Com. v. Russell, D.

J-S11006-25


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  DESHAWN TORRIEL RUSSELL                      :
                                               :
                       Appellant               :   No. 800 WDA 2024

         Appeal from the Judgment of Sentence Entered June 12, 2024
     In the Court of Common Pleas of Fayette County Criminal Division at
                       No(s): CP-26-CR-0000223-2023


BEFORE: MURRAY, J., KING, J., and LANE, J.

MEMORANDUM BY MURRAY, J.:                                FILED: April 9, 2025

       Deshawn Torriel Russell (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of one count of persons not to

possess firearms.1       Appellant challenges the sufficiency of the evidence

supporting his conviction and the trial court’s admission at trial of video

surveillance evidence. After careful review, we affirm.

       This case arises from an altercation that occurred on April 3, 2022,

involving several patrons of the Sails Inn (the bar), a tavern located at 277

North Gallatin Avenue, Uniontown, Pennsylvania. Multiple video surveillance

cameras were positioned inside and outside of the bar, which captured video

of the altercation and its aftermath (the Video). The Video, which the trial


____________________________________________


1 18 Pa.C.S.A. § 6105(a)(1).
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court admitted at trial over Appellant’s objection,2 depicted a verbal and

physical altercation between patrons inside the bar, including a man wearing

a white hooded sweatshirt and grey sweatpants.       Commonwealth Ex. 5

(Camera 5), at 7:30:32-7:33:30. The trial court also admitted into evidence

the following still image of the man in the white sweatshirt (the still

photograph), obtained from the Video, which, the jury found, depicted

Appellant. Commonwealth Ex. 6.




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2 See N.T., 6/3-4/24, at 56-57, Commonwealth Ex. 5 (the Video).


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The parties involved in the altercation eventually exited the bar onto the

sidewalk in front of the bar. Commonwealth Ex. 5 (Camera 16), at 7:34:11-

7:34:44.   The Video showed Appellant, still dressed in a white sweatshirt,

point a black handgun at patrons from the bar, including an individual dressed

in a black sweatshirt standing next to a black SUV (the SUV), which was

parked in front of the bar (shown below).     Id. (Camera 16), at 7:34:45-

7:35:01.




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The individual in the black sweatshirt is then shown entering the SUV, after

which Appellant fired the weapon at another individual seated inside the SUV.3

Id. (Camera 16), at 7:35:02-7:35:17. The SUV is then shown speeding away

from the scene. Id. (Camera 16), at 7:35:18-7:35:21.

       After the shooting, police obtained the Video, identified Appellant as the

man depicted wearing a white sweatshirt, and charged him with persons not

to possess firearms.4       On October 4, 2023, the trial court issued a bench

warrant for Appellant’s arrest.

       Following Appellant’s arrest, the matter proceeded to a jury trial on June

3 and 4, 2024.       Prior to the commencement of testimony, the trial court

considered argument from the parties regarding the admissibility of the Video.

See N.T., 6/3-4/24, at 5-7. The Commonwealth announced its intention to

introduce the Video through the testimony of its two trial witnesses: Thomas

Elias (Mr. Elias), the owner of the bar; and Uniontown Police Detective Jamie

Holland (Detective Holland), who was involved in the investigation. Id. at 6.

The Commonwealth maintained that Mr. Elias would testify that he “has

control of all of the [video] cameras” at the bar. Id. After the shooting in the
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3 The record reflects that an individual inside the SUV was struck by gunfire,

but this individual did not testify at trial or give a police statement. N.T., 6/3-
4/24, at 8.

4 The Commonwealth also charged Appellant with several other crimes,
including attempted homicide, which were subsequently dismissed at
Appellant’s preliminary hearing. At Appellant’s trial, the prosecutor explained
that “[n]o one has cooperated in this case and that is why the other charges
[against Appellant] haven’t made it to trial…. We are not going to address the
shooting.” N.T., 6/3-4/24, at 8.

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instant case, Mr. Elias “reported to the Uniontown Police Station with the

[Video] footage on his cell phone, which was downloaded to [a compact]

disc[,] which was provided to the defense[.]” Id.

