Com. v. Smith, T.

J-A08012-24


 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 TYSHEEM SMITH                              :
                                            :
                     Appellant              :     No. 520 EDA 2023

      Appeal from the Judgment of Sentence Entered December 9, 2022
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0001824-2019


BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                                 FILED JULY 24, 2024

      Tysheem      Smith   appeals   from   the    mandatory   sentence   of   life

imprisonment without the possibility of parole imposed following his

convictions for, inter alia, first-degree murder. We affirm.

      The trial court set forth the following, thorough recounting of the

evidence presented at trial establishing that Appellant murdered Marcus

Johnson on March 19, 2017:

      Pursuant to an unavailability hearing, the court ruled that Eric
      DeJesus was unavailable to testify at trial and his testimony from
      the preliminary hearing was admitted into evidence.

      Eric DeJesus testified that on the night of the incident, March 19,
      2017, he was initially hanging out with his friend Naire Jones
      (nicknamed “Daire”) at the club, J&S Seafood & Hookah [“(J&S)”],
      located on the 2400 block of Germantown Avenue. DeJesus and
      Jones left the club and walked three blocks to the intersection of
      Sartain Street and Cumberland Avenue where they came across
      [Appellant] and Edrece Burgess, who were hanging out in
      Burgess’s parked vehicle. Jones was friends with [Appellant] and
      Burgess, but DeJesus was only familiar with them. DeJesus
J-A08012-24


      recognized [Appellant]’s face but “wasn’t around [Appellant], like,
      really that much.”

      DeJesus and Jones entered the vehicle with [Appellant] and
      Burgess. Burgess drove to Germantown Gas Mart, located at 2445
      Germantown Avenue, and all four males went into the gas station.
      Next, the group [returned] to J&S . . . . They arrived around 1:00
      a.m. J&S was crowded.

      There were a lot of people drinking and dancing and the music
      was loud. While in J&S, an incident occurred between [Appellant]
      and Marcus Johnson. DeJesus did not elaborate further on the
      “incident” in his testimony.        However, when previously
      interviewed by detectives, DeJesus claimed that Johnson stepped
      on [Appellant]’s sneakers, which resulted in an argument between
      the two of them.

      After the argument, [Appellant], Burgess, Jones, and DeJesus left
      J&S, and waited outside for Johnson. DeJesus claimed that he
      wanted to see a fistfight. Burgess eventually walked off, while the
      other three waited. After a few minutes, at approximately 1:10
      a.m., Johnson exited J&S.       The [Appellant] started walking
      towards him, produced a firearm and began shooting at
      Johnson[.]

Trial Court Opinion, 5/12/23, at 2-3 (cleaned up). Johnson died from four

gunshot wounds.

      In addition to DeJesus’s testimony, the Commonwealth introduced

circumstantial evidence linking Appellant to the murder. Detectives obtained

surveillance video from the Germantown Gas Mart, with “all four individuals

. . . clearly visible on the video.” Id. at 4. Appellant was “wearing a shiny

black hooded puffy jacket, that ha[d] a small logo on the left bicep, black and

white sneakers with thick bright red laces, black pants, and a white t-shirt

underneath the jacket.”   Id. at 4-5.   A crosswalk camera captured a man

wearing sneakers with “the same distinct black and white pattern with bright

red laces, and his jacket ha[d] the same puffy shape, color, and hood as

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J-A08012-24



depicted in the gas station video.”     Id. at 5.   “Moreover, the murder was

caught on video, which the jury was able to view, to come to its own

conclusion regarding identification.”    Id. at 9.    The trial court’s opinion

characterized the videos as “captur[ing] . . . [Appellant] from when he arrived

at the Germantown Gas Market until he fled on foot after the murder.

Additionally, . . . [Appellant] can be observed in the Germantown Gas Market

store and at the crosswalk, where the murder occurred,” due to his distinctive

sneakers and clothing. Id.

      Investigators also obtained locational records showing the phones of

Appellant and Burgess connecting to cell phone towers around the area of

4800 Germantown Avenue.         The phone records showed Burgess calling

Appellant at 12:59 a.m. and 1:00 a.m., with Appellant calling back at 1:01

a.m. After 1:05 a.m., Appellant’s phone did not connect to any towers, and

a Commonwealth witness opined that Appellant’s phone had been turned off.

