J-S33006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYRONE WILBERT CLARK : : Appellant : No. 1412 WDA 2022 Appeal from the Judgment of Sentence Entered August 5, 2022 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001651-2021

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.* MEMORANDUM BY BENDER, P.J.E.: FILED: December 29, 2023 Appellant, Tyrone Wilbert Clark, appeals from the judgment of sentence of 25-50 years’ incarceration, imposed after he was convicted of, inter alia, aggravated assault, 18 Pa.C.S. § 2702(a)(1). We affirm.

We need not reproduce the factual and procedural history of this case, as the trial court comprehensively summarized it in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion (“TCO”), 1/30/23, at 1-42. On appeal, Appellant raises the following questions for our review: I. Whether the trial court erred in permitting the Commonwealth to comment on … Appellant’s retention of counsel prior to trial in violation of his rights under the Pennsylvania and United States Constitutions?

II. Whether the trial court erred in permitting the Commonwealth to impermissibly suggest that … Appellant, and by extension, Appellant’s counsel, had an obligation to assist law enforcement ____________________________________________

* Former Justice specially assigned to the Superior Court.

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in the investigation of the case in violation of his rights under the Pennsylvania and United States Constitutions?

III. Whether the trial court erred in denying … Appellant’s motion in limine to introduce the prior crimen falsi convictions of the alleged victim under the premise that … Appellant did not provide written notice to the Commonwealth, where the Commonwealth acknowledged providing the criminal record of the alleged victim about a week prior to the trial and the Commonwealth suffered no prejudice from the lack of written notice and had a fair opportunity to contest the use of such evidence.

IV. Whether the trial court erred in denying … Appellant’s motion in limine to introduce the prior crimen falsi convictions of the alleged victim and this error was because the probative value of allowing this evidence substantially outweighed its prejudicial effect.

Appellant’s Brief at 3-4 (some italics removed).

Issues 1 and 2 Appellant addresses his first and second issues together, so we do the same. He argues that the trial court erred in “permitting the Commonwealth to comment on … Appellant’s retention of counsel prior to trial, and impermissibly suggest that … Appellant, and by extension, Appellant’s counsel, had an obligation to assist law enforcement in the investigation of the case, in violation of his rights under the Pennsylvania and United States Constitutions.” Id. at 30 (emphasis, unnecessary capitalization, and footnote omitted). No relief is due.

Initially, with respect to Appellant’s claim that the Commonwealth improperly commented on Appellant’s retention of counsel prior to trial, we deem this claim waived. In Appellant’s Rule 1925(b) statement, he did not sufficiently identify when this allegedly improper comment occurred. See

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Appellant’s Rule 1925(b) Statement, 12/21/22, at ¶ m (“The [c]ourt erred in permitting the Commonwealth to comment on [Appellant’s] retention of counsel prior to trial in violation of his rights under the Pennsylvania and United States Constitutions.”). As a result of Appellant’s vagueness, the trial court stated that it would have to guess as to which comment by the Commonwealth Appellant intended to challenge and concluded that it could not meaningfully review this issue. See TCO at 64-66.

It is well-established that the Rule 1925(b) statement “shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). Here, we agree that Appellant did not provide sufficient detail for the judge to identify the issue; thus, this issue is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”); Trial Court Order, 11/30/22 (directing Appellant to file a Rule 1925(b) statement and warning that “any issue not properly included in the concise statement timely filed and served pursuant to subdivision (b) shall be deemed waived”).

Nevertheless, even if this issue was not waived, and to the extent that Appellant also claims that the Commonwealth suggested that Appellant had an obligation to assist law enforcement, Appellant’s argument lacks merit.1 ____________________________________________

1 We note that, for questions of constitutional law, our scope of review is plenary, and our standard of review is de novo. See Commonwealth v. Edwards, 272 A.3d 954, 963 (Pa. 2022).

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Appellant’s complaint centers on the questioning at trial of John Bialik, a police officer from the Borough of Ambridge. After reviewing the detailed and well- reasoned opinion issued by the Honorable Mitchell P. Shahen of the Court of Common Pleas of Beaver County, we conclude that Judge Shahen’s opinion accurately and thoroughly disposes of why the Commonwealth’s questioning of Officer Bialik was appropriate. TCO at 11-19, 66-70.2 Accordingly, we adopt his opinion as our own with respect to this argument.

Issues 3 and 4 Appellant also combines his third and fourth issues into a single argument; thus, we likewise consider them together. Appellant argues that the trial court “erred in denying Appellant’s motion in limine to admit impeachment evidence of a criminal conviction which involved dishonesty or false statement of the alleged victim.” Appellant’s Brief at 24 (emphasis modified, unnecessary capitalization and footnote omitted). Specifically, Appellant sought to introduce evidence that the victim had two convictions for theft by unlawful taking — one from 2003, and another from 2006. See id. at 15. At the time of trial, it was undisputed by the parties that the two ____________________________________________

2 Appellant seems to argue that any questioning by the Commonwealth that refers to Appellant’s counsel is improper. See Appellant’s Brief at 33 (arguing that “the questioning by the prosecutor referring to … Appellant’s counsel or any counsel of Appellant was improper”). However, we agree with the Commonwealth’s observation that the questions dealing with Officer Bialik’s accessibility to defense attorneys who wish to offer him information about a case or seek clarification (including Appellant’s counsel) was in direct response to Appellant’s counsel’s suggestion in his cross-examination that it was improper for Officer Bialik to not interview Appellant, who had invoked his right to remain silent. See Commonwealth’s Brief at 19-20.

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convictions, and the respective penalties imposed, ended more than ten years ago. N.T., 7/6/22, at 18.

Our Supreme Court has previously explained: When reviewing the denial of a motion in limine, this Court applies an evidentiary abuse of discretion standard of review…. It is well- established that the admissibility of evidence is within the discretion of the trial court, and such rulings will not form the basis for appellate relief absent an abuse of discretion. Thus, the Superior Court may reverse an evidentiary ruling only upon a showing that the trial court abused that discretion. A determination that a trial court abused its discretion in making an evidentiary ruling may not be made merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Further, discretion is abused when the law is either overridden or misapplied.

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (cleaned up).

Pennsylvania Rule of Evidence 609 provides, in relevant part: (a) In General. For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Pa.R.E. 609(a), (b).

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Further, this Court has directed that, in determining whether such evidence should be admitted, the following factors should be considered: 1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

Commonwealth v. Palo, 24 A.3d 1050, 1056 (Pa. Super. 2011) (citations omitted).

Here, in discerning that the victim’s convictions should not be admitted, the trial court explained: All right. Case No. 1946 of 2005, based on the documents that have been presented to the [c]ourt, contains a guilty plea that occurred on July 19, 2006, to Count 1 which was theft by unlawful taking as an M-2 with the factual allegations that can be ascertained from the exhibit being that a toolbox containing several tools belong to Steven Dean [was] unlawfully taken by the alleged victim in this case, William Brown.

The facts at Case No. 3157[,] where the alleged victim was charged with and convicted of theft by unlawful taking and received a two-year probation sentence on 11/25/2003 are not evident on the exhibits.

Under Rule 609, for the purposes of attacking the credibility of a witness, evidence that a witness has been convicted of a crime must be admitted if it involved dishonesty or false statement. The [c]ourt finds that these two convictions do involve dishonesty and/or false statements, dishonesty in particular.

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However, under that same rule, if more than ten years have passed since the witness’s conviction, and … that is the case, or released from confinement, whichever is later, evidence of the conviction is admissible only if the probative value substantially outweighs its prejudicial effect and the proponent in this case, [Appellant], gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

By virtue of the plea, the evidence in Case No. 1964 of 2005, I can say that … on the date of that plea, the alleged victim was 37 years old. That information is gleaned from the [g]uilty [p]lea [c]olloquy….

In this case, [Appellant], based upon our discussions yesterday, has available alternative means for attacking the witness’s credibility and that, those alternative means consist of, among other things, different versions of the story, at least as were recounted to me by counsel last night.

In this case, this [c]ourt is also aware, based upon the discussions, that the Commonwealth contends that it has video, doorbell video, something like that[,] as well as a video of … the officer’s body cam that would show allegedly [Appellant] in the area where the incident occurred.

There is no evidence indicating … that the alleged victim in this case from the time of 2006 to the current time has not or could not have been rehabilitated during that time, and there is no indication … of a history of other matters from the long-ago crimes that [Appellant] is trying to seek to use….

I find that[,] under the evidence that’s available … in this case, that … if these were to be used for any reason, they would have a greater tendency to smear the character of the witness … and suggest propensities that are not related to some of the issues or … at issue in this case. And under the circumstances of this case, and given the age of those crimes, this evidence would not provide a legitimate reason [for] discrediting this witness as an untruthful person under these circumstances.

Based upon the following, based upon those matters, I’m going to deny the request…, and I also find that there was no written notice that was provided to the Commonwealth of this intention. Based on all those factors, I’m going to deny the oral motion in limine of [Appellant] to admit the criminal convictions of the alleged victim -7- J-S33006-23

in Case Nos. 315 of 2002 and 1964 of 2005, Beaver County numbers.

N.T., 7/6/22, at 18-21.

Appellant argues that “the factors more heavily weigh in favor of admissibility and make it clear that the probative value of admitting the evidence substantially outweighs the prejudicial effect of the crimen falsi convictions.” Appellant’s Brief at 27. He says that his need to introduce the victim’s old crimen falsi convictions is high, as the jury had to decide between the credibility of the victim, who denied having a knife or other weapon on his person, and the testimony of Appellant and others who alleged that the victim did have a weapon on his person. Id. at 28.3 Specifically, Appellant testified at trial that he cut the victim with a razor blade in self-defense because the victim “had put his hand in his back pocket. That’s where [the victim] kept that old raggedy knife at.” N.T., 7/7/22, at 209. See also id. at 233 (Appellant’s stating that the victim “made a move for the door” and “put [his hand] in his pants like that (indicating), no telling what he had”).

