Com. v. McKinney, C.

C
J-A29018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CALVIN MCKINNEY                            :
                                               :
                       Appellant               :   No. 78 MDA 2020


       Appeal from the Judgment of Sentence Entered October 21, 2019,
               in the Court of Common Pleas of Dauphin County,
            Criminal Division at No(s): CP-22-CR-0001113-2018.

BEFORE:      DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED MARCH 31, 2021

        Calvin McKinney appeals from the judgment of sentence imposed

following his conviction of criminal attempt (homicide).1 We affirm.

        On   December      29,    2017,    a   shooting   occurred   in   Harrisburg,

Pennsylvania, which caused the vehicle that Keynen Guider was driving to be

damaged by numerous bullet holes. Although Guider was unharmed in that

incident, a few days later he was shot to death. Police filed charges related

to both shootings against McKinney. On January 24, 2018, police charged him

at docket CP-22-CR-0001113-2018 with criminal attempt (criminal homicide),

recklessly endangering another person (“REAP”), firearms not to be carried


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. § 901(a).
J-A29018-20


without a license, and possession of firearm prohibited.      Prior to trial, the

Commonwealth withdrew the charges of REAP and firearms not to be carried,

and the charge of possession of firearm prohibited was severed.

      Police simultaneously charged McKinney at docket CP-22-CR-0001117-

2018 with criminal homicide, conspiracy (criminal homicide), firearms not to

be carried without a license, and possession of a firearm prohibited. Prior to

trial, the conspiracy charge was withdrawn by the Commonwealth and the

firearms charges were also severed.

      The two cases were consolidated and the matter proceeded to trial in

August 2019. The trial court set forth the factual evidence adduced at trial as

follows.

            On December 27, 2017, [McKinney] and his girlfriend, Erica
      Smith (hereinafter “Erica”), were at Choice Discount Outlet
      located at 2408 Market Street, Harrisburg, Pennsylvania. After
      exiting the convenience store, [McKinney] and Erica returned to
      his vehicle and drove away. While at the red light on Market
      Street, [McKinney] noticed in his rear-view mirror a male put his
      hands in the air as if he was trying to get their attention. Although
      neither [McKinney] nor Erica could see who the individual was,
      [McKinney] thought it could have been one of his friends, so he
      turned around and went back. When they returned to the parking
      lot, Erica realized that the individual was Keynen Guider a/k/a
      Man-Man (hereinafter “Mr. Guider” or “the victim”).

             When [McKinney] pull[ed] next to him, Mr. Guider [was]
      yelling about [McKinney] looking at his car. [McKinney] stated
      that he did not know who he was, to which Mr. Guider responded
      that [McKinney] “knows who he is.”          Erica testified that
      [McKinney] remained calm, but the situation was escalating
      because Mr. Guider was very upset. At that point, Erica told
      [McKinney] to leave.    After this incident, [McKinney] called
      someone to find out why Mr. Guider was so upset.


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           In her statement to Detective Richard Iachini (hereinafter
     “Detective Iachini”) of the City of Harrisburg Police Department on
     January 7, 2018, Erica stated that she believed Mr. Guider was
     driving a black vehicle. However, she did not personally see Mr.
     Guider near a vehicle and was basing her answer solely on
     information from [McKinney]. Additionally, she told Detective
     Iachini that Mr. Guider was not threatening [McKinney].

            At 12:22 P.M. on December 29, 2017, a 911 call was made
     by a female stating there was a shooting near her residence.
     Officer Cynthia Kreiser (hereinafter “Officer Kreiser”) of the City
     of Harrisburg Police Department responded to the 1900 block of
     Market Street for the aforementioned report of shots fired. Upon
     arriving on the scene, Officer Kreiser testified that she was flagged
     down around North 20th Street and Ethel Alley by Carla
     Goicoechea (hereinafter “Ms. Goicoechea”).           Ms. Goicoechea
     relayed what she saw and heard, as well as provided a description
     of the shooter as a skinny, light-skinned black male.             Ms.
     Goicoechea later provided more details about the shooter that she
     remembered - a male in his early to middle 30’s, approximately
     5’7” with a beard and moustache wearing a black coat, blue jeans,
     and a gray beanie with a black and red ball on top.

            Ms. Goicoechea testified at trial and stated that she was on
     the second (2nd) floor in the front room folding laundry on her
     bed when she heard gunshots and looked through the blinds on
     her window. She saw two (2) vehicles - a black Chevrolet Malibu
     speeding away up 20th Street and a brown Chevrolet Impala
     driven by the shooter. Additionally, she watched as the shooter
     ran up the street and stopped briefly in front of her home before
     getting into his vehicle. Ms. Goicoechea observed the shooter’s
     unobstructed face for approximately fifteen (15) seconds. She
     was also able to provide the first three (3) digits of the out-of-
     state license plate on the shooter’s vehicle to police.