      Following a jury trial, Appellant was convicted of first-degree murder,

carrying firearms in the City of Philadelphia, and possessing an instrument of

crime.    He received the mandatory sentence of life imprisonment without

parole and filed timely post-sentencing motions which the trial court denied.

Appellant filed a timely notice of appeal and complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) concise statement. The trial court prepared

a Rule 1925(a) opinion and the matter is ready for review of Appellant’s three

claims:




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       1. Whether the trial court erred and violated Appellant’s
       Confrontation Clause rights by concluding that the Commonwealth
       made a good faith effort to locate and produce a witness prior to
       allowing that witness’[s] preliminary hearing testimony to be
       introduced at trial?

       2. Whether the trial court erred and violated Appellant’s
       Confrontation Clause rights by concluding that Appellant had been
       given a full and fair opportunity to cross[-]examine an unavailable
       witness prior to allowing that witness’[s] preliminary hearing
       testimony to be introduced at trial?

       3. Whether the verdict was against the weight of the evidence on
       all three of Appellant’s convictions given the lack of credibility with
       the Commonwealth’s key witness?

Appellant’s brief at 9 (unnecessary capitalization omitted).

       Appellant’s first two claims both concern the introduction of Eric

DeJesus’s preliminary hearing testimony. The legal analysis is fact-intensive,

and we begin by setting forth a detailed history of DeJesus’s failure to appear

at trial.

       DeJesus testified at the preliminary hearing on March 13, 2019. The

parties initially selected a jury on March 1, 2021. DeJesus did not appear, and

the trial court held a hearing the next morning on his availability, with the

Commonwealth presenting the testimony of Detective Donald Marano.                He

explained that in mid-February he attempted to serve DeJesus with a

subpoena for the upcoming trial. He spoke to DeJesus’s probation officer, who

supplied an address and phone number.            The phone number was not in

service. On February 23, he and another officer went to the given address,

where they spoke to DeJesus’s sister, Ebony Davis, and gave her a subpoena

for DeJesus. The following day, officers returned to the home and met with


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DeJesus’s mother, Charlean McCorkle, who refused to provide her son’s phone

number. Meanwhile, DeJesus’s probation officer said that “[DeJesus] would

be issued wanted cards by the 22nd of March” if he failed to contact her. N.T.,

3/2/21, at 160. The Commonwealth obtained a material arrest warrant for

DeJesus on February 25, 2021, as well as a subpoena for McCorkle. 1

       After the Commonwealth obtained the warrant, Detective Marano issued

a patrol alert.2 He returned to McCorkle’s home on February 26 and February

28, with negative results. Additionally, two other detectives went to a factory

in   West   Chester,     Pennsylvania,         approximately   thirty-five   miles   from

Philadelphia, based on DeJesus stating in a prior interview that he worked

there. The owners stated that their company had never employed DeJesus.

The men returned to McCorkle’s home and left a subpoena in the door.

Detective Marano also asked a police officer “who has a lot of contacts and

helped with this investigation . . . to keep an ear out for any information” on

DeJesus’s whereabouts. Id. at 167. Detective Marano related to the trial

court the results of his attempt to call the number eventually provided by

McCorkle. He identified himself as Detective Marano and the answering male

replied, “‘how are you doing’ and then hung up.” Id. at 169. The detective

immediately called back but was routed to voicemail.                He left a message
____________________________________________


1 McCorkle was called to testify on the morning of March 2, 2021.   The trial
court ordered her to give DeJesus’s number to the Commonwealth. Detective
Marano attempted to contact DeJesus while the parties selected the jury.

2 A patrol alert “is, more or less, a wanted poster with a picture and the
circumstances of why an individual is wanted.” N.T., 3/2/21, at 162-63.

                                           -5-
J-A08012-24



stating that the male could be incarcerated for contempt. The owner did not

call back.