In addition, Appellant also argues that: [F]actor one favors admissibility because, if the jury were to learn of the prior convictions of [the victim], they might be more inclined to believe he was not telling the truth when he claimed he had no weapon on his person at the time of the incident; a ____________________________________________

3 The others who saw the victim with a weapon were not present when the incident occurred. See N.T., 7/7/22, at 155, 158 (Jayvon Turner’s stating that he did not personally see anything that happened on the porch, but saw the victim with a knife earlier in the day); N.T., 7/7/22, at 174-75, 177-78 (Frederick Turner’s testifying that he was upstairs sleeping when the incident occurred, but that he saw the victim with “something in the back” that Frederick Turner believed was a weapon).

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crucial component of Appellant’s defense. Moreover, factor two favors admissibility because this is not a case where the alleged victim is accused of a theft[-]related crime and propensity to commit theft is at-issue; rather, the dated convictions bear on the witness’[s] credibility and do not tend to smear his character.3 Factor three relates to the age and circumstances of the witness. [The victim] was [53] at the time of trial,[4] and the 2006 conviction would have been committed in his adulthood. While the 2006 conviction was approximately sixteen years old at the time of the trial, [this] Court [has] permitted a conviction of the same age for the same reasons it is relevant here.

3 Factor four appears to be more related to the Commonwealth’s use of this evidence, since it pertains to the strength of the prosecution’s case and thus, is not applicable in this analysis.

Appellant’s Brief at 28-29 (internal citations and a footnote omitted).

We agree with Appellant that the first two factors tend to weigh in favor of admitting the victim’s crimen falsi convictions. The victim’s convictions for theft by unlawful taking reflect on his honesty, and do not have a greater tendency to smear his character and suggest a propensity to act violently, rather than provide a legitimate reason for discrediting him as an untruthful person. The third factor is a closer question, as the victim was in his thirties at the time he committed the crimen falsi offenses, but both convictions were over fifteen years old by the time of trial.

Importantly, though, the fourth and fifth factors weigh heavily against admission. See Commonwealth v. Felder, 2022 WL 3210181, at *6 (Pa. Super. filed Aug. 9, 2022) (stating that “[t]he fourth factor turns on the ____________________________________________

4 Appellant mistakenly says that the victim was 37 years old at the time of trial. See N.T., 7/7/22, at 60 (the victim’s stating at trial that he is 53 years old).

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importance of the witness’s credibility and strongly favors admission of the prior crimen falsi conviction where the witness’s testimony is central to the case”) (citations omitted)5; see also Palo, 24 A.3d at 1056 (describing the fifth factor as whether alternative means of attacking the witness’s credibility exist). Significantly, as the trial court noted, there was a video of the incident taken from a neighbor’s security camera. See Commonwealth’s Exhibit 8. As the Commonwealth observes, because the criminal conduct that formed the basis of the jury’s verdict was captured on video, it was less likely that the trial would come down to a credibility contest between the victim and Appellant. Commonwealth’s Brief at 10. The Commonwealth aptly explains: [T]he crime in the present case was captured on video. Thus, the competing accounts offered by the victim and Appellant from the witness stand as to whether the victim reached for a knife or not could easily be judged by resorting to the video footage. The jury watched Commonwealth’s Exhibit 8 numerous times during the trial, and the footage clearly does not show the victim reaching for anything with his right hand as Appellant claimed in his direct testimony.

Id. at 15-16.6 Further, given the direct footage of the incident, had the victim been untruthful about reaching for a knife or making some other kind of ____________________________________________

5 See Pa.R.A.P. 126(b) (setting forth that an unpublished non-precedential memorandum decision of the Superior Court filed after May 1, 2019, may be cited for its persuasive value).

6 Although the video was taken from a distance, our review of it confirms that the victim did not reach in his pocket, or move to the front door, before Appellant attacked him. See also TCO at 52 (“Evidence involving camera footage of the altercation was also admitted; that surveillance footage showed … Appellant and the victim standing on the porch in a manner consistent with (Footnote Continued Next Page)

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movement, the video would show otherwise and serve to undermine the victim’s credibility. Thus, we are unconvinced that the trial court abused its discretion in disallowing the admission of the victim’s crimen falsi convictions.7 Judgment of sentence affirmed.

____________________________________________

the testimony provided by [the victim]. This footage also depicted … Appellant leaping towards the victim and the victim fleeing the scene.”).

Further, to the extent Appellant argues that there was a credibility contest over whether the victim was carrying a knife, we consider that argument to be unpersuasive. Even if the victim was carrying a knife, that fact does not prove that Appellant was justified in attacking him, if Appellant was not facing a life-threatening situation, had a duty to retreat and could safely do so, and/or provoked the use of force. See Commonwealth v. Charles, 2023 WL 7015598, at *4 (Pa. Super. filed Oct. 25, 2023) (“The Commonwealth can disprove a claim of self-defense or defense of others by establishing that: 1[.] the accused did not reasonably believe that he was in danger of death or serious bodily injury; or 2[.] the accused provoked or continued the use of force; or 3[.] the accused had a duty to retreat, and the retreat was possible with complete safety. The Commonwealth must establish only one of these three elements beyond a reasonable doubt.”) (cleaned up).

Appellant’s argument ignores these other considerations.

7 Because we determine that the trial court did not abuse its discretion in determining that the probative value of the victim’s convictions did not substantially outweigh their prejudicial effect, we need not address whether the notice given to the Commonwealth was sufficient.

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12/29/2023

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IN THE COURT OF COMMON PLEAS OF BEAVER BEA VER COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH COMMONWEAL TH OF PENNSYLVANIA CP-04-CR-01651-2021 vs. VS. 1412 WDA WDA 2022 2022 TYRONE CLARK

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Shahen, Mitchell P JANUARY 30, JANUARY 30, 2023 2023

OPINION OF OE LOWER COURT PURSUANT TO PA.R.A.P, PA.R.A.P. RULE 1925(al 1925() Tyrone Tyrone Clark Clark ("Appellant" ("Appellant" or "Clark") appeals appeals from from the the August 5, 2022, August 5, 2022, judgment of sentence entered by the Court of Common Pleas of Beaver County County following his convictions of Aggravated Assault,' Simple Assault,' Recklessly Assault, and Recklessly Endangering Another Person.' Person.

PROCEDURAL PROCEDURAL HISTORY HISTORY The charges against the Appellant stem from an incident occurring occurring at 924 - Beaver Avenue, Ambridge, Pennsylvania, in the early evening evening hours of Sept~mber SepiAmber

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w a o - 5- e .a ti 18 Pa.C.S. § '18PC.S. 2702 (a)(1) $ 2702 (a(D) a i s ge Pa.C.S. §$2701(a)0 18PA.CS. 2701(a)(1) ,... et r. e _ 18 Pa.C.S. $2705 '18P6CS. §2705 t t � Page 1 of 83 of83 11, 1, 202 1. The incident involved an altercation between the Appellant 2021. Appellant and the victim, William Christopher Brown Brown ("Chris (Chris Brown" or or "victim")." "victim").' By Criminal Information Infonnation dated November S, 5, 2021, the Appellant Appellant was charged charged as as follows: ((1) 1) count of Criminal Attempt Criminal Homicide Attempt-Criminal Homicide (First (First Degree Felony); Felony)'; ((1) 1) count Aggravated Assault Assault (First (First Degree Degree Felony)'; Felony); ((1) 1) count Simple Assault Assault (Second (Second Degree Misdemeanor)'; Misdemeanor)'; ((1) 1) count Recklessly Endangering Recklessly Endangering Person (Second Degree Misdemeanor)'; Another Person Misdemeanor); ((1) 1) count Harassment--Subject Harassment—Subject Other to Physical Other to Physical Contact Contact (Third (Third Degree Degree Misdemeanor)'.

Misdemeanor°, Appearances were made by Assistant District Attorney Attorney Bart Wischnowski ("Mr. Wischnowski") for the Commonwealth, and Attorney Attorney Max A. Schmierer ("Mr. Schmierer") for ("Mr. Schmierer") for the the Defendant.

Defendant. Jury Jury selection selection began began on on July 5, 2022, July 5, 2022, and and the the trial was conducted from July 6, 2022 to t0 July 8, 2022. On July July 11, 2022, the Jury Jury returned returned aaverdict finding the Appellant guilty the Appellant guilty of of Count 2: Aggravated Aggravated Assault, Assault, Count Count 3: Simple Assault, Assault, and and Count Count 4: 4: Harassment; Harassment; the jury jury was deadlocked as to Count 1: Count Criminal Attempt—Criminal I: Criminal Attempt-Criminal Homicide.

Homicide.

On On August August 5, 2022, the the Appellant Appellant was sentenced to was sentenced to undergo imprisonment undergo imprisonment in aaState Penal Penal or Correctional Institution Institution or Facility Facility at Count 22for for not less than

°William Christopher Brown William Christopher Brown isis also also known known as Chris Brown as Chris socially and Brown socially throughout his and throughout community. his community s 18 Pa.C.S. $901(0), '18PAC.S. § 901(a); 18 Pa.C.S.

PA.C.S. §$ 2501(a) e18 Pa.C.S. §$ 2702(a)(1) '18PAC.S. 27026)0) Pa.C.S. $2701(a)(1) 'I8PAC.S. § 2701(a)(1) s18 Pa.C.S. $2705 '1SPA.CS. §2705 18 Pa.C.S. § '1$PAC.S. 270g(a)(1) 42709()(1) Page 2 of 0f 83 twenty-five (25) (25) years, nor more than fifty fifty (50) (50) years. years. The court imposed imposed no further sentence at Count 3 and Count 4.

The Appellant fled filed aatimely post-sentence motion on August August 10, 10, 2022. On November 4, 4, 2022, 2022, the court entered entered an denying Appellant's an Order denying Appellant's Motion for for Post-Sentence Relief.

On November 30, 2022, the Appellant filed aa Notice of Appeal Appeal to the Superior Court of Pennsylvania. On On that day, this that same day, this court entered an an Order requiring the Appellant to file aaConcise Statement of Matters Complained Complained of on Appeal, pursuant pursuant to Pa.R.A.P. Pa.R.A.P. §$1925(b).

1925(b). The The Appellant Appellant timely timely filed filed a a Concise Statement of Matters Complained on Appeal and aaConcise Statement of Errors Complained on Appeal on December 21, 2022.