            In her statement to police, Ms. Goicoechea stated that the
     shooter was approximately 5’7”.         However, Ms. Goicoechea
     testified that the shooter was tall and that she was unsure of the
     exact height because she was looking down from the second (2nd)
     floor. When questioned, she testified that she believed 5’7” was
     tall for a man. On January 15, 2018, Ms. Goicoechea met with
     Detective Iachini and was shown a photo array wherein she
     selected the person she believed to be the shooter. During the
     trial, Ms. Goicoechea made an in-court identification of [McKinney]

                                     -3-
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     as the person she observed to be the shooter on December 29,
     2017 - the same person she selected from the photo array.

           We also heard testimony from Teresa Smith (hereinafter
     “Teresa”), who resides at 1926 Market Street. On December 29,
     2017, Teresa was bringing the recycling bins in from the street
     when she heard a popping noise. She walked to the street and
     saw a male in the middle of the street shooting up 20 th Street.
     She did not see who he was shooting at and went inside to call
     911. Once inside, Teresa looked outside, but did not get a good
     look at the shooter. She only stated that the shooter was a light-
     skinned African American male who got into a grayish-blue vehicle
     and turned right on Ethel Alley. In her statement to police, Teresa
     stated that the shooter was of average build, but since he was
     bending over with the gun in both hands it was hard to tell his
     exact size and height. Additionally, she told police that she was
     unsure of the color of the vehicle and believed it was blue or gray.

           We also heard testimony from Ariele Morrison (hereinafter
     “Ms. Morrison”), Mr. Guider’s cousin, and owner of the vehicle Mr.
     Guider was driving on December 29, 2017. Ms. Morrison testified
     that she received a phone call from Mr. Guider on December 29,
     2017 stating that her vehicle was shot up. She stated that Mr.
     Guider sounded upset and informed her that the shooting occurred
     near 19th and Park Street - a couple blocks from 20th and Market
     Streets. Ms. Morrison met Mr. Guider after work in an alleyway
     near 18th and Park Streets and drove the vehicle back to her
     residence. She parked it on the sidewalk against [the] house and
     Mr. Guider purchased a cover to put over it. Initially, Ms. Morrison
     did not report the incident to police because Mr. Guider said he
     would take care of it and filed a fraudulent claim with her
     insurance company. However, when she learned that Mr. Guider
     had been murdered on December 31, 2017, she called police and
     reported the incident from December 29, 2017.

           On January 4, 2018, forensic investigator William Kimmick
     (hereinafter “Investigator Kimmick”) of the City of Harrisburg
     Police Department spoke with Ms. Morrison about her vehicle that
     was shot. Investigator Kimmick went out to her residence where
     he was led to the vehicle parked under a tarp. He photographed
     and collected evidence - there were bullet holes in the windshield,
     rear window, hood, rear passenger window, and front passenger
     window. Projectiles from the front passenger door and steering
     wheel, as well as eleven (11) .40 caliber cartridges collected from

                                    -4-
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     the scene, were sent to the Pennsylvania State Police lab for
     analysis. All eleven (11) cartridges were found south of Ethel
     Alley. The cartridges were tested, and all were from .40 caliber
     Smith and Wesson bullets that were discharged from the same
     unknown firearm.

           On December 30, 2017, Javon McKinnon a/k/a “Whoopy”
     (hereinafter “Mr. McKinnon”) was visiting his mother at 1938
     Brookwood Street when Mr. Guider called and asked if he wanted
     to hang out. At the time, Mr. McKinnon was driving his wife’s van,
     which he parked in front of his mother’s home. When Mr. Guider
     arrived, Mr. McKinnon went outside and saw a darkish blue or
     black vehicle pull away but was not able to see who was inside.
     He subsequently told police that he believed there were two (2)
     females inside the blue vehicle. Mr. Guider was driving a rented
     blue Chevrolet Impala.

            The two (2) females were Aja Washington (hereinafter “Ms.
     Washington”) and Sharayne Cook (hereinafter “Ms. Cook”) who
     testified at trial. Ms. Cook was driving Ms. Washington’s dark blue
     Chevrolet Malibu with tinted windows that evening. The pair were
     driving around trying to meet up with Ms. Cook’s cousin, Brittany
     Jackson, and go to a couple local bars. While travelling on
     Brookwood Street toward Double D’s Bar and Grill located at 564
     South 19th Street, Ms. Cook saw Mr. Guider in his vehicle stopped
     in the middle of [the] street and Mr. McKinnon getting into the
     passenger side. At 11:47 P.M. on December 30, 2017, Ms. Cook
     calls [McKinney] and has a six (6) minute conversation with him.
     [McKinney’s] cell phone records show that the call hit off Tower
     0594, which is .430 miles from the location of the shooting.