       Appellant objected, arguing that the Commonwealth’s witnesses could

not authenticate the Video:

       [T]he issue that I believe we’re going to have with the foundation
       [of the Video] is that I don’t believe that the [bar’s surveillance]
       system is run by Mr. Elias. He hired someone to run [the
       surveillance] system and we’ll find that out in his testimony. [Mr.
       Elias] is not the expert who installed [the surveillance] system and
       he can’t testify as to how it works or how accurate it is[.] …. My
       understanding, based on the discovery, is that Mr. Elias was not
       [at the bar] when [the shooting] happened. And based upon the
       witnesses, … we don’t have a witness to say that [the Video] is an
       accurate depiction of what happened [on April 3, 2022].

Id. at 7. The trial court announced that it would defer ruling on the matter

until the Commonwealth introduced the Video into evidence. Id.

       Mr. Elias testified he had owned the bar for thirty years. Id. at 35-36.

Approximately fifteen years prior to the shooting in the instant case, Mr. Elias

hired a third-party technician, Dennis Morris (Mr. Morris), to install several

surveillance cameras inside and outside of the bar.5 Id. at 36, 43. Mr. Elias

testified that he has remote access to the bar’s surveillance video. Id. at 44.

Mr. Elias was not present at the bar on the date of the shooting. Id. at 45.

____________________________________________


5 Mr. Morris did not testify at trial or provide any statement to law enforcement

in connection with this case. At trial, Mr. Elias confirmed on cross-examination
that Mr. Morris 1) was responsible for ensuring that the bar’s video cameras
were recording properly; and 2) also has remote access to the bar’s cameras.
N.T., 6/3-4/24, at 44.

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After the shooting, Mr. Elias provided the Video to the Uniontown Police

Department.    Id. at 43; see also id. at 36-37 (Mr. Elias stating that on

previous occasions, he had given the Uniontown Police surveillance video

captured by the bar’s cameras). Mr. Elias confirmed that if he viewed a “freeze

frame of [the Video] and footage from the outside of the bar,” he would be

able to “recognize that as [the] bar[,]” as it appeared on the date of the

shooting. Id. at 36.

      When the Commonwealth sought to introduce the Video during Mr.

Elias’s testimony, Appellant renewed his objection to the Video’s authenticity.

Id. at 38-39. The trial court overruled the objection, reasoning as follows:

      I am going to find that the Commonwealth has show[n] that the
      [bar’s video] cameras were functioning properly, … and [Mr. Elias]
      has indicated that … of the sixteen [cameras], one was in the
      bar[]room area, one [was] focusing on the parking or outside
      area, and that those camera[s] recorded those areas as they were
      placed there to do.

                                    ***

      I find that sufficient for authentication purposes for the record[.]
      …. [For purposes of authentication of video evidence, y]ou can
      call [as a witness] a technician or call someone with familiarity
      with the [video] system. [Mr. Elias] has owned [the bar’s
      surveillance system] for fifteen years and has [previously] had to
      download [surveillance video from the bar] for the Uniontown
      Police Department[;] therefore, he is familiar with the operating
      system, an[d] I will overrule [Appellant’s] objection.

Id. at 39-40. The Commonwealth then played portions of the Video for the

jury. Id. at 41-42. Mr. Elias confirmed that the Video excerpts depicted the

interior and exterior of the bar as it existed on the date of the shooting. Id.


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         The Commonwealth next presented Detective Holland’s testimony.

Detective Holland testified that he responded to the bar shortly after the

shooting and collected evidence, including one fired .45 caliber bullet casing

from the sidewalk directly in front of the bar. Id. at 47-48; Commonwealth

Ex. 1 (bullet casing); see also id. at 47 (Detective Holland stating police did

not recover a firearm at the scene). Detective Holland submitted the bullet

casing for forensic DNA testing and fingerprint analysis, which did not reveal

any identifiable fingerprints or DNA evidence. Id. at 50-51. Detective Holland

further testified that Mr. Elias gave him the Video following the shooting. Id.

at 53.