        Additionally, the trial prosecutor informed the court that after McCorkle

refused to provide her son’s phone number, he “got a call from Eric DeJesus

on an unlisted number. . . . [He] said that he would not be coming to court

this week.” Id. at 3. DeJesus “repeatedly expressed that he would be dead

by Monday. He didn’t elaborate on what that meant.” Id. The prosecutor

said that DeJesus “switched to talking about our office not doing anything for

him with regard to relocation,” and informed the court that the Attorney

General’s Office had “spent over $32,000 on hotel expenses for Eric DeJesus

to be relocated. . . .       He chose not to relocate.”      Id. at 3-4.     The

Commonwealth also noted that DeJesus’s “probation officer had no contact

with him[.]” Id. at 4.

        The Commonwealth further elicited testimony from Detective Marc

Schade, who called eighteen area hospitals, the Philadelphia morgue, and

Commonwealth and federal prison facilities to check for DeJesus.              He

additionally consulted the expense account from the Attorney General’s Office,

which showed that DeJesus listed McCorkle’s address as his residence.

        Appellant’s trial was postponed shortly after this hearing due to a COVID

emergency at the jail. On October 11, 2022, the parties began seating a new

jury.   During a break in the selection, the Commonwealth called Detective

Frank Mullen, who informed the trial court that he and other detectives went

to visit McCorkle’s home that morning to look for DeJesus.         She told the

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J-A08012-24



officers that she had not seen her son in months and allowed them to search

her residence. The detective stated that this visit was the only time officers

had actively searched for DeJesus relative to this trial listing.     See N.T.,

10/11/22, at 42. The next morning, the trial court held an additional hearing

concerning DeJesus’s availability, with Detective Ralph Lewis testifying that

he conducted a check of all local hospitals and prisons, state correctional

facilities, federal prisons, and the Philadelphia morgue. On cross-examination,

Appellant elicited that Detective Lewis was unaware of an open case in the

Court of Common Pleas of Philadelphia County relating to DeJesus tampering

with an ankle bracelet. The prosecutor followed up on this point, stating that

“on September 13th, Eric DeJesus had a court date in this building and I was

there on the lookout for him . . . . [but] he did not show up for that court

appearance.”    N.T., 10/12/22, at 9.     His failure to appear at that hearing

resulted in a bench warrant.

      There was no direct testimony presented regarding DeJesus’s ankle

monitor, but during legal argument Appellant averred that the month after the

March 2021 trial was postponed, DeJesus was picked up on another bench

warrant and was later placed on electronic monitoring. Appellant argued that

the Commonwealth failed to take sufficient steps to locate DeJesus after he

“cut his ankle bracelet off . . . July 10 th of 2022[.]” Id. at 22.

      The Commonwealth acknowledged in its responsive argument that

DeJesus had been located on April 13, 2021, asserting that he was then “given

status dates” to appear in court. Id. at 23. The Commonwealth represented

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that DeJesus appeared before the court in May and June for those status

dates; however, on August 11, “he doesn’t show up and a record was made

even then.”3 Id. at 23. “Eventually, he was found again . . . . That is when

the decision was made to place him on house arrest.” Id. at 24.

       Following argument, the trial court noted that DeJesus was released to

electronic monitoring on April 5, 2022, and read into the record an email from

pretrial services stating that the monitor reported a tamper alert on July 10,

2022. As a result, McCorkle forfeited a $7,500 bond she had posted. Id. at

26-27. The trial court deemed DeJesus unavailable, and the Commonwealth

introduced DeJesus’s preliminary hearing testimony during the ensuing trial.

       Having set forth the relevant factual background, we turn to the legal

principles that inform our review of the trial court’s ruling. A defendant’s Sixth

Amendment right to confront witnesses against him is “violated by the use of

prior testimony unless the prosecution can establish that a good faith effort

was made to secure the witnesses[’] attendance.”            Commonwealth v.

Faison, 305 A.2d 44, 46 (Pa. 1973) (citing Barber v. Page, 390 U.S. 719

(1968)).     “The length to which the prosecution must go to produce the

testimony is a question of reasonableness.” Commonwealth v. Melson, 637

A.2d 633, 638 (Pa.Super. 1994). We review the trial court’s ruling for an

abuse of discretion.      Commonwealth v. Wayne, 720 A.2d 456, 467 (Pa.