           At 12:56 A.M. on December 31, 2017, Ashley McKinnon
     (hereinafter “Mrs. McKinnon”) received a call from [McKinney]
     asking if she was with Mr. McKinnon because someone had told
     [McKinney] they saw Mr. McKinnon and Mr. Guider get into her
     car in front of 1938 Brookwood Street. [McKinney’s] cell phone
     records show that the call hit off Tower 0594, near the scene of
     the homicide.     Mrs. McKinnon became angry because Mr.
     McKinnon was supposed to be at the hotel room with her children
     so she called Mr. McKinnon and asked why he would leave them
     there. After that phone call, Mr. McKinnon and Mr. Guider
     continued to drive around for approximately thirty (30) more
     minutes.


                                    -5-
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            When they returned to 1938 Brookwood Street, Mr.
     McKinnon was getting out of Mr. Guider’s vehicle when someone
     began shooting at them. Mr. McKinnon subsequently told police
     that he saw two (2) shadows near his wife’s parked van. Mr.
     McKinnon jumped back into Mr. Guider’s vehicle while continuing
     to be shot at. He heard Mr. Guider scream and tried to grab him
     while simultaneously avoiding gunfire.      The next time Mr.
     McKinnon looked up; the vehicle was crashing into a pole. Mr.
     McKinnon jumped out of the car and ran, eventually circling back
     to his mother’s residence. At the time, he did not realize that he
     was shot in the leg and through his scrotum until paramedics
     arrived.

            At 1:28 A.M., a 911 call was made by a female stating that
     a male was shot. Approximately two (2) minutes later, Officer
     Angel Diaz (hereinafter “Officer Diaz”) of the City of Harrisburg
     Police Department responded to 1935 Brookwood Street. Upon
     arriving, he observed a green sedan parked at an awkward angle
     and in contact with the vehicle behind it. Initially, Officer Diaz
     believed the vehicle was empty and noticed a male further up the
     street knocking on a door. Officer Diaz approached and asked if
     he saw anything, the male responded no. When Officer Diaz re-
     approached the green sedan, he noticed there was a male in the
     driver’s seat slightly reclined and bleeding from the face. The
     male was unresponsive. Officer Diaz noted that all the car doors
     were closed, the car was in drive and running.

            When other officers arrived on scene, Officer Diaz requested
     another officer [to] locate the male he saw knocking on the door.
     That individual was subsequently identified as Mr. McKinnon.
     After the victim was removed from the vehicle by emergency
     personnel, Officer Diaz observed a black firearm on the driver’s
     side floorboard. Officer Diaz secured the gun and noted that it
     was a Glock 23 .40 caliber loaded with twenty (20) live rounds
     and one (1) round chambered. There were no shell casings found
     inside Mr. Guider’s vehicle.

           When Investigator Kimmick arrived on scene at
     approximately 4:20 A.M., the scene was securely blocked off with
     crime scene tape. He observed a Chevrolet Impala crashed into
     a parked car in front of 1937 Brookwood Street and several items
     strewn about the road. The tire marks and damage to other
     vehicles [were] consistent with Mr. Guider’s vehicle travelling west
     on Brookwood Street, striking a pickup truck in front of 2019

                                    -6-
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     Brookwood Street, then rolling back down through the crime
     scene and coming to a rest in front of 1937 Brookwood Street.

            A total of twelve (12) cartridges were collected from the
     scene on December 31, 2017. Seven (7) of those cartridges came
     from the same unknown firearm, and the remaining five (5) came
     from a second unknown firearm. The eleven (11) cartridges
     collected on December 29, 2017, and the aforementioned seven
     (7) cartridges from December 31, 2017, came from the same
     unknown firearm. None of the cartridges collected and tested
     were from Mr. Guider’s firearm.

           Detective Iachini was assigned as the lead investigator for
     the homicide on December 31, 2017.          He first interviewed
     [McKinney’s] girlfriend, Erica, and learned about the altercation
     that occurred between [McKinney] and Mr. Guider on December
     27, 2017.     After that interview, Detective Iachini identified
     [McKinney] as a possible suspect. Within the next couple of
     weeks, he interviewed Ms. Cook, Ms. Washington and Mr.
     McKinnon. On January 15, 2018, Detective Iachini met with Ms.
     Goicoechea and showed her a photo array that he had prepared
     in advance. Ms. Goicoechea subsequently picked [McKinney] from
     the photo array.

           Based upon the description of the shooter’s vehicle,
     Detective Iachini believe it was a rental and checked with
     Enterprise to find out if [McKinney] had rented any cars from
     them. [McKinney] rented a pepperdust metallic Chevrolet Impala
     through Enterprise from December 11, 2017 through January 4,
     2018. Detective Iachini was provided the rental agreement and
     asked the Commonwealth to provide a photograph because he
     was unsure what pepperdust metallic was. Detective Iachini was
     provided with a photograph of the exact vehicle on a dealership
     lot out of state. Thereafter, Detective Iachini went to a local
     Chevrolet dealer, located a pepperdust metallic Impala and took
     photographs of it. He testified that the vehicle looks light bronze
     but could look silver or gray depending on how the sunlight hits
     it.