         When the prosecutor announced his intention to play for Detective

Holland the portion of the Video that depicted the shooting, Appellant

objected. Id. at 57. The following exchange then occurred:

         [Appellant’s counsel]: Your Honor, I renew the objection that I
         made prior to trial. [The V]ideo … depicts a firearm being
         discharged into [the SUV] and I object to that on the grounds that
         [the Video] is not relevant to the crime and is prejudicial and
         clearly[,] the prejudice outweighs any benefit that supports [the
         Commonwealth’s] case.

                                       ***

         [The Commonwealth]: The probative value of having [the jury]
         see the [bullet] cartridge ejected from the firearm[] outweighs
         any prejudicial [effect] against [Appellant].

         THE COURT: I will overrule the objection. …. I find that [the]
         probative value of showing the [bullet] casing [being] ejected, and
         that it was a gun, it was not a toy pistol or a water gun, …
         outweighs the prejudicial [e]ffect.


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Id. at 57-58 (punctuation modified).

       The Commonwealth then played the portion of the Video depicting the

shooting for the jury. Id. at 59; see also Commonwealth Exhibit 5 (Camera

16), at 7:34:44-7:35:17. Detective Holland testified that the Video showed

“[Appellant] holding a firearm in his right hand and pointing it at other patrons

from the bar.” Id.

       Moreover, Appellant and the Commonwealth stipulated that at the time

of trial, Appellant had a prior conviction that rendered him legally ineligible to

possess a firearm.6 Id. at 62-64, 111; Commonwealth Ex. 8.

       After the conclusion of the Commonwealth’s case-in-chief, Appellant

moved for judgment of acquittal. Id. at 79-80. Appellant’s counsel argued

that

       [t]he only evidence really that [the Commonwealth has is the
       V]ideo [] supposedly linking [Appellant]. We don’t believe that …
       the jury can identify the individual sufficiently to point a finger at
       [Appellant] from [the V]ideo. There is no forensic evidence, no
       DNA, no [finger]prints, [] nothing to link [Appellant] to this
       [incident at the bar.]

Id.

       The Commonwealth responded that the evidence sufficiently established

Appellant’s identity as the perpetrator, arguing that


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6 The record reveals that “[Appellant] has a 2017 conviction for receiving
stolen property,” 18 Pa.C.S.A. § 3925(a). N.T., 6/3-4/24, at 111; see also
Affidavit of Probable Cause, 4/4/22 (stating Appellant had a prior juvenile
adjudication for possession with intent to deliver a controlled substance, 35
P.S. § 780-113(a)(30)).

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         [from] the still photograph, the jury can make their own
         assumption. [The man pictured in the still photograph] has the
         same facial features, same facial hair[,] and the individual that
         [the Video,] in camera 5[, depicts inside] the bar[, and the
         individual] is dressed in the same clothing with the same, again,
         facial features, as the individual that we have in the still
         photo[graph]. …. The jury can determine whether or not that is
         the individual that they see in the [V]ideo. The [V]ideo is
         extremely clear and … the jury … can make their own assumption
         if [Appellant] is the individual [depicted in the Video.]

Id. at 80. The trial court denied the motion for judgment of acquittal, stating

it found “that there is sufficient evidence for the jury to make a determination

as to identification and as to the other elements of the offense charged.” Id.

at 81.

         Appellant testified as the sole defense witness and asserted he had

never been to the bar, and was not pictured in the Video.         Id. at 85-86.

Appellant alleged that at the time of the shooting, he was not in Uniontown.

Id. at 86. On cross-examination, the prosecutor showed Appellant the still

photograph and asked Appellant if he was the man pictured, which Appellant

denied. Id. at 87-88.

         The jury then retired to deliberate.   During deliberations, the jury

requested to view the Video again. Id. at 116. The trial court played the

Video for the jury, with the consent of the parties. Id. at 116-18; see also

id. at 117 (trial court noting for the record that Appellant was present in the

courtroom when the jury again viewed the Video).         The jury subsequently

found Appellant guilty of persons not to possess firearms. Id. at 121. The




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trial court deferred sentencing for the preparation of a presentence

investigation report.