PRELIMINARY MOTIONS h I. VoiR VOIR DIE DIRE Jury selection Jury took place selection took place on on July July S, 5, 2022; 2022; interviews interviews for for Prospective Juror Prospective Juror No. JPSA-8 took place on that same day. Mr. Schmierer asked for clarification on No, JP5A.8 an unclear answer provided in Juror No. No, JPSA-8's questionnaire, in which it JP5A-8's questionnaire, it A summary of the appeared the Juror had changed their answer from Yes to No." A transcript on this matter is below: MR. MR. SCHMIERER: And I'm I'm looking looking at your your questionnaire here. here.

There, it looks like you may have changed an answer. I'm just trying pl Id. at 10 53. at53.

Page 3 of 83 of83 to clarify. The question was, was, "would you have any any problem problem following following the Court's instruction that the defendant in a a criminal case does not have have to take take the the stand or or present present evidence and it it cannot be be held against the against the defendant defendant if if he or she he or she elects elects to to remain silent or remain silent or present present no no evidence?" You indicate on youryour form, form, it appears appears to be no, no, but also, also, the box may have been check yes. yes.

PROSPECTIVE JUROR NO. JL5A-8: I I did change change that. I I thought thought about about that that when when I I did that, too. My My own personal personal belief belief is, is, sometimes I I think like if you would be a, if you were the defendant and you you were not not guilty, you would want want people people in in a a jury to to hear hear your your side of the case so case so that that they can understand they can why you're understand why you're not not guilty or where guilty or where you're coming from, from, and and you'd you'd want want to stand stand up up for for yourself, yourself, because because I I would want to stand up up for myself myself if something something was said againstagainst me that that was untrue. was untrue.

MR. MR. SCHMIERER: Right. Right. And And that's that's certainly certainly a a reasonable position reasonable position to take. We just just want to know, and of course, if that's your personal your personal belief, that's your personal belief. We justjust want to know, if the Court were to instruct you you on that, as that Court's already, already, you you know, know, stated, would you you be be able able to to not not hold hold anything against against a a defendant defendant should should he he or she decide not or not to testify? testify?

PROSPECTIVE JUROR NO. JL5A-8: I I would try, yes. yes.

MR. SCHMIERER: Okay. And I completely understand. By I completely saying "I By saying "l would try," do you have would try," have some some reservations about whether you'd you'd be be able to do that? that'?

PROSPECTIVE PROSPECTIVE JURORJUROR NO. JL5A-8: I NO. JL5A-8: I mean mean I, I, no. I'd still, no. I'd still, like like it's it's still, still, my own person, my own if it person, if it was me, I was me, would want I would to defend want to defend myself. myself.

MR. SCHMIERER: I I understand. Okay. Thank you, ma'am.

MR. MR. WISCHNOWSKI: Good Good morning, morning, Ma'am.

Ma'am.

PROSPECTIVE PROSPECTIVE JUROR JUROR NO. JL5A-8: Hi.

Hi.

MR. WISCHNOWSKI: WISCHNOWSKI: Just a a few few follow follow ups.

PROSPECTIVE JUROR NO. JL5A-8: Okay.

Okay.

MR. WISCHNOWSKI: MR. WISCHNOWSKI: So So if Judge Shahen Shaben instructed instructed you and the other potential jurors you can't hold it against the defendant if he chooses not testify testify could you you follow that instruction?

Page Page 440f83 of 83 PROSPECTIVE PROSPECTIVE JUROR NO. JL5A-8: JUROR NO. JLSA-8: Yes.

Yes.

MR. WISCHNOWSKI: Thank you. you. (WHEREUPON, the prospective prospective juror left the courtroom) courtroom)

After After the the trial court heard trial court arguments regarding heard arguments regarding the the Motion Motion to Strike. The to Strike. The juror was returned to the courtroom and the following following occurred: ...

THE COURT: Okay.

THE Okay. So, there's there's been been some some questions questions that werewere raised, and IIjust have a a question or two to ask you. you. This involves something you've something you've already discussed, and already discussed, and as as I I was was telling telling the the parties, parties, II was listening. I'm going to ask you basically the question that Mr. Wischnowski asked you, Wischnowski you, and II know know hehe asked asked you you a a lot. lot. I I told told you you in in the beginning that I'm going to give give instructions on the law and you you are to follow them, but also, I I told you you that you you have to answer questions with questions with candor candor and and honesty. honesty. The The candor candor is is important important here. here.

PROSPECTIVE JUROR NO. JLSA-8: JL5A-8: Okay.

Okay.

THE COURT: I'm going going to instruct you, as I I told you you earlier, that Mr. Clark, Clark, as all Defendants, as all Defendants, are presumed innocent. are presumed innocent. I'm I'm also going to also going to instruct you that the Defendant has an absolute constitutional right right not to take the witness stand, and I'm going going to tell you you that cannot be held against him to any extent. II don't use that extra qualifier, qualifier, but that is to say it simply simply cannot be.

PROSPECTIVE PROSPECTIVE JUROR NO. JLSA-8: Okay.

NO. JL5A-8: Okay.

THE COURT: That is aafundamental principle, principle, and if you you can't follow that, that's fine. If you you think that there's aachance that you you won't follow it, just follow it, just let let us us know. So, the know. So, the question question is, is, if iflIinstruct instruct you on that you on that principle, principle, that that he he has has that that absolute absolute right right not not to to testify testify and and it it can't can't be held against held against him, him, will will you you follow follow that that instruction? instruction?

PROSPECTIVE PROSPECTIVE JUROR NO. JLSA-8: Yes.

NO. JL5A-8: Yes.

(WHEREUPON, the the prospective juror left left the courtroom).

THE COURT: So, gentlemen, gentlemen, I might add that that answer is I might consistent, and although I I didn't observe the demeanor during the initial question, question, I I did hear it and it sounded that same, with that same Page 5 of 83 resonance, and so Mr. Schmierer, I'm going going to respectfully respectfully deny your deny your motion motion to strike this to strike this juror. juror. 'II II.

II. PRE-TRIAL M PRE-TRLAL OTIONS MOTIONS Prior Prior to to opening statements, the parties parties met met with with the Court on record. record. The The Court Court addressed addressed the the defenses' motion motion in in limine imine to to include include evidence of of the victim's victim's prior prior convictions. The defense provided dockets dockets and criminal information for two cases cases involving involving Chris Brown.' Brown.' A A summary of of the Court's findings findings on that motion are are below: Based Based on on the the documents that that have have been been presented presented toto the the Court, Court, Case Case No. 1.964 0f No. 1964 of 2005 2005 contains aaguilty plea plea that that occurred occurred on on July July 19, 2006, 2006, to to Count Count 1,I, which which was theft by by unlawful taking taking as Misdemeanor Misdemeanor in in the Second Degree Degree with the factual factual allegations that that can can be ascertained from from the the exhibit being that a a toolbox toolbox containing several tools belonging to tools belonging Steven Dean was unlawfully taken by by the alleged alleged victim in this case, William Brown.

The facts at Case No. 3157, where the alleged victim in this case was charged with and convicted of theft charged theft by by unlawful taking and received received a a two-year two-year probation probation sentence on November 25, 2003, are not evident on the the exhibits.

Under Under Rule 609, 609, for for the the purposes purposes of of attacking attacking the the credibility of aa witness, evidence that aawitness has been convicted of a a crime must be be admitted if it involved dishonesty dishonesty and/or false statement. The Court finds that these two convictions do involve dishonesty and/or false statements, dishonesty dishonesty in in particular. particular.

However, under the same rule, if more than ten yearsyears have passed since the witness's witness's conviction, and that is is the case, case, or or released released from confinement, whichever is later, evidence of the conviction is admissible only if if the probative probative value value substantially outweighs its its prejudicial effect. Additionally, prejudicial Additionally, the proponent proponent in in this case, case, the

Id, at 58-63.

Id at58.63 Defense Pretrial Exhibits A Defense t2 A and B.

B Page 6 6of 83 0f83 Defendant, Defendant, must give give an adverse party party reasonable reasonable written written notice notice of the the intent to use it so that the party party has a a fair opportunity opportunity to contest its use.

By By virtue of the virtue of the plea, plea, the evidence in the evidence in Case Case No. No, 1964 1964 0fof 2005, 2005, IIcan can say say that on the date of that plea, the alleged alleged victim was thirty-seven thirty-seven years years old. That That information is is gleaned from the the Guilty Guilty Plea Plea Colloquy Colloquy that that is is part of part of this this hearing evidence now. hearing evidence now. InIn this case, the this case, the Defendant, Defendant, based based upon our upon our discussions discussions yesterday, yesterday, has available alternative has available alternative means means for for attacking the attacking witness's credibility the witness's credibility and and those alternative means those alternative consist means consist of different versions of the story, among among other things—at things-at least as were recounted recounted to me by to me by counsel counsel last last night. night.

In In this case, the the Court is is also aware, based based upon upon the the discussions, that the Commonwealth contends that it has a [surveillance] [surveillance] video, video, as well as video of the officer's body body cam, that would allegedly allegedly show the Defendant in Defendant in the area where the area where the incident occurred. the incident occurred.

There is no There is evidence indicating no evidence indicating that that the the alleged alleged victim victim in this case, in this case, from from the time of the time 2006 to of 2006 to the the current current time, time, has has not or could not or could not have been not have been rehabilitated rehabilitated during during that that time, time, and and there there is no indication is no of a indication of a history of history of other other matters matters from from the the long-ago crimes that long-ago crimes that the the Defendant Defendant isis seeking seeking to to use in this use in this case. case.

IIfind find that that under under the evidence that's the evidence available in that's available in this case, that this case, that if these these were to be used for any reason, they they would have agreater a greater tendency tendency to smear the smear character of the character of the the witness witness and and suggest suggest propensities propensities that that are are not not related to the issues or at issue in this case. And under the circumstances circumstances of of this case, and this case, and given given the the age of those age of those crimes, crimes, this this evidence would would not not provide provide aalegitimate legitimate reason reason toto discredit discredit this this witness witness as an untruthful person under these circumstances. Ialso find that there as an untruthful person under these circumstances. I also find that there was no was written notice no written notice that that was was provided provided toto the the Commonwealth Commonwealth of of this this intention. intention.

Based on all Based all those those factors, factors, I'm going going to to deny deny the the oral oral motion motion in limine of the of the Defendant Defendant to admit the criminal convictions of thethe alleged alleged victim in Case in Case Numbers Numbers 315 of 2002, of 2002, and and 1964 of 2005, 1964 of 2005, Beaver Beaver County County numbers. numbers, • 3

Transcript of Record, July 6, 2022, at Tenseript 13 a1 18-22.

