A.3d 71,
71, 78
78 (Pa.Super. 2020)(citation omitted).
(Pa.Super. 2020)(citation omitted).
Hearsay is defined
Hearsay is as "as an
defined as an out-of-court
out-of-court statement,
statement, which
which is
is offered
offered in
in evidence
evidence to
to prove
prove
the truth of the matter asserted." Commonwealth v. Busanet, 54 A.3d 35, 68
68 (Pa.
(Pa. 2012); PA.R.E.
Pa.R.E. 8-
3(c). "Hearsay
3(c). generally inadmissible
"Hearsay statements are generally inadmissible unless
unless they fall under an enumerated
exception." ld;
exception." Id.; Pa.R.E. 802. Rule 803 of the Pennsylvania
Pennsylvania Rules of Evidence provides such
exceptions, in
exceptions, in relevant
relevant part:
part:
Rule
Rle 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the
Against Hearsay--Regardless
Declarant
Declarant Is Available as aaWitness
following are not excluded by the rule against hearsay, regardless of whether
The following
the declarant is available as aawitness:
We note that while the
Me
26 the transcript
transcript ascribes this statement to ADA Charles Prutzman, Esq., the response was actually
by Defense Counsel, Adam Bompadre, Esq.
made by
41
(6) Records
(6) of. aa Regularly
Records of Regularly Conducted
Conducted Activity.
Activity. A
A record
record (which includes aa
(which includes
memorandum, report,
memorandum, report, or
or data
data compilation
compilation in
in any
any form) of an
form) of an act,
act, event
event or
or condition
condition
if.
if:
(A) the
(A) the record was made
made at or near
near the by--or from
the time by--or from information transmitted
by--someone with knowledge;
by--someone knowledge;
(B) the
(B) record was
the record kept in
was kept the course
in the course of aaregularly
regularly conducted
conducted activity
activity of aa
"business", which includes business, institution, association, profession,
which term includes
and calling
occupation, and calling of every
every kind, whether
whether or not conducted for
not conducted for profit;
profit;
(C) making
(C) making the record was
was aaregular
regular practice
practice of that activity;
(D) all these conditions are shown by
(D) by the testimony
testimony of
o£ the custodian or another
qualified witness, or by
qualified by a
acertification
certification that complies
complies with Rule 902(11)
902(11) or
or ((12)
12) or
with aastatute permitting certification; and
(E) the
CE) the opponent does not show that the source of information or other
circumstances indicate
circumstances indicate aalack
lack of
of trustworthiness.
trustworthiness.
803(6)(emphasis added).
Pa.R.E. 803(6(emphasis added). Pertinently,
Pertinently, Rule 902 of the Rules of Evidence provides that:
Certified Domestic
Certified Domestic Records
Records of of aaRegularly Conducted Activity.
Regularly Conducted Activity. The original or
aacopy
copy of aadomestic record
record that meets the
that meets requirements of Rule
the requirements Rule 803(6(A)-(0),
803(6)(A)-(C), as
as
shown by
shown by aacertification
certification of
of the
the custodian
custodian oror another
another qualified
qualified person that
that complies
complies
with PAR.C.P.
with Pa.R.C.P. No.
No. 76.
76. Before the trial
Before the trial or hearing, the proponent
hearing, the proponent must
must give
give an
an
adverse party
adverse party reasonable
reasonable written notice of the intent
written notice intent to offer the
the record--and
record--and must
must
make the record
make the record and certification
certification available
available for
for inspection--so
inspection-- so that the
the party has aa
party has
challenge them.
fair opportunity to challenge
902(11).
Pa.R.E. 902(11)
The Commonwealth's presented
presented aadocument executed by
by Lauren Collins of the T-Mobile
Law
Law Enforcement Relations Group
Enforcement Relations Group indicating that
that the records met
the records met the
the conditions set
set forth in
303(6)(A)-(D). At trial, the ADA noted that he sent notice to Trial Counsel pursuant to
Pa.R.E. 303(6(A4)-(D).
Pa.R.E. 902(11)
Pa.R.E. 902(11) on
on March 30,
30, 2022.
2022. While
While Appellant argues that
Appellant argues that Detective Martinez lacked
Detective Martinez lacked
personal
personal knowledge of the records being introduced
knowledge of introduced and admitted,
admitted, there
there was no
no such requirement
as required
as under the
required under the Rules of Evidence.
Rules of The Commonwealth
Evidence, The Commonwealth complied
complied with
with Rule 902(11) and
Rule 902(11) and
the document
the document conforms
conforrns to Rule
Rule 803(56A)-(D).
803(5)(A)-(D). Therefore,
Therefore, there
there would
would be
be no
no reason
reason for
for the
the trial
trial
court to prevent of the
prevent admission of the records.
records. Appellant's of error
Appellant's claim of error thus
thus fails.
fails.
CONCLUSION
CONCLUSION
foregoing reasons,
For all of the foregoing reasons, we
we find that all of Appellant's
Appellant's allegations of
of error lacks
Accordingly, we urge
merit. Accordingly, urge the Superior
Superior Court to affirm
affinn the judgment
judgment of sentence.
42