1998).
____________________________________________


3 The notes of testimony in the certified record do not include transcripts of
status conferences.

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J-A08012-24



      The government acts unreasonably when it does nothing to locate a

witness. The Barber case is one where the prosecution made “no . . . effort”

to produce a witness. There, the witness was in a federal prison outside the

state’s jurisdiction.   State officials did not ask the federal government to

release the witness for its trial, apparently believing that the request would

be denied. The Barber Court held that the probability of denial was irrelevant

since “the possibility of a refusal is not the equivalent of asking and receiving

a rebuff.” Id. at 724 (citation omitted). “[T]he sole reason why [the witness]

was not present to testify in person was because the State did not attempt to

seek his presence.” Id. at 725.

      Appellant suggests that this is also a “no effort” case.          He cites

Commonwealth v. Lebo, 795 A.2d 987 (Pa.Super. 2002), as comparable to

the present circumstances.       In Lebo, the defendant was charged with

producing obscene materials of underage girls.      One of the girls, T.I., had

enrolled in a boot camp by the time of trial and the Commonwealth sought to

introduce her preliminary hearing testimony. The trial court found that the

Commonwealth made a good faith effort to obtain her presence at trial,

crediting its statement “that it had learned, two days before [trial], that T.I.

was in boot camp[.]”      Id. at 990.    We held that the court erred, as the

“Commonwealth did not offer any information regarding whether it had

subpoenaed T.I. Without more, we cannot conclude that the Commonwealth

made a good faith effort[.]” Id. at 991.




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J-A08012-24



      Appellant’s attempt to characterize the Commonwealth’s efforts as non-

existent is predicated on a narrow view of the relevant timeframe. Appellant

highlights the fact that the government “knew for several months before trial”

that DeJesus had cut off his electronic monitor, “yet they did not make any

good forth [sic] efforts to try and locate him.”      Appellant’s brief at 18.

Accordingly, Appellant’s substantive argument is that the Commonwealth was

required to do more to locate DeJesus during the three months between July

of 2022, when he tampered with the monitor, and October, when Appellant’s

trial took place. “They had three months to look for Mr. DeJesus and yet they

decided they weren’t going to do anything until Appellant’s trial was

imminent.”    Id.   Appellant suggests that upholding the trial court’s ruling

“would essentially be sending a message to the Commonwealth that if a bad

witness goes missing then they should wait until the last possible moment to

begin looking.” Id.

      The Commonwealth, in contrast, does not limit the relevant timeframe

to the   months     between July and October       of 2022.      Instead, the

Commonwealth looks to the entire history of the case. See Commonwealth’s

brief at 14 (citing “the efforts that the Commonwealth undertook prior to the

original 2021 trial date”). The Commonwealth describes DeJesus as having

“made plain his commitment to ‘actively hiding’ to avoid testifying,” as he had

“failed to appear in connection with his own court date the month before trial,

forfeiting his bail as a result.” Id.




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      Assessing whether the Commonwealth acted reasonably under the

circumstances is a fact-intensive inquiry, and in these circumstances, we

agree with the Commonwealth that DeJesus’s history of avoiding court is

relevant to determining the reasonableness of the Commonwealth’s attempts

to secure DeJesus’s presence at the October 2022 trial. The Commonwealth’s

efforts to locate DeJesus for the first scheduled trial in March of 2021 would

be far less probative, and perhaps entirely irrelevant, if the evidence

established that DeJesus had simply been unable to be found as opposed to

actively avoiding court. However, this is not a case where DeJesus’s failure

to appear at the first trial listing was due to ignorance of a subpoena. The

trial court concluded at the conclusion of the October 12, 2022 hearing that

DeJesus “clearly does not want to be present in this courtroom.”          N.T.,

10/12/22, at 25. As the record amply supports that conclusion, the trial court

did not abuse its discretion in so ruling.

      The fact that DeJesus avoided service for the original trial date is

relevant to the probability that he would again avoid court once that trial was

postponed. The United States Supreme Court’s analysis in Ohio v. Roberts,

448 U.S. 56 (1980), abrogated on other grounds by Crawford v.

Washington, 541 U.S. 36 (2004), illustrates that a court may assess the

probability that the authorities’ attempts to locate a witness will succeed in

determining whether the Commonwealth’s efforts were reasonable. There,

the defendant was charged with using stolen credit cards belonging to Anita

Isaac’s parents.   At the preliminary hearing, Anita testified that she knew

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Roberts and let him use her apartment while she was out of town but denied

defense counsel’s assertion that she had given Roberts the credit cards to use.

