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[U] Commonwealth v. Page

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH PAGE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered on April 13, 2010 in the Court of Common Pleas of Montgomery County, Criminal Division, No. CP-46-CR-0001914-2009

BEFORE: FORD ELLIOTT, P.J.E., WECHT and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Joseph Page ("Page") appeals from the judgment of sentence imposed following his conviction for one count each of murder in the second degree and burglary, four counts of robbery, and two counts of criminal conspiracy.[1]We affirm.

The trial court has set forth the relevant underlying facts in its Opinion. See Trial Court Opinion, 4/25/12, at 2-14. We adopt the trial court's recitation for the purpose of this appeal. See id.

Page proceeded to a jury trial in January 2010. After hearing the evidence, the jury found Page guilty of the above-mentioned crimes. The trial court sentenced Page to life in prison for the murder conviction, with an aggregate consecutive prison term of forty to eighty years for the robbery and criminal conspiracy convictions. Page filed post-sentence Motions, which the trial court denied. Page timely filed a Notice of Appeal. On appeal, Page raises the following issues for our review:

1. Did the trial court abuse its discretion by denying [Page's] Motion to Suppress statements and evidence seized during the warrantless search at the time of his arrest []?
2. Did the trial court abuse its discretion by qualifying [A]gent Shute as an expert in historical cell site analysis?
3. Did the trial court abuse its discretion and commit reversible errors of law when it denied [Page's] mistrial motions at various points during the trial?
4. Did the trial court commit reversible error when it submitted confusing jury instructions, over [Page's] objections, relating to accomplice liability, to the jury?
5. Is the evidence of record legally insufficient to sustain [Page's] convictions for murder, robbery and related offenses?
6. Did the trial court abuse its discretion [by] not granting [Page] a discharge of all charges or a new trial on the basis of discovery and Brady[2] violations committed by the Commonwealth?

Brief for Appellant at 5 (some capitalization omitted).

In his first claim, Page contends that the trial court abused its discretion when it denied his Motion to Suppress the statements he made to police falsely identifying himself as "James Mears, " as well as a letter addressed to "James Mears" and pieces of false identification (a photo identification card, social security card and a birth certificate), which were seized at the time of his arrest. Id. at 22, 32. Page further contends that, because the police failed to read him his Miranda[3] rights before he made the statements, the statements were neither knowing nor voluntary. Id. at 28. Page also claims that, because one of the police detectives knew that Page was lying about his identity (due to a distinctive tattoo on Page's neck), the police should not have asked him to provide biographical information, as they reasonably expected that their request would elicit an incriminating response from Page. Id. at 29.

Notwithstanding these arguments, Page concedes in his appellate brief that a spontaneous utterance, such as his claim to have been "James Mears, " is admissible even if not preceded by the provision of a Miranda warning. Id. at 28. Page further concedes that the physical evidence found on his person at the time of his arrest (the letter and false identification documents) were properly within the scope of the search conducted by police incident to his arrest. Id. at 33-34.[4]

Based on Page's concessions, we conclude that his first claim is without merit. Even if Page had not conceded that his claims are without legal support, we concur with the sound reasoning of the trial court, and would affirm the trial court's ruling on the basis of its opinion with regard to this claim. See Trial Court Opinion, 4/25/12, at 19-25.

In his second claim, Page contends that the trial court abused its discretion by qualifying FBI Special Agent William Shute ("Agent Shute") as an expert in the field of cellular telephone and cellular tower technology. Brief for Appellant at 37. Page claims that there is no evidence or precedence that the science underlying cellular telephone registering, trapping, or tracking is generally accepted in the scientific community. Id. at 42. Page contends that the trial court should have conducted a Frye[5]hearing on this issue before qualifying Agent Shute as an expert in that field. Id. at 43. Page also contends that trial court should not have qualified Agent Shute because the Commonwealth failed to provide Page with the data, analytical process or method, and scientific bases relied upon by Agent Shute in forming his opinions, thereby hindering Page's ability to retain an expert or refute Agent Shute's opinions. Id. at 43-44. Additionally, Page contends that, because he filed a Motion in limine regarding Agent Shute's qualifications and the lack of general acceptance in the scientific community of the science about which he was to testify, Page preserved these objections, despite his failure to object to them at trial. Id. at 37-38. Finally, Page contends that the trial court should have precluded Agent Shute from testifying as an expert as a sanction for the Commonwealth's repeated discovery violations, which prejudiced Page at trial. Id. at 47.

Prior to trial, the trial court granted Page's Motion in limine in part, but deferred ruling on whether Agent Shute was qualified to testify as an expert in the field of cellular site analysis. Trial Court Order, 12/17/09, at 2. However, during trial, Page failed to renew his objection when the trial court qualified Agent Shute to testify as an expert. Moreover, Page did not request a Frye hearing at any point. Therefore, Page has waived his second claim. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (stating that the failure to raise a contemporaneous objection to an error at trial waives any claim regarding that error on appeal); Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa. 1999) (holding that defendant waived a Frye challenge when he merely challenged an expert's qualifications).

Even if Page's second claim had not been waived, the trial court set forth the relevant law and concluded that it properly qualified Agent Shute to testify as an expert in the area of historical cell site analysis. See Trial Court Opinion, 4/25/12, at 34-38. We agree with the sound reasoning of the trial court and would adopt its reasoning for the purpose of this appeal. See id.

In his third claim, Page contends that the trial court abused its discretion by denying his Motions for mistrial made at various points during the trial. Brief for Appellant at 48. Page contends that various errors and prosecutorial violations throughout the trial caused extreme prejudice to his defense, which could not be cured by curative instructions to the jury. Id. at 50-79. Page further contends that the total cumulative effect of the errors and prosecutorial violations compounded the prejudice to him and prevented a fair trial, compelling application of the cumulative error doctrine and Pennsylvania's double jeopardy clause.[6] Id. at 79-87.

The trial court set forth the relevant law and concluded that it properly denied Page's Motions for mistrial. See Trial Court Opinion, 4/25/12, at 38-61, 70. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.

In his fourth claim, Page contends that the trial court's instructions to the jury regarding accomplice and co-conspirator criminal liability were unclear and confusing. Brief for Appellant at 88. Page further contends that the trial court erred when, in response to the jury's request for re-instruction on accomplice liability during its deliberations, the trial court re-instructed the jury on both accomplice liability and co-conspiracy, thereby prejudicing Page. Id. Page does not claim that the instructions provided an incorrect statement of the law. Id. at 94. Rather, Page contends that the co-conspiracy instruction could have confused the jury by permitting it to think that it could apply co-conspirator liability to the murder charge when the co-conspirator charges only applied to the robbery and burglary charges. Id.

The trial court set forth the relevant law and concluded that it properly instructed the jury in response to its request for re-instruction. See Trial Court Opinion, 4/25/12, at 68-70. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.

In his fifth claim, Page contends that his convictions and the trial court's judgment of sentence are not supported by the evidence. Brief for Appellant at 97. Page contends that the testimony of Sybil White, Robert Eatman, Angelo Shin and Julius Wise, placing Page at the scene of the crime, was "not worthy of belief" because each of these witnesses had a motive to place blame on Page. Id. at 103-05. Page also asserts that the presence of his DNA in the tip of a rubber glove found next to Robert Chae's body does not establish that he was at the crime scene. Id. at 104.

The trial court set forth the relevant evidence and applicable law, and concluded that the Commonwealth presented sufficient evidence to support Page's convictions. See Trial Court Opinion, 4/25/12, at 25-32. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.

In his final claim, Page contends that the trial court abused its discretion when it denied his Motion for a New Trial based upon the Commonwealth's Brady violations for failure to turn over favorable material and potentially exculpatory evidence. Brief for Appellant at 106. Specifically, Page claims that the Commonwealth withheld a statement made by co-defendant Karre Pitts ("Pitts"), during his plea negotiations, wherein Pitts admitted "to his role in the home invasion." Id. Page contends that Pitts's statement, although inadmissible at trial, supported the defense theory that Pitts, rather than Page, was the third assailant in the home invasion. Id. at 111-12. Page further contends that, had he been provided with Pitts's statement, he might have uncovered additional corroborative evidence, thereby raising a reasonable doubt that he was at the Chae residence at the time of the invasion. Id. at 112.

The trial court set forth the relevant law and concluded that Page failed to establish that the Commonwealth committed a Brady violation. See Trial Court Opinion, 4/25/12, at 61-67. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.

Judgment of Sentence affirmed.

Judgment Entered.

LOWER COURT NO. 1914-09

OPINION

ROGERS, J.

I. INTRODUCTION

Following a three-week trial in January 2010, a jury convicted Joseph Page ("Appellant") of one (1) count of Murder in the Second Degree, [1] four (4) counts of Robbery, [2] one (1) count of Burglary, [3] and two (2) counts of Criminal Conspiracy[4] for his role in a deadly home invasion in 2009. The undersigned sentenced Appellant to life imprisonment without the possibility of parole for Second-Degree Murder. In addition, Appellant received three (3) consecutive sentences of ten (10) to twenty (20) years imprisonment with respect to three (3) of the four (4) convictions for Robbery; a consecutive sentence of ten (10) to twenty (20) years imprisonment for one (1) count of Criminal Conspiracy, and no further penalty on the remaining conviction for Criminal Conspiracy.[5] Appellant now appeals from this judgment of sentence.

II. FACTS AND PROCEDURAL HISTORY

The relevant facts adduced at trial are as follows. As was their custom, Robert Chae ("Mr. Chae" or "Decedent") and Janice Chae rose early on the morning of January 9, 2009. Mr. and Mrs. Chae got dressed and prepared to drive from the couple's home, which they shared with their two adult children, at 139 Gwynmont Drive in North Wales, Montgomery Township, to their beauty supply store in Philadelphia. (Notes of Testimony Trial ("N.T."), January 12, 2010 at 90-95). At approximately 5:10 a.m. that day, all sense of normality changed when Appellant and another male approached Robert Chae just outside of the family's garage. At that time, Mrs. Chae was still inside the garage putting on her shoes. (Id.). A third man immediately confronted Mrs. Chae by putting a gun to her head and demanding money. (Id.). She watched helplessly as Appellant and the second man grabbed her husband, struck him, pulled him back into the garage and closed the door. (Id.). As Mr. Chae screamed out in pain, the men secured duct tape over the mouths of both Mr. and Mrs. Chae and bound their wrists with more duct tape. (Id.). After further restraining Mr. Chae, Appellant and the second man continued to beat him for several minutes. (Id.). When Mrs. Chae told the men that the family did not keep money in the house, she saw one of them make a cell phone call. (Id.). One of the men exclaimed that they knew that the couple kept money in their master bedroom and forced Mrs. Chae up the stairs by gunpoint. (Id.).

Minna Chae awoke that morning to the sound of her mother hyperventilating in the hallway outside of her bedroom. (N.T. January 25, 2010 at 7). When Minna opened her bedroom door, a man confronted her with a gun. (Id.) After taking her to her parents' master bedroom, where she was unable to help him, the intruder took Minna to the garage, where he told her to kneel on the floor near the feet of her dying father. (Id. at 8-10). Minna called out her father's name in Korean, but she neither heard nor saw a response from him as he lay bound and gagged on the garage floor. (Id.). Within minutes, the men took Minna to the basement, where they duct taped her feet and legs. (Id. at 11-13). She noticed one of the intruders on a cell phone making phone calls and talking on the phone. (Id.). Another one of the three men brought her mother down to the basement at that time. (Id. at 12; N.T., January 12, 2010 at 98).

The couple's son, Richard Chae, awoke that morning to two men with flashlights and a gun yelling at him to get up. (N.T. January 25, 2010 at 199-200). One of the men put a gun against Richard's head and hit him twice in the head. (Id.). The intruders then directed Richard downstairs to the basement, where he saw his mother and sister on the floor bound with duct tape. (Id.). They told Richard to get down on the ground, and they bound him with duct tape. (Id.). Richard watched as the intruders paced back and forth and listened to one on a cell phone talking to someone about what was happening in the house, expressing concern about not finding the money. (Id. at 203). After Richard urged his mother in Korean to give the armed intruders the money, two of the men took Mrs. Chae back upstairs to the master bedroom to locate monies they believed to be in the house. (Id. at 14, 202; N.T., January 12, 2010 at 99-103). Mrs. Chae watched as one of the men smashed through the door to the walk-in closet of the master bedroom. (Id.). Once inside the closet, Mrs. Chae opened the safe therein and one of the men emptied the safe's contents into a duffle bag. (Id. at 101). Mrs. Chae believed that they took between fifteen and twenty thousand dollars ($15, 000.00 - $20, 000.00), gold necklaces, rings, earrings, a Korean bank account passbook and a family symbol stamp. (Id. at 103).

Ultimately, the two men returned Mrs. Chae to the basement where the third intruder held Minna and Richard captive. (Id. at 104; N.T., January 25, 2010 at 15, 206). Expressing concern about keys and leaving fingerprints, the three men left the basement and went upstairs. (Id. at 15, 207). At that point, Mrs. Chae exchanged a glance with her daughter, who signaled that the coast was clear, and Mrs. Chae fled out the basement door to a neighbor's house to call 911. (Id. at 17, 207; N.T., January 12, 2010 at 104-105). The intruders returned to the basement to find that Mrs. Chae had left the room. (N.T. January 25, 2010 at 17; 207-08). They then quickly exited the house through the basement door. (Id.). Minna found her father in a pool of blood in the garage and left him to go with her brother to call 911 from a phone in her brother's room. (Id. at 18-19, 209).

At approximately 5:59 that morning, Montgomery Township Police Officers responded to a reported burglary in progress at the Chae home. (N.T., January 13, 2010 at 83-84). Upon their arrival, the officers met a visibly distraught Janice Chae standing in the front of her neighbor's house waiting for them. (Id.).

The officers forced entry into the residence, and made their way to the garage area, where they found Richard and Minna Chae and the lifeless body of Robert Chae lying on the concrete floor in a large pool of blood. (Id. at 84). Mr. Chae's ankles were bound with duct tape, and virtually his entire head was wrapped in duct tape so that only a very small portion of his nose remained uncovered. (N.T., January 21, 2010 at 157-58; N.T., January 25, 2010 at 134-39). The Decedent's hands were tied behind his back. (N.T. January 25, 2010 at 155). His nose was broken, swollen, cut and clogged with blood, all of which rendered Mr. Chae unable to breathe adequately for several minutes before he died. This was a slow and painful death. (Id. at 145-48, 150).

On the floor near Mr. Chae's body, the police discovered a wood-handled folding knife, duct tape, Tuff-Tie brand plastic restraining devices, and the torn-off finger portion of a black latex glove. Officers collected the items for scientific analysis. (N.T., January 21, 2010 at 152-55, 157-60, 200-01).

On January 9, 2009, Dr. Paul Hoyer, a forensic pathologist, conducted an autopsy of Mr. Chae's body and concluded that he died as a result of asphyxia. Dr. Hoyer described Mr. Chae's death as slow and painful. (N.T., January 25, 2010 at 148-51, 156). The autopsy revealed that Mr. Chae had been struck numerous times with a hard-edged blunt instrument, struck with a blunt padded object, stabbed and cut with a knife and punched in the face. (Id. at 149-55). The pathologist also determined that the majority of the injuries had been inflicted after Mr. Chae was already restrained. (Id. at 143). Dr. Hoyer deemed the manner of Mr. Chae's death a homicide.

In addition to providing the above-stated information, Minna and Richard Chae described seeing the men wearing dark hoodies, Timberland boots and black latex gloves in their statements to the police. (N.T., January 25, 2010 at 15-16, 203-05). They also described the money, jewelry and other items taken from their home, including a cell phone, cash and designer handbags taken from their bedrooms. (N.T. January 25, 2010 at 17, 30-33, 209-10).[6]

The exhaustive police investigation into this matter yielded information from confidential informants, tips from the public, and voluminous telephone records. For example, a neighbor out walking very early that morning reported that he had seen two vehicles that he did not recognize driving past the Chae home on Gwynmont Drive in the North Wales neighborhood. (N.T. January 19, 2010 at 7-8). He described the two vehicles as a silver SUV, either an Escalade or a GMC, and a white four-door, either Chrysler or GM. (Id.).

Based on information that the Chae family provided, detectives meticulously combed through voluminous cellular phone, Direct Connect/Boost Mobile phone and cell tower records to develop additional leads. (N.T., January 14, 2010 at 211-16; January 15, 2010 at 57-60). Through the continued analysis of the call detail records associated with the telephones, the detectives quickly identified Angelo Shin, the nephew of the deceased victim Robert Chae, as a person of interest. (N.T., January 14, 2010 at 15-17, 216-17). It was learned that the Decedent's family was staying with Angelo Shin after the murder. (Id. at 217).

On January 29, 2009, the detectives interviewed Shin, who admitted his involvement in planning the robbery and provided them with information leading to the other participants. (Id. at 21). Shin had lived with the Chae family in his uncle's home for over a year and worked intermittently in the family business. (N.T., January 13, 2010 at 126-27). Shin admitted that he enjoyed bragging to friends about his uncle's wealth. (Id. at 129, 133).

Shin explained that he met Appellant, a.k.a. "Tree Man" and "Spade", in 2008. (Id. at 129-30, 132, 192). Shin listed Appellant's phone number in his cell phone contact list under "Tree Man". (Id. at 130-31). Shin bragged to Appellant about his uncle's money, "luxury rides" and nice house. [Id. at 129, 132-33, 190, 193, 196). After several conversations with Appellant, the talk turned to robbery and eventually Shin told Appellant that his uncle kept approximately a hundred thousand dollars ($100, 000.00) in a safe in the family's master bedroom. (Id. at 133-34, 197). Shin subsequently drove Appellant out to Montgomery Township to show Appellant the Chae residence. (Id. at 134, 192-93).

In December 2008, Shin attended a meeting at 1762 Brill Street in Philadelphia. Appellant was at that meeting with Co-Defendants Amatadi Latham, Karre Pitts, Julius Wise, Robert Eatman and Angelo Shin. At that meeting, there was a discussion with Shin about his uncle's wealth. (Id. at 135, 137, 195-97; N.T., January 20, 2010 at 60). A second meeting occurred on January 8, 2009. (Id. at 61-62; N.T., January 13, 2010 at 140, 198). At this meeting, Shin observed black latex gloves, plastic Tuff-Tie restraints, which Appellant had purchased in anticipation of the robbery, a duffle bag and a knife that Appellant was playing with. (Id. at 141, 143). Shin left the meeting and returned home to await news of the robbery scheduled for the following day. (Id. at 145). Shin told detectives that on Friday, January 9, 2009, he received a cell phone call from Appellant after the robbery saying that Appellant and the others were very angry because they had not recovered as much money as Shin had predicted. (Id. at 145-46). Later that morning Shin met with Appellant in front of the house on Brill Street and received $2, 000.00 as Shin's share of the robbery proceeds. (Id. at 146). During their brief conversation, Shin asked Appellant why he had murdered Shin's uncle. Appellant "laughed" and said that he "had to do what had to do [sic]; you know, [Mr. Chae] was kicking and screaming." (Id.).

Shin's statement led police to Robert Eatman. According to Eatman, Appellant approached him in November 2008 about committing a robbery. (N.T., January 20, 2010 at 58-59). At the time, Eatman was living at 1761 Brill Street with his sister. (Id. at 52-53). Julius Wise lived across the street. (Id. at 62). Eatman confirmed Shin's account of the two meetings at Wise's home on Brill Street. (Id. at 60-62). Sometime in the middle of December, between the first and second meetings, Eatman drove Appellant out to the Chae residence in Eatman's white four-door Chevy Impala. (Id.). The pair became lost and Appellant had to call Shin for directions. (Id. at 60, 133; N.T., January 13, 2010 at 139-40). At the meetings, the men discussed the items that they would need for the robbery, including their cell phones and Direct Connect or Boost Mobile phones with a walkie-talkie or chirp feature, duct tape, hand ties, latex gloves and duffle bags. (N.T., January 20, 2010 at 62, 65, 103, 146). Eatman explained that he was with Appellant when Appellant purchased items for the robbery at a police supply store, including plastic wrist ties. (Id. at 65-66). Eatman also conveyed how Shin provided the men with information about the Chae couples' morning habits and where they kept the money in their house (Id. at 61, 98-100).

On January 9, 2009, Eatman, in his white Chevy Impala, followed a Cadillac Escalade, driven by Sybil White, out to the Chae residence. (Id. at 68, 71). He explained that he watched Appellant, Latham and Pitts get out of the Escalade and walk toward the Chae house. (Id. at 71, 191). While Eatman waited in his car at a nearby Wawa, where Sybil White was also waiting in the Escalade, he received a call from Latham. (Id. at 72-73). Latham told Eatman that "[Appellant] went cra2y inside of there, beat the Chinese dude real bad." (Id. at 73). During that conversation, Eatman could hear a female crying and "heard Page say, where the money at." (Id. at 74). Eatman then returned to Philadelphia (Id.). Eatman went to his sister's home on Brill Street and minutes later others arrived with duffle bags full of items. (Id. at 76, 109). Appellant and Latham had "blood from head to toe", so Eatman told them they had to leave. (Id. at 76, 141). For his role as the "lookout", Eatman received $1, 000 of the robbery proceeds. (Id. at 109).

Police identified Sybil White as the individual who drove Appellant, Latham and Pitts to the Chae residence in a silver Cadillac Escalade owned by the young woman's mother. (N.T., January 19, 2010 at 28, 44-46). In her statement to police and subsequent testimony, White explained that Appellant sat in the passenger seat and told her where to drive. (Id. at 45, 47, 51, 127, 202). Appellant put on black latex gloves before exiting the Escalade to go into the Chae home. (Id. at 52, 208). White saw the men get out of the Escalade with duct tape and two black duffle bags ( Id. at 46, 53). Appellant also had a gun. [Id. at 52-53). After the drop off, White drove to a nearby Wawa as instructed. (Id. at 56-58). White received a call to return to the Chae residence to pick up the three men that she had dropped off, and returned them to Brill Street. (Id. at 58-59). On the drive back to Brill Street, Pitts asked Appellant why did Appellant "have to do it", why did Appellant "have to kill him" and Appellant responded "he was coming after [me], so [I] had to do what [I] had to do." (Id. at 74-75).

Julius Wise's statements to police and subsequent testimony confirmed much of the information concerning the home invasion previously provided by Shin, Eatman and White, including the identity of the men who participated in the planning and execution of the home invasion, robbery and death of Robert Chae. (See, N.T., January 21, 2010 at 35-36, 39-40, 43-45, 50-51). Through these interviews and the identification of certain cell phones, detectives were able to establish probable cause to believe that Appellant, Eatman, Latham, Pitts, Wise and Shin met, conspired and planned the home invasion robbery of the Chae family, which resulted in the death of Robert Chae.

Magisterial District Judge David A. Keightly issued an arrest warrant for Appellant, based upon an affidavit of probable cause and a criminal complaint, which charged Appellant with Murder of the Second Degree; Criminal Conspiracy; and several lesser-included offenses. Police arrested Appellant on February 19, 2009 at 5216 Carlisle Street, Philadelphia, PA based upon information that they had obtained advising that Appellant was hiding at that location. (N.T., Supplemental Suppression Hearing, September 18, 2009 at 32-33; N.T., January 25, 2010 at 163-64). Appellant initially identified himself to officers as James Mears. (N.T., Supplemental Suppression Hearing, September 18, 2009 at 33-34, 43). The arresting detective also found three forms of identification for James Mears in Appellant's pocket. (Id. at 34-35; N.T., January 25, 2010 at 164-65, 167). However, when later questioned about certain discrepancies, including a fingerprint match, Appellant eventually admitted his real identity. (N.T., Supplemental Suppression Hearing, September 18, 2009 at 37, 49; N.T., January 25, 2010 at 168).

This court denied Appellant's Supplemental Motion to Suppress Evidence Seized at the time of Appellant's arrest by order dated October 20, 2009. The trial of Appellant, Amatadi Latham and Karre Pitts commenced with jury selection on Friday, January 8, 2010, and concluded on Friday, January 29, 2010. In addition to the witnesses previously mentioned, the Commonwealth presented testimony from additional witnesses who corroborated Shin's, Eatman's, White's and Wise's version of the events culminating in the death of Robert Chae. The Commonwealth presented Special Agent William Shute as an expert in cellular telephone and cellular tower technology. Agent Shute explained how the police were able to analyze the cell phone and cell tower data in this case and determine approximately where the suspects were located when they made a pattern of cell phone calls on the days in question. (N.T., January 15, 2010 at 112, 179-201). Another witness, Anthony Vanderslice, testified that he sold three (3) Boost Mobile phones to three men at Wireless Tech on Frankford Avenue on December 18, 2008, one of whom he identified as Appellant. (N.T., January 14, 2010 at 140-47, 159-61, 164-65).[7]

The Commonwealth also presented the testimony of Julia Brolley, a Pennsylvania State Police DNA analyst. (N.T., January 22, 2010 at 109). Ms. Brolley testified regarding the DNA evidence extracted from, inter alia, the crime scene as well as from the Cadillac Escalade. (Id. at 116-17, 122, 132-33). The evidence established the presence of Decedent's blood on the front passenger seat headrest of the Escalade and the presence of Decedent's DNA and Appellant's DNA on the swab of the finger-shaped piece of black latex glove found in the Chae family's garage next to Mr. Chae's body. (Id. at 134-35).

Following deliberations, the jury found Appellant guilty of the aforementioned offenses. Appellant filed a Motion for Extraordinary Relief Pursuant to Pa.R.Crim.P. 704(B) on April 1, 2010. The undersigned denied the motion without prejudice by order docketed on April 8, 2010. This court sentenced Appellant on April 13, 2010. In total, Appellant received a life sentence plus forty (40) to eighty (80) years imprisonment. Appellant filed post-sentence motions on April 23, 2010. The undersigned denied Appellant's post-sentence motions on August 18, 2010. On September 17, 2010, Appellant filed a notice of appeal to the Superior Court of Pennsylvania ("Superior Court"). On the same date, the undersigned directed Appellant to file a Concise Statement of the Errors Complained of on Appeal ("concise statement") pursuant to Pa.R.A.P. 1925(b). Appellant filed a Motion for Extension of Time to File 1925(b) Concise Statement on October 5, 2010, which this court granted by order docketed on October 7, 2010. Appellant then filed a concise statement on November 5, 2010, and a corrected concise statement on November 9, 2010.

III. ISSUES

Appellant presents the following issues on appeal:

I. [A-l.] The trial court committed reversible legal error in violation of [Appellant's rights under Article I, Sections 8 8b 9 of the Pennsylvania Constitution and the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution by denying [Appellant's pre-trial motion to exclude all statements and physical evidence seized when [Appellant] was illegally arrested in his home without an arrest warrant on February 19, 2009 and various items on his person and in his premises were seized without a search warrant. Further, statements were elicited from [Appellant] without any waiver of his constitutional rights under Miranda V- Arizona.
II. [A-ll.] The evidence against [Appellant] was insufficient as a matter of law to sustain his conviction on all charges for the reasons set forth in [Appellant's Post-Sentence Motions Pursuant to Pa.R.Crim.P. 720(B) (attached hereto and marked as Exhibit "A"). As a result, the judgment of sentence and jury verdict should be set aside and [Appellant] should be discharged. Furthermore, there is no direct, unpolluted evidence which places [Appellant] at the scene of the crime on 1/9/09. The Commonwealth's theory that [Appellant] was the biggest of the three (3) intruders is directly contradicted by testimony of Minna and Janice Chae who could not identify [Appellant's] photograph or [Appellant] at a physical lineup as being at the scene. Furthermore, Minna Chae specifically identifies Robert Eatman as the "biggest guy."
III. [A-12.] The verdict of guilt on all charges was against the weight of the evidence for the reasons set forth in Matter No. 11, supra, and in [Appellant's Post-Sentence Motions Pursuant to Pa.R.Crim.P. 720(B) (attached as Exhibit "A"). As a result, the judgment of sentence and jury verdict should be set aside and a new trial should be ordered.
IV. [A-5.] The trial court committed reversible legal error by failing to sustain [Appellant's] objection to the qualifications of Agent William Shute to testify as an expert in the area of historical cell site analysis [sic] (N.T., 1/15/10 at pp. 110-114, 176)
V. [A-6.] The trial court committed reversible legal error by failing to declare a mistrial as a result of extremely prejudicial statements elicited by the Commonwealth from Agent William Shute concerning, inter alia, his successes in "catching the bad guys who commit violent crimes like the kidnapping of children, homicides and robberies". The post-objection instruction offered by the court could not and did not cure the extreme prejudice resulting from the Commonwealth's efforts in eliciting highly inflammatory and irrelevant testimony. (See N.T., 1/15/10 at pp. 110-214).
VI. [A-2.] The trial court committed reversible legal error by failing to declare a mistrial when, in direct violation of this court's pre-trial rulings pertaining to alleged prior record/bad acts by [Appellant], counsel for co-defendant Karre Pitts, in questioning Angelo Shin, asked about a meeting "when [Appellant] tells you he does home invasions." The extreme prejudice was not nor could not be cured by the court's post-objection comments (N.T. 1/13/10 at pp. 193-211).
VII. [A-3.] The trial court committed reversible legal error in failing to declare a mistrial when Commonwealth witnesses improperly testified about [Appellant's prior drug use ("smoking weed"), drug business and other comments informing the jury of [Appellant's] alleged prior criminality (See, N.T., 1/13/2010 at p. 213; (Angelo Shin); N.T., 1/21/2010 (testimony of Julius Wise) (prior drug use; reference to [Appellant] being associate in drug business); N.T. 1/14/2010 (testimony of Tamara Rodgers) (business conducted on porch)).
VIII. [A-4.] The trial court committed reversible legal error by allowing in-court identification of [Appellant] by Anthony Vanderslice (N.T., 1/14/10 at p. 150-159) (sic) when the Commonwealth failed to disclose, contrary to pretrial court orders and discovery obligation, this fact prior to trial. A mistrial should have been granted.
IX. [A-7.] The trial court committed reversible legal error by failing to declare a mistrial when Sybil White was allowed to testify about alleged hearsay statements made by co-defendants Pitts and/or Latham, in violation of [Appellant's rights under the Confrontation Clauses of the federal and state constitutions as well as under the progeny of Bruton and Crawford. (See N.T. 1/19/10 at pp. 62-71)
X. [A-9.] The trial court committed reversible legal error by not declaring a mistrial when the Commonwealth, in direct violation of the court's [pretrial] orders, submitted into evidence the playing of a 911 telephone call, without ever providing - prior to trial - a written transcript of said tape, which justifiably led [Appellant] to believe no such evidence would be admitted. The electronic copy of the tape provided in discovery was inoperable. Furthermore, said tape was unduly inflammatory (screams) and irrelevant to the proof of the Commonwealth's case; and constituted unfair surprise. (See N.T. 1/25/10 testimony of Richard Chae). The attorneys for the Commonwealth were sanctioned for this behavior by the court.
XI. [A-8.] The trial court committed reversible legal error by allowing, over objection, Commonwealth's witness, Sybil White, to place a disproportionately-sized "mug shot" photograph of [Appellant] onto a diagram of a motor vehicle (N.T., 1/19/10 at pp. 99-102, 226). Such a display demonstrated, unnecessarily, prior criminality of [Appellant] and prejudice and, as such, a new trial is warranted. Said error was later compounded when the court sent the diagram and photo back to the jury during its deliberations (N.T., 1/29/10 at pp. 66-70).
XII. [A-14.] The trial court committed reversible legal error in not discharging [Appellant] or, alternatively, in not awarding him a new trial based on the reasons set forth in Exhibit "A" (Counts 1 and 2) and initially set forth in [Appellant's Motion for Extraordinary Relief filed of record on 4/1/10; and based on the transcribed hearing before this court on 7/28/10. To summarize:
(a) The Commonwealth, contrary to orders of this court, e.g. the order dated 10/14/10, did not disclose, prior to verdict, exculpatory evidence provided by co-defendant Karre Pitts that, along with discovery provided to [Appellant], would have conclusively allowed [Appellant] to demonstrate to the jury that the three (3) home invaders were Robert Eatman (not [Appellant]), Karre Pitts and Amatadi Latham.
(b) Had the disclosure of this exculpatory evidence, allegedly developed in August, 2009, been made known to this court and counsel for [Appellant] in a timely fashion, it, almost certainly, would have changed the result of [Appellant's Motion for Severance (Argued on 7/27/09; Denied by Court order dated 9/21/09). A separate trial for [Appellant] alone would have been [sic] allowed [Appellant] to fully develop his defense that he was not one of the three home invaders. The disclosure of this evidence, whether or not severance was granted, was material to [Appellant's defense and theory of the case.
XIII. [A-10.] The trial court committed reversible legal error by submitting confusing jury instructions (8.306A(1) and 8.306A) after the deliberating jury asked only for an explanation of accomplice liability (found in 8.306A (1)). (See N.T. 1/29/10 at pp. 73-94). In response the court re-instructed the jury on accomplice liability (8.306A(1)) and also instructed the jury, for the first time, on conspiracy (8.306A) which was especially egregious in light of the fact that [Appellant] was never charged with conspiracy as to any murder charges. [Appellant's right to a fair trial under the federal and state constitutions was violated and a new trial is required.
XIV. [A-15.] The cumulative effect of the Commonwealth's repeated violations of the trial court's orders and the Discovery Rule in Pa.R.Crim.P. 573 denied [Appellant] a fair trial under the federal and state constitutions. See Matter No. 4 (failure to disclose Vanderslice identification of [Appellant]), Matter No. 9 (failure to produce operable copy of 911 tape played at trial and failure to transcribe tape as ordered by the court) and Matter No. 14(a) (failure to disclose statements of co-defendant Pitts to counsel for [Appellant]). The cumulative effect of this conduct was so egregious that [Appellant's conviction should be reversed and [Appellant] discharged. Alternatively, [Appellant] should be awarded a new trial.
XV. [A-13.] The trial court committed reversible legal error by denying [Appellant's] post-sentence motion seeking a modification of his sentence for the reasons set forth in Exhibit "A" (Count 5). As a result, [Appellant's case should be remanded for the imposition of the relief requested in Exhibit "A" (Count 5).

(Appellant's Concise Statement of Matters Complained of on Appeal Pursuant to PA. R.A.P. 1925 - Corrected, filed November 9, 2010).[8]

IV. DISCUSSION

Appellant first contends that the undersigned committed reversible error in violation of his rights by denying Appellant's pre-trial motion to exclude all statements and physical evidence seized when police illegally arrested Appellant in his home because they did not physically hand him an arrest warrant. Appellant also complains that police seized various items on his person and in his premises without a search warrant and elicited statements from Appellant without any waiver of his constitutional rights under Miranda.[9] Accordingly, Appellant reasons that the evidence should have been suppressed. We disagree.

When the Superior Court reviews a challenge to the trial court's denial of a suppression motion, it utilizes the following well-established standard and scope of review:

When we review the ruling of a suppression court, we must ascertain whether its factual findings are supported by the record and whether the inferences and legal conclusions drawn from those facts are reasonable. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense that remains uncontradicted in context of the whole record. If there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are in error.

Commonwealth v. Smith, 917 A.2d 848, 850 (Pa.Super. 2007) (citations omitted); accord Commonwealth v. Wells, 916 A.2d 1192, 1194-95 (Pa.Super. 2007) (citation omitted). On appeal, any legal conclusions must be reviewed de novo. Id . at 1195 (citation omitted).

As the finder of fact, it is within the suppression court's sole province to pass on the credibility of witnesses and the weight to be accorded their testimony. Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa.Super. 2011) (en banc) (citation omitted). The factfinder is free to believe all, some, or none of the evidence presented. Id. When a defendant seeks to suppress evidence, the Commonwealth bears the burden of establishing by a preponderance of the evidence that the challenged evidence is admissible. Id.; Commonwealth v. Basinger, 982 A.2d 121, 124 (Pa.Super. 2009) (quoting Commonwealth v. Ruey, 586 Pa. 230, 892 A.2d 802, 807 (2006)).

Both the United States and Pennsylvania Constitutions protect citizens against unreasonable searches and seizures. See U.S. Const. Amend. IV; Pa. Const. Art. I § 8. To be constitutionally valid, an arrest must be based on probable cause. Galendez, supra. This is the case whether a magistrate issues an arrest warrant or in the case of a warrantless arrest. See id.; Commonwealth v. Geary, 488 Pa. 174, 178-80, 411 A.2d. 1195, 1197-98 (1980); Pa.R.Crim.P. 513. The existence of probable cause is determined by the totality of the circumstances. Commonwealth v. Smith, 979 A.2d 913, 916 (Pa.Super. 2009) (citing Commonwealth v. Dunlap, 596 Pa. 147, 941 A.2d 671 (2007), cert, denied, 555 U.S. 964, 129 S.Ct. 448, 172 L.Ed.2d 321 (2008)). Moreover, it is beyond cavil that where the arrest is lawful, based upon probable cause, a search incident to that arrest is likewise lawful. Commonwealth v. Ventura, 975 A.2d 1128, 1139 (Pa.Super. 2009) (citation omitted); Commonwealth v. Devlin, 289 A.2d 237, 238 (Pa.Super. 1972) (citation omitted).

In the case sub judice, Appellant first complains that the detectives illegally arrested him at his home because they did not hand or serve Appellant with an arrest warrant. As a result, Appellant concludes that this court erred by not suppressing the evidence seized as a result of that unlawful arrest. Appellant's contention fails for several reasons.

As a preliminary matter, no one has offered any evidence at any time in support of the allegation that the 5216 Carlisle Street address was Appellant's home. To the contrary, the information provided by the United States Marshals suggested the address as one at which Appellant may be hiding from law enforcement officers. (See N.T. Supplemental Suppression Hearing, September 18, 2009 at 38). Detective James Burke, a 24-year veteran of the Philadelphia Police Department and at the time assigned to the Homicide Unit, Fugitive Squad, specifically testified that the police did not believe that the Carlisle Street address was Appellant's residence. (Id. at 38). A short time after officers knocked on the door, Appellant came to the door and told detectives that he was on his way out. (Id. at 32). There was no indication on the part of Appellant that he resided at that location. Rather, Appellant claimed to be someone else in the hopes of evading apprehension. (Id. at 33-34, 43).

Furthermore, the uncontroverted evidence shows that Magisterial District Judge David A. Keightly issued a lawful arrest warrant for the arrest of Appellant based upon probable cause. Specifically, Detectives John M. Santarelli of the Montgomery County Detective Bureau, Homicide Unit, and Ward Thomas, Montgomery Township Police Department, presented a criminal complaint, affidavit of probable cause, co-conspirator information and photographs to Judge Keightly in support of the warrant. (N.T. Supplemental Suppression Hearing, September 18, 2009 at 26). Officers then entered Appellant's information into the National Crime Information Center ("NCIC") as a wanted fugitive. (Id. at 27). Officials forwarded the arrest warrant to the Philadelphia Homicide Division, who then acted upon the information. (N.T. Supplemental Suppression Hearing, September 18, 2009 at 31). Philadelphia detectives received the arrest warrant for Appellant. (Id.). Appellant does not challenge the validity of the underlying arrest warrant. Based on the totality of the circumstances and the application of the law, the undersigned concluded that the detectives lawfully arrested Appellant based upon probable cause.

As part of his first contention, Appellant also argues that police illegally seized various items on Appellant's person and from his premises without a search warrant. In particular, Appellant contends detectives unlawfully confiscated three items of identification from his pocket: a birth certificate, a Pennsylvania photo identification card and a Social Security card, all reflecting the name of James Mears. Appellant's argument necessarily fails due to this court's determination regarding the legality of Appellant's arrest, the fact that there was probable cause for his arrest and that the information supporting the warrant for his arrest had been entered into the NCIC. As detectives lawfully arrested Appellant on the front porch of the house at 5216 Carlisle Street, Detective Burke's search of Appellant's person incident to that arrest is necessarily lawful. See Ventura, 975 A.2d at 1139.

Appellant further alleges that the police elicited statements from him without any waiver of his constitutional rights under Miranda, supra. These statements concerned whether Appellant identified himself as James Mears. Appellant now asserts that any statements he made in this regard should have been suppressed because they were elicited without Miranda warnings. We disagree.

At the outset, we note that Miranda warnings are necessary only when a suspect is subjected to custodial interrogation. Commonwealth v. Gwynn, 555 Pa. 86, 100, 723 A.2d 143, 149 (1999), cert, denied, 528 U.S. 969, 120 S.Ct. 410, 145 L.Ed.2d 320 (1999). "Interrogation" occurs when the police should know that their words or actions are reasonably likely to elicit an incriminating response. Commonwealth v. Briggs, 608 Pa. 430, 482, 12 A.3d 291, 322-23 (2011) (interpreting Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). The circumstances must reflect a measure of compulsion above and beyond that inherent in custody itself. Id.; Commonwealth v. Bracey, 501 Pa. 356, 366 n.6, 461 A.2d 775, 780 n.6 (1983); Ventura, supra at 1136-37 (quoting Commonwealth v. DeJesus, 567 Pa. 415, 428-29, 787 A.2d 394, 401-02 (2001)). It has long been the law in Pennsylvania that police officers are not required to give Miranda warnings before they obtain biographical information. Commonwealth v. Gwynn, 555 Pa. at 100-01, 723 A.2d at 149 (1998); Commonwealth v. Davis, 460 Pa. 37, 40, 331 A.2d 406, 407 (1975). Moreover, when a defendant gives a statement without police interrogation, that statement has been "volunteered" and is, therefore, not subject to suppression for lack of Miranda warnings. Commonwealth v. Brown, 551 Pa. 465, 481, 711 A.2d 444, 451 (1998) (citation omitted).

In the instant matter, it is undisputed that Detective Burke had placed Appellant in custody when Appellant provided the false biographical information to the police. Unsolicited, Appellant gave the false information during his initial encounter with the police when he exclaimed, "[m]y name's James Mears"; "I have ID." (See N.T., Supplemental Suppression Hearing, September 8, 2009 at 33-34, 43). The false biographical information given by Appellant at his first encounter with the police was voluntary and, thus, admissible. Based on the totality of the circumstances, the undersigned found the arrest of Appellant to be lawful, based upon probable cause, as was the search incident to his arrest. In addition, the undersigned concluded that the officers were not required to advise Appellant of his rights under Miranda before Appellant provided them with false biographical information. Hence, Appellant's first issue merits no relief.

In his second issue on appeal, Appellant contends that the evidence against him was insufficient as a matter of law to sustain his conviction on all charges for the reasons set forth in his Post-Sentence Motions.[10] As a result, he claims that the judgment of sentence and jury verdict should be set aside and that he should be discharged. Furthermore, Appellant contends that there is no direct, unpolluted evidence which places Appellant at the scene of the crime. Appellant's claim lacks merit.

It is well-settled that on a challenge to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the Commonwealth as verdict winner, with all reasonable inferences from that evidence to be drawn in favor of the Commonwealth. Commonwealth v. Sinnott, _ Pa. _, _, 30 A.3d 1105, 1110 (2011); Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000); Commonwealth v. Gray, 867 A.2d 560, 567 (Pa.Super. 2005). Further, the evidence must be considered in its totality, and not through the examination of isolated fragments. Commonwealth v. Nixon, 801 A.2d 1241, 1243 (Pa.Super. 2002) (citing Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979)).

In reviewing a sufficiency of the evidence claim, the standard to be applied is whether viewing all of the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt. Sinnott, supra; Commonwealth v. Heberling, 678 A.2d 794, 795 (Pa.Super. 1996) (citing Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994)). In applying this test, the reviewing court may not weigh the evidence and substitute its judgment for that of the factfinder. Sinnott, supra. "[T]he critical inquiry is not whether the court believes the evidence established guilt beyond a reasonable doubt, but whether the evidence believed by the fact-finder was sufficient to support the verdict. The proper question is not whether the defendant's contentions are supported by the record, but whether the verdict is so supported." Id.

The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Gray, supra. The trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence. Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citation omitted); Commonwealth v. Baker, 24 A.3d 1006, 1020 (Pa.Super. 2011).

In order for a conviction to be sustained, the Commonwealth need not have presented evidence such as would preclude every possibility of the defendant's innocence. Commonwealth v. Reaser, 851 A.2d 144, 147 (Pa.Super. 2004); Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa.Super. 1995). Any doubts regarding a defendant's guilt may be resolved by the jury 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. Commonwealth v. Kimbrough, 872 A.2d 1244, 1250 (Pa.Super. 2005) (citation omitted); Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001) (citation omitted).

Instantly, Appellant makes no specific argument in support of his position other than to suggest that his claim addresses "all charges for the reasons set forth in [Appellant's] Post-Sentence Motions Pursuant to Pa.R.Crim.P. 720(B) (attached hereto and marked as Exhibit "A")." In reviewing Appellant's Post-Sentence Motion, Count 1, Motion for Judgement (sic) of Acquittal, Appellant contends that the Commonwealth failed to comply with the mandatory legal requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (U.S. Md. 1963). The issues set forth in Appellant's Post-Sentence Motions Pursuant to Pa.R.Crim.P. 720(B) address claims of prosecutorial misconduct, pre-trial discovery, and failure to disclose exculpatory evidence. Appellant does not set forth the legal issues necessary for the court to analyze his claim of insufficient evidence.

The appellate courts have noted repeatedly that the mere assertion of error, without elaboration, will not be addressed. See Commonwealth v. Quel, 27 A.3d 1033, 1042 (2011) (holding appellant waived insufficient evidence claim where she failed to develop issue); Commonwealth v. Adamo, 637 A.2d 302, 306 (Pa.Super. 1994). See also Commonwealth v. Shaw, 494 Pa. 364, 370 n.3, 431 A.2d 897, 900 n.3 (1981) (failure to elaborate on mere assertion in brief that admission of confession violated fifth amendment results in waiver); Commonwealth v. Badman, 580 A.2d 1367, 1370 n. 2 and n. 3 (Pa.Super. 1990) (discouraging attempts to bootstrap issues and finding issue waived if argument is mere assertion).

Moreover, even if Appellant had properly developed his argument regarding the sufficiency of the evidence, we would conclude that no relief is due. The Commonwealth charged Appellant with Murder in the Second Degree, [11] Robbery, [12] Burglary[13] and Criminal Conspiracy.[14]

During the three-week trial, the jurors heard the testimony of Sybil White about how Appellant directed her to drive to Gwynmont Drive, drop off Appellant, Latham and Pitts, wait for them and then drive them back to Philadelphia. (N.T., January 19, 2010 at 45-59). They also heard Ms. White repeat the words of Co-Defendant Pitts to Appellant: "Why did you have to do it? Why did you have to do it, why did you have to kill him"? (Id. at 74). Appellant responded to Pitts saying: "He was coming after [me], so [I] had to do what [I] had to do." [Id. at 75). The jurors heard the testimony of Angelo Shin and Robert Eatman explaining how Appellant had joined them in a conspiracy to rob the Chae family. (N.T., January 13, 2010 at 133-145; N.T., January 20, 2010 at 58-66). The jurors heard the testimony of Julius Wise that Appellant admitted to hurting Robert Chae during the course of the robbery. (N.T., January 21, 2010 at 44). Finally, the jurors heard Angelo Shin's chilling account of Appellant's laughter as Appellant rationalized why he had killed Shin's uncle. (N.T., January 13, 2012 at 146). The jury was fully entitled to accept this testimony as credible and to accord it the weight the jury deemed appropriate.

Beyond the testimony provided by his co-conspirators, the Commonwealth also presented overwhelming scientific evidence that linked Appellant to the murder. A summary of some of the evidence presented at trial placing Appellant at the scene that night includes:

Identification - co-conspirators Robert Eatman, Sybil White, Angelo Shin and Julius Wise, all identify Appellant as a co-conspirator in the planning and commission of the crime. Specifically, Robert Eatman and Sybil White identify Appellant as being present at the scene of the crime.
DNA Evidence - the DNA evidence found on the fingertip of the latex glove found next to the body of Mr. Chae was consistent to a mathematical certainty to that of Appellant. Even Appellant's expert indicated that identity was not an issue.
Cell Phone Records - the evidence showed that Appellant made and received phone calls from within a 3-mile radius of the Chae home at the time of the murder.
Appellant's Admissions - following the murder of Mr. Chae, Appellant made various admissions to several people implicating his role in the murder, including:
■ When asked by Pitts, "Why did you have to kill him?" Appellant responded, "He was coming after me. I had to do what I had to do."
■ Appellant told Wise: Mr. Chae got hurt, "because he kept fighting back".
■ Appellant also told Wise: "There was a whole lot of blood".
■ Robert Eatman testified concerning Appellant's involvement and things that Appellant said to him.
■ Appellant told Angelo Shin that he killed Shin's uncle because "he was kicking and screaming." When confronted by Shin, Appellant even "laughed it off."

Finally, Appellant contends that the testimony of Mrs. Chae and her daughter Minna Chae directly contradicted the Commonwealth's theory that Appellant was the "biggest" of the three (3) intruders and that neither of the women were able to specifically identify Appellant as having been at the scene. Thus, Appellant contends the Commonwealth did not meet its burden and he should be discharged. We wholeheartedly disagree.

Proof of identity by an eyewitness is not always necessary to support a conviction for murder. Commonwealth v. Burns, 409 Pa. 619, 625, 187 A.2d 552, 555-56 (1963). A defendant may be and often has been convicted where the evidence is entirely circumstantial and there is no evidence of identity. See id.; Commonwealth v. Lowry, 374 Pa. 594, 600, 98 A.2d 733, 736 (1953); Commonwealth v. Homeyer, 373 Pa. 150, 156, 94 A.2d 743, 746 (1953). It follows then that a weak identification, together with other evidence, may be sufficient to convince a jury of a defendant's guilt beyond a reasonable doubt, the credibility of the witnesses and the weight to be given their identification is, under proper instructions from the court, exclusively for the jury. See Commonwealth v. Ronello, 251 Pa. 329, 96 A. 826 (1916); Commonwealth v. Ronello, 242 Pa. 381, 89 A. 553 (1913); Commonwealth v. Sharpe, 10 A.2d 120 (Pa.Super. 1939).

It is also well settled that a defendant may be convicted on circumstantial evidence alone, provided that his guilt is proved beyond a reasonable doubt. Lowry, supra; Homeyer, supra. Absent a tainted identification procedure, "the Commonwealth's burden is simply to introduce evidence solid enough to avoid conjecture." Commonwealth v. Hurd, 407 A.2d 418, 422 (Pa.Super. 1979). Identification testimony need not be positive, and indefiniteness or uncertainty in the testimony goes to its weight and not its sufficiency. Commonwealth v. Hickman, 453 Pa. 427, 430, 309 A.2d 564, 566 (1973); Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa.Super. 2006). The test is whether the evidence, viewed in the light most favorable to the Commonwealth, and accepting all reasonable inferences therefrom, could enable the fact-finder to conclude that the defendant was the perpetrator. Hickman, supra.

In the instant case, there was ample evidence in the record from which a reasonable jury could conclude that Appellant was one of the men who robbed and murdered Mr. Chae and terrorized his family. The Commonwealth met their burden of proof for each and every element of the crimes charged. Hence, Appellant's second issue lacks merit.

Appellant next posits that the verdict on all charges was against the weight of the evidence for the reasons set forth above and in his Post-Sentence Motions Pursuant to Pa.R.Crim.P. 720(B). As a result, Appellant claims that the judgment of sentence and jury verdict should be set aside and a new trial should be ordered. We do not agree.

The standard of review for a challenge to the weight of the evidence is well settled. The finder of fact is the exclusive judge of the weight of the evidence as the factfinder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses. See Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert, denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004). An appellate court cannot substitute its judgment for that of the finder of fact. See id. Therefore, the appellate court will reverse a jury's verdict and grant a new trial only when the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Passmore, 857 A.2d 697, 708 (Pa.Super. 2004); Commonwealth v. Burns, 765 A.2d 1144, 1149-50 (Pa.Super. 2000). Pennsylvania courts have repeatedly emphasized that "[o]ne 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." Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa.Super. 2005) (citation omitted).

Furthermore, where the trial court has ruled on the weight claim, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Champney, supra. Even where the evidence is conflicting, the credibility of the witnesses is solely for the factfinder, and if supported by the record, the trial court's denial of a motion for new trial will not be disturbed. See Burns, supra; Commonwealth v. Holmes, 663 A.2d 771, 774 (Pa Super. 1995).

In the case sub judice, the Commonwealth presented overwhelming and compelling evidence of Appellant's guilt. This evidence was more than sufficient to support the jury's guilty verdicts for the crimes of Murder of the Second Degree, Robbery, Burglary and Criminal Conspiracy to Commit Robbery. As was within their province, the jury believed that Appellant invaded the Chae family residence on January 9, 2009, to commit a home invasion robbery, then murdered Robert Chae, robbed the Chae family and burglarized the Chae's home. The jury believed the testimony of Sybil White when she recounted the conversation between Pitts and Appellant after leaving the Chae home when Pitts asked Appellant, "Why did you have to kill him?" and Appellant responded, "he was coming after me. I had to do what I had to do." The jury credited Angelo Shin's testimony describing Appellant's admission that he killed Shin's uncle, laughing as he explained why he felt he had to do it. The jury heard and saw evidence of both Mr. Chae's DNA and Appellant's DNA on a glove fingertip that was torn from the latex glove Appellant was wearing during the home invasion. The cell tower analysis put Appellant's telephone in the zone, which includes the Chae's residence at the exact time of the home invasion. The jury was aware of all the circumstances pertinent to the identification of Appellant, and it was well within their province to decide how much weight to give that evidence. This court did not palpably abuse its discretion by denying Appellant's Post-Sentence Motion for a new trial based on the weight of the evidence. Accordingly, Appellant's third issue must also fail.

In his fourth issue on appeal, Appellant complains that the undersigned erred by failing to sustain Appellant's objection to the qualifications of Special Agent William Shute to testify as an expert in the area of historical cell site analysis. Preliminarily, we conclude that Appellant has waived this issue. Moreover the issue is devoid of merit.

Appellant filed a Supplemental Motion in Limine on October 14, 2009, challenging the testimony of Agent William Shute because the Commonwealth had not produced an expert report authored by Agent Shute. The undersigned issued an order scheduling the exchange of expert reports between Counsel. Following a hearing on December 14, 2009, the undersigned issued another order dated December 16, 2009, which granted Appellant's motion in part and deferred it in part. As part of that order, the Commonwealth was directed to delete certain items from Agent Shute's report. The court reserved its decision until the time of trial regarding the sufficiency of Agent Shute's specialized skills to be qualified as an expert for the purpose of his proposed testimony. (Order Sur: Motion in Limine to Exclude Testimony of William Shute dated December 16, 2009 and docketed December 17, 2009). At trial, Appellant's counsel renewed his objection to portions of the Agent's report. However, Counsel did not renew his objection to Agent Shute's qualifications to testify as an expert. Accordingly, this issue is waived.[15]

Turning now to the merits, the admissibility of expert testimony in Pennsylvania is governed by Pa.R.E. 702. Under Rule 702, a properly qualified expert must possess the requisite level of "knowledge, skill, experience, training or education" to reach his conclusion. Pa.R.E. 702. The adoption of Pa.R.E. 702, however - unlike in the federal courts - did not alter Pennsylvania's adoption of the standard in Frye.[16] As a result, there is a second prong to the test for admissibility. Pa.R.E. 702 (Comment). Under the Frye test, "the admission of expert scientific testimony is an evidentiary matter for the trial court's discretion and should not be disturbed on appeal unless the trial court abuses its discretion." Grady v. Frito-Lay, Inc., 576 Pa. 546, 559, 839 A.2d 1038, 1046 (2003). Although courts may "go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, [t]he thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1281 (1977) (quoting and adopting Frye, supra).

The qualification of an expert witness is a matter within the sound discretion of the trial court and will be reversed only for a clear abuse of discretion. It is well established in Pennsylvania that the standard for qualification of an expert is a liberal one and the test to be applied is whether the witness has a reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight of that testimony is for the trier of fact to determine. It is also well established that an expert may render an opinion based on training and experience; formal education on the subject matter is not required.

Commonwealth v. Baez, 554 Pa. 66, 99, 720 A.2d 711, 727 (1999) (citations omitted). There is no requirement that an expert be qualified in any particular field to testify to his relevant opinions. The "standard for qualifying an expert witness is a liberal one: the witness need only have a reasonable pretension to specialized knowledge on a subject for which expert testimony is admissible." Commonwealth v. Doyen, 848 A.2d 1007, 1014 (Pa.Super. 2004) (citing Commonwealth v. Riffert, 549 A.2d 566, 576 (Pa.Super. 1988)). The question is not the name of the expert's field, or the subject of his formal education; rather, the question is whether "the opinion or inference offered will probably aid the trier of fact in the search for truth." George v. Ellis, 820 A.2d 815, 817 (Pa.Super. 2003) (citation omitted).

Instantly, at the time of trial, Special Agent William Shute testified during voir dire[17] that he had been an Agent with the FBI for more than thirteen (13) years. His professional responsibilities include the use of investigative techniques related to cellular telephone technology. He has performed these responsibilities for the last ten years (N.T., January 15, 2010 at 112, 113).

Special Agent Shute received specialized training in the field of cellular technology from the FBI and from outside companies. His training included, but is not limited to, GSN technology, CDMA technology, IDEN technology and radio frequency theory. Special Agent Shute provides similar training to local law enforcement including a course he developed entitled "Cellular Survey Analysis and Geolocation". This course is the only course offered by the FBI which teaches the concepts of cellular technology and the techniques necessary to triangulate the location of a person placing a cellular telephone call. Special Agent Shute has extensive experience (1) working with commercial cellular telephone carriers; (2) analyzing historical cell site data; and (3) with the operation of handset technology within cell phone towers and the larger cellular network. (Id. at 111-118). Given Special Agent Shute's experience, training, specialized knowledge and professional qualifications, the undersigned had no reservations in recognizing Special Agent Shute as an expert in the area of historical cell site analysis. Therefore, Appellant's fourth issue on appeal is unavailing.

In Appellant's next group of claims, he asserts that the undersigned erred by failing to declare a mistrial for various reasons. In his fifth issue on appeal, Appellant contends that the court committed reversible legal error by failing to declare a mistrial as a result of extremely prejudicial statements elicited by the Commonwealth from Special Agent Shute concerning, inter alia, his successes in "catching the bad guys who commit violent crimes like the kidnapping of children, homicides and robberies". Appellant posits that the post-objection instruction could not and did not cure the extreme prejudice resulting from the Commonwealth's efforts in eliciting highly inflammatory and irrelevant testimony. We disagree.

A motion for mistrial is a matter addressed to the discretion of the court. See Commonwealth v. Jones, 542 Pa. 464, 489, 668 A.2d 491, 503 (1995) (citation omitted). A trial court need only grant a mistrial where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. 542 Pa. at 488, 668 A.2d at 502-503. It is hornbook law that a defendant is guaranteed a fair trial, not a perfect one. Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa.Super. 2008) (quoting Harris, 884 A.2d at 927).

It is equally well settled that comments by the Commonwealth's attorney do not constitute reversible error "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 that they could not weigh the evidence objectively and render a true verdict." Commonwealth v. Van Cliff, 483 Pa. 576, 582-83, 397 A.2d 1173, 1176 (1979) (citations omitted); accord Commonwealth v. Boone, 429 A.2d 689, 692 (Pa.Super. 1981).

Pennsylvania courts have made clear that every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. Commonwealth v. Sullivan, 820 A.2d 795, 800 (Pa.Super. 2003). A new trial is required when the remark made in the course of a trial is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived a defendant of a fair and impartial trial. Id. To meet that standard, the defendant must show "the unavoidable effect" of the prosecutor's comments or actions "is to 'prejudice' the jury so that a true verdict cannot be rendered because the existence of bias and hostility makes it impossible to weigh the evidence in a neutral manner." Commonwealth v. Kellam, 719 A.2d 792, 798 (Pa.Super. 1998); accord Commonwealth v. Wheeler, 645 A.2d 853 (Pa.Super. 1994).

It must be determined from all the circumstances whether a remark made during the course of a trial has a prejudicial effect, as would warrant a new trial; there is no fixed rule applicable to every case. Sullivan, 820 A.2d at 800. An accepted guide in determining the prejudicial effect of a remark made in the course of a trial is that, if the remark may be said with fair assurance to have had but a slight effect upon the jury, if any at all, and one is not left in doubt that it had no substantial influence in the case, it will not vitiate an otherwise fair trial. Id.

Here, Appellant's claim is based on his belief that this court erred in not granting a mistrial when the Commonwealth made statements eliciting a response from Special Agent Shute as follows:

Mr. Steele: Now, Agent, in your work and what you do
in your capacity at the FBI is look at, in this case, a murder case. And you've looked at other murder cases, correct?
Witness: Yes.
Mr. Steele: Kidnappings of children and robberies and other assorted crimes along those lines, correct?
Witness: Yes.
Mr. Steele: And in doing that and working in all those kinds of cases, do you have successes using this technology- and by successes, I guess I mean catching the bad guys?
Mr. Farrell: Objection, your Honor.
Mr. Heckman: Objection.
Mr. McClain: Objection, your Honor.
The Court: Sustained.
Mr. Farrell: Sidebar, your Honor.

(N.T., January 15, 2010 at 201-202).

All defense counsel motioned for a mistrial. The undersigned heard argument and admonished the prosecutor for his poor judgment. (N.T., January 15, 2010 at 207-211). This court denied the motion for mistrial and prepared a curative instruction to deliver to the jury. (Id.). The proceedings reconvened in open court, the jury returned, and the undersigned issued the following curative instruction:

All right. Members of the jury, thank you for your patience with me.
Members of the jury, what you just heard about things such as successes of a witness or failures, and the term "bad guys, " I want you to know was totally inappropriate. It's totally inappropriate, what happened there. And you need to know it makes no difference about any successes or failures, none whatsoever.
This case stands on its own, irrespective of any successes or failures that a particular witness may have had in a case. And so that shouldn't have been said. You need to know that very clearly from me. That shouldn't have been said.
As I told you, you will be the sole judges of the facts of this case. And what may have occurred outside or unrelated to this case makes no difference, makes no difference at all.
The comments should not have been made; I can't overstate that to you. How you decide this case will be determined by my instruction to you on the law and your sole, exclusive determination of the facts in this case. And that exclusive determination of the facts in this case should not in any way include those comments and those questions that were made in response, correctly, by the defense attorneys in this case.
Additionally, any reference to "bad guys" that you heard - again, totally, totally inappropriate. It should not have been said, plain and simple. These three men stand here before you innocent unless and until proven guilty. And I see you're shaking your heads affirmatively. You know that because of my instructions to you before. We all, as citizens, have the right - there are rights in our system, and those rights are that we are presumed innocent unless and until proven guilty under the law. It is a basic right that all of us carry as American citizens. And if you understand that, then you understand why it was inappropriate to make any reference to any people being bad guys.
The decisions about whether someone is acquitted, that is, found not guilty or guilty, are within your sole province. That is your determination, not anyone else's, and it's inappropriate for anybody to invade your province. It would be inappropriate for me to do it.
And so, because of that, I am asking you and directing you to please strike those comments, the questions and the answers, from your minds. If you understand our basic, fundamental constitutional rights, I suggest to you that you should be able to do that.

Thank you. (Id. at 212-14). (emphasis added).

While the prosecutor's comments were totally inappropriate, unwarranted and inexcusable, they did not deny Appellant a fair trial. This court determined that any prejudice was counterbalanced by the court's cautionary instruction to the jury. The undersigned stressed to the jury that the jury alone is the sole judge of the facts of this case, the evidence presented at trial and that what may have occurred outside of this case makes no difference. (Id.). We may presume that the jury followed the court's instruction concerning comments made by counsel. See Commonwealth v. Cannon, _ Pa., _, 22 A.3d 210, 217 (2011) (citing well-established presumption that jurors will abide by their instructions); Baez, supra at 89-90, 720 A.2d at 722 (noting jury is presumed to have followed court's curative instruction). As noted, the jury sua sponte, nodded their heads affirmatively when the curative instruction was given. If there was ever any doubt about this jury's thoughtful, careful and diligent deliberation, that doubt was eliminated by the verdict, i.e., two Defendants (Appellant and Latham) were found guilty of all charges and one Defendant (Pitts) was found not guilty of all charges. Accordingly, this issue merits no relief as it was an isolated remark during the course of a three-week trial and the undersigned immediately and succinctly cautioned the jury to disregard the statements.

In his sixth issue, Appellant argues that the court erred by failing to declare a mistrial when, in direct violation of this court's pre-trial rulings, counsel for Co-Defendant Pitts, in questioning Angelo Shin, asked about a meeting "when [Appellant] tells you he does home invasions." Appellant claims that the extreme prejudice was not nor could not be cured by the court's post-objection comments and, therefore, he is entitled to a new trial. For the same reasons cited above, we disagree.

The statement in question came during the cross examination of Angelo Shin by counsel for Co-Defendant Pitts when counsel asked about a meeting "when [Appellant] tells you he does home invasions - was that before the ride out to Montgomeryville?" (N.T., January 13, 2010, at 193). The brief mention of Appellant's possible prior bad acts was not of such a nature that the jury would form in their minds a fixed bias or hostility towards Appellant so much so that they could not weigh the evidence and render a reliable verdict. Commonwealth v. Wheeler, 435 Pa.Super. 266, 278, 645 A.2d 853, 859 (1994). Moreover, this brief remark, with the curative instruction (Id. at 194-195), could not possibly have overshadowed the overwhelming evidence presented against Appellant during the course of the three-week trial. Hence, this claim merits no relief.

In his seventh issue, Appellant also asserts that this court committed reversible legal error by failing to declare a mistrial when Commonwealth witnesses improperly testified about Appellant's prior drug use, [18] drug business and other comments informing the jury of Appellant's alleged prior criminality. Again, we disagree.

We note that the trial court is in the best position to assess the effect of an allegedly prejudicial statement on a jury. Commonwealth v. Simpson, 562 Pa. 255, 270-71, 754 A.2d 1264, 1272 (2000). Thus, the decision of whether to grant a mistrial is within the sound discretion of the trial court, and will not be reversed on appeal absent an abuse of discretion. Id.; Commonwealth v. Robinson, 543 Pa. 190, 200, 670 A.2d 616, 621 (1995). The remedy of a mistrial is an extreme one that is required only when an incident is of such a nature that its unavoidable effect is to deprive the defendant of a fair and impartial trial by preventing the jury from weighing and rendering a true verdict. Commonwealth v. Spotz, 552 Pa. 499, 525, 716 A.2d 580, 592 (1998).

As set forth above, to obtain the relief that Appellant seeks, it must be demonstrated that the unavoidable effect of the comments or actions prejudiced the jury to such an extent that a true verdict was not rendered because the existence of bias and hostility made it impossible for them to weigh the evidence in a neutral manner. See id. Appellant's complaint simply cannot meet this standard. The brief references to Appellant's alleged drug use and drug dealing were elicited through the testimony of two co-defendants to explain why events occurred as they did. The undersigned specifically instructed the jury to disregard any reference to Appellant's alleged criminal activity by way of a curative instruction regarding the objectionable statements. (N.T., January 13, 2010 at 194-195; 212-213). Furthermore, the fleeting mention of Appellant's prior bad acts could not overshadow the overwhelming evidence presented against Appellant. Thus, Appellant is not entitled to a new trial.

Appellant next claims in his eighth issue on appeal that this court erred by allowing the in-court identification of Appellant by Anthony Vanderslice when the Commonwealth failed to disclose, contrary to pretrial court orders and discovery obligations, the impending identification prior to trial. Appellant proffers that the undersigned should have granted a mistrial. Appellant is mistaken.

Pursuant to the Rules of Criminal Procedure, the Commonwealth shall disclose to the defendant "the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification." Pa.R.Crim.P. 573(B)(1)(d). It is understood that the term "in-person identification" refers to all forms of identifying a defendant by means of the defendant's person being in some way exhibited to a witness for the purpose of identification: e.g., a line-up, stand-up, show-up, one-on-one confrontation, one way mirror, etc. (Comment to Pa.R.Crim.P. 573) (emphasis added).

At trial, counsel for the Commonwealth questioned Anthony Vanderslice about the men who had come into his store, Wireless Tech on Frankford Avenue, to purchase telephones on December 18, 2008. In response to a question by the Commonwealth, Mr. Vanderslice stated that he recognized Appellant as one of the men in his store on that day. (N.T., January 14, 2010 at 147). The following exchange then took place in the courtroom outside the presence of the jury with counsel, Mr. Vanderslice and the Defendants present, following Appellant's objection and motion for a mistrial:

THE COURT: All right. Just so we're clear on this, when you say "the gentleman in the rear, " this gentleman has a solid blue shirt. I'm going to say this gentleman -
THE WITNESS: The pinstripe. The white stripes.
THE COURT: All right. So, for the record, that's
[Appellant].
MR. HECKMAN: Correct. Your Honor, we renew our objection, since we were never placed on any notice that this identification was going to be made. It's not set forth in this witness' statement, and none of the photographs is of my client. So I ask that it be stricken.
THE COURT: Just give me a second.
When that - did you receive discovery? Again, I remind the attorneys that the judge is always at a disadvantage because the judge doesn't have access to the discovery.So when you received your discovery, did you have the statement in there, Mr. Heckman?
MR. HECKMAN: The statement of Mr. Vanderslice, I did.
THE COURT: Yes sir. And attached to that statement were the photographs attached to that, sir?
MR. HECKMAN: Yes, sir.
THE COURT: And you are telling me that [Appellant]'s photograph was not part of that?
MR. HECKMAN: Yes. I have photocopies that were black-and - white, but I did not see his photograph.
THE COURT: All right. What's the response from the Commonwealth?
MR. STEELE: He's correct, your Honor.
THE COURT: I want to make sure I understand this,
then. This witness identified someone who was not in the photo lineup?
MR. STEELE: He did.
THE COURT: All right. Then 111 hear from you, Mr.Heckman.
MR. HECKMAN: Your Honor, I guess my first motion would be for a mistrial, based on that failure to provide the notice of identification.
In the alternative, your Honor, if your Honor does not grant a mistrial, I would ask that the jury be instructed that there is no identification of anyone in a blue shirt.
THE COURT: All right. And from the Commonwealth's standpoint, I have to believe you didn't expect that response did you?
MR. STEELE: Correct, your Honor.
THE COURT: Because otherwise, his photograph would have been in the photo lineup?
MR. STEELE: Correct.
THE COURT: Okay. So --
MR. STEELE: But along those lines --
THE COURT: Yes.
MR. STEELE: - I think, in terms of the evidence that has been presented, Tamara Rodgers just indicated that he went into the store with her and knows her from a period of time. So I submit that there's not an issue with this along those lines. And to say that he's not on notice that his client was in the store buying that, I think is harmless, if anything, and -
MR. HECKMAN: Your Honor --
THE COURT: Let him finish, please. I'm going to have questions. So Tamara Rodgers' statement makes mention of [Appellant] being - I heard what her testimony said. But now I'm making reference to the discovery material.
MR. STEELE: Uh-huh.
THE COURT: Did that make reference to [Appellant] being in the car going to this telephone place?
MR. STEELE: It did.
THE COURT: All right. Now 111 hear from you, sir.
MR. STEELE: And went in and bought the phones, so.
THE COURT: Okay.
MR. HECKMAN: Your Honor, that may be up to the jury's interpretation of what the testimony was. He might have been in the car; I forget what Tamara said. But the fact of the matter is, we're dealing with a separate witness, similar to what Mr. Farrell's argument was. This witness is now telling us for the first time that I have recollection of that he identified my client. That was the similar issue that we had yesterday, your Honor, with Mr. McClain's client. And I would object to that identification coming in as a complete surprise.
THE COURT: Anything else with respect to [Appellant's argument?
MR. HECKMAN: I'm sorry, your Honor?
THE COURT: Anything else with respect to [Appellant's argument?
MR. HECKMAN: No, nothing, your Honor. I'm not aware of anything that Tamara said that implicates my client, as I've just said.

(N.T., January 14, 2010 at 149-54).

Appellant's counsel admitted that he had received discovery from the Commonwealth, that Mr. Vanderslice's statement was included in that discovery, and that photographs were attached to the statement. He also insisted that Appellant's photograph was not one of the photos attached to Mr. Vanderslice's statement, hence, the unfair surprise. The prosecutor admitted that they had not included Appellant's photograph with the statement. This does not end our inquiry, however.

According to the prosecutor, as evidenced in the foregoing exchange, the Commonwealth did not anticipate Mr. Vanderslice's response to the in-court questioning about identification. Had the Commonwealth anticipated such a response, counsel argued that they would have included Appellant's photograph in the photo lineup as it would have benefitted their case against Appellant to do so. In addition, we note that police officers interviewed Mr. Vanderslice on January 28, 2009, and asked him to look at some photos. (N.T., January 14, 2010 at 144). As part of his statement on that day, Mr. Vanderslice identified Julius Wise and Tamara Rodgers as individuals who were in his store, Wireless Tech on Frankford Avenue, Philadelphia, PA. (See Commonwealth's Exhibits C-22 and C-23; N.T., January 14, 2010 at 145-147.) On February 2, 2009, police interviewed Mr. Vanderslice a second time and showed him more photographs. Mr. Vanderslice identified the photographs of Karre Pitts and Robert Eatman as men who were also there on December 18, 2008.[19] {See Commonwealth Exhibits C-24 and C-25; N.T. January 14, 2010 at 160-61). The Commonwealth provided this information in their original discovery exchange. The Commonwealth revealed Mr. Vanderslice's identity and involvement early in this case. Accordingly, Mr.Vanderslice was not a new witness pursuant to Pa.R.Crim.P. 573, and his involvement and the possible identification of the defendants at trial should not have come as a total surprise to Appellant. See Commonwealth v. Honesty, 850 A.2d 1283 (Pa.Super. 2004) (witness recognition of the shooter was not the subject of mandatory disclosure under Pa.R.Crim.P. 573 as the defendant was not exhibited to the witness for identification). Instantly, the undersigned determined that the in-court identification did not deprive Appellant of a fair and impartial trial. This decision was reached after careful consideration of the pertinent law, after what had transpired in the courtroom in the presence of the jury, as well as after the exchange cited above. A mistrial was not warranted then, nor is a new trial warranted now.

Appellant argues in his ninth issue on appeal that the trial court erred by again failing to declare a mistrial and by allowing Sybil White to testify about alleged hearsay statements made by Co-Defendants Pitts and/or Latham, in violation of Appellant's rights under the Confrontation Clause of the federal and state constitutions as well as under the progeny of Bruton[20] and Crawford.[21] We disagree.

An exception to the hearsay rule permits an out-of-court declaration of one co-conspirator to be admitted against another provided that the declaration was made during the conspiracy and in furtherance of the common design. Commonwealth v. Coccioletti, 493 Pa. 103, 111, 425 A.2d 387, 391 (1981) (citation omitted). Furthermore, our Supreme Court "has extended the co-conspirator exception to admit declarations by 'co-participants' in a crime even where conspiracy has not been charged or proven." Id. at 113, 425 A.2d at 392 (citing Commonwealth v. Stoltzfus, 462 Pa. 43, 59, 337 A.2d 873, 881 (1975)). Statements falling within the conspiracy exception to the hearsay rule do not violate Bruton. Coccioletti, supra.

In Pennsylvania, with respect to the introduction of evidence under the co-conspirator exception, the Commonwealth is only required to prove the existence of a conspiracy by a fair preponderance of the evidence. Commonwealth v. Pinkins, 514 Pa. 418, 424, 525 A.2d 1189, 1191 (1987). Additionally, a conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties. Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981).

Once a conspiracy has been established, admissions of one coconspirator are admissible against all. Coccioletti, supra. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed. 213 (1970), the United States Supreme Court held that "an out-of-court declaration by a co-conspirator which implicated the defendant was admissible and the defendant's Sixth Amendment rights were not violated even though the co-conspirator did not take the stand." Coccioletti, supra (explaining Dutton, supra). The key distinction between Bruton and Dutton is that in Dutton, the statements were admitted under the co-conspirator exception to the hearsay rule. Hearsay exceptions have been established because they are characteristically reliable, and this reliability negates the Sixth Amendment confrontation clause problems. Conccioletti, supra.

There is an additional basis for admitting the hearsay testimony where the defendants' "inculpatory declarations [are] made in each other's presence, and if incorrect, would naturally have been denied. Pennsylvania follows a traditional exception to the hearsay rule which admits such declarations as implied admissions by the silent and acquiescing accused." Coccioletti, supra at 113, 425 A.2d at 392.

Instantly, the Commonwealth presented testimony at trial of a conspiracy that existed amongst, inter alia, Appellant, Sybil White, Karre Pitts and Amatadi Latham. Because of the evidence of the existence of this conspiracy, the statements of Pitts and Appellant were introduced through Ms. White on the premise that the admissions of one coconspirator are admissible against other co-conspirators. The defendants were all charged with crimes surrounding the robbery of the Chae family and resulting death of Robert Chae. Appellant had ample opportunity to cross examine Ms. White. This court properly denied the request for a mistrial and Appellant's claim merits no relief.

Appellant argues in his tenth issue on appeal that this court committed reversible legal error by not declaring a mistrial when the Commonwealth, in direct violation of the undersigned's pretrial orders, played for the jury a tape of a 911 telephone call, without ever providing - prior to trial - a written transcript of the 911 tape, which justifiably led Appellant to believe no such evidence would be admitted. Appellant complains that the electronic copy of the tape provided in discovery was inoperable. Furthermore, he asserts that the tape was unduly inflammatory, irrelevant to the proof of the Commonwealth's case, and constituted unfair surprise. Appellant's claim warrants no relief.

As previously explained, the standard governing the appellate court's review of a trial court's refusal to grant a request for a mistrial has been often summarized as follows:

The decision to declare a mistrial is within the sound discretion of the court and will not be reversed absent a "flagrant abuse of discretion." Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988, 997 (1992); Commonwealth v. Gonzales, 415 Pa.Super. 564, 570, 609 A.2d 1368, 1370-71 (1992). A mistrial is an "extreme remedy ... [that] ... must be granted only when an incident is of such a nature that its unavoidable effect is to deprive defendant of a fair trial." Commonwealth v. Vazquez, 421 Pa.Super. 184, 617 A.2d 786, 787-88 (1992) (citing Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986), and Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984)). A trial court may remove taint caused by improper testimony through curative instructions. Commonwealth v. Savage, 529 Pa. 108, 602 A.2d 309, 312-13; Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981). Courts must consider all surrounding circumstances before finding that curative instructions were insufficient and the extreme remedy of a mistrial is required. Richardson, 496 Pa. at 526-527, 437 A.2d at 1165. The circumstances which the court must consider include whether the improper remark was intentionally elicited by the Commonwealth, whether the answer was responsive to the question posed, whether the Commonwealth exploited the reference, and whether the curative instruction was appropriate. Id.

Commonwealth v. Bracey, 831 A.2d 678, 682-83 (Pa.Super. 2003) (quotation omitted).

In the case at bar, at the close of the Commonwealth's case in chief, the prosecutor asked to have the 911 audio tape recording of Richard Chae's conversation with the 911 operator played for the jury. (N.T., January 25, 2010 at 210). Defense counsel did not object. At that point, the 911 recording was played. (Id.). Richard Chae identified the 911 recording as the call he placed to 911. [Id.). Defense counsel did not object at the conclusion of the playing of the taped call. It was only after Richard Chae concluded his testimony and the jury was excused for the day that the court heard the objections of counsel with regard to the 911 recording. Counsel objected to the playing of the 911 tape on the grounds that it was an improper use of the tape, as a transcript had not been provided to the defense prior to its use. (N.T., January 25, 2010 at 224-226). Counsel agreed that the Commonwealth did include the taped recording of the 911 call to defendants as part of the discovery they provided. Defense counsel, however, contended that the copy of the audio tape that they received did not work, and they were unable to determine what was on the tape. [Id.). The Commonwealth responded that they were not aware of a request for a transcript. Thereafter, the following exchange took place:

THE COURT: All right. Frankly, I find the Commonwealth's tactics objectionable, the way they did it. However, the only objection before me is inflammatory, and so I'm going to overrule that objection. If the only objection was inflammatory, then I'm overruling it.
MR. MCCLAIN: Judge, if I may.
THE COURT: Yes.
MR. MCCLAIN: I additionally objected that it shouldn't be admissible, because it wasn't given to us - this is the first time I've ever heard it. We were -
THE COURT: Mr. McClain, Ms. Dietrich confirms that something was given. She's an officer of the court who I've found to be very trustworthy; she's worked in my courtroom, for a year and a half. And if she tells me that, that's golden to me.
MR.MCCLAIN: Judge, it was given to us. It was given to us - and I have already agreed it was given to us - in a form that we couldn't listen to.
THE COURT: Then you had a responsibility at that point to get back to the Commonwealth.
MR. MCCLAIN: We did, and it was ordered - I could have sworn that it was ordered that they had to transcribe any audio that they wanted to bring in their case in-chief. That was one of those audios.
THE COURT: Well, I've made my ruling. (Id. at 228-229).

The next morning, the court reconvened proceedings with all counsel and the Defendants present. The court then heard the motions that the defense wanted to put on the record. Appellant's counsel argued that the court orders were very clear as to the Commonwealth's obligation to provide transcripts. (N.T., January 26, 2010 at 6-7). The defense contended that if they had the transcripts, it would have been possible for them to follow up with various motions, and that would have allowed the defense to challenge the aspect of the phone call which made it inflammatory, specifically the blood-curdling screams at the end of the call. (Id.).

The Commonwealth explained that they were reading the court's order as it related to the consensual telephone calls that Angelo Shin placed during the investigation of the case. (Id. at 17). The Commonwealth indicated that there were notes from the 911 call center that were provided to the defense and they indicated the time of the call, a shooting, unknown descriptions of males or clothing and the event chronology as it related to the 911 call. (Id. at 17-18).

After hearing from both the Commonwealth and defense counsel, the court stated that it would consider the motion for a mistrial. The court further instructed counsel to prepare a proposed curative instruction for the court's consideration by twelve o' clock (12:00 p.m.) the next day. The undersigned also stated on the record that the court would consider a motion to show cause why the Commonwealth should not be held in contempt of the court's June 24, 2009 Order. (Id. at 18). Later in the day on January 26, 2010, the undersigned and all counsel participated in further discussion regarding the 911 call on the record outside the presence of the jury at the request of counsel for Latham. (Id. at 183-184). The undersigned stated as follows:

From my perspective, the issue in the case now becomes whether there will be a mistrial granted or some other sanction. There's going to be at least a sanction imposed; there's no getting around that. It was a violation of the court order, and there has to be a sanction imposed to vindicate the authority of the Court, especially because of the way that I've had to draft orders because of issues regarding the discovery process in this case.

(Id. at 184).

On January 27, 2010, after the jury recessed for lunch, the undersigned reconvened proceedings with all counsel and the defendants present. This court addressed the issue concerning the 911 tape as follows:

All right. Counsel, we were on the record outside the presence of the jury.
I had asked counsel yesterday to try to work together on a proposed curative instruction as it relates to the issue regarding the playing of the 911 tape on Monday evening, the 25th of January. And what I have gotten instead is three proposed cautionary instructions.
I've indicated to counsel that none of those cautionary instructions are (sic) satisfactory to me for varying reasons. The issue regarding whether a transcript was provided is not for the jury to know; I will deal with that separately, as I indicated.[22]

(N.T., January 27, 2010 at 109-10).

The undersigned further indicated that the final determination regarding the grant of a mistrial would be made depending upon how the curative instruction was received by the jury. (Id. at 110).

This court delivered the curative instruction to the jury as follows:

I feel it's appropriate for me to make some comments to you concerning an event that occurred on Monday at the close of the court day - just prior to the close of the court day.
You may recall that a 911 telephone call tape was presented to you, and I want to share some things with you regarding that. It was not a pleasant thing to hear, obviously. And it's important for me, as the trial judge in this case, for you to understand and for me to be confident that you understand that you should not and cannot allow it to stir up your emotions to the prejudice of these defendants. And I note some of you are acknowledging that already affirmatively, and I appreciate that.
Your verdict must be based on a rational and fair consideration of all the evidence, and not on any passion or any prejudice against the defendants or the Commonwealth, or anyone else, for that matter, connected with this case. And the playing of that recording by the Commonwealth in any way - you have to understand that emotion cannot and must not cloud your consideration of the evidence.
I thank you again for nodding your heads. Thank you for understanding that. (Id. at 112-13).

Based upon a review of the relevant law and this court's assessment of the prejudicial affect the tape may have had on the jury, the undersigned concluded that its cautionary instruction regarding the 911 tape was adequate to avoid depriving Appellant of a fair and impartial trial. See Simpson, supra at 270-271, 754 A.2d at 1272 (reiterating trial court in best position to assess affect of allegedly prejudicial statement on jury); Spotz, supra at 525, 716 A.2d at 592, 593 (emphasizing mistrial unnecessary where court issues adequate cautionary instruction). See also Baez, supra at 89-90, 720 A.2d at 722 (noting the jury is presumed to have followed a court's curative instruction). Hence, Appellant's tenth issue is unavailing.

In his eleventh issue on appeal, Appellant contends that the trial court erred by allowing over objection, a Commonwealth witness, Sybil White, to place a disproportionately sized "mug shot" photograph of Appellant onto a diagram of a motor vehicle. According to Appellant, such a display demonstrated, unnecessarily, prior criminality and prejudice and, therefore, a new trial is warranted. He asserts that this error was later compounded when the court sent the diagram and photo back to the jury during its deliberations. We disagree.

Pennsylvania law provides that a reference made to photographs which would indicate to the jury that the accused was involved in unrelated criminal activity constitutes reversible error except in certain circumstances. Commonwealth v. Nichols, 485 Pa 1, 4, 400 A.2d 1281, 1282 (1979); Commonwealth v. Fuller, 479 Pa. 353, 357, 388 A.2d 693, 694 (1978); Commonwealth v. Turner, 454 Pa. 439, 442, 311 A.2d 899, 900 (1973). The Pennsylvania Supreme Court has held that the controlling question in this situation is "whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity." Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972); accord Commonwealth v. Irwin, 475 Pa. 616, 381 A.2d 444 (1977). Moreover, the Court has made clear that a mere passing reference to photographs from which a juror could not reasonably infer prior criminal activity does not invalidate the proceedings, because there has been no prejudice. Allen, supra. In Allen, the prosecution used police photographs on five separate occasions. See id. at 182-183, 292 A.2d at 376. The Allen Court found that the constant mention of the police photographs was prejudicial error. See id.

In the present case, the Commonwealth's use of the defendants' photographs did not rise to the level of prejudicial error. The facts pertinent to this issue are that on direct examination Sybil White placed photographs of herself, Latham, Appellant and Pitts on the diagram of the Escalade, depicting where each of them was seated in the car. (N.T., January 19, 2010 at 98-99). Defense counsel objected stating that the photographs looked like "mug shots". The Commonwealth insisted that the photographs were not "mug shots". Rather, the photographs were color pictures appearing to be license photos or something along those lines. (N.T., January 29, 2010 at 67). There was no indication that the photographs had been taken in a jail cell, or at a police station, or anything else suggesting that they were taken as a result of "prior criminal activity". Moreover, the record does not indicate that prejudice resulted from the Commonwealth's use of the photographs. Hence, Appellant's eleventh issue must fail.

Appellant proffers in his twelfth issue that "[t]he trial court committed reversible legal error in not discharging [Appellant] or, alternatively, in not awarding him a new trial based on the reasons set forth in Exhibit 'A' (Counts 1 and 2) and initially set forth in [Appellant's Motion for Extraordinary Relief filed of record on April 1, 2010, and based on the transcribed hearing before this court on July 28, 2010. To summarize:

(a) The Commonwealth, contrary to orders of this court, e.g. the order dated 10/14/10 [sic], did not disclose, prior to verdict, exculpatory evidence provided by Co-Defendant Karre Pitts that, along with discovery provided to [Appellant], would have conclusively allowed [Appellant] to demonstrate to the jury that the three (3) home invaders were Robert Eatman (not [Appellant]), Karre Pitts and Amatadi Latham.
(b) Had the disclosure of this exculpatory evidence, allegedly developed in August 2009, been made known to this court and counsel for [Appellant] in a timely fashion, it, almost certainly, would have changed the result of [Appellant's Motion for Severance (Argued on July 27, 2009; Denied by Court order dated September 21, 2009). A separate trial for [Appellant] alone would have been (sic) allowed [Appellant] to fully develop his defense that he was not one of the three home invaders. The disclosure of this evidence, whether or not severance was granted, was material to [Appellant's defense and theory of the case." (Concise Statement [A-14]). Appellant's claim is wholly without merit.

From what this court is able to discern, Appellant maintains that the Commonwealth failed to comply with the mandatory legal requirements of Brady, [23] and specifically, with the undersigned's October 14, 2009 discovery order ("Discovery Order"), by failing to provide the statements and other discoverable evidence from an "off the record" proffer between a prosecutor, detectives, and Karre Pitts ("Pitts"). Appellant's argument is unavailing.

In Brady, supra, the United States Supreme Court held that the suppression of "evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. When applying Brady, Pennsylvania courts require "three necessary components to demonstrate a Brady violation: 'the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued."' Commonwealth v. Causey, 833 A.2d 165, 170 (Pa.Super. 2003) (citing Stricklerv. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936 (1999)).

To demonstrate a Brady violation, the moving party must make a showing that there exists "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different", and "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Commonwealth v. Simmons, 569 Pa. 405, 425, 804 A.2d 625, 636 (2001) (citing Strickler, 527 U.S. at 290). Additionally, to obtain relief from a Pa.R.Crim.P. 573 discovery violation, the defendant must demonstrate that prejudice resulted from the violation. Commonwealth v. Hood, 872 A.2d 175, 181 (Pa.Super. 2005) (quoting Causey, supra at 171).

To determine whether a defendant is prejudiced, the court must determine the materiality of the information. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense". United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400 (1976)). "Brady does not require the disclosure of information 'that is not exculpatory but might merely form the groundwork for possible arguments or defenses."' Commonwealth v. Chamberlain, Pa. _, _, 30 A.3d 381, 409 (2011) (citing Commonwealth v. Paddy, 609 Pa. 272, 305, 15 A.3d 431, 450 (2011)). See also Commonwealth v. Weiss, 604 Pa. 573, 584-85, 986 A.2d 808, 815 (2009) (citing United States v. Bagley, 473 U.S. 667, 682 (1985) (holding evidence is material only if there is reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; reasonable probability is a probability sufficient to undermine confidence in the outcome)).

Under Pennsylvania law, Appellant's allegations are insufficient to establish the necessary elements of a Brady violation. The "off the record" statement of Pitts is not exculpatory and does not provide any admissible impeachment evidence for the defense.

First, Pitts' "off the record" statement is not exculpatory, rather it appears to implicate Appellant as a co-conspirator in the robbery of the Chae family and murder of Mr. Chae. Therefore, Pitts' "off the record" comments would only supplement the already overwhelming evidence of Appellant's guilt.

Second, even if the substance of the discussion by Pitts was provided to Appellant through discovery, the admissions could not be used for impeachment purposes. Pitts exercised his Constitutional right against self-incrimination and did not testify as a witness during the trial. Furthermore, the Constitutional rights Pitts invoked prohibited both the Commonwealth and Appellant from calling Pitts as a witness. Pitts' decision not to testify essentially precludes an honest argument regarding Appellant's necessity of having Pitts' "off the record" proffer for impeachment purposes.

Third, Appellant simply does not meet the prejudicial standard required by Brady. The prejudice Appellant argues in his motion is based on the lack of "opportunity to investigate leads provided by Pitts' statements and actions that could have assisted in the defense of [Appellant] at time of trial". (Motion by [Appellant] for Extraordinary Relief Pursuant to Pa.R.Crim.P. 704(B), filed April 1, 2010, at H 13). Appellant alleges this information may have helped the defense or might have affected the outcome of the trial. However, Pitts' statement does not provide any additional information unknown to the defense prior to trial; rather it merely corroborates the theory the Commonwealth maintained throughout the course of the investigation and trial. The Commonwealth did not violate the legal requirements of Brady because Pitts' statement is not favorable to Appellant, it is neither exculpatory nor impeaching, and Appellant was not prejudiced by its non-disclosure.

Moreover, even assuming arguendo that there was a technical violation of Brady, Appellant is not entitled to relief because Pitts' statement would not undermine the confidence in the jury's verdict. The evidence presented at trial, without Pitts' otherwise inadmissible statement, which would have further corroborated the evidence against Appellant as summarized infra, overwhelmingly establishes Appellant's guilt.

Appellant asserts "[h]ad the information concerning Pitts been available to counsel for [Appellant], strong evidence could have been presented implicating Pitts as the third and final member of the home invasion trio (Eatman, Latham and Pitts) and, therefore, providing counsel for [Appellant] with the reasonable and rational argument that [Appellant] was not involved since he was the only alleged accomplice who neither gave an inculpatory statement nor was identified by non-cooperating witnesses as being present at the Chae's house on January 9, 2009." (Motion by [Appellant] for Extraordinary Relief Pursuant to Pa.R.Crim.P. 704(B), filed April 1, 2010, at Tf 14). Whether or not this information was provided to Appellant prior to trial, the failure to do so could not undermine confidence in the verdict because the statement itself is inadmissible under Bruton, supra, and it could not have been used for impeachment purposes without Pitts' in-court testimony.

Further, contrary to Appellant's speculation about what beliefs the jury held or conclusions the jury reached in rendering its verdict, in addition to the voluminous co-defendant testimony, the Commonwealth presented overwhelming scientific evidence linking Appellant to the murder, none of which implicated Pitts in the crime. Consequently, in comparing the overwhelming evidence of Appellant's guilt with the evidence against Pitts, it is a much more likely scenario that the jury had a reasonable doubt as to Mr. Pitts, as supported by their verdict. Appellant has failed to make a showing that there exits a reasonable probability that disclosure of the Pitts' statement would have led to a different result.

Appellant has not established the prejudice necessary to entitle him to the relief requested. Pitts' "off the record" proffer provided information already available to Appellant and nothing additional. Thus, we conclude that Appellant has not shown that the Commonwealth violated the legal requirements of Brady or the court's discovery order in this instance. Consequently, Appellant's twelfth issue warrants no relief.

In his thirteenth issue on appeal, Appellant declares that the trial court erred by submitting confusing jury instructions after the deliberating jury asked only for an explanation of accomplice liability. In response to the request, the court re-instructed the jury, for the first time, on conspiracy, which Appellant contends was especially egregious in light of the fact that Appellant was never charged with conspiracy as to any murder charges. Appellant asserts that the court violated his right to a fair trial under the federal and state constitutions and that a new trial is required. Appellant's claim lacks merit.

"Questions from the jury and requests to be recharged are common and most certainly do not create a presumption of jury confusion." Commonwealth v. Weaver, 768 A.2d 331, 335 (Pa.Super. 2001) (citation omitted). Where a jury returns on its own motion with a question, the court has a duty to give such additional instructions on the law as the court deems necessary to clarify the jury's doubt or confusion. Id.; Commonwealth v. Washington, 418 A.2d 548, 568 (Pa.Super. 1980) (citation omitted)). "The scope of supplemental instructions given in response to a jury's request rests within the sound discretion of the trial judge." Commonwealth v. Davalos, 779 A.2d 1190, 1195 (Pa.Super. 2001).

The jury in this case, after deliberating for some time, returned to the courtroom with a request that the court read back the definitions of "accomplice" and "furtherance". The undersigned discussed the request with all counsel and reached the decision to read both sections 8.306(a)(1) and 8.30(a) to the jury, which included a definition of both accomplice liability and conspiracy liability. (N.T., January 29, 2010 at 73). The court explained its reason for this decision had been reached at the charging conference the previous day, and it was agreed that jury instruction 8.306(a)(1) would be read. There was also an issue at that time whether jury instruction 8.306(a) should be read as well. The court's position was that the undersigned would read jury instruction 8.306(a)(1) because that was the agreement. However, the court also explained that if the jury wanted further definition of "accomplice", that the undersigned would also read jury instruction 8.306(a). (Id.). Because the jury did request an explanation of the definition of accomplice, the undersigned read both sections 8.306(a)(1) and 8.306(a), which included a definition of both accomplice and conspiracy.

Appellant appears to argue that this instruction confused the jury and, therefore, that the jury did not understand the difference between a charge based on criminal conspiracy and one based on accomplice liability. However, each charge gave a correct statement of the applicable law. Moreover, the Commonwealth discussed in their opening statement the three principles of liability; accomplice, co-conspirator and principal liability, and that their case was proceeding on those three principles. (N.T., January 29, 2010 at 77). The joint instruction seeks to avoid confusion where both concepts are raised in a case such as the case, sub judice. Conspicuously absent from Appellant's 1925(b) statement on this issue is the fact that in addition to being charged with Second Degree Murder under accomplice liability, Appellant was also charged with Criminal Conspiracy with respect to Robbery and Burglary. The court, within its discretion, properly recharged the jury. Hence, Appellant's thirteenth issue warrants no relief.

In his fourteenth issue on appeal, Appellant argues that the Commonwealth's repeated violations of the trial court's orders and the discovery rule pursuant to Pa.R.Crim.P. 573 denied Appellant a fair trial under the federal and state constitutions. According to Appellant, the cumulative effect of the Commonwealth's conduct was so egregious that Appellant's conviction should be reversed and Appellant discharged. Alternatively, Appellant claims that he should be awarded a new trial. We do not agree.

Pennsylvania law does not recognize a "cumulative effect" doctrine for review of the issues on appeal. See Commonwealth v. Townsend, 747 A.2d 376, 383 (Pa.Super. 2000), Commonwealth v. Jones, 370 Pa.Super. 591, 594-595, 537 A.2d 32, 34 (1988). "[Individually meritless claims do not gain any merit merely because they are woven into one fabric for purposes of appellant's brief." Baez, supra at 118, 720 A.2d at 737. Accordingly, Appellant's fourteenth issue must necessarily fail.

In his final issue on appeal, Appellant submits that this court committed reversible legal error by denying his post-sentence motion seeking a modification of his sentence. As a result, Appellant insists that this case should be remanded for the imposition of the relief requested. Appellant's final claim merits no relief.

Specifically, in Appellant's Exhibit "A", he contends that this court "erred when it ruled that the three (3) counts of Robbery, relating to Janice Chae, Richard Chae, and Minna Chae did not merge with the offense of Second Degree Murder of Robert Chae for which [Appellant] was sentenced to a term of life imprisonment without the possibility of parole." Also, the court "erred when it ruled that the two (2) counts of Criminal Conspiracy relating to the conspiracies to commit Burglary and Robbery did not merge with the offence (sic) of Second-Degree Murder of Robert Chae for which [Appellant] was sentenced to a term of life imprisonment without the possibly(sic) of parole." Finally, "Should this court rule that the three (3) Robbery charges and one (1) Conspiracy charge do not merge, then [Appellant] requests that these sentences be modified to run concurrently with the life sentence imposed on [Appellant] because the jury's verdict demonstrates that the jury believed Eatman was the actual killer; Pitts was not present; and [Appellant] and Latham were present and assisted Eatman." Appellant challenges both the legality of his sentence under the merger doctrine as well as the discretionary aspects.

When addressing the legality of a sentence, the standard of review is plenary and is limited to determining whether the trial court erred as a matter of law. Commonwealth v. Johnson, 910 A.2d 60, 66 (Pa.Super. 2006). A merger question implicates double jeopardy under the Fifth

Amendment of the U.S. Constitution. See Commonwealth v. Weatherill, 24 A.3d 435, 437 n.l (Pa.Super. 2011). Pursuant to Pennsylvania statute, no crimes shall merge for sentencing purposes unless: 1) those crimes arise from a single criminal act; and 2) all of the statutory elements of one offense are included in the statutory elements of the other offense. 42 Pa.C.S.A. § 9765; Weatherill, supra. Said another way, the doctrine of merger applies when one crime "necessarily" involves another. Commonwealth v. Maddox, 453 A.2d 1010, 1015 (Pa.Super. 1982). For one crime to "necessarily" involve another, they must share the same essential elements and no additional facts must be needed to prove the additional offense. Id. Our courts have stressed that a defendant may not automatically obtain a "volume discount" on his crimes. Commonwealth v. Belsar, 544 Pa. 346, 351, 676 A.2d 632, 634 (1996).

Instantly, Appellant's convictions for robbery stem from the criminal acts committed against four (4) separate and distinct people at separate times and in separate areas of the home during this horrific home invasion. The Commonwealth proved the taking of the property from each victim individually by force or threat of force with the intent to steal. See 18 Pa.C.S.A. § 3701(a). Accordingly, Appellant's convictions for the robbery of Janice Chae, Richard Chae and Minna Chae do not satisfy the statutory requirements for merger into the conviction of Second Degree Murder of Robert Chae for sentencing purposes. Although convicted, Appellant was not sentenced for the robbery of Robert Chae and the burglary of the Chae residence.

The same conclusion holds true for the claim that the convictions for criminal conspiracy for burglary and robbery should merge for sentencing. The statutory elements for the crime of burglary are separate and distinct from those for the crime of robbery. (See discussion supra.) Accordingly the claims for merger must fail.

Proceeding to the second aspect of Appellant's final issue, Appellant bemoans the consecutive sentences imposed on his convictions for the crimes committed against the Chae family. Appellant's complaint merits no relief.

"[T]he imposition of consecutive rather than concurrent sentences lies with the sound discretion of the sentencing court." Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa.Super. 2005). The Superior Court reviews a claim involving the discretionary aspects of sentencing utilizing the following principles:

The proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. An abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias or ill-will, or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super. 2010) (quoting Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007)). "[T]he legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. ... [T]he legislature has [also] provided a thorough, though not exhaustive, outline of considerations to focus the court's deliberations in choosing an appropriate sentence." Commonwealth v. Allshouse, 33 A.3d 31, 36 n.5 (Pa.Super. 2011).

When imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation. Where the sentencing court had the benefit of a presentence investigation report ('PSI'), we can assume the sentencing court was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors.

Moury, supra at 171.

In the case at bar, this court imposed sentences within the statutory limits. The record shows that the undersigned considered Appellant's personal circumstances and his potential for rehabilitation. (N.T. Sentencing Hearing, April 13, 2010 at 19-31). The record also shows that the court considered Appellant's pre-sentence report and the particular circumstances of the crimes he committed. Specifically, the court noted

Appellant's violent and horrific beating of Robert Chae after Mr. Chae had already been restrained, including the duct-taping of Mr. Chae's head and mouth such that his death was slow and painful. The court was struck by the senselessness of the murder of an individual who was an honorable, decent man, devoted husband and father. When later asked why he did it, Appellant laughed. In addition, this court noted that the entire Chae family was robbed and terrorized by gunpoint in their own home by these defendants and then forced to watch helplessly as their husband and father lay dying in a pool of blood on the garage floor. It is this court's belief that anything less than consecutive sentences would have constituted a considerable disservice to the Chae family.

The sentencing court complied with all sentencing procedures and safeguards required by law. Accordingly, Appellant's final issue is unavailing.

V. CONCLUSION

For all of the reasons set forth above, we respectfully request that Appellant's judgment of sentence be affirmed.


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