       On June 12, 2024, the trial court sentenced Appellant to five to ten years

in prison. Appellant did not file post-sentence motions. This timely appeal

followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

       Appellant presents three issues for our review:

       1. Whether the trial court committed an abuse of discretion when
          it admitted the [] Video (and photographs) over Appellant’s
          objections, where the Commonwealth failed to present a
          witness with personal knowledge of the events depicted on the
          Video [stating it] was a fair and accurate depiction of the
          events depicted?

       2. Whether the [trial court] committed reversible error by failing
          to exclude the [] Video and/or photographs depicting the actor
          in the Video shooting a handgun at another person as unduly
          prejudicial[,] in violation of Pa[.]R.E. 403?

       3. Whether the Commonwealth presented sufficient evidence to
          prove beyond a reasonable doubt that Appellant was in
          possession of a firearm?

Appellant’s Brief at 4 (capitalization altered).7

       Appellant first argues the trial court erred in overruling his objection at

trial to the admission of the Video, where the Commonwealth failed to

establish the Video’s authenticity. See id. at 12-16. Appellant points out that

the Commonwealth did not call any witness who was present at or outside of

the bar on the date of the shooting. Id. at 12. Appellant further posits that



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7 The Commonwealth did not file an appellate brief.


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the Commonwealth failed to authenticate the Video via Mr. Elias’s testimony,

where Mr. Elias testified “that he relied on [Mr.] Morris to install and maintain

the surveillance system” that captured the Video. Id. at 15. According to

Appellant,

      Mr. Elias’[s] testimony is plainly insufficient to authenticate the []
      Video and/or photographs taken from the Video, because he had
      no knowledge whatsoever on the functioning of the surveillance
      system. Most significantly, Mr. Elias was not present at the [bar]
      on April 3, 2022, and did not witness any of the alleged events
      purportedly depicted on the [] Video and, as a result, was not
      competent to authenticate the [] Video evidence.

Id. at 14 (capitalization modified); see also id. at 15 (“While Mr. Elias paid

for the surveillance cameras, there is no evidence that he was familiar with

the operation of the system”).

      “We review a challenge to the trial court’s evidentiary rulings for an

abuse of discretion.” Commonwealth v. Williamson, 330 A.3d 407, 414

(Pa. Super. 2025) (citation omitted); see also Commonwealth v. Christine,

125 A.3d 394, 398 (Pa. 2015) (“[T]he appellant sustains the ‘heavy burden’

to show that the trial court has abused its discretion.” (citation omitted)).

Accordingly, our standard and scope of review is narrow:

      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. Where
      the evidentiary question involves a discretionary ruling, our scope
      of review is plenary.

Williamson, 330 A.3d at 414 (citation omitted).


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      Pennsylvania Rule of Evidence 901 mandates that, “to satisfy the

requirement of authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a finding that the item

is   what    the   proponent   claims    it   is.”   Pa.R.E.   901(a);   see   also

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006) (“Demonstrative

evidence such as photographs, motion pictures, diagrams, and models have

long been permitted to be entered into evidence provided that the

demonstrative evidence fairly and accurately represents that which it purports

to depict.” (citation omitted)). Rule 901(b) provides a non-exhaustive list of

“examples … of evidence that satisfies the requirement” of Rule 901(a),

including:

      (1) Testimony of a Witness with Knowledge. Testimony that
      an item is what it is claimed to be.

      ….

      (4) Distinctive Characteristics and the Like. The appearance,
      contents, substance, internal patterns, or other distinctive
      characteristics of the item, taken together with all the
      circumstances.

      ….

      (9) Evidence About a Process or System. Evidence describing
      a process or system and showing that it produces an accurate
      result.

      ….

      (11) Digital Evidence.        To connect digital evidence with a
      person or entity:




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          (A) direct evidence such as testimony of a person with
          knowledge; or

          (B) circumstantial evidence, such as:

            (i) identifying content;

            (ii) proof of ownership, possession, control, or access
            to a device or account at the relevant time when
            corroborated by circumstances indicating authorship.

Pa.R.E. 901(b).   It is well-settled that authentication pursuant to Rule

901(a) “generally entails a relatively low burden of proof[.]”

Commonwealth v. Kurtz, 294 A.3d 509, 527 n.12 (Pa. Super. 2023)

(emphasis    added),   appeal    granted,       306   A.3d   1287   (Pa.   2023);

Commonwealth v. Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017)

(same).

      This Court previously addressed authentication of video evidence in

Commonwealth v. Impellizzeri, 661 A.2d 422 (Pa. Super. 1995), appeal

denied, 673 A.2d 332 (Pa. 1996). There, we stated that to authenticate video

evidence, “[i]t is not necessary that the maker of the videotape testify to the

tape’s accuracy; any witness familiar with the subject matter can testify that

the tape was an accurate and fair depiction of the events sought to be shown.”

Id. at 428 (citations omitted); see also Nyce v. Muffley, 119 A.2d 530, 532

(Pa. 1956) (stating authentication testimony may be provided by the person

who recorded a photograph or video, or by some other witness “with sufficient

knowledge to state that it fairly and accurately represents the object or place

reproduced as it existed at the time” of recording).

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       We are guided by our decision in Commonwealth v. Gamrod, 221

A.3d 268 (Pa. Super. filed Aug. 13, 2019) (unpublished memorandum).8 In

Gamrod, the appellant/defendant and her ex-boyfriend, Frank Tustin

(Tustin), “informally shared custody of their young son, and so remained in

constant, if quarrelsome, contact.” Id. (unpublished memorandum at 1). On

the evening of November 23, 2012, appellant arrived outside of Tustin’s

apartment complex, banged on Tustin’s door, shouted for several minutes,

and threatened to slash Tustin’s car tires. Id. At the time, Tustin’s paramour,

Celeste Marshall (Marshall), was inside of Tustin’s apartment with Tustin, and

Marshall’s car was parked in the apartment complex’s parking lot (the parking

lot). Id. (unpublished memorandum at 1-2). Tustin refused appellant entry,

after which appellant eventually left the area. Id.

       One or two days later, Marshall noticed a long, jagged scrape
       running down the passenger side of her vehicle. She told Tustin
       she believed [that a]ppellant had caused the damage. Tustin
       contacted the manager of his apartment building, who checked
       the [apartment] complex’s [video] security tapes and alerted
       Tustin to footage of a woman using keys to scratch Marshall’s
       vehicle [in the parking lot]. Marshall gave the videotape to police.

Id. (unpublished memorandum at 2).

       The Commonwealth subsequently charged appellant with criminal

mischief, after which the matter proceeded to a non-jury trial. Id. At trial,

the Commonwealth moved to admit the video footage of the parking lot


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8 Pursuant to Pa.R.A.P. 126(b), this Court’s unpublished memorandum
decisions filed after May 1, 2019, may be cited for their persuasive value.

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recorded at the time appellant allegedly damaged Marshall’s car.                   Id.

(unpublished memorandum at 4).

         Appellant objected on the grounds that the maker of the video
         was not present in the courtroom to authenticate it. In response,
         the Commonwealth elicited testimony from Marshall that she was
         familiar with the area pictured in the video. Marshall stated that
         the camera displayed the side of Tustin’s apartment complex, the
         parking lot for residents, and the road abutting the building.
         Marshall also attested that she could see her car in the video,
         parked parallel to Tustin’s car, in the same spot where it was
         parked on the night of November 23, 2012. She affirmed the area
         in the video looked just as it did on that night. Based on the
         foregoing, the trial court overruled [a]ppellant’s objection and
         deemed the evidence admissible.

Id. (unpublished memorandum at 4-5) (record citations omitted). The trial

court convicted appellant of criminal mischief. Id. (unpublished memorandum

at 2).

         On appeal, appellant argued the trial court erred in admitting the

surveillance video into evidence, as the Commonwealth failed to properly

authenticate it.       Id. (unpublished memorandum at 3).         We disagreed and

emphasized      this    Court’s statement    in   Impellizzeri,    supra,   that    to

authenticate video evidence, “[i]t is not necessary that the maker of the

videotape testify to the tape’s accuracy; any witness familiar with the

subject matter can testify that the tape was an accurate and fair depiction

of the events sought to be shown.”          Gamrod, 221 A.3d 268 (unpublished

memorandum at 4) (quoting Impellizzeri, 661 A.2d at 428 (emphasis in

Gamrod)). We held that




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      [d]espite appellant’s objection, the Commonwealth was not
      required to present testimony from the manager of the apartment
      complex whose cameras recorded the video.             Rather, the
      Commonwealth’s obligation was to ensure a witness familiar with
      the subject matter—Marshall, a frequent visitor to the apartment
      building—testified that the video was a fair and accurate depiction
      of events. …. We conclude the trial court did not abuse its
      discretion in admitting the videotape.

Id. (unpublished memorandum at 5) (capitalization modified).

      Instantly, the trial court opined that Mr. Elias, a witness intimately

familiar with the subject matter depicted in the Video, properly authenticated

the Video:

      Mr. Elias, having owned the [bar’s surveillance system] for a
      period of fifteen (15) years, and having [previously] used the
      [surveillance] system, even going as far as downloading
      [surveillance] footage for law enforcement on prior occasions, has
      sufficient knowledge to authenticate the [V]ideo footage as having
      been pulled from the [bar’s] security cameras. Therefore, the trial
      court did not err in admitting the [Video] and the accompanying
      photographs.

Trial Court Opinion, 9/5/24, at 3. The trial court’s reasoning is supported by

the record and the law, and we agree with its determination.

      Mr. Elias testified that he had owned the bar for thirty years, was familiar

with its surveillance system and the bar property generally, and confirmed

that if he viewed a “freeze frame of [the Video] and footage from the outside

of the bar” captured on the date of the shooting, he would be able to

“recognize that as [the] bar[.]” N.T., 6/3-4/24, at 35-36; see also id. at 41-

42 (Mr. Elias confirming that the Video depicted the interior and exterior of

the bar as it existed on the date of the incident). Such testimony is sufficient


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to satisfy the Commonwealth’s “relatively low burden of proof” with respect

to authentication of the Video.          Kurtz, 294 A.3d at 527 n.12; see also

Impellizzeri, 661 A.2d at 428; Gamrod, 221 A.3d 268 (unpublished

memorandum at 5). Moreover, based on our review of the record, there is no

indication that the Video depicts anything other than “that which it purports

to depict.”9 Serge, 896 A.2d at 1177. We conclude the trial court did not

abuse its discretion by finding that the Commonwealth properly authenticated

the Video. See Williamson, 330 A.3d at 414; Pa.R.E. 901(a). Accordingly,

Appellant’s first issue does not merit relief.

       In his second issue, Appellant argues in the alternative that even if the

Video was properly authenticated, the trial court erred in failing to exclude it

as being unduly prejudicial to the defense. See Appellant’s Brief at 16-17.

According to Appellant, the “probative value [of the Video] was clearly

outweighed by its potential for prejudice[,] where the [V]ideo depicted the

actor with [a] handgun point at a person [] in [the SUV] and shoot the

firearm.” Id. at 16. Appellant claims that in order to prove the elements of

persons not to possess firearms, the Commonwealth “had no need to show

the portion of the [] Video purportedly depicting an actor shooting a person

with a handgun.”          Id. at 17 (capitalization modified); see also id.

(“[Appellant] was not charged … with aggravated assault or attempted


____________________________________________


9 Appellant never argued that the Video had been altered or modified in any

way.

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homicide.”). According to Appellant, “[f]rom the jury’s perspective, evidence

that another person was shot at close range is likely to inflame the jury when

the only issue to be decided was whether [Appellant] was simply in possession

of a firearm.” Id.

      “The threshold inquiry with admission of evidence is whether evidence

is relevant.” Commonwealth v. Jackson, 283 A.3d 814, 817 (Pa. Super.

2022) (citation omitted). Evidence is relevant if “it has the tendency to make

a fact more or less probable than it would be without the evidence[,]” and

“the fact is of consequence in determining the action.” Pa.R.E. 401(a)-(b).

Pursuant to Rule of Evidence 403, a trial court “may exclude relevant

evidence if its probative value is outweighed by a danger of one of more

of the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 403 (emphasis added); see also Commonwealth v. Brown, 212

A.3d 1076, 1086 (Pa. Super. 2019) (“Admission of evidence rests within the

sound discretion of the trial court, which must balance evidentiary value

against the potential dangers of unfairly prejudicing the accused, inflaming

the passions of the jury, or confusing the jury.” (citations and ellipses

omitted)). “Unfair prejudice,” in the context of applying Rule 403, means “a

tendency to suggest decision on an improper basis to divert the jury’s

attention away from its duty of weighing the evidence impartially.”




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Commonwealth v. Kane, 188 A.3d 1217, 1228 (Pa. Super. 2018) (citation

omitted); see also Pa.R.E. 403, cmt.

      However, “[e]vidence will not be prohibited merely because it is harmful

to the defendant. Exclusion is limited to evidence so prejudicial that it would

inflame the jury to make a decision upon something other than the legal

propositions relevant to the case.”     Commonwealth v. Knupp, 290 A.3d

759, 776 (Pa. Super. 2023) (citation, brackets, and quotation marks omitted).

      Not surprisingly, criminal defendants always wish to excise
      evidence of unpleasant and unpalatable circumstances
      surrounding a criminal offense from the Commonwealth’s
      presentation at trial. Of course, the courts must make sure that
      evidence of such circumstances have some relevance to the case
      and are not offered solely to inflame the jury or arouse prejudice
      against the defendant. The court is not, however, required to
      sanitize the trial to eliminate all unpleasant facts from the jury’s
      consideration where those facts are relevant to the issues at hand
      and form part of the history and natural development of the
      events and offenses for which the defendant is charged….

Commonwealth v. Bidwell, 195 A.3d 610, 617 (Pa. Super. 2018) (quoting

Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988)); Commonwealth

v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (same).

      Instantly, the trial court opined it properly exercised its discretion in

admitting the Video into evidence, and determining that its probative value

was not outweighed by unfair prejudice to Appellant.       Trial Court Opinion,

9/5/24, at 4 (concluding “that the probative value of [the Video] greatly

outweighs its prejudicial effect.”).    We agree.   As the trial court correctly

observed when overruling Appellant’s objection based on Rule 403, the


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“probative value of showing [a] casing [being] ejected [from the gun,] and

that it was a gun, [and] not a toy pistol or a water gun[,]” “outweighs the

prejudicial [e]ffect.” N.T., 6/3-4/24, at 58. Evidence of Appellant’s firing the

gun was further “relevant to the issues at hand and form[ed] part of the

history and natural development of the events and offenses for which

[Appellant was] charged[.]” Bidwell, 195 A.3d at 617 (citation omitted); see

also Knupp, 290 A.3d at 776 (“Evidence will not be prohibited merely

because it is harmful to the defendant.” (emphasis added)). Accordingly,

we conclude the trial court did not abuse its discretion in admitting the Video

over Appellant’s objection. Appellant’s second issue does not merit relief.

      In his final issue, Appellant argues the Commonwealth failed to present

sufficient evidence for the jury to convict him of persons not to possess

firearms. See Appellant’s Brief at 17-18. Appellant maintains that the Video

“is insufficient to identify him as the actor depicted in the [V]ideo with the

handgun.” Id. at 18. Appellant points out that “the Commonwealth relied

exclusively on [the V]ideo in an effort to meet its burden of proving that

[Appellant] was in possession of a firearm.” Id.

      We review Appellant’s sufficiency challenge pursuant to the following

standard:

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient

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       to prove every element of the offense beyond a reasonable doubt.
       The facts and circumstances established by the Commonwealth
       need not preclude every possibility of innocence. It is within the
       province of the factfinder to determine the weight to be accorded
       to each witness’s testimony and to believe all, part, or none of the
       evidence. The Commonwealth may sustain its burden of proving
       every element of the crime by means of wholly circumstantial
       evidence. Moreover, as an appellate court, we may not re-weigh
       the evidence and substitute our judgment for that of the
       factfinder.

Commonwealth v. Scott, 325 A.3d 844, 849 (Pa. Super. 2024) (citation and

brackets omitted). “Any doubts regarding a defendant’s guilt may be resolved

by the fact-finder unless the evidence is so weak and inconclusive that as a

matter of law no probability of fact may be drawn from the combined

circumstances.”      Commonwealth v. Peters, 320 A.3d 1231, 1236 (Pa.

Super. 2024) (en banc) (citation omitted), appeal granted, 409 MAL 2024,

2025 WL 30772, 2025 Pa. LEXIS 2 (Pa. Jan. 6, 2025).

       To sustain a conviction for persons not to possess firearms under 18

Pa.C.S.A. § 6105(a)(1), the Commonwealth must prove beyond a reasonable

doubt that the defendant possessed a firearm and that he previously had been

convicted of an enumerated offense10 that prohibits him from, inter alia,

possessing, using, or controlling a firearm. Id.

       “In addition to proving the statutory elements of the crimes charged

beyond a reasonable doubt, the Commonwealth must also establish the


____________________________________________


10 Here, as detailed above, the parties stipulated that Appellant had a prior

conviction for an enumerated offense under Section 6105. See N.T., 6/3-
4/24, at 62-64, 111; Commonwealth Ex. 8.

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identity   of    the    defendant      as      the   perpetrator   of   the   crimes.” 11

Commonwealth v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (citation

omitted). It is well-settled that “[e]vidence of identi[ty] need not be positive

and certain to sustain a conviction.” Commonwealth v. Orr, 38 A.3d 868,

874 (Pa. Super. 2011) (en banc) (citation omitted).

       [E]ven if the Commonwealth presented only circumstantial
       evidence and offered no positive identification of the
       [perpetrator], we may not weigh the evidence and substitute our
       judgment for the fact-finder as long as the evidence was sufficient
       to prove [the accused’s] guilt.

Commonwealth v. Robertson, 874 A.2d 1200, 1206 (Pa. Super. 2005).

       Instantly, the trial court opined that the Commonwealth presented

sufficient evidence for the jury to establish Appellant’s identity as the

perpetrator beyond a reasonable doubt:

       [T]he Commonwealth needed to present evidence sufficient to
       demonstrate that Appellant possessed a firearm and that
       Appellant was a person not lawfully able to do the same. The
       Commonwealth is not required to preclude every possibility of
       innocence or establish the Appellant’s guilt to a mathematical
       degree of certainty. Commonwealth v. Williams, 871 A.[]2d
       254, 259 (Pa. Super. 2005). Evidence was presented at trial
       which showed an individual with a resemblance to Appellant
       wielding a firearm. [See Commonwealth Ex. 5 (Camera 16), at
       7:34:44-7:35:17.] It follows that a reasonable trier-of-fact could
       conclude that [Appellant] is guilty of the charged offense.

Trial Court Opinion, 9/5/24, at 4.




____________________________________________


11Here, the only element that Appellant challenges is his identity as the
perpetrator. Appellant’s Brief at 18.

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      We agree with the trial court’s analysis. Our review confirms that the

evidence presented at trial, properly viewed in the light most favorable to the

Commonwealth, sufficiently established Appellant’s identity as the perpetrator

and the required elements of persons not to possess firearms. The jury was

free to determine, based on its viewing of the Video (on repeated occasions),

as well as its observation of Appellant in court, that Appellant was the man

depicted in the Video holding a gun. See, e.g., Commonwealth v. Harris,

884 A.2d 920, 933 (Pa. Super. 2005) (stating a jury is in an adequate position

to determine, without additional testimony, whether a person in a video image

is recognizable as the defendant). This Court “will not usurp the province of

the jury.” Peters, 320 A.3d at 1243 (citing Commonwealth v. Sanchez,

82 A.3d 943, 972 (Pa. 2013) (stating that in reviewing a sufficiency challenge,

an appellate court “may not substitute [its] judgment for the jury’s, as it is

the fact-finder’s province to weigh the evidence, determine the credibility of

witnesses, and believe all, part, or none of the evidence submitted.”)).

Accordingly, Appellant’s sufficiency challenge lacks merit.

      Based on the foregoing, we discern no abuse of the trial court’s

discretion or error of law and thus affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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DATE: 04/09/2025




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