           Additionally, Detective Iachini provided [McKinney’s] cell
     phone records for 717-315-4708 to Detective James Glucksman
     (hereinafter “Detective Glucksman”) of the Lower Paxton
     Township Police Department to conduct a historical cell analysis.
     Detective Glucksman determined that from 11:32 P.M. on

                                    -7-
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       December 30, 2017 to 1:35 A.M. on December 31, 2017, all of
       [McKinney’s] cell phone activity hit off of the two (2) closest
       towers to the scene of the homicide - Tower 0594 (.430 miles)
       and Tower 0543 (.460 miles). At 1:28 A.M. on December 31,
       2017, the exact time of the 911 call that was placed, [McKinney’s]
       cell phone hit off Tower 0594, which covers the entire scene of the
       homicide.

              Detective Glucksman also reviewed [McKinney’s] cell phone
       activity from December 29, 2017 around 12:00 P.M. when the
       vehicle Mr. Guider’s was driving was shot. As mentioned supra,
       the 911 call came in at 12:22 P.M.          Detective Glucksman
       determined that [McKinney’s] cell phone hit off Tower 0084 (.497
       miles from 1926 Market Street) at 12:10 P.M. At 12:20 P.M.,
       [McKinney’s] cell phone hit Tower 0094 which is located along
       Interstate 83 near the intersection of East Park Drive and Union
       Deposit Road.

Trial Court Opinion, 3/30/20, at 4-14 (footnotes, headings, and citations to

the record omitted).

       At the conclusion of trial, a jury found McKinney guilty of criminal

attempt (criminal homicide) at docket CP-22-CR-0001113-2018, but was

hung on the homicide and other charges at docket CP-22-CR-0001117-2018.

On October 21, 2019, the trial court sentenced McKinney to an aggregate term

of ten to twenty years in prison. On December 9, 2019,2 McKinney filed a

timely post-sentence motion, which was denied by the trial court on December




____________________________________________


2  Following a procedural history not herein relevant, McKinney failed to file a
timely post-sentence motion due to the withdraw of his private counsel and
several delays related to the appointment of a public defender. McKinney’s
post-sentence rights were reinstated nunc pro tunc, and he was ordered to
file a post-sentence motion no later than December 9, 2019.

                                           -8-
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30, 2019. McKinney filed a timely notice of appeal. Both McKinney and the

trial court complied with Pa.R.A.P. 1925.

      McKinney raises the following issues for our review:

      1. Was the evidence presented at trial insufficient to sustain a
         verdict of guilt where the majority of the Commonwealth’s case
         was circumstantial, there was no evidence that the alleged
         victim was in or near the target vehicle at the time of the
         shooting, and there was insufficient evidence to prove that
         [McKinney] was the shooter?

      2. Whether the trial court erred by allowing the Commonwealth
         to elicit testimony from Erica Smith regarding [McKinney’s]
         incarceration since the offered testimony was irrelevant and
         any purported probative value was far outweighed by the
         prejudice caused to [McKinney] the Commonwealth [sic] to
         elicit testimony regarding [McKinney’s] incarceration for the
         attempt [sic] homicide and homicide charges?

      3. Whether the trial court erred by allowing the Commonwealth
         to introduce a photograph of a “pepperdust metallic” vehicle in
         order to identify the vehicle purportedly driven by [McKinney]
         during that timeframe even though the picture was not a fair
         and accurate depiction of the actual vehicle driven by
         [McKinney] and the photograph of a vehicle that was not
         specifically identified as the actual vehicle used in the shooting?

      4. Did the trial court err by failing to grant [McKinney] a new trial
         on the basis that the jury’s verdict was against the weight of
         the evidence; the Commonwealth’s case was purely
         circumstantial, only one Commonwealth witness identified
         [McKinney] after giving police an incorrect description of him,
         and there was no evidence that the alleged victim was near or
         in the vehicle which was the target of the shooting at the time
         the incident occurred?

McKinney’s Brief at 6 (issues reordered for ease of disposition).

      McKinney’s first issue presents a challenge to the sufficiency of the

evidence.   However, the trial court determined that the issue was waived.


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Thus, prior to analyzing the merits of McKinney’s sufficiency claim, we must

first determine whether he preserved it for our review.

      In Commonwealth v. Lord, 

719 A.2d 306

, 309 (Pa. 1998), our

Supreme Court held that if an appellant is directed to file a concise statement

of errors to be raised on appeal pursuant to Pa.R.A.P. 1925(b), “[a]ny issues

not raised in a 1925(b) statement will be deemed waived.” See also Pa.R.A.P.

1925(b)(3)(vii) (stating that “issues not included in the Statement . . . are

waived.”).   Since Lord, our appellate courts have ruled that, in order to

preserve a challenge to the sufficiency of the evidence on appeal, an

appellant’s Rule 1925(b) statement must state with specificity the element or

elements upon which the appellant alleges that the evidence was insufficient.

See Commonwealth v. Gibbs, 

981 A.2d 274

, 281 (Pa. Super. 2009).

      Here, the trial court directed McKinney to file a concise statement of

errors to be raised on appeal pursuant to Pa.R.A.P. 1925(b). In his Pa.R.A.P.

1925(b) statement, McKinney framed his sufficiency claim as follows: “[t]he

evidence presented at trial was insufficient to sustain a verdict of guilt. The

only evidence presented at trial was the questionable testimony of

Commonwealth witnesses, only one of whom identified [McKinney] as the

shooter, but only after two weeks had passed.”       Concise Statement at 2.

Again, the trial court concluded that that McKinney’s sufficiency challenge was

waived because he failed to specify the element or elements upon which he




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believed the evidence was insufficient in the Pa.R.A.P. 1925(b) statement.

See Trial Court Opinion, 3/30/20, at 15.3

       Clearly, McKinney’s Pa.R.A.P. 1925(b) statement does not challenge the

sufficiency of the Commonwealth’s evidence regarding any specific element of

the singular crime for which he was convicted, i.e., criminal attempt

(homicide). Thus, his bald assertion that “[t]he evidence presented at trial

was insufficient to sustain a verdict of guilt,” is inadequate to raise a

sufficiency claim on appeal.

       While McKinney does endeavor to present a challenge to the

Commonwealth’s evidence identifying him as the shooter, the issue, as framed

in his Pa.R.A.P. 1925(b) statement, is essentially a challenge to the weight of

the evidence rather than to the sufficiency of the evidence. In his Pa.R.A.P.

1925(b)     statement,     McKinney      acknowledges   that   the   Commonwealth

presented identification evidence though the testimony of one witness, but

implicitly seeks that we reassess the credibility of that witness because the

identification was “questionable,” and provided “after two weeks had passed.”

Such an assessment is beyond our purview in the context of a challenge to

the sufficiency of the evidence. See Commonwealth v. Moyer, 

171 A.3d

849

, 852 (Pa. Super. 2017); see also Commonwealth v. Wilson, 

825 A.2d

710

, 713-14 (Pa. Super. 2003).


____________________________________________


3The Commonwealth also contends that McKinney’s sufficiency challenge is
waived for lack of specificity in the Pa.R.A.P. 1925(b) statement.

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       Any uncertainty in an eyewitness’s identification of a defendant is a

question of the        weight of the evidence, not its sufficiency.              See

Commonwealth v. Cain, 

906 A.2d 1242

, 1245 (Pa. Super. 2006); see also

Commonwealth v. Miller, 

172 A.3d 632

, 643 (Pa. Super. 2017) (holding

that a “true weight of the evidence challenge concedes that sufficient evidence

exists to sustain the verdict but questions which evidence is to be believed.”).

As McKinney has raised a separate challenge to the weight of the evidence in

which he addresses, inter alia, the reliability of the Commonwealth’s

identification testimony, we will address this argument in our analysis of

McKinney’s separate weight challenge, infra.4

       In his second issue, McKinney contends that the trial court abused its

discretion by permitting the Commonwealth to elicit testimony from Erica

Smith referencing his incarceration. Our standard of review is as follows:

             The admission of evidence is committed to the sound
       discretion of the trial court, and a trial court’s ruling regarding the
       admission of evidence will not be disturbed on appeal unless that
       ruling reflects manifest unreasonableness, or partiality, prejudice,
       bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Benvenisti-Zarom, 

229 A.3d 14

, 25 (Pa. Super. 2020)

(citation omitted).




____________________________________________


4 While McKinney attempts to raise other sufficiency claims in his appellate
brief, we will not consider them, as he did not preserve them for our review
by including them in his Pa.R.A.P. 1925(b) statement.

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      Further, evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”

Pa.R.E. 401. However, “[a]lthough relevant, evidence may be excluded if its

probative value is outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.” Pa.R.E. 403.

      McKinney maintains that, during trial, the prosecutor questioned Smith

about McKinney’s telephone number and whether she knew that number had

changed following the homicide of Guider. The exchange in question consisted

of the following:

      [The Prosecutor]: Yet you’re telling us that in January of 2018
      you weren’t aware that [McKinney] changed his phone number
      approximately three days after the homicide.       Is that your
      testimony?

      [Smith]: Correct. I used the same number the entire, like, time.

      [The Prosecutor]: Okay. So Sprint would be wrong? Are you
      saying that you continued to utilize that phone number calling him
      in January, February, and March of 2018.

      [Smith]: He didn't have a phone then.            He was already
      incarcerated at that time.

      [The Prosecutor]: We’ll talk about - And he was incarcerated on
      these charges, correct? He got arrested on these charges and
      obviously didn’t have a cell phone?

      [Defense Counsel]: Objection, Your Honor. May we approach?

      (The following discussion was held on the record at sidebar.)


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     The Court: Your objection being?

     [Defense Counsel]: We do everything that we can to make sure
     every defendant has due process and keep out his arrest. And
     here we have the Commonwealth highlighting that.

     [The Prosecutor]: I didn’t highlight anything.

     The Court: We try to make sure that there’s no evidence that he's
     incarcerated during the course of the trial. If someone is arrested
     on a homicide charge, I think most people would conclude there
     would be some period of incarceration until bail was posted if that
     happens. So your client’s girlfriend stated that he was
     incarcerated. [The Commonwealth was] just trying to make it
     clear that it was this and not something else. You’re not planning
     on going any further?

     [The Prosecutor]: No.

     [Defense Counsel]: I note my objection for the record.

     The Court. And you have an exception on the record. And I ask
     that it not be emphasized any further.

N.T., 8/13/19, at 107-09.

     McKinney    argues     that   the   Commonwealth   intentionally   sought

testimony from Smith regarding his incarceration. McKinney asserts that the

prosecutor was aware that police arrested McKinney on January 24, 2018, and

thereafter held him without bail due to the homicide charge. Nevertheless,

the prosecutor asked Smith what phone number she would use to call

McKinney in January, February and March of 2018, knowing that McKinney

was incarcerated for two thirds of the timeframe in his question. McKinney

contends that there was no way Smith’s answer would have been anything

other than McKinney was incarcerated during that time or that Smith would


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have to call him at Dauphin County Prison.          McKinney argues that the

prejudicial impact of Smith’s testimony far outweighed its probative value. He

additionally claims that the prosecutor’s intentional solicitation of this

testimony was possibly the “tipping point” for the jury on the attempted

homicide charge, given that the evidence in the case was circumstantial and

the jury was hung on the homicide charge. Finally, McKinney claims that the

trail court abused its discretion in failing to provide a curative instruction to

the jury.

      The trial court considered McKinney’s second issue and concluded that

it lacked merit. The trial court reasoned:

             The reference to [McKinney’s] incarceration was clearly
      inadvertent and not initially elicited by the Commonwealth. Once
      [McKinney’s] girlfriend mentioned his incarceration, the
      Commonwealth wanted to clarify that she was not referencing a
      prior incarceration. Additionally, as this [c]ourt aptly stated at
      trial, most people would assume that an individual charged with
      homicide is incarcerated. Accordingly, this [c]ourt did not err in
      overruling [McKinney’s] objection to testimony that [he] was
      incarcerated because defense counsel requested no further relief.

Trial Court Opinion, 3/30/20, at 20 (emphasis in original).      The trial court

additionally noted that, although defense counsel made a timely objection to

the references to McKinney’s incarceration, he did not ask for a mistrial. See

Id. at 19.

      We discern no abuse of discretion by the trial court in its evidentiary

ruling. Although generally no reference may be made at trial in a criminal

case to a defendant’s arrest or incarceration for a previous crime, there is no


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rule in Pennsylvania which prohibits reference to a defendant’s incarceration

awaiting trial or arrest for the pending charges. See Commonwealth v.

Johnson, 

838 A.2d 663

, 680 (Pa. 2003). Nevertheless, our courts recognize

that “constant reminders” of a defendant’s incarceration may affect the jury’s

judgment and burden the defendant’s right to the presumption of innocence.

Id. at 681

(citing Estelle v. Williams, 

425 U.S. 501

(1976)).

      Here, the reference to McKinney’s incarcerated status was passing, and

not the type of “constant reminder” proscribed by Estelle.        Moreover, the

prosecutor confirmed with Smith that the incarceration she referenced was for

the pending homicide charges, rather than an unrelated prior offense. See

Johnson, 838 A.2d at 680

; see also Commonwealth v. Wilson, 

649 A.2d

435

, 445-46 (Pa. 1994) (concluding that testimony indicating that the

defendant was incarcerated prior to trial was not improper where the jury

could reasonably infer that the defendant’s detention was the result of the

criminal acts for which the defendant was on trial); Commonwealth v.

Horne, 

89 A.3d 277

, 284 (Pa. Super. 2014) (explaining that the brief mention

of the defendant’s incarceration did not unduly prejudice him, as the jury could

reasonably infer that he was incarcerated prior to trial because he was accused

of committing the robbery at issue, not some previous offense). Moreover,

defense counsel did not request either a mistrial or a curative instruction.

Thus, McKinney cannot now fault the trial court for failing to provide relief that




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he never requested. For these reasons, McKinney’s second issue merits no

relief.

          In his third issue, McKinney contends that the trial court abused its

discretion by permitting the Commonwealth to introduce a photograph of a

vehicle purporting to be the same color as the vehicle McKinney was allegedly

driving on December 29, 2017. We employ the same standard of review as

indicated above regarding the admission of evidence.

          McKinney argues that the trial court abused its discretion by permitting

the Commonwealth to introduce a photograph of a 2018 Chevy Impala,

purporting to be pepperdust metallic in color. McKinney points out that the

vehicle in the photograph was not the actual vehicle that he rented and drove.

While McKinney concedes that photo may be relevant, he argues that the

possibility that the photo could mislead or confuse the jury outweighed any

probative value. McKinney posits that, when the Commonwealth presents a

photograph of a vehicle that matches the description of one supposedly used

in a shooting, the jury will accept that photograph as the exact replica of the

vehicle in question and will believe that the color presented in the photograph

is the same color as that of the actual vehicle.

          McKinney points out that the Commonwealth had a photograph of the

actual vehicle McKinney rented, but did not want to expend the cost of

bringing a witness from out-of-state to authenticate that photograph. Thus,

McKinney argues, he was forced to stipulate to the photo of the actual vehicle


                                        - 17 -
J-A29018-20


in order to cross-examine Detective Iachini regarding the model and color of

the vehicle. McKinney argues that, despite the stipulation by the defense to

the photograph of the actual vehicle he drove, the Commonwealth still chose

to present photographs of a vehicle that was not the vehicle in question. Thus,

he argues that “it seems clear that the Commonwealth was not introducing

the photo[s] of the miscellaneous Chevy Impala for the purposes of confusing

or misleading the jury, not to fairly and accurately represent the actual vehicle

driven by McKinney.” McKinney’s Brief at 29.

      As with other evidence, a trial court has discretion to admit

demonstrative evidence, such as a photograph, if its relevance outweighs any

potential prejudice effect. Commonwealth v. Reid, 

811 A.2d 530

, 552 (Pa.

2002).     Demonstrative     evidence,   however,    must    also   be   properly

authenticated by evidence sufficient to show that it is a fair and accurate

representation of what it is purported to depict.

Id. (citing Pa.R.E. 901(a)).

Demonstrative evidence may be authenticated by testimony from a witness

who has knowledge of what the evidence is proclaimed to be.

Id. (citing

Pa.R.E. 901(b)(1)).

      Here, the color of the vehicle that the shooter was driving on December

29, 2017, was in dispute. Ms. Goicoechea testified that the shooter drove a

brown Chevrolet Impala. See N.T., 8/12/19, at 48, 74. On the other hand,

Ms. Smith told police that the shooter’s vehicle was blue or gray. See

id. at

44.

The Commonwealth established that, from December 11, 2017 through


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January 4, 2018, McKinney rented a 2018 Chevrolet Impala, which was

pepperdust metallic in color. See N.T., 8/13/19, at 228, 230. Thus, the color

of the rental vehicle was clearly relevant to the question of whether McKinney

was the shooter on December 29, 2017.

      At trial, Detective Iachini testified that, as part of his investigation, he

went to a local Chevrolet dealership to find a 2018 pepperdust metallic

Chevrolet Impala. N.T., 8/14/19, at 456, 460. He further testified that, upon

locating such a vehicle, he took photographs of that vehicle.

Id. at 460.

The

prosecutor then showed Detective Iachini two photographs, and the detective

confirmed that they were the photographs that he had taken of the 2018

pepperdust metallic Chevrolet Impala at the local Chevrolet dealership.

Id.

Detective Iachini testified

that, while pepperdust metallic looked like a light

bronze color to him, depending on how the sun hits it, pepperdust metallic

could also look silver or gray.

Id. at 460-61.

      We discern no abuse of discretion by the trial court in admitting the

demonstrative photographs of a pepperdust metallic 2018 Chevrolet Impala.

In its view, the relevance of the photographs to show the color of the vehicle

that McKinney was driving on December 29, 2017, outweighed any potential

prejudicial effect. See 

Reid, 811 A.2d at 552

. The rental agreement was

admitted into evidence and specified that McKinney had rented a 2018

Chevrolet Impala that was pepperdust metallic in color.        Detective Iachini

authenticated the photographs by testifying that they were the photographs


                                     - 19 -
J-A29018-20


that he had taken of a pepperdust metallic 2018 Chevrolet Impala at a local

dealership. McKinney stipulated to the admission of a photograph of the actual

pepperdust metallic 2018 Chevrolet Impala that McKinney rented; however,

he does not claim that color varied between the two vehicles depicted in the

photographs such that the jury could be misled or confused.             Nor does

McKinney explain how he was in any way prejudiced by the admission of the

two photographs taken by Detective Iachini. Thus, his third claim warrants

no relief.5

       In his final issue, McKinney contends that the verdict of guilt was against

the weight of the evidence.          The following legal principles apply when a

challenge to the weight of the evidence supporting a conviction is presented

to the trial court:

              A motion for new trial on the grounds that the verdict is
       contrary to the weight of the evidence, concedes that there is
       sufficient evidence to sustain the verdict. Thus, the trial court is
       under no obligation to view the evidence in the light most
       favorable to the verdict winner. An allegation that the verdict is
       against the weight of the evidence is addressed to the discretion
       of the trial court. A new trial should not be granted because of a
       mere conflict in the testimony or because the judge on the same
       facts would have arrived at a different conclusion. A trial judge
       must do more than reassess the credibility of the witnesses and
____________________________________________


5 The trial court concluded that McKinney’s third issue was waived because
defense counsel stipulated to the admission of the photograph of the actual
vehicle that McKinney rented. See Trial Court Opinion, 3/30/20, at 20-21.
However, on appeal, McKinney’s challenges the admission of the
demonstrative photographs taken by Detective Iachini of the 2018 pepperdust
metallic Chevy Impala. We cannot agree that defense counsel’s stipulation to
a different photograph constitutes waiver of his challenge to the photographs
here in question.

                                          - 20 -
J-A29018-20


      allege that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is against
      the weight of the evidence do not sit as the thirteenth juror.
      Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of greater
      weight that to ignore them or to give them equal weight with all
      the facts is to deny justice.

Commonwealth v. Widmer, 

744 A.2d 745

, 751-52 (Pa. 2000) (citations,

footnotes and quotation marks omitted).           Thus, to allow an appellant “to

prevail on a challenge to the weight of the evidence, the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

[trial] court.” Commonwealth v. Talbert, 

129 A.3d 536

, 545 (Pa. Super.

2016) (internal citation omitted).

      An appellate court’s standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of
      whether the verdict is against the weight of the evidence.
      Because the trial judge has had the opportunity to hear and see
      the evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court’s determination that the verdict
      is against the weight of the evidence. One of the least assailable
      reasons for granting or denying a new trial is the lower court’s
      conviction that the verdict was or was not against the weight of
      the evidence and that a new trial should be granted in the interest
      of justice.

Commonwealth v. Clay, 

64 A.3d 1049

, 1055 (Pa. 2013) (emphasis in

original, internal citations omitted).




                                         - 21 -
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      McKinney argues that the verdict was against the weight of the evidence

because the Commonwealth’s case was purely circumstantial.         McKinney

points out that only one Commonwealth witness identified him in a photo array

two weeks after giving police an incorrect description of him.       Further,

McKinney avers that there was no evidence that Guider was in the vehicle

which was the target of the shooting at the time the incident occurred.

McKinney maintains that although Guider told Morrison that her vehicle had

been shot up, there was no testimony that he told her that he was in the

vehicle at the time of the shooting.

      McKinney also points to the inconsistencies in Goicocchea’s testimony.

Goicocchea identified the shooter as no more than five feet, seven inches;

however, McKinney was identified as being six feet, four inches. McKinney

claims that Goicocchea erroneously testified that she only spoke to police

when they came to her door, and gave the impression during trial that she did

not call the police or desire to speak with them. McKinney argues that her

testimony was contradicted by Officer Kreiser, who indicated that when she

arrived at the scene of the shooting, Goicocchea was outside her house and

flagged Officer Kreiser down in order to give a statement. McKinney claims

that Goicocchea also testified that the victim’s vehicle was a black Chevy

Malibu, but the actual car that sustained damage during the shooting was a

Kia Optima.




                                       - 22 -
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      The trial court considered McKinney’s weight challenge and concluded

that the verdict of guilt did not shock its conscience. The trial court reasoned:

             In the present case, the weight of the evidence supports the
      jury’s findings. . . . [T]he evidence overwhelmingly demonstrates
      that [McKinney] had a specific intent to kill Mr. Guider, took
      substantial steps in completing that goal on December 29, 2017,
      and ultimately succeeded on December 31, 2017. There is an
      eyewitness to the shooting on December 29, 2017, who was able
      to identify [McKinney] in a photo array, as well as in-court during
      trial. Furthermore, Ms. Morrison testified that Mr. Guider was
      driving her vehicle on December 29, 2017, when it was shot at,
      and ultimately provided her vehicle to police to process for
      evidence. Accordingly, the verdict was not contrary to the weight
      of the evidence to the degree of shocking one’s conscience.
      Therefore, this [c]ourt did not err in denying [McKinney’s] post-
      sentence motion for a new trial based on a challenge to the weight
      of the evidence.

Trial Court Opinion, 3/30/20, at 18-19.

      As discussed above, we give the gravest consideration to the findings

and reasons advanced by the trial court when reviewing its determination that

the verdict is not against the weight of the evidence.       In this matter, we

discern no abuse of discretion by the trial court in arriving at its determination

that the verdict of guilt for criminal attempt (homicide) did not shock its

conscious.     Although   the   evidence   of   McKinney’s   guilt   was   largely

circumstantial, it was nevertheless overwhelming.       Accordingly, McKinney’s

weight challenge merits no relief.

      As none of McKinney’s issues entitles him to relief, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/31/2021




                          - 24 -

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