At trial, Roberts took the stand and told the jury that Anita, who failed to

appear for trial, had given him her parents’ credit cards and checks to use.

The prosecution then sought to introduce Anita’s preliminary hearing

testimony.

      The prosecution showed that it had issued “five subpoenas for four

different trial dates . . . to Anita at her parents’ Ohio residence.” Id. at 59.

Anita’s mother, Amy, testified that Anita had left Ohio for Arizona shortly after

the preliminary hearing. “About a year before the trial, a San Francisco social

worker was in communication with the Isaacs about a welfare application Anita

had filed there. Through the social worker, the Isaacs reached their daughter

once by telephone.” Id. at 60. A few months later, Anita called and told her

parents that she was traveling. Amy told the court that no one in the family

had any means of contacting Anita.

      The Roberts Court concluded that “Anita’s unavailability, in the

constitutional sense, was established.”    Id. at 74. “[T]he Isaacs and their

other children knew of no way to reach Anita even in an emergency.” Id.

Hence, this was “not a case of parents abandoning all interest in an absent

daughter.” Id. The Court acknowledged that the government had at least

one lead to pursue, namely the San Fransisco social worker. According to

Amy’s testimony, the family got in touch with Anita through that worker, which

supported a conclusion that the government could have reached out to the

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same agency for leads. However, the prosecution was not required to exhaust

every possible avenue. “One, in hindsight, may always think of other things.

Nevertheless, the great improbability that such efforts would have resulted in

locating the witness, and would have led to her production at trial, neutralizes

any intimation that a concept of reasonableness required their execution.” Id.

at 75-76.4

       Returning to the matter before this Court, we conclude that the key

aspect is the trial court’s finding that DeJesus was avoiding the authorities.

The facts show that the Commonwealth made extensive efforts to locate

DeJesus prior to the first trial listing. DeJesus’s mother refused to give the

detectives her son’s phone number until ordered by the trial court to do so;

the male who answered the phone ignored Detective Marano and did not

return his voicemail. DeJesus continued to avoid the authorities and informed

the trial prosecutor that he would not attend trial. These efforts establish that

DeJesus had no intention of appearing, as corroborated by DeJesus removing

his ankle bracelet and failing to appear for his own court dates.

____________________________________________


4 As the United States Supreme Court has stated, “when a witness disappears
before trial, it is always possible to think of additional steps that the
prosecution might have taken to secure the witness’[s] presence, but the Sixth
Amendment does not require the prosecution to exhaust every avenue of
inquiry, no matter how unpromising.” Hardy v. Cross, 565 U.S. 65, 71-72
(2011) (citation omitted). The Commonwealth theoretically could have sought
to incarcerate DeJesus in lieu of electronic monitoring as a means of
compelling his presence. However, Appellant does not argue that the
Commonwealth was required to do that to satisfy its good faith obligations,
and DeJesus would obviously have his own liberty interests for the trial court
to consider.

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      The consequent question is whether the Commonwealth did enough to

look for DeJesus in light of his demonstrated commitment to avoiding court.

The probability of procuring the presence of a recalcitrant witness is, by

definition, quite low. Indeed, the Roberts Court contrasted the circumstances

of that case with those in Barber, describing the latter as a case where “the

prosecution knew where the witness was, procedures existed whereby the

witness could be brought to the trial, and the witness was not in a position

to frustrate efforts to secure his production.”           Id. at 77 (emphasis

added).

      DeJesus, in contrast, clearly sought to frustrate the Commonwealth’s

attempts to call him at trial. This is not to say that the Commonwealth could

simply presume that DeJesus would fail to honor his legal obligation to appear

and do nothing to look for him or otherwise enforce that obligation.       The

Commonwealth has tools to enforce compliance, as demonstrated by

Detective   Marano’s   testimony   that   he   informed   DeJesus   he   risked

incarceration for contempt of court. Notably, the Commonwealth used one

such tool: it placed DeJesus under electronic monitoring in April of 2022. This

illustrates that the Commonwealth and the trial court were concerned that

DeJesus would again disappear and sought to keep tabs on his whereabouts.

DeJesus decided to frustrate those efforts by committing a crime, which

exposed him to criminal prosecution as well as probation detainers. The trial

prosecutor showed up on DeJesus’s court date for tampering with the monitor

in an effort to speak to him, but DeJesus failed to appear and another warrant

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was issued. Detective Marano visited DeJesus’s last known address and spoke

with his mother, who confirmed that she had not seen her son in months,

which roughly maps to the facts in Roberts. We find that the trial court did

not abuse its discretion in concluding that the Commonwealth met its burden

to establish that DeJesus was unavailable in the constitutional sense.

       Having concluded that DeJesus was unavailable, we next address

whether Appellant had a full and fair opportunity to cross-examine him at the

preliminary hearing. As outlined infra, no relief is due.

       We have held that “[i]ntroducing statements of an unavailable witness

presents issues relating to both the constitutional rights of confrontation as

well    as    evidentiary   rules   governing     introduction   of   hearsay.”

Commonwealth v. Grush, 295 A.3d 247, 251 (Pa.Super. 2023).                  The

pertinent aspect of the hearsay exception for former testimony applies to

statements offered “against a party who had . . . an opportunity and similar

motive to develop it by direct, cross-, or redirect examination.”        Pa.R.E.

804(b)(1)(B). The viability of this exception “has been explained as arising

from necessity and has been justified on the ground that the right of cross-

examination initially afforded provides substantial compliance with the

purposes behind the confrontation requirement.” Barber, 390 U.S. at 722.

Our Supreme Court requires that the defendant had a “full and fair

opportunity to cross-examine” the witness at the former proceeding.

Commonwealth v. Bazemore, 614 A.2d 684, 687 (Pa. 1992) (emphasis in

original).   Whether a defendant had a “full and fair opportunity” to cross-

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examine is a “legal conclusion [which] largely rests on the facts.” Grush, 295

A.3d at 252.

      Appellant asserts that he was denied a full and fair opportunity because

his “attempts to challenge Mr. DeJesus’[s] credibility at the [p]reliminary

[h]earing were quickly thwarted by Commonwealth objections and the [c]ourt

sustaining those objections.” Appellant’s brief at 19. He cites seven specific

exchanges in which the court sustained the prosecution’s objections.       The

Commonwealth counters that the objections were proper, as the “objections

to cross-examination questions were made and sustained because of their

form (e.g., needlessly argumentative), or because they had already been

asked and answered[.]” Commonwealth’s brief at 17.

      Appellant takes the “full and fair” pronouncement in Bazemore to its

extreme endpoint, advancing the position that any Commonwealth objection,

even if properly sustained by the court, necessarily denied him a full and fair

opportunity at cross-examination.    He argues:    “Even if other instances of

impeachment were allowed, the fact is that other lines of questioning were cut

off and the law clearly requires a full and fair opportunity to cross-examine.

If the cross-examination is restricted in any way then we cannot say it was

full.” Appellant’s brief at 24-25 (emphasis in original).   Due to this view of

the controlling law, Appellant declines to discuss the propriety of the court’s

rulings. “[T]he question here is not whether the [j]udge at the [p]reliminary

[h]earing erred in sustaining the Commonwealth’s objections, but whether the




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[d]efense was given a full and fair opportunity to cross-examine[.]” Id. at

24.

       Appellant’s failure to explain whether the objections were proper, in

conjunction with an argument as to how those objections implicated his right

to confront DeJesus, is fatal insofar as he does not address why it would be

constitutionally permissible to limit cross-examination at trial upon proper

objection but not at a preliminary hearing. Logically, if the questions were

objectionable at trial they would be no less so at the preliminary hearing. We

thus   disagree   with   Appellant’s   premise,   unsupported   by   meaningful

discussion, that merely sustaining objections automatically deprives the

defendant of a “full and fair” opportunity to cross-examine.

       Additionally, our caselaw forecloses Appellant’s attempt to equate “full

and fair” with “completely unfettered.” In Grush, this Court held that Grush

had a full and fair opportunity to cross-examine Jonathan Lubinsky at the

preliminary hearing.     Lubinsky, who died before trial, “supplied the only

testimony linking [Grush] to the homicide,” and Grush argued that she was

deprived of her full and fair opportunity because she was unaware that

Lubinsky was on probation, had pending charges, and had an extensive

criminal record of crimen falsi convictions prior to the preliminary hearing. We

explained that the key consideration was whether this impeachment material

was “vital,” for if so Grush was denied a full and fair opportunity to cross-

examine.    We concluded that the material was not vital for the following

reasons:

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       Lubinsky’s criminal history, pending charges, and probationary
       status do not correspond to an unambiguous ulterior motive for
       Lubinsky to testify apart from his obvious motivation to exonerate
       himself. Obviously, Lubinsky had every reason to pin the crime
       on [Grush] as the Commonwealth’s evidence suggests that only
       two people could be responsible for the victim’s murder. This
       could be said to strengthen the case for finding that [Grush]
       lacked a “full and fair opportunity to cross-examine” in that his
       credibility is paramount. But the test demands only that: a full
       and fair opportunity for cross-examination. It does not demand a
       total and comprehensive cross-examination. Generally speaking,
       the Confrontation Clause guarantees an opportunity for effective
       cross-examination, not cross-examination that is effective in
       whatever way, and to whatever extent, the defense might wish.
       Lubinsky’s motive to exonerate himself would exist independently
       of the impeachment material, and cross-examination on that
       motivation was crucial given his status as the only other plausible
       suspect. But counsel had a full opportunity to explore, and did
       explore, that issue at the preliminary hearing.

Grush, 295 A.3d at 256–57 (cleaned up).

       In the case at bar, Appellant does not address whether any of the

proposed lines of cross-examination touched on vital issues. 5       Appellant’s

____________________________________________


5   Appellant cites one example as constituting an “incredible point of
impeachment that was disallowed[.]” Appellant’s brief at 23. DeJesus
testified on cross examination that he did not “really remember what actually
happened that night. I’m only going off of what y’all explaining to me.” N.T.,
3/13/19, at 68-69. The following exchange then occurred:

       Q: Okay.

       A: Because I done been kidnapped and beaten and all of that.
       Like, I don’t remember nothing.

       Q: Okay. When you got kidnapped and beaten, was that after the
       statement or before?

       A: Yes.
(Footnote Continued Next Page)


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argument is unconvincing considering his failure to address the fundamental

issue regarding whether the objections were proper.




____________________________________________


              ....

       Q: So the kidnapping that you endured, you said a kidnapping and
       a shooting?

       A: No, I said kidnapping/beating.

       Q: And a beating.

       A: And I got stripped.

       Q: And you got stripped?

       A: Yes

       Q: Okay. When did that happen?

       [COMMONWEALTH]: Objection to the relevance.

       THE COURT: Sustained.

       [APPELLANT]: If he’s claiming that he doesn’t have a memory
       of this, it seems relevant to ask when this trauma happened.

       THE COURT: Sustained. Let’s move on, counsel.

Appellant’s brief at 21 (quoting N.T., 3/13/19, at 69-73; ellipsis in original).
We agree that memory loss is a valid and important line of impeachment.
However, to the extent that the judge erred in not permitting further
questioning, the significant fact for impeachment purposes is DeJesus’s
admission that his memory is faulty, not necessarily when the memory loss
started. Counsel was free to argue to the jury that DeJesus’s testimony should
not be believed given his own admissions. Cf. Commonwealth v. Grush,
295 A.3d 247, 257-58 (Pa.Super. 2023) (concluding that “the impeaching
character of the crimen falsi offenses is rather minimal when one considers
that Lubinsky freely admitted to having a criminal history”). Finally, the court
instructed Appellant to move on from the issue of “when” this trauma
happened. There is nothing to suggest that Appellant was foreclosed from
other questions, such as who kidnapped and beat DeJesus.

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      Furthermore, Appellant does not specifically clarify whether he is

asserting that his constitutional right to confront DeJesus was violated or

whether the Commonwealth failed to establish the evidentiary prerequisites

for the Rule 804(b)(1)(B) exception. The Crawford decision addressed the

introduction of preliminary hearing testimony, stating that “prior trial or

preliminary hearing testimony is admissible only if the defendant had an

adequate opportunity to cross-examine.” Id. at 57 (emphasis added). In

Bazemore, which predates Crawford, our Supreme Court held that

preliminary hearing testimony may only be admitted as substantive evidence

if the defendant had a “full and fair” opportunity to cross-examine. Despite

the different phrasing, our precedents have treated the Bazemore standard

as applying post-Crawford. See Commonwealth v. Leak, 22 A.3d 1036,

1044 n.7 (Pa.Super. 2011). We note that the Crawford Court cited, inter

alia, California v. Green, 399 U.S. 149 (1970), for the proposition that

preliminary hearing testimony is admissible only if the defendant “had an

adequate opportunity to cross-examine.” Crawford, 541 U.S. at 57. The

Green decision states that “merely because evidence is admitted in violation

of a long-established hearsay rule does not lead to the automatic conclusion

that confrontation rights have been denied.” Green, 399 U.S. at 156.

      The two concepts overlap. “Given the similarity of the values protected,

however, the modification of a State’s hearsay rules to create new exceptions

for the admission of evidence against a defendant, will often raise questions

of compatibility with the defendant’s constitutional right to confrontation.” Id.

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Still, the case for a violation of that right is markedly stronger in a case like

Bazemore, where the Commonwealth failed to disclose that the sole witness

at the preliminary hearing “had made a prior inconsistent statement . . . and

that the [Commonwealth] was, at that time, contemplating” filing charges

against the witness for homicide and conspiracy in connection with Bazemore’s

crime. Bazemore, 614 A.2d at 685. The inability to probe those matters

supports a violation of the right to confront one’s accusers in a way that the

various objections leveled here simply do not.6        For all these reasons, we

conclude that Appellant has failed to show that the trial court erred in

admitting the testimony. “It is, of course, an appellant's burden to persuade

us the trial court erred and relief is due.” Commonwealth v. Claffey, 80

A.3d 780, 787 (Pa.Super. 2013).

       Appellant’s final claim assails the trial court’s denial of his motion for a

new trial on weight-of-the-evidence grounds.         His argument rests on the

unreliability of DeJesus’s testimony, which he submits was necessary for the

Commonwealth to meet its burden of proof.

____________________________________________


6   Indeed, several of the cross-examination questions were clearly
objectionable. For example, Appellant complains that the judge sustained the
Commonwealth’s objection to counsel’s remark, “As you sit here today – I
mean, you’ve lied to us today.” N.T., 3/13/19, at 73. Counsel also asked
DeJesus in response to his testimony that he went around a corner: “Was this
a black hole around the corner?” Id. at 44. This sarcastic query was
apparently due to counsel’s belief that DeJesus’s story was not credible. See
Appellant’s brief at 23 (agreeing that the question was “somewhat sarcastic,”
and asserting that counsel “was trying to impeach the witness by questioning
him regarding the lack of possibility of what he described”).


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      Our standard of review is well-established:

            A verdict is not contrary to the weight of the evidence
      because of a conflict in testimony or because the reviewing court
      on the same facts might have arrived at a different conclusion
      than the fact-finder. Rather, a new trial is warranted only when
      the jury’s verdict is so contrary to the evidence that it shocks one’s
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail. Where, as
      here, the judge who presided at trial ruled on the weight claim
      below, 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.

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (cleaned up).

      Mindful that we are reviewing the trial court’s exercise of discretion, and

not the underlying claim, we find no abuse of discretion. Appellant’s argument

rests on his assessment that DeJesus was not a credible witness. However,

even setting aside the fact that neither we nor the trial court can simply act

as the thirteenth juror and treat our vote as dispositive, see Commonwealth

v. Widmer, 744 A.2d 745, 752 (Pa. 2000), Appellant’s argument overlooks

the surveillance video evidence as well as the locational data from Appellant’s

cell phone, which confirmed Appellant’s presence in the area around the time

of the shooting and additionally indicated that Appellant turned off his phone.

The trial court concluded that “there was uncontradicted, overwhelming

circumstantial evidence presented to establish that it was . . . [Appellant] who

committed this murder. Therefore, the verdict did not shock one’s sense of

justice.” Trial Court Opinion, 5/12/23, at 12. The trial court’s ruling on the




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weight claim is based on a “foundation of reason,” Widmer, 744 A.2d at 753,

and therefore must remain undisturbed.

     For the foregoing reasons, Appellant has failed to establish any basis for

us to disturb his judgment of sentence. Therefore, we affirm.

     Judgment of sentence affirmed.




Date: 7/24/2024




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