Page 7 of 83 7of83 The next issue addressed in the pre-trial discussions involved the admission of aarecorded recorded phone call call made made by by the Appellant Appellant while he he was was incarcerated incarcerated at at the the Beaver County Jail, Jail. The relevant portions portions of the transcripts transcripts are summarized below: THE COURT: Is there aadispute THE dispute as to what part part is is to be be admitted?

MR. SCHMIERER: One section of the jail jail call.

MR. WISCHNOWSKI: We both listened to it last night, Your Honor, and from minute 18:04 to minute 18:20, the Defendant states that, he states the name of an individual and says says that he'd like that person person to to put put together for the boys boys something something to drop the charges. Like, the only way he can drop the charges is if he admits he had a a knife, unquote. It's seconds, and we would be offering offering it to show that the Defendant intended to try try to bribe the victim into not coming into court or bribing him into saying saying that he had aa knife so this was self-defense.. self-defense.

THE COURT: All AII right. right. Can you you read the quote quote again again to me?

MR. WISCHNOWSKI: WISCHNOWSKI He's talking talking to a a female and he says... says... "Talk to Will to put together for the boys something something to drop the charges." Like, the only way he can drop drop the charges charges is if he admits he had aa knife.

THE THE COURT: Mr. Schmierer, do do you agree agree that that that that is is the the quote quote that we're talking about?

MR. SCHMIERER: Well, Your Honor, what I'll say first is that, you know, it's difficult for either myself myself or Mr. Wischnowski to transcribe the call because it was difficult to hear in some respects. I I think that it would be most appropriate if the Court listens to this audio, hears the tonality of the speaker, and listens to the words that were stated to determine whether or not this is, in fact, what it says.

THE COURT: I'llI'II listen to it, but if that's what it says, I I will make aaruling ruling that it will come in.

MR. SCHMIERER: Okay. Okay. And, Judge, Judge, II would just like to place on the record my reason for asking that it be excluded. uncharged conduct that the Commonwealth This would be uncharged Page 8 of 83 would be be alleging, and it would bebe essentially going to the character evidence that Mr. Clark is in some way attempting to bribe a a witness. The way that 1 I interpreted it is that Mr. Clark was stating that he was understanding that this gentleman gentleman Will was putting something together for the boy. I I believe he was referring to the alleged victim in this case, to drop drop the charges.

It would be be my interpretation and my argument that he he 'was was not instructing anyone to bribe any witness or make any sort of request to bribe aawitness.

THE COURT: Very well. Now, my question to you, is that aa matter of argument if the evidence is admitted? Is that something that you could argue or is that something that precludes the admission of this kind of evidence where somebody does something that expresses a a consciousness of guilt? guilt?

MR. SCHMIERER: Well, I I mean, that's certainly up to to the Court to decide, and it would bebe argued if the Court permits permits its admission into evidence. But the defense is arguing at this- this point that it should not be admitted because of the danger of unfair prejudice, here in the fact that it's again uncharged conduct. conduct, It's unclear from the call the identity of the individual with whom Mr. Clark is speaking. It's also unclear from the call whether or not Mr. Clark is, in fact, instructing somebody somebody to undertake this action or if he's merely stating that it's his understanding that such an action is being taken. taken."14

THE COURT: Mr. Wischnowski, will you be admitting something into evidence which would be the record of this phone call?

MR. WISCHNOWSKI: Yes. It's going to be Commonwealth's Exhibit 9.

9,

MR. WISCHNOWSKI: Your Honor, the contested portion starts at 18:04. It's very quick. It's from 18:04 to t0 18:20.

Id. at22-26 'Ad.

14 at 22-26 Page 9 9of 83 of83 THE COURT: If you wouldn't mind, play play aalittle bit before, Mr. Wischnowski, Wischnowski, so that II can warm up up to the different affects that I'll be listening listening to. to MR. WISCHNOWSKI: WISCHNOWSKE I'll TI start it at 17:50.

MR. WISCHNOWSKI: It's at 18:01 right now, so in 3 seconds it'll be Mr. Clark speaking speaking (WHEREUPON, the the audio was was played). played)

THE COURT: Okay. What the Court hears is "Talk to," literally word-for-word as I I hear it, "Talk to Will because Will's supposed to to give the boy something to drop boy something drop the charges." charges." To me that's the part that I I need to rule on. That's the part part that, that, in effect, Mr. in Mr. Schmierer, what what I I have have to to determine determine isis whether whether that could be interpreted as consciousness of guilt, guilt, whether I I can make make the the connection between between Mr.Mr. Clark Clark over over there there and and what is supposed to be given to the boy, to, quote, "to drop drop the charges." charges." Who is the person? Who is the person that's involved in giving giving the boy something to drop the charges? charges? I If I determine that it can be interpreted to be Mr. Clark, well, then it's going going to consciousness of guilt. If II say, well, it doesn't sound that way way and and it can't be be interpreted way, interpreted way, then then we can't attribute attribute that to Mr. Mr. Clark.

Clark.

If If this could be be interpreted interpreted in in such such aa way way that that Mr. Mr. Clark is seen as trying to put something out there to have the boy boy "not show up," and I I use that in aaquote because that's what we're talking talking about, then it's admissible. And I I think that it's for the jury jury to decide if it can be interpreted interpreted that way, way, because I I believe it it surely can, and in my audio observation, it's something something that can be be interpreted that way, way, especially when when you consider consider that thethe continuation of the phrase is about dropping the charges, and it's clear what the discussion was, and that's what that issue concerned.

I recognize Mr. Clark's objection.

I understand and recognize objection. However, I'm going going to overrule that objection. objection. Your objection objection and Mr.

Page 10 of83 of 83 Clark's will be noted for the record so it's preserved. preserved. That's what that means. And we'll let the jury hear that part part of it.

So, Mr. Wischnowski, the ruling is that the Commonwealth can play the audio straight through, assuming there are no other objections and it's properly.authenticated.' authenticated." TRIAL TRIAL Trial commenced on July 6, 2022. The Commonwealth called multiple multiple witnesses during their case in chief. chief For purposes of this opinion, testimony of Officer John Bialik, Jacque Brown, Beaver County Warden William Schouppe, Schouppe, Dr. Sabrina Christie, and William Brown have been summarized.

On July 6, 2022, the Commonwealth called John Bialik Bialik ("Bialik"), aapolice police officer from the Borough of Ambridge, as their first witness. witness."16 Bialik was

patrolling patrolling Ambridge on September 11, 11, 2021.

2021. At At 7:35pm evening, Bialik 7:35pm that evening, Bialik was was dispatched to the the area of 10 1 and Beaver Road of 10 Road for aareport of aastabbing. stabbing. Bialik Bialik testified that that as they they approached 952 Beaver Beaver Road, Road, he he encountered the victim victim in in the screened-in porch of the residence. Bialik testified that Chris Brown's demeanor was scared, "like he was going to die"!' die " and that he was holding a 17 a white t-shirt that had turned red from being clenched to an injury on his neck, which ran from his jawline, across his neck to the other side of his jawline. 18There There were

Id. at 106-113 'Id.

M 1d. at68. at 68.

A Id. at73 at 73.

IA.

18 Id.aatt pg. pg. 73 Page 11 of 83 6f83 additional wounds to Brown's armpit areas." Bialik stated that his main concern when he saw Brown was to get him emergency emergency medical attention or he might die. 20 might die." Officer Bialik received an account of the incident from the victim that he went to the home of Ambridge resident Fred Turner when the defendant who was on the porch porch of that residence slashed the victim, Chris Brown, "out "out of nowhere." 21 Brown was subsequently transported to a nowhere."?' ahospital hospital by medical helicopter. helicopter. 22 Bialik walked down the street to Turner's house to secure the crime scene and search for Tyrone Clark." Clark? Once at the residence, Bialik observed aatrail of blood starting on the porch of the residence, leading onto the sidewalk and street. street. 24 Crime scene photographs, marked marked as Exhibit Exhibit 2a through through 2i," showed blood 2i, showed splatter behind splatter behind a a white white car parked near car parked near 924 Beaver Beaver Road 26 blood Road," ' on the blood on street 27 the street, and blood directly on the staircase of the residence. 2$ residence.3" At the the Turner home, Bialik came into contact with Freddie Turner and Jayvon Turner who directed him to the upstairs apartment where he found Tyrone

pId.

19 l. at 74.

I.

20Id. at 74.

74.

21Id.

1.

11Id. at 100. " p Id. at77. at 77.

I 24Id. at at92 92.

Id.at 'p 2s at 88. Admission of Exhibit Exhibit 2 and 3were and were stipulated/agreed stipulated/agreed to be be admitted admitted with with the the consent of both both parties prior parties prior to trial. to trial.

Id.At97 at 97.

Id.at J at 99 99.

29 Id. a at 100.

Page Page 12 of 83 Clark in one of of the bedrooms. 21 At this bedrooms. " this time, Bialik observed splatter observed visible blood splatter on Clark's shoes. Clark was wearing wearing clothes that matched the description given to description given police by Chris Brown; Clark was placed into custody custody immediately." immediately." Bialik went Bialik to the went to the residence of Jacque residence of Jacque Brown, Brown, aaneighbor on Beaver neighbor on Road, Beaver Road, who Bialik knew to have security cameras. Bialik spoke with Jacque Jacque Brown, who Brown, who provided him with provided him security camera with security camera footage. footage."31 Bialik was able Bialik was able to to obtain obtain an an email email containing the footage from Jacque Brown containing footage by got back to the police by the time he got police station and station and before before he he filed filed the Criminal Complaint. the Criminal Complaint. 32 On cross-examination, Bialik was asked to describe his career in law enforcement, how police reports are written, what procedures procedures are followed by by the Ambridge Police Department in the course of conducting conducting interviews, and when information gets turned information gets over to turned over to the the District District Attorney's Attorney's office. office.' Bialik stated Bialik stated that that he he was the affiant in this case, and as such he took charge charge of the investigation investigation.31 The .

following segments of the transcripts are relevant to the issues on appeal, and are included verbatim below: verbatim below; [MR. SCHMIERER (" [MR. SCHMIERER Q")]: Okay. (Q")]: Okay. And And would agree, it's would you agree, it's also also important as important as the the affiant and investigating officer to interview witnesses? witnesses? [BIALIK ("A")]: [BIALIK (A")]: Yes. " 1• Id. at 77.

30 Id. "'Id. Id. at 87.

4.at87.

Id. at 32I. at 134-135.

134-135 p4 1d. at 115-119. at115.119 1d. at 120, 121. at120, 121 Page 13 of 83 of83 0: Okay. And the goal Q: goal of an interview would be to try get to the try to get truth of what happened in a a case. Is that fair?

A: Yes.

Q: Okay. And Q: Okay. so, you And so, you know, know, obviously obviously the the point point of of the the investigation investigation is to find is to find out out what actually happened what actually happened in in the case. That's the case. fair?

That's fair?

A: Yes.

Q: And so part of your investigation, Q:And gathering the physical investigation, of course, gathering physical evidence as well as interviewing interviewing witnesses. witnesses. That's That's fair? fair?

A: Um-hum.

Um-hum.

Q: Q: Okay. And you justjust testified testified that that you've you've done interviews interviews in in the the past in that interview interview room room at the police— police- A: Yes.

Q: --the Q: --the police department; correct? In In the past past have you you had the opportunity to interview somebody who was being being accused of a a crime? crime?

A: Yes.

Yes. alleged perpetrator?

Q: The alleged perpetrator?

A: A: Yes.

Yes.

Q: Okay.

Okay. And And isis it it fair fair to to say that you you would would interview this this person person with with the the goal goal of trying trying to, well, well, one, trying trying to to find find out what what their their version version of of the events would would be? be? IsIs that that fair? fair?

A: Yes.

A; Q: Okay. And it would also be potentially potentially to, if there was incriminating evidence, to get get it from them. Is that fair?

A: Yes.

Q: Okay. And, Q: And, you you know, know, certainly there's stages of how there's stages how you you would do this. You have to read them their Miranda rights. rights. Is that true?

A: Yes.

Q: And ifif they they want want to speak with with you, you, then then at that point they that point they would be be able to to speak with with you. Is Is that that true? true?

A: A: Yes.

Yes.

Page 14 0f of 83 Okay. And Q: Okay. And using using your training as your training as aapolice officer, you police officer, you would would interview them and gather this evidence in the course of your your investigation? investigation?

A: A: Uh-huh.

Uh-huh.

Q: That's fair? Okay. And this can also serve in some circumstances, circumstances, if you interviewed aapotential suspect, if you were to determine after that that interview interview that that they they weren't weren't aapotential suspect, it potential suspect, it could potentially potentially clear that that person. person. Is Is that that fair? fair?

A: Yeah.

Q: Okay. So, and obviously the goal of the the investigation investigation is to to uncover uncover the the truth of what's going on. what's going on. That's That's accurate? accurate?

A: Uh-huh.

A: Uh-huh.

Q: Okay. Now, again, what's in your your report you testified is the full report you account of what you did in your investigation investigation in this case. Is that true?

A: Yeah.

Q: Okay. Now, Q: Okay. Now, is is it fair to state fair to state that that in this case in this case you you did not conduct did not conduct a a witness interview of the Defendant Mr. Clark? Is Is that true?

A: We did not formally interview him, no. He declined aastatement.

Q: Okay. Is that in your your report? report?

A: A: It It is is not. not."° On redirect, the following questions were asked: following questions MR. WISCHNOWSKI: Now, you were were asked a a number of questions questions about the completeness of your investigation investigation by by Mr. Schmierer; Schmierer; correct? correct'?

BIALIK: Correct.

MR. WISCHNOWSKI: Is your duties as aapolice police officer, is it fair to say that say that you communicate with you communicate the attorneys with the attorneys for the Commonwealth for the Commonwealth and the attorneys attorneys for for the the defense quite frequently; defense quite frequently; correct?

BIALIK: Correct.

BIALIK: Correct.

ssd.

Id.at122-125 at 122-125 Page Page 15 of 83 of 83 MR. WISCHNOWSKI: Is it customary for the defense to reach out to the police sometimes to ask you questions questions about aacase that you you know of?

MR. SCHMIERER: I'm MR. SCHMIERER: I'm going going to to object, object, Your Your Honor. Can we Honor. Can have aa we have side bar?

THE COURT: Alright.

Alright. (WHEREUPON, the (WHEREUPON, the following following proceedings proceedings were had at were had at sidebar:) sidebar:) MR. SCHMIERER: I MR. I would ask for for an an offer offer of of proof. proof. I'm l 'm not not sure sure where this going with the defense communicating communicating with the affiant, and I I think think it's it's beyond beyond the the scope scope of of cross.

MR. MR. WISCHNOWSKI: WISCHNOWSKI: Your Your Honor, Honor, hehe asked asked a a lot of questions lot of about questions about investigation. I the completeness of the investigation. just want Officer Bialik to I just testify whether or not Mr. Schmierer reached out to him to clarify clarify some of these points and whether hehe would would have have made himself himself available, if asked.

MR. SCHMIERER: I I don't know that it's appropriate appropriate then for the Commonwealth to to suggest that the the defense obligation to defense has some obligation to communicate with with the the arresting arresting officer about any any matters. matters. IIthink what the Commonwealth, what the Commonwealth, what Mr. Mr. Wischnowski Wischnowski is is trying trying to suggest to to suggest the to the jury is is that somehow, asas a a defense attorney, attorney, I I have have to reach reach out out to the the arresting officer and and try to set up up some sort of interview— interview- THE COURT: The objection's overruled. It's not that he's saying saying it's an obligation. I an I don't don't see that as the question. I the question. I see see it as you've you've now now asked asked aa lot lot of questions, the of questions, the majority majority of of the the questioning questioning ofof the the investigation and how he conducts it and his accessibility accessibility you, to you, not an an obligation. obligation. Your Your objection's objection's overruled. overruled.

MR. MR. SCHMIERER: SCHMIERER: If If!Icould could just renew renew my, my, what what I I tried to to do do is just just phrase my questions as being pertinent to the initial statement of the investigation. With respect to Mr. Clark, I I believe that after Mr. Clark has has been been given given counsel, it would would bebe inappropriate inappropriate to to comment on his giving any sort of statement once he had received counsel because he has has aa Sixth Amendment Amendment right to to counsel, and he he doesn't have to give aa to give statement. He did not have counsel at the scene when the questions were directly whether or not he had been interviewed by by police at the scene. And And after that once he received received counsel, to comment on whether or not not counsel has to to reach to to the the police police to to try try to get counsel's to get

Page 16 0f of 83 client's interview or anything like that I I believe would be inadmissible encroaching on the encroaching right— the right- THE COURT: The objection objection is overruled.

MR. MR. SCHMIERER: Thank you, you, Your Your Honor.

Honor. (WHEREUPON, the (WHEREUPON, the sidebar sidebar proceedings were concluded, proceedings were concluded, and and thereafter thereafter the the following following proceedings proceedings were were had had in open Court:) in open Court:) THE COURT: Mr. Wischnowski.

MR. WISCHNOWSKI: Thanks, Your Honor. Officer Bialik, Bialik, II was asking you just in you about your communications, just general, with in general, with defense defense attorneys with with the the cases that you conduct, the the investigations investigations that that you you lead. Do you know pretty much every every criminal defense in this county? county?

BIALIK BIALIK ["A"]: ("A"J: I I know aalot of them I I would say. say. Yeah, Yeah, I I know aalot of them. of them.

MR. MR. WISCHNOWSKI WISCHNOWSKI[" Q"]: Do HO"]: Do you you communicate communicate with them almost with them almost every day every day or at least or at least every every week? week?

A: A: Honestly, Honestly, no. no. IIhardly ever. Minus hardly ever. Minus aafew, few, I I hardly ever speak hardly ever speak to to them. them.

Q: If Q: If aadefense lawyer reached defense lawyer out to reached out to you to ask you to ask you you some some questions questions about your investigation, would you you make yourself yourself available up up until the time of trial?

A: A: If If someone called, yes. someone called, yes.

Q: Did anybody on Mr. Clark's behalf reach out to you Q: you to ask you you some of some of those clarifying questions? those clarifying questions?

MR. SCHMIERER: I'm going to renew my objection, objection, Your Honor.

THE COURT: THE COURT: Overruled.

Overruled.

BY BY MR. MR. WISCHNOWSKI: WISCHNOWSKI O: The question is, did Mr. Schmierer or any Q: any counsel or Mr. Clark ever reach out to you to ask you to clarify clarify some of those things things you you were asked about?

A: A: No. No. Q: Q: Now, Now, you got to to watch watch the the video video that Mr. Mr. Schmierer referenced referenced of of the surveillance surveillance camera footage; footage; correct?

A: Yes.

Yes.

Page 17 of 83 0f83 That was Q: That was provided to you provided to you by Jacque Brown? by Jacque Brown?

A: Yes.

Q: And Q: And you watched it you watched before you it before you filed filed the the charges; charges; correct? correct?

A: Yes.

Q: Did that impact Did that impact the the way that you way that you filed filed the the charges and the charges and the decisions that you you made made when when you you prepared prepared your your Criminal Complaint?

Complaint?

A: Yes.

Q: How How did it influence influence you? Well, let let me me ask it to you you this way. way. How How many people many people were were in in that that footage? footage?

A: Two.

A: Two.

Q: And were you able to identify easily? identify them easily?

A: Yes.

Q: Who Q: Who were were they? they?

A: A: It It was William Christopher was William Christopher Brown Brown and and the the Defendant.

Defendant.

Q: Q: Why Why weren't weren't you you concerned concerned that Mr. Mr. Brown Brown might might have have raised raised a a knife knife before the Defendant Defendant raised raised his his knife? knife?

A: His, it A: His, it appeared appeared he he had had his his arms arms crossed. crossed. I don't want I don't want to, we'll say, to, we'll say, you you couldn't really see his arm, but you could see he was in a a non- threatening threatening manner— manner- MR. MR. SCHMIERER: SCHMIERER: Your Your Honor, Honor, I'm I'm going going to to object at this object at this point. point. II think think that that we're discussing the we're discussing video that the video that we've, that that hasn't been hasn't been admitted into admitted evidence at into evidence at this this point, and obviously point, and obviously the the video video isis the the best evidence best evidence ofof what what is being discussed. is being discussed.

THE COURT: THE COURT: Overruled.

Overruled.

MR. MR. WISCHNOWSKI: Thank you.

WISCHNOWSKI: Thank you.

BY MR. BY MR. WISCHNOWSKI: WISCHNOWSKI: Q: So you were explaining explaining that Mr. Brown was standing standing in aa nonthreatening nonthreatening way. way. How How was was the the beginning of the beginning of the video, video, how how was was Mr. Mr. Clark Clark portrayed portrayed in in that that video? video?

A: Passive. If IIhad to describe him, he was lounging. lounging.

Q: Was Was he he seated? seated?

Page 18 of 83 6f83 A: Yes.

Q: And is there aapoint where he's not in his seat any any longer? longer?

A: Yeah. He gets up, and it appears from the video that he is also nonthreatening until all of a a sudden you could see him moving, but it wasn't, like, aggressive, like hands up like he was going to fight. fight. He was just moving, and then you see a a sudden thrust[sic]. thrust[sic].

Q: Based on your evaluation of that video which we'll see soon, was Mr. Brown ready for the actions that the Defendant took?

MR. SCHMIERER: Objection.

MR. SCHMIERER: Objection. Calls Calls for for speculation. speculation.

THE COURT: Sustained.

BY MR. WISCHNOWSKI: W1SCHNOWSKJ: Q: After you watched the video and evaluated both parties' behavior, did you think there was any basis to believe that the Defendant acted in self-defense such that you couldn't file charges?

MR. SCHMIERER: Objection. This calls for legal conclusion.

THE THE COURT: Sustained. " COURT: Sustained. 36

The Commonwealth's next witness was Jacque Brown, a a neighbor of Fred Turner, who provided surveillance footage related to the incident to investigating investigating officers. officers.'37 Jacque Brown testified that she reviewed her security footage after

Officer Bialik came to her residence and asked her to check her cameras." Approximately one minute of the video was played for the jury; Jacque Brown was able to verify the contents of the video and confirmed that the camera that captured this footage was motion activated. The footage depicted Chris activated.39The

Id. at 137.

I.

11 137- 144 pl at 144 '7 Id. at I44 IId.

11d. at 148. pId.at at 150.1$2; 150-152; see also, Commonwealth Exhibit 8 8.

Page Page 19 of 83 of83 Brown standing by aapillar on Fred Turner's porch porch with the Appellant Appellant seated behind him." behind him.

The Commonwealth's Commonwealth's next witness witness was Schouppe ("Schouppe"), was William Schouppe ("Schouppe"), Warden of the Beaver County Jail," Jail,41 who verified that the Appellant Appellant was an inmate at the the Beaver Beaver County County Jail Jail in September of of 2021 2021.42 Inmates Inmates at at the facility facility are are allowed to place and receive phone calls, these phone phone calls are recorded and subjected to monitoring 24/7; both parties on the call hear an audio recording 24/743both recording that informs informs them them the the call call is subject to is subject to monitoring and recording monitoring and recording..41

Schouppe testified that the Appellant placed aaphone call on September September 26, 2021, and that Schouppe had an opportunity to review and authenticate the recording prior to giving his testimony. testimony."15 The jail jail phone phone call was admitted under Commonwealth's Exhibit 9 and played for the jury jury with no objection objection from the defense. 46 defense." Dr. Sabrina Christie, a a staff surgeon at UPMC Presbyterian, Presbyterian, was called as a a witness for the Commonwealth. 47Dr Dr. Christie covers the trauma surgery surgery service and attends to patients who are injured surgical emergencies. injured or have surgical emergencies."48

Ad at 151.

40 Id. at151 Id. at "4.

41 at 154.

154.

42 1d.

I "Id. at 156.

43 Id. at 156.

44 1d. d 4s Id. at 157.

Id. at 1$7 Portions played portions 46 played during during trial and submitted to to evidence were limited to ((I 1) from minute 4:39-4.59;(2) 4:39-4:59; (2) 8.34-8.:54; 8:34-8:54; (3) 14:07-14:55; 14.07-14:55, (4) (4) 18:04-18:20.

18.04-18.20 "1 Id.at165 at 165.

4s id. d Page 20 0f of 83 During her testimony, the Commonwealth asked Dr. Christie to "educate the jury aalittle bit about the different types types of bleeds that you you might might see and how you you might rank or characterize the types of bleeds that that [she [she would] would] see in the trauma unit?" at which point a unit?"49at a sidebar was requested requested by by the defense, which is transcribed below: verbatim below; MR. SCHMIERER: Judge, it's my understanding that Commonwealth my understanding does not intend to qualify this witness as an expert expert in this case, case, and I I thought thought it it was was fair fair for for the the Commonwealth Commonwealth to to have have the the doctor doctor testify testify a a little bit about the trauma unit and her experience experience there. My My concern is that she's now getting getting into medical specific specific testimony testimony that would require require her her being made an being made an expert. expert. If If she starts giving she starts giving medical medical testimony testimony about about different different types types of of bleeds and what bleeds and what she categorizes as she categorizes as different types different types of of injuries, injuries, now, now, it's it's my my understanding understanding the the Commonwealth will ask her about her observations about the alleged alleged victim, what she did, which IIthink is fair fact testimony, testimony, but to ask her medical scientific opinion questions about the types types of injuries injuries and how how she categorizes categorizes them them I I think think goes goes beyond beyond a a fact fact witness witness and and itit moves it into the realm of an expert expert testimony. testimony. And the Commonwealth in its its statement statement did not not intend intend to to offer this this witness witness as an expert, and so I I just just want to make sure that we keep keep it as aafact witness.

THE COURT: Mr. THE COURT: Mr. Wischnowski_ Wischnowski WISCHNOWSKI: Your MR. WISCHNOWSKJ: Your honor, she just honor, she described the just described different the different levels levels of of trauma, trauma, 1 through through 3, and and I I want want her her to to be able to be able explain to explain William Brown was admitted at the highest highest tier as aaLevel 1.

I. I1think she deserves to to give some content, and I I haven't any haven't asked her any opinion testimony. I I haven't haven't asked her her to any opinion-based to draw any opinion-based conclusions. conclusions.

MR. SCHMIERER: If MR. SCHMIERER: If I I may may respond, Judge. respond, Judge.

COURT: Yes.

THE COURT: Yes .

Pg. 170-17l Pg.

49 170-171 Page 21 0f83 Page 21 of 83 MR. SCHMIERER: I I think that she can say say that Mr. Brown was aa Level 1,I, because that's a a fact. II think to ask her the specifics specifics about why, delve into her opinion opinion about why why she thinks that this person person was admitted as aaLevel 1, it, Level I, it, IIthink think is, is, it's it's kind kind of of nuanced, nuanced, but but II would would ask the Court to restrict the testimony testimony to justjust what her observations were were and thethe fact fact that he was was admitted admitted to to Level Level 1.

L. That's a a fact. fact. Why Why was was he admitted to Level Level 1? 1? Well, because injury met because his injury met certain criteria that would— would-- THE COURT: THE COURT: All All right. The objection right. The objection is is overruled. overruled. I I see see in this in this testimony where we testimony we are now. now. IfIf we we go go to to aapoint point where expert where an expert opinion is being being asked, you can renew your objection, but where we your objection, are now are now is seen as is seen as foundational. foundational. Given Given her experience so her experience so far, far, there's there's circumstances she has to know to serve in this capacity.capacity. So, I I think that that she she can say say and serve serve in in this capacity. They this capacity. They aren't expert expert opinions. But if you opinions. you think the line is crossed, we're not there yet, yet, you you will have obviously an opportunity opportunity to renew your objection and your objection continue our discussion. discussion." 50 Dr. Christie generally Dr. Christie generally described described different different types of bleeds types of that occur bleeds that occur in in aa patient patient with a a laceration laceration injury. injury, She also described described how how trauma is is leveled leveled in in order to care for to care patients admitted for patients admitted at at UPMC, UPMC, explaining, "a Level explaining, "a Level 1 I trauma is if you trauma is you have have a a penetrating penetrating injury, meaning aacut injury, meaning or aagunshot cut or gunshot wound wound to to your arms closer your arms closer to to your your legs closer to your body than the elbows, your legs body than the knees, your body anywhere on knees, anywhere your torso at all, or on your head and neck, and the reason is that those injuries injuries are, by definition, life life threatening." threatening.">' The Commonwealth then $1 then turned to the following the following questions: questions: MR. WISCHNOWSKI: And let's turn it more specifically to lacerations across the neck.

A.: Okay.

A: so Id. 1 at 173.

4at173.

Id. at174.

14.

51 at 174.

Page 22 of 0f 83 Q: How many thoseihave you treated many of those-have treated in in your your years years working working around the hospital?

A: Hundreds.

Hundreds.

Q: Now, and have you studied anatomy extensively throughout throughout your different different levels levels of education? education?

A: A:IIhave. have.

Q: Explain Q: Explain the the significance significance what the the platysma platysma muscle muscle is. is.

A: So, the platysma platysma muscle is a a fine muscle that overlies the front of the neck. the neck. If, If, you can see, I you can I can show you. you. It's It's that that muscle when II flex flex (demonstrating). It's It's very very thin. thin.

If lfaapenetrating injury, aa knife or a a gunshot wound goes goes through through that platysma muscle, it enters the zone of the neck where all of the major major structures lie. And so, if you have aalaceration that doesn't make it it through that muscle, classically you can wash that laceration out at the bedside. It doesn't need to be taken to the operating operating room because you you have really no shot of having aaserious injury.

Deeper than that, that, you you go to to the the operating operating room room because you you could cut any number of things that are life threatening.

Q: Q: In terms terms of the depth of of the cut, how how many many centimeters past past the the platysma is concerning as aa trauma surgeon?

A: Anything— Anything- MR. MR. SCHMIERER: SCHMIERER: Your Honor,Honor, I'm I'm going going to object at at this this point. I I think we're, again, again, we're we're going beyond that that scope scope of fact fact to to opinion opinion witness.

THE COURT: Mr. Wischnowski.

MR. MR. WISCHNOWSKI: Your Honor, I I didn't didn't ask her her to give an opinion. opinion. II asked her factually as aatrauma surgeon how deep does a a cut have to be be concerning. be to be concerning. Again, this is within the context of the different levels of trauma that she's already discussed.

THE COURT: Well, THE Well, based based on what what we we discussed and and the progress progress of of your questions, I your questions, I am am going to sustain the objection and ask you to move on.

BY MR. WISCHNOWSKI: WISCHNOWSKI

Page 23 of 83 0f83 Q: You said that You said that there's there's major major parts parts of the neck of the neck that that if if you you pierce pierce the the platysma are very concerning. concerning. What are those body body parts parts or vessels?

A: A: So there's there's the major major artery and veinvein that gogo to to the the brain and come back from the brain. So that's your your carotid and youryour internal jugular. jugular.

And then And then there's there's aathick nerve that thick nerve that runs runs with with that that bundle bundle that that if's it's very very important important notnot to cut as to cut as well called the well called the vagus vagus nerve. nerve. And And then then the other the other structures that structures we really that we really worry about being worry about being immediately life immediately life threatening threatening are any injury injury to to the the trachea, the airway, or the airway, your or to your esophagus. That won't won't immediately kill kill you, esophageal injury, you, an esophageal injury, but but it will kill you you in in aanumber number of of hours. hours.

Q: Q: Now, Now, let's turn tum to to September 11, 2021. Were I I, 2021. Were you you working working in in the the trauma unit trauma at Presby unit at Presby that that evening? evening?

A: Yes.

Yes. I I was was the the staff surgeon on call.

Q: And did you treat aapatient named William Brown that evening?

Q:And evening?

A: A: I I did. did.

Q: And based on the things you did that night your patient night with your patient William Brown, William did you Brown, did you prepare prepare a a report? report?

A: A: IIdictated dictated an an operative operative dictation, dictation, yes. yes.

Q: Q: I'm I'm handing handing you you a document. Can a document. you take Can you take aalook look at at that? that? Do you you recognize that two-page recognize that two-page document'? document?

A: A: I I do. do.

Q: What Q: What is is it? it?

A; A; It's my operative It's my operative dictation, dictation, so so my description of my description of what what I I did in the did in the operating operating room. room.

Q: And is there aadate near the top Q:And top of it, it, aasurgery surgery date?

A: A: Yes.

Yes.

Q: What What is is that date? that date?

A: It is 9/11/2021.

Q: And above Q:And above that, that, does does it say the it say the patient patient name? name?

A: It A: does.

It does.

Q: What's What's the name of the the patient? patient?

Page 24 0f of 83 A: William William Brown.

Brown. ...

MR. WISCHNOWSKI: Your Honor, I'd move for admission of Commonwealth's Exhibit 11.

II THE COURT: Any objection?

MR. MR. SCHMIERER: SCHMIERER: Can Can we approach? we approach?

THE COURT: COURT: Sure. proceedings were had (WHEREUPON, the following proceedings at sidebar:) had at MR. SCHMIERER: I MR. I don't have any objection to any objection to this being being admitted and made and made part of the the official record. I I just want want to clarify clarify for the the record, and II think Mr. Wischnowski agrees, agrees, this should not go go back to to the the jury. jury.

THE THE COURT: Right.

Right.

MR. WISCHNOWSKI: Yeah. I'm not asking asking for that.

MR. MR. SCHMIERER: SCHMIERER: As As long as that's clear, clear, I I don't have have an objection an objection to it being admitted and made part of the official record.

BY MR. WISCHNOWSKI: WISCHNOWSKI Now, walk Q: Now, us through walk us through when when you you first first became became aware aware ofof Mr. Mr. Brown's admission to Brown's admission to the the trauma, or to trauma, or to the the hospital that night. hospital that night.

A: We A: We all all carry pagers that all these Level Level Il and Level Level 22traumas are sent out across so that sent that we can respond appropriately. The patient respond appropriately. patient obviously obviously met criteria for met criteria for aaLevel Level 1 I trauma, trauma, and and so so a a Level Level 1I page page was was sent out, and we came to the trauma bay.bay, The patient was brought in with a a large large dressing over his neck which is often the case when somebody somebody has substantial bleeding. bleeding. People People tend to cover it up with aadressing trying to stop the bleeding, bleeding, but youyou can hide aalot of blood under the dressing. So, one of the very things things that we do is to make sure that we see the injury, injury, so I I took the dressing dressing down very very quickly, quickly, and and it it was was immediately immediately clear clear that that this this was was aa life- life- threatening threatening bleed.

Page 25 of 0f 83 Q: I'm going Q:I'm going to to show you you Commonwealth's Exhibit Exhibit 4.° 4. I I understand 52

that, that's already already in evidence, but I I understand you you didn't take that photo, photo, but does that look similar to the sight sight you you say say when you you looked at Mr. at Mr. Brown?

Brown?

A: It A: does.

It does.

Q: Q: Okay. And what's, Okay. And what's, as an an experienced experienced surgeon, as an surgeon, as an experienced experienced practitioner, what is your biggest medical practitioner, biggest concern when you you look at something like that in a something a patient? patient?

MR. going to MR. SCHMIERER: I'm going to object, object, Your Honor.

Honor. I think— I think- THE COURT: Rephrase THE COURT: Rephrase the question. the question.

BY BY MR. WISCHNOWSKI: MR. WISCHNOWSKI: Q: Q: What's your priority What's your priority when you look when you at a look at patient who a patient who has has aa laceration laceration across his his neck neck and and his his throat like like that? that?

A: Preventing A: him from Preventing him from dying. dying.

Q: So what is is the the first first thing that that you did did when when you you saw saw him you him after you looked looked at the wound? at the wound?

A: A: He was was actively bleeding inin aalife-threatening way, and so II life-threatening way, manually manually compressed compressed the the bleeding, bleeding, which which in in him was the him was the entire entire rim rim of of tissue on the lower lower portion portion of this this laceration. So So I I wrapped wrapped with with my hands like this hands like this (demonstrating). (demonstrating).

Q: Okay.

Q: Okay. So So where where did did you take him? you take him?

A: A: To To the operating room the operating room immediately. immediately.

Q: Q: So, you you get get up to the operating operating room. room. Tell us us what what you you did did next. next.

A: A: Well, Well, the the patient had to patient had to have have a a breathing breathing tube tube placed, so I placed, so I held the held the incision while the incision while the anesthesiologist anesthesiologist placed the breathing placed the breathing tube tube there. there.

And then in And then order to in order to move move him him over over and and clean clean the area as the area as we we normally normally do for do surgery, I for surgery, I couldn't move my couldn't move my hands, hands, and and I believe my I believe my resident resident was in was in another another room room with with another another trauma, trauma, and so I and so I actually actually had to had to have the anesthesiologist, anesthesiologist, I I showed him where to hold, and I I very very

"Commonwealth commonwealth Exhibit 4 4 was aaphotograph of the neck neck wound sustained by the victim, Transcript of Record, July 6, 2022, at 72, Commonwealth v. tip. Clark, 1651 of 202 2021.

Page Page 26 of 83 0f 83 Circulated 1200331M.15 PM

quickly got some sutures and IIover-sewed the exsanguinating bleeding so I I could just prep him for operation.

Q: How common is that to go right to stitching at that point in the operating procedure?

MR. SCHMIERER: I'm going to object, Your Honor.

THE COURT: Sustained.

BY MR. WISCHNOWSKI: Q: Now, did you take note of how big the laceration across the neck was? was?

A: Imeasured it in the operating room.

A:I Q: How big was the laceration?

14 centimeters long by 7 A: It was I4 7 centimeters wide by 55centimeters deep.

Q: Q: Is the 55centimeters in depth enough to pierce the platysma muscle?

MR. SCHMIERER: I'm going to object, Your Honor. Again, this is, calls for expert testimony.

THE THE COURT: COURT: Overruled.

Overruled.

BY MR. WISCHNOWSKI: WISCHNO WSKI Q: You can answer the question.

THE COURT: In this particular case we're talking about?

MR. WISCHNOWSKI: Yes.

THE COURT: All right.

BY MR. WISCHNOWSKI: Q: In this particular case, was the 5 centimeters in depth that you observed enough to pierce the platysma muscle?

A: His platysma muscle was completely separated.

Q: Now, to sum it all up, was Mr. Brown in danger of death before before he came into your care that night?

MR. SCHMIERER: Objection, Objection, Your Honor.

Page 27 Page of 83 0f 83 THE COURT: Overruled.

BY MR. WISCHNOWSKI: Q: Q: Was Was he— he A: Yes. Absolutely.

Mr. Wischnowski: No further questions, Your Honor. 53 The following following day, the the Commonwealth called the alleged victim, the alleged victim, William William Christopher Brown Brown ("Chris ("Chris Brown"), to testify." testify. Chris Brown testified that he has lived on Beaver Road for 21 2l years, years," and had interacted with Tyrone Clark before

the incident occurred. occurred."S6 Chris Brown stated that he knew Clark well enough to

recognize him in person, and accurately identified him in the courtroom during during his testimony. 57 testimony.° On September 11, 2021, at around 7:30 p.m., Chris Brown left his house and headed for Fred Turner's house to see Jayvon Turner, explaining that he had no weapons on him. 58 When he arrived at Fred Turner's porch, Tyrone Clark was hin.5% sitting on the Tumer's Turner's porch. Brown asked Clark if he could go get Jayvon Turner for him, Clark told Brown to knock on the door. door."Chris Chris Brown began knocking on the door, but received no response. response. 60 At this point, Chris Brown rested against the porch post, with his hands folded underneath his arms. anms."61 Chris Brown testified that "Id. at 175-187.

1 at175-187.

Sa Transcript of Record, July 7, renscript 7, 2022, at 61, Commonwealth ofPennsylvania •is 7j rone Clark, Tyrone Clark-,1651 of 2022 2022.

55 Id. 1d Id. at 62.

14. at 62 Id. "Id Id. at70 Id. at 70.

59 Id. at 66.

1lat 66. « Id. Id, at 'd, 67, 69; see at67,69; also, Commonwealth see also, Commonwealth Exhibit 2(d).

Exhibit 2(d) Page 28 of 0f 83 at this this point he he said to to Clark, "You can't get up can't get up and and get get him him out for me? me? You You can't treat me like one of those dumb ass white boys that you be talking to?" 62 At this talking tor8 point, Clark got up from his chair, and Brown believed that he was going going to get get Jayvon Turner for him. On direct examination, Brown stated: A: I'm thinking that A:I'm that we we had aabreak break though, though, like like he's going to he's going to get get upup and go get this young young boy for me. And then that's when, when, at first II thought he was punching me. All right. right. So I'm laughing. laughing. And then I I seen the blood squirting, and that's when I I put put my my arm up, up, and I got I got cut here too. [MR. WISCHNOWSKI] [MR. WISCHNOWSKI] Q: From From the the moment moment that that you you realized he was punching you, did you change your position from that leaning stance with your your hands folded?

A: No, it's just like two or three quick smacks, but there, there was an object in his hand.

Q: Why did you you laugh? laugh?

A: Because the first initial blow was like, like really? really? And then, then when II seen the blood squirting[sic] squirting[sic] that's when II realized he had something and he was cutting me me with something. with something.

Q: Q: Did Did you you try to fight fight back or have aachance or- or— A: A: No. No. Q: --have a Q:--have a chance to fight fight back?

A: No. I I just, like, defended myself. Put my my arm up. up.

Q: And again, again, is anything anything in your your hand that you you lifted?

A: A: No. No. Q: Q: Okay. Now what happened happened to you after you were struck several times times on the the left left side?

A: I I jumped off the porch, fell over the wall face first, and then blood was really really coming out, so I I took my my shirt off and tied it around my neck. And Fred, the resident of the house, come and told me, he said, "Chris, Chris, you better go home, because itit look kind of bad." ez Transcript ranscript of Record, July 7, 2022, at 66, 11651 of 2022.

Page 29 of 0f 83 Q: Where, so you end up in the street; correct?

A: Correct.

Q: Q: After After you realized what what had happened, happened, you're you're bleeding bleeding and and you're you're in the street, what did Tyrone do? What did Mr. Clark do?

A: Just aalittle taunting.

Q: What did he say to you from the porch as you were down in the street?

A: I, Iasked, "Why you cut me? What you cut me for," and the words A:I,I come out of his mouth. mouth, Q: What were they?

A: "I "I should have killed you." you. "63 After Brown's testimony, the Commonwealth and the Defense moved for a a motion for aajudgment of acquittal as to all counts: MR. SCHMIERER: Your Your Honor, Honor, I I would make make a a motion for judgment of acquittal as to all counts, specifically with respect to the criminal attempt criminal homicide I I would argue argue that the Commonwealth has not produced sufficient evidence, well, that they they have not produced sufficient evidence as to all counts, but specifically specifically with respect to the criminal attempt homicide that to kill the victim, which is required.

THE THE COURT: So there's no question that specific intent to kill kill can be inferred from the circumstances surrounding the incident and the contact, and in addition to the instruction that Mr. Wischnowski points points out to the Court. It's aa matter of law that the specific intent intent to kill may be be inferred from the fact that the accused used a a deadly weapon weapon to inflict an injury to aavital part part of the victim's body. body.

The Court finds in this case, at least at this time, that the alleged instrument of the crime, aa blade, could bebe considered aadeadly weapon and that the area of the body where the injury was inflicted could be determined to be be or decided by the jury jury to be aavital part.

es Id. at 70-72 Id. 74-72 Page 30 0f of 83 So, based upon So, based the circumstances upon the circumstances of of this case and this case and the the application application ofof Pennsylvania Pennsylvania law, law, not not only only for Count 1, for Count criminal attempt I, criminal attempt at criminal at criminal homicide, first homicide, first degree degree homicide, homicide, the other counts, the other counts, Count Count 2, 2, Count Count 3, 3, Count 4, 4, and Count 5, thatthat would would bebe aggravated aggravated assault, assault, simple simple assault, reckless assault, reckless endangering, endangering, andand harassment, respectively, the harassment, respectively, the Commonwealth has Commonwealth has presented sufficient evidence, presented sufficient evidence, atat least least prima prima facie facie evidence, that evidence, that the jury should the jury consider these should consider these charges. charges, 64 Shortly after Shortly after William William Christopher Christopher Brown's testimony, Juror Brown's testimony, Juror 14 advised advised the Court's Tipstaff the Court's Tipstaff that she may that she may have have known known the the victim victim thirty thirty years years ago when ago when he he was was in in high high school. A summary school. A summary of of the discussion relating the discussion relating to to this this matter matter is below: is below:

THE COURT: Okay, THE COURT: Okay, so so the the next next thing thing I I need need toto address, address, Ms. Marla, Ms. Marla, the the tipstaff, tipstaff, told told me me that that Juror 14 advised Juror I4 advised her her that that she she may may know know the the victim victim in in the the case going back case going 30 years back 30 years or so. I or so. I believe, believe, right, right, Miss Miss Marla?

Marla?

THE TIPSTAFF: THE TIPST AFF: Yes.

THE COURT: She reported THE reported to to her that she she did not not know know him by him by name, name, except except by by Chris, Chris, and and that's that's why she may why she may notnot have reported it. have reported it.

And the way And the way she she thinks she knows thinks she knows him him is she thinks is she thinks aa friend of hers friend of hers may have may have dated dated him him when when they they were were in in the the ninth ninth grade... grade... What What did did he he say [his say [his age] age] was? was? 52 or 53?

MR. WISCHNOWSKI: MR. WISCHNOWSKI: I I think he said think he said 53.

53.

THE COURT: So THE COURT: So that's what was that's what was reported. And I reported. And believe, Miss I believe, Miss Marla, Marla, did did she she report report to you that to you she's not that she's even sure not even sure if it's the if it's the same same guy? guy?

THE TIPSTAFF: Yeah, THE TIPSTAFF: Yeah, she's she's not not positive. positive. She just wanted She just everybody wanted everybody to be to aware in be aware case. in case.

THE COURT: THE COURT: Mr. Mr. Schmierer, Schmierer, do do you you have any comments? have any comments? ... ea Id. at Id. at 119-122.

119-122.

Page 31 of 83 MR. SCHMIERER: Your MR. SCHMIERER: Your Honor, Honor, it's it's the defense's position the defense's that if position that if there is there is any any possibility possibility that the juror that the could personally juror could know the personally know the victim victim IIthink that that's extremely extremely prejudicial, prejudicial, especially especially even if the juror juror does not does not know know ifif it's it's the the victim victim she she knows, knows, butbut she she may may have have anan inherent inherent bias present as bias present as aaresult of the result of the fact that she fact that thinks this she thinks this may may bebe the same person, and if it is, in fact, the same person person then I I believe it would would be be improper improper for to— for her to THE COURT: I I can tell you it's such a a black letter response response such as all or nothing response response is not acceptable. acceptable. If If there there is going going toto be be anything there will be aaquestioning or a a discussion, and, just just like in voir dire, if she says, even if I I did know him I I could still be fair and impartial, there may be no reason to excuse this person. person. So, I I can assure the parties here that there's not going going to be such a a clear-cut per per se, se, type type of of ruling on this. ruling on this.

Now, Now, ifif you you want, want, we we will have the will have the tipstaff tipstaff bring bring her out here her out here and and conduct conduct a colloquy, and a colloquy, even if and even if she does think she does think it's the same it's the same person, person, II will have to decide after I I hear from her what to do. Is it the position position of the Defendant that you would like to to colloquy colloquy this particular particular juror? juror?

MR. SCHMIERER: Yes, MR. SCHMIERER: Judge.

Yes, Judge.

THE COURT: THE COURT: What What is is the Commonwealth's position? the Commonwealth's position?

MR. WISCHNOWSKI: That's fine if they they want to do that. IImean mymy position is that the rule, like you you said, isn't so black and white. It's whether she has aaclose relationship with this person person and that can mean aa lot lot of things. It It can also not not be be aalot lot of things. things. So if if we need need to to hear hear from her. her.

THE COURT: All AII right. So what we're going going to going to do is, I'm going ask the tipstaff to get Juror No. 14 and bring bring her back out into the courtroom.

(WHEREUPON, the juror entered the courtroom).

THE THE COURT: COURT: SoSo the the record record should should reflect that Juror reflect that Juror No. No. 14 is is in in the the courtroom. The other jurors aren't. Can you please please look at your badge badge and give me and give me your your badge badge number just for number just for the the record? record?

JUROR NO. 14: 235827.

Page 32 of 0f 83 THE COURT: Okay. So it was brought to my attention by the tipstaff that you had told her some things during the lunch period. Could you tell us what it is that you reported to her?

JUROR NO. I4: 14: IIbelieve that Chris Brown may have dated a a girl that I I went to high school with, like, eighth to ninth grade that I I cheered with... She was a with...She a cheerleader that II cheered with.

THE COURT: Okay.

JUROR NO. NO, 14: Actually, like, as it was coming to me during this, like, I I had to really really think about it hard to put the pieces pieces together together on, like.

THE COURT: AndAnd so are are you sure that that the fella fella that that you you saw testify testify as William Brown, was the same fella that may have dated dated— JUROR NO. 14:4: Not 100 percent.

THE COURT: Not 100 percent.

JUROR NO. 14: I I think maybe if I I saw aayoung picture, which you probably don't have.

THE COURT: So what you're saying is you can't say for certain that was him?

JUROR NO. 14: Not 100 I 00 percent, no. THE COURT: And how long ago was that?

JUROR NO. 14: I4: I I graduated in 1990. So that that was 32 years ago I I graduated, and that would have been, like, between eighth and ninth grade or ninth and tenth. I'm not sure which one.

THE COURT: So closer to 35 35 years?

JUROR NO. 14: Yes.

THE COURT: Have you had any other contact with him between then and now?

JUROR NO. 14: No. THE COURT: Other than that, were you friends with him?

JUROR NO. 14: 14: No, not really.

THE COURT: Okay. So, if if it turns out to be him, is there anything about that knowledge of him that you do have, even if if it turns tums out to

of 83 Page 33 0f be him, would it prevent you from continuing in this case to be fair impartial for both sides? and impanial JUROR NO. 14: No. THE COURT: Would it impact impact your evaluation of the facts or circumstances in any way?

JUROR NO. 14: No. THE COURT: Okay. Would you be able to continue to follow all those instructions that I've given, