J-A07038-19 No. 358 EDA 2017 No. 359 EDA 2017 No. 361 EDA 2017
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 23, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004101-2012 Appeal from the Judgment of Sentence December 23, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004103-2012 Appeal from the Judgment of Sentence December 23, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004105-2012 BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Ibrahim Muhammed, appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after a jury convicted him of three counts of first-degree Murder and related offenses described infra. Appellant asserts eight claims of trial court error, none of which has merit. We affirm.
The trial court aptly sets forth the pertinent facts and procedural history of the case sub judice, as follows:
On December 21, 2016, following a capital murder jury trial before [the trial court], defendant Ibrahim Muhammed [hereinafter "Appellant"] was convicted of three counts of first-degree murder (18 Pa.C.S. § 2502), three counts of robbery (18 Pa.C.S. § 3701), one count of criminal conspiracy (18 Pa.C.S. § 903), one count of carrying a firearm without a license (18 Pa.C.S. § 6106), one count of carrying a firearm on the streets of Philadelphia (18 Pa.C.S. § 6108), and one count of possessing an instrument of crime (18 Pa.C.S. § 907). Appellant was tried with his co-defendant Nalik Shariff Scott. As the jury was unable to reach a consensus following a penalty phase hearing, the [trial court] imposed an aggregate sentence of three consecutive life sentences to be followed by fifty to one hundred years' incarceration (18 Pa.C.S. § 1102(a)(1)). Appellant did not file post-sentence motions.
At trial, the Commonwealth presented the testimony of [numerous Philadelphia Police detectives and officers, a Philadelphia Firefighter lieutenant, medical experts, and other witnesses], and several eyewitnesses. Appellant presented testimony from [Philadelphia Police detectives and officers, several physicians, and numerous eyewitnesses. Co-defendant Scott presented the testimony of detectives and officers, a Philadelphia Firefighter lieutenant, and a Delaware State Chief Medical Examiner, and several eyewitnesses]. Viewed in the light most favorable to the
Commonwealth as the verdict winner, the evidence established the following.
On September 6, 2011, Porfirio Nunez, his wife Juana Nunez, and his sister Lina Sanchez, were working at their family owned Lorena's Grocery, which was located at the corner of 50th and Parrish Streets in Philadelphia. N.T. 12/7/16, at 223-224, 227. Also working that day were Porfirio and Juana's daughters, Jessica and Laura Nunez. N.T. at 12/7/16 at 227. At approximately 7:55 p.m., Porfirio was located by the back refrigerators, while Lina and Juana were in the back food preparation area and Jessica and Laura were at the front registers. N.T. 12/7/16 at 228; 12/8/16 at 216; 12/9/16 at 228. At that time, Appellant Muhammed and co-defendant Scott entered the store. N.T. 12/7/16 at 228.
Upon entering, Scott went behind the counter where Laura and Jessica were located and grabbed Laura by her hair, while Appellant went to the back of the store where Lina and Juana were located. N.T. 12/7/16 at 228-229, 237; 12/8/16 at 216-217, 219-220. After Scott grabbed Laura's hair, he pushed her to the ground, causing Laura and Jessica to scream. N.T. 12/7/16, at 228, 230; 12/8/16 at 216. Hearing his daughters' screams, Porfirio came out to the aisle to see what was going on at the front of the store. N.T. 12/7/16 at 228. Co-defendant Scott, who was in possession of a 9-millimeter handgun, pointed the firearm at Porfirio and shot him through the arm and into his chest. N.T. 12/7/16 at 228, 230-232; 12/8/16, at 193-194; 12/12/16, at 323, 328-329. Porfirio then ran into the back of the store. N.T. at 12/7/16, at 228, 232. Hearing the gunshot, Appellant then took out his own gun and began shooting Juana and Lina. N.T. 12/7/16, at 233. Appellant shot Lina Sanchez in her abdomen and back before shooting Juana in the chest and top of her head. N.T. 12/7/16, at 233-236; 12/8/16, at 198-204. Appellant then turned towards Porfirio and shot him three times in the chest and back. N.T. 12/7/16, at 233-236; 12/8/16, at 190.
After shooting Porfirio, Juana, and Lina, Appellant walked towards Jessica while co-defendant Scott, still holding Laura to the floor, yelled at Jessica to "give [him] the money." N.T. 12/7/16, at 234-236; 12/8/16, at 217. Believing that she was about to be shot, Jessica opened the cash register. N.T. 12/7/16, at 236. Appellant and Scott then grabbed what they could from the register before
leaving through the front door and fleeing the area. N.T. 12/7/16, at 131-133, 238-239; 12/8/16, at 217.
Police responded to the store to find Porfirio, Juana, and Lina [lying] on the floor inside the store. N.T. 12/6/16, at 270-272. Lina, who was still showing signs of life, was rushed to the Hospital at the University of Pennsylvania. N.T. 12/6/16, at 273-276, 298; 12/8/16, at 201. Juana and Porfirio were similarly transported to the hospital, though they did not show signs of life at the time. N.T. 12/6/16, at 281. Police recovered three projectiles and nine 9mm fired cartridge cases from the scene. N.T. 12/6/16, at 203-204, 208-09; 12/12/16, at 32-333. The medical examiner recovered five bullets from the bodies of the victims. N.T. 12/12/16, at 323.
Porfirio was shot a total of five times: twice in his chest, perforating his spleen, diaphragm, vertebrae, and spinal cord; once in his arm and chest, penetrating his left lung, heart, esophagus, and liver; once in his back, penetrating his lungs and vertebrae; and once in his hand. N.T. 12/8/16 at 190, 193-194. Lina Sanchez was shot a total of two times: once in the upper back, penetrating her back, neck, and mouth; and once in the abdomen, penetrating her colon, liver, and right kidney. N.T. 12/8/16, at 198-199. Juana was shot a total of three times: once in the base of her neck; once in her chest, penetrating her left lung, left pleura, and vertebrae; and once in the head, penetrating her brain and vertebrae. N.T. 12/8/16, at 202-204.
In early February, 2012, narcotics police officers observed Appellant selling marijuana near the corner of Reedland Street and 62nd Street in Philadelphia, and subsequently arrested him. N.T. 12/9/16, at 106-111. Following his arrest, Appellant informed police that he had information about robberies and shootings. N.T. 12/9/16 at 114, 116.
Appellant was brought to the Southwest detectives' headquarters and talked with Detective Joseph Murray, who began to believe that Appellant may have been involved in the Parrish Street murders at Lorena's Grocery. N.T. 12/9/16, at 149-150, 154. Appellant was then brought to the Homicide Unit, where he was interviewed by Detective Thomas Gaul. N.T. 11/9/16, at 251-252.
Appellant was given Miranda warnings and ultimately provided a statement inculpating himself in the murders. N.T. 12/9/16, at
254-259, 270; 12/12/16 at 89-99. Appellant admitted to police that he and "Leek" went into the store to rob it, that he was in the back of the store with the women, that he heard a gunshot, and then pulled out his own gun and began firing. N.T. 12/12/16, at94-95. Appellant stated that he was firing indiscriminately and that he may have shot a man accidentally as he was leaving the store. N.T. 12/12/16, at 94-95. Appellant identified Scott as his co-conspirator in the robbery/homicides. N.T. 12/12/16, at 96.
On February 10, 2012, police detectives prepared a photo spread containing Appellant's photograph and brought it to Jessica and Laura, who both independently identified Appellant. N.T. 12/7/16, at 272-273; 12/8/16, at 237-238; 12/13/16, at 94-96, 112-113. Later that day, Jessica was brought to police headquarters where she identified Appellant in a photo spread. N.T. 12/7/16, at 275-276; 12/13/16, at 97.
Trial Court Opinion, 6/14/17, at 1-6.
Appellant presents the following questions for our consideration:
1. Whether the trial court erred in not permitting the defense to ask follow-up questions to jurors who answered affirmatively to either: [a.] if Appellant was found guilty of first degree murder, they could not give a death sentence even if the prosecution proved beyond a reasonable doubt that a death sentence was warranted; or, [b.] they could not give a life sentence if Appellant was found guilty of first degree murder, and the penalty phase evidence showed a life sentence was warranted.
2. Whether the trial court erred in denying the defense's Batson motion.
3. Whether the trial court erred in denying the defense's motions to suppress physical evidence, Appellant's statements and any in-court and out-of court identifications.
4. Whether the Commonwealth committed prosecutorial misconduct during closing arguments.
5. Whether the trial court erred in not granting the defense motion for mistrial.
6. Whether the trial court erred in allowing the Commonwealth to introduce evidence and argue in closing arguments that defense counsel was deficient for not providing timely notice of alibi defense.
7. Whether the trial court erred in not allowing Appellant to present his gait to the jury.
8. Whether the trial court erred in allowing the Commonwealth to show a video displaying the defense medical expert's participation in the Colorado theatre murder case.
Appellant's brief, at 6.
Appellant's first issue involves the court's questioning of venirepersons during voir dire. In assessing Appellant's claim, we are guided by the following standard of review.
The scope of voir dire rests in the sound discretion of the trial court, whose decision will not be reversed on appeal absent palpable error. The purpose of voir dire is to ensure the empaneling of a competent, fair, impartial, and unprejudiced jury. The scope of voir dire should therefore be limited to questions that attempt to disclose a potential juror's lack of qualification or fixed opinion regarding the defendant's guilt or innocence. A prospective juror's personal views are of no moment absent a showing that these opinions are so deeply embedded as to render that person incapable of accepting and applying the law as given by the court.
Commonwealth v. Karenbauer , 715 A.2d 1086, 1094 (Pa.1998) (internal citations and quotation marks omitted).
Appellant complains that the trial court erred when it declined his request that follow-up questions be put to each individual venireperson who answered affirmatively to the court's group question asking if any person possessed "religious, conscientious, or moral scruples that would either prevent you or substantially impair you from returning a sentence of death. . . ." N.T. at 11/28/17, at 123. Appellant argues that instead of immediately dismissing those venirepersons who indicated they would be so prevented or substantially impaired, the court should have first permitted him to examine fully each juror's reason for providing such an answer.
"The decision whether to disqualify a juror for the inability to impose a death sentence in a proper case lies in the discretion of the trial court which will not be reversed except for abuse of that discretion." Commonwealth v. Wilson , 543 Pa. 429, 672 A.2d 293, 300 (1996) (citation omitted). Voicing a general objection to the death penalty or expressing conscientious or religious scruples is insufficient reason for disqualification. Commonwealth v. Uderra , 580 Pa. 492, 862 A.2d 74, 81 (2004) (citing Witherspoon v. Illinois , 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). "Rather, exclusion for cause is warranted only if the venireperson's views 'would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id . (quoting Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (internal quotation omitted)).
Commonwealth v. Keaton , 45 A.3d 1050, 1069 (Pa. 2012).
Keaton involved the same voir dire question presently at issue in the case sub judice. In concluding that follow-up questioning was unnecessary where a venireperson confirms that his or her beliefs will prevent them from imposing the death penalty, the Supreme Court explained:
The question posed to the venirepersons asked if their beliefs would prevent them from imposing the death penalty, even when it was called for. In the face of an affirmative answer, further query regarding whether they could set aside their beliefs would
have been illogical—the word "prevent" implies they could not. In Commonwealth v. Harris , 550 Pa. 92, 703 A.2d 441 (1997), and Commonwealth v. Cox , 556 Pa. 368, 728 A.2d 923 (1999), we addressed voir dire procedures nearly identical to the present one, and observed: "As a trial judge has wide latitude in supervising the manner in which voir dire is conducted, including the power to prevent further voir dire when response to death qualification questions prove that additional inquiry will be fruitless, the trial court [does] not err by dismissing the jurors." Harris , at 446 (citation omitted). We further stated, "We reject appellant's argument that trial counsel should have continued to question the excused jurors.... The trial court correctly removed jurors when it found that their views on capital punishment would 'prevent or substantially impair' the performance of their duties...." Cox , at 930-31. Thus, we perceive no impropriety in the dismissal of these 15 venirepersons;
Keaton , 45 A.3d at 1069-70.
The present case falls squarely under Keaton , as it would have been pointless for the court here to continue voir dire of venirepersons, who already indicated their beliefs prevented them from imposing the death penalty, by asking if they could set aside such core beliefs and sit in this capital case. Therefore, we discern no error with the court's dismissal of these venirepersons.
Appellant acknowledges that Keaton is binding, but he baldly asserts that we should reexamine the decision given the uncertain scope of the word "prevent." Even if Appellant provided an ostensibly compelling argument in this regard—he does not— Keaton represents controlling precedent of the Pennsylvania Supreme Court that we are bound to apply to the present matter.
Appellant's second issue also pertains to voir dire, as Appellant contends the court erred in denying his Batson motion made in response to the Commonwealth's decision to use four of its five peremptory challenges to strike African Americans. We disagree.
Batson v. Kentucky , 476 U.S. 79 (1986).
A Batson claim presents mixed questions of law and fact. Therefore, our standard of review is whether the trial court's legal conclusions are correct and whether its factual findings are clearly erroneous.
In Batson , the [Supreme Court of the United States] held that a prosecutor's challenge to potential jurors solely on the basis of race violates the Equal Protection Clause of the United States Constitution. When a defendant makes a Batson challenge during jury selection:
First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race; second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue; and third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination.
Commonwealth v. Edwards , 177 A.3d 963, 971 (Pa. Super. 2018) (citations and quotation marks omitted). "The trial court should consider the totality of circumstances when determining whether the prosecutor acted with discriminatory intent or engaged in purposeful discrimination." Commonwealth v. Towles , 106 A.3d 591, 602 (Pa. 2014) (citation omitted). This Court must give great deference to a trial court's determination that peremptory challenges were free of discriminatory intent, and we will not overturn the determination unless it was clearly erroneous. See id .
The particular venireperson pool in question began with 37 Caucasian, 37 African American, 9 Hispanic, four Asian, two who provided no race information, and one who identified as "other." After group voir dire, when the court dismissed venirepersons either by agreement of the parties or due to their answers to the death penalty question described above, the pool comprised nine Caucasians, nine African-Americans, and four Hispanics.
According to Appellant, the Commonwealth's reasons for using four of its five available peremptory strikes on African Americans were pretextual and hardly race-neutral. Appellant's brief, at 14. The sum of his argument in this vein states, "There is no other fair conclusion than to state that the defense established a prima facie case of racial discrimination by virtue of the astounding percentage of prosecution strikes of African Americans." Appellant's brief, at 14.
The trial court responds, first, that of the six venirepersons from this group who were ultimately chosen for the jury, four were African-American. Therefore, although representing only 41% of the available jurors following group voir dire, African Americans constituted 67% of the chosen group.
Also, the court found the Commonwealth's explanations for each of its five peremptory challenges to be both credible and race-neutral. The respective explanations were: attenuated residency in Philadelphia; prison employment duties included assessing inmates' medical needs and health issues; unusual staring at the prosecutor even when other persons were asking him questions; and young age and immature manner.
In the totality of these circumstances, we find no error where the Commonwealth provided the court with plausible, race-neutral explanations for each peremptory challenge and the trial court found Appellant failed to carry his burden of proving purposeful discrimination with his claim of pretext. See Towles , supra at 602; Edwards , supra at 971. Appellant's Batson issue, therefore, merits no relief.
In Appellant's next issue, he challenges the denial of his motion to suppress. Specifically, Appellant maintains there was no probable cause to support a search warrant of a residence from which Appellant conducted two separate money-for-marijuana exchanges with a confidential informant.
The entirety of his argument in this regard states:
In the present case, the warrant did not express the reliability of the confidential information. Police had not received tips or information that Appellant or the residence were involved in narcotics trafficking. The buy was not prearranged, and the alleged seller did not enter the house after the transactions to support an inference he lived there. In short, the facts here do not support a fair and common sense, non-technical support [sic] probable cause exists for a search of the residence.
Appellant's brief, at 19. Because Appellant's arrest, confession, and all physical evidence flowed from the execution of this unlawful search warrant, Appellant argues, the court erred in denying his motions to suppress. We disagree.
This Court has stated generally, "The ultimate issue in a suppression hearing is whether the police officer affiants had probable cause at the time they applied for a search warrant." Commonwealth v. Luton , 672 A.2d 819 (Pa.Super. 1996). In this regard,
the Commonwealth has the burden of proving that the facts presented to the magistrate demonstrate probable cause. The standard for evaluating whether probable cause exists for the issuance of a search warrant is the "totality of the circumstances" test as set forth in Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which was adopted by the Pennsylvania Supreme Court in Commonwealth v. Gray , 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). A magistrate is to make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." The information offered to establish probable cause must be viewed in a common sense, non-technical manner and deference must be given to the issuing magistrate. It must be remembered that probable cause is based on a finding of the probability of criminal activity, not a prima facie showing of criminal activity.
Luton , 672 A.2d at 821-22 (some citations omitted).
Here, our review of the record supports the following observation of the trial court:
[T]he affidavit of Officer Cuffie in support of the search warrant set forth all of the above-described facts regarding Cuffie's narcotics surveillance of [Appellant] in February 2011. As stated above, she observed two transactions during which [Appellant] took money from the informant, went into the property at 6215 Reedland Street, and then came out and gave small objects to the informant that turned out to be baggies of marijuana. Commonwealth Exh. CM-5 (search warrant affidavit). That was sufficient to establish a fair probability that evidence of a crime would be found at 6215 Reedland Street.
Trial Court Opinion, at 9.
Under the totality of the circumstances thus described, the affidavit presented by Officer Cuffie established probable cause that justified the issuance of a search warrant of 6215 Reedland Street. As Appellant premises his entire suppression challenge on a meritless argument aimed at the sufficiency of the probable cause affidavit, we discern no merit to this challenge.
Appellant's next two issues implicate the Commonwealth's closing arguments. Specifically, in Appellant's brief, he argues that prosecutorial misconduct occurred during closing arguments where the prosecutor alluded to a medical expert's compensation as a source of potential bias, referenced his own comparatively modest compensation despite the lack of an evidentiary basis for so doing, speculated that the defense investigator may have been schizophrenic or bipolar, and speculated that an uncalled defense witness would have denied the defense theory that an acquaintance—and not Appellant—was depicted in an incriminating video. In light of such misconduct, Appellant posits, the court should have granted the defense motion for mistrial.
Initially, we note that in reviewing a claim of improper prosecutorial comments, our standard of review "is whether the trial court abused its discretion." Commonwealth v. Hall , 701 A.2d 190, 198 (Pa. 1997). Additionally,
with specific reference to a claim of prosecutorial misconduct in a closing statement, it is well settled that any challenged prosecutorial comment must not be viewed in isolation, but rather
must be considered in the context in which it was offered. Our review of a prosecutor's comment and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial. Thus, it is well settled that statements made by the prosecutor to the jury during closing argument will not form the basis for granting a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict. The appellate courts have recognized that not every unwise remark by an attorney amounts to misconduct or warrants the grant of a new trial. Additionally, like the defense, the prosecution is accorded reasonable latitude, may employ oratorical flair in arguing its version of the case to the jury, and may advance arguments supported by the evidence or use inferences that can reasonably be derived therefrom. Moreover, the prosecutor is permitted to fairly respond to points made in the defense's closing, and therefore, a proper examination of a prosecutor's comments in closing requires review of the arguments advanced by the defense in summation.
Commonwealth v. Jaynes , 135 A.3d 606, 615 (Pa.Super. 2016) (quotation marks, quotation, and citations omitted).
The trial court responds that Appellant has waived much of his issue by framing it in a vague Pa.R.A.P. 1925(b) statement. Specifically, Appellant's Rule 1925(b) statement provided:
The Honorable Trial Court erred by permitting the prosecutor to make arguments about evidence that was not in the record, make outrageous arguments which were designed to prejudice the jury against defense counsel and the defendants, and misrepresent the contents of the record. See generally N.T. 12/21/2016. Moreover, the Honorable Trial Court erred by permitting the prosecutor to commit misconduct by consistently making impermissible appeals to emotion and racial bias throughout the trial. See, inter alia, N.T. 12/21/2016, 33-34.
Appellant's Pa.R.A.P. 1925(b) Statement, dated 4/20/17. The trial court opines Appellant preserved only the allegedly improper arguments appearing on pages 33 to 34 of the Notes of Testimony of closing arguments, as a court is not required to "comb through" the notes of testimony in an effort to guess to what Appellant refers in this broadly stated Rule 1925(b) statement.
We observe that, generally,
issues not raised in a Rule 1925(b) statement will be deemed waived for review. An appellant's concise statement must properly specify the error to be addressed on appeal. In other words, the Rule 1925(b) statement must be "specific enough for the trial court to identify and address the issue [an appellant] wishe[s] to raise on appeal." Commonwealth v. Reeves , 907 A.2d 1, 2 (Pa.Super. 2006), appeal denied , 591 Pa. 712, 919 A.2d 956 (2007). "[A] [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all." Id . The court's review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.
Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa.Super. 2011) (some internal citations omitted).
Here, we agree with the trial court's conclusion that the vagueness of Appellant's Pa.R.A.P. 1925(b) statement on this issue left it in a position to guess what specific issues were being raised, thus impairing its ability to identify most instances of prosecutorial misconduct alleged. We, therefore, discern no error in the court's determination that Appellant's Rule 1925(b) statement preserved only that prosecutorial misconduct claim centered on the prosecutor's comments appearing on pages 33 to 34 of the December 21, 2016 Notes of Testimony. See Trial Court Opinion, at 18-19.
The prosecutor made the remarks in question in response to the opinion of a defense expert, who had testified a victim is more likely to make a mistake in identifying a perpetrator who is of a different race than he or she is. See N.T. 12/21/16, 33-34.
A review of the argument section of Appellant's brief, however, shows that Appellant presents no argument to advance this particular issue. See Appellant's brief, at 16-17. Accordingly, he has waived this issue for briefing deficiencies.
In Appellant's next issue, he charges error with the trial court's ruling permitting the Commonwealth to introduce evidence and argue in closing that the defense was deficient for failing to provide timely notice of an alibi defense. Again, however, we are unable to address the merits of this issue.
The argument section of Appellant's brief consists of six lines of text containing neither a specific reference to the record to support the allegation nor a citation to—let alone an analysis of—relevant case law. Consequently, we determine Appellant has waived his claim for failure to develop an argument. See Commonwealth v. Cannavo , 199 A.3d 1282, 1289 (Pa.Super. 2018) ("We shall not develop an argument of an appellant, nor shall we scour the record to find evidence to support an argument; instead we will deem [the] issue . . . waived.") (citation omitted); see also Pa.R.A.P. 2119(a), (c) (requiring argument section to include, inter alia, separate sections developing discrete arguments and citations to record when reference is made to "pleadings, evidence, charge, opinion or order, or any other matter appearing in the record[.]").
Appellant's final two issues pertain to the trial court's evidentiary rulings. "The admissibility of evidence is a matter within the sound discretion of the trial court and will be reversed only where there is a clear abuse of discretion." Commonwealth v. Clemons , 200 A.3d 441, 474 (Pa. 2019) (citation omitted). Our standard of review of a challenge to an evidentiary ruling is therefore limited. Commonwealth v. Conte , 198 A.3d 1169, 1180 (Pa.Super. 2018). "Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Id. (citation omitted).
The first evidentiary matter pertains to the trial court's ruling denying Appellant's request to present his gait to the jury to prove it did not match that of the person depicted on the video of the robbery. According to the court, the demonstration was of tenuous relevancy because too much time had passed from the time of the robbery to the time of trial. Appellant now contends the court should have allowed the jury to decide what weight to attach to the proffer.
Appellant claims there are "legions of cases which cover the fact that such a physical characteristic can be displayed to the jury for its fact finding decision on identification." Appellant's brief, at 15. He fails, however, to cite or discuss even one such decision. Therefore, we are constrained again to find Appellant has failed to present an adequate argument advancing an issue he raises. See Cannavo , supra .
The same failure to cite to pertinent authority and develop meaningful argument defeats Appellant's second evidentiary challenge. Specifically, Appellant argues that the trial court erred in its response to his objection during the prosecution's cross-examination of his expert medical witness. Specifically, the court had made a pretrial ruling permitting the prosecution on cross-examination to inform the jury that the medical expert had provided mental health testimony in previous criminal trials. The ruling, however, also prevented the Commonwealth from revealing with any specificity the fact that one of the expert's previous cases involved the widely publicized Colorado movie theater shooting case, which was tried in the year before the case sub judice.
During cross-examination, however, the prosecutor named the case specifically, purporting it was fair response to the expert's inaccurate claim that she had only testified for other defendants on two prior occasions, when the "Colorado Theater Shooting" case represented the third case in which she so testified.
The trial court sustained Appellant's objection, N.T., 12/19/16, at 62, and during a subsequent break admonished the prosecution for needlessly revealing the subject matter of the Colorado trial. N.T. at 78-81. The court, then, reviewed the prosecution's intended use of a video from the Colorado trial to supplement cross-examination of the expert, and it determined the video was unnecessary unless the expert directly contradicted parts of her testimony recorded in the video, at which point the court would conduct a side-bar discussion prior to approving use of the video. N.T. at 82-87.
A still of the video was visible momentarily before the court excused the jury and invited argument on the video's admissibility. During argument, Appellant's counsel noticed the words "Live Theater Shooting Trial" at the lower left-hand of the screen. N.T. at 80-81. The prosecutors claimed they could not see the wording, nor could the court see it, but the court ordered the lights dimmed and asked Appellant's counsel to sit in the jury box and say whether the words were visible from that vantage point. N.T. at 81. Counsel said "Yes, it's not hard. It says 'Colorado' with a big seal, 'Colorado County' behind it in the back of the frame." N.T. at 81-82. As discussed, infra, the court excluded the video without prejudice to the prosecution's right to reargue the matter should the expert's pending testimony increase the probative value of the video. --------
Neither defense counsel moved for mistrial, asked the court to determine if any juror observed the writing on the video still, or objected to the court's handling of the matter in any way. Moreover, the video was not shown to the jury.
Herein, Appellant now advances a single-sentence argument cursorily positing that "this effort by the prosecution was a direct attempt to sabotage the defense's case and should not be tolerated. The violation was of such egregious nature that the case should be dismissed." Appellant's brief, at 15. Appellant cites to no authority to support his position. We, therefore, find the present claim waived for briefing deficiencies. See Cannavo , supra . In the alternative, we would concur with the trial court's apt observation that it sustained Appellant's objections and did not permit the Commonwealth to use the video. Trial Court Opinion, at 33. Under this record, we perceive no basis for relief.
For the foregoing reasons, we affirm judgment of sentence.
Judge Dubow joins the memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/11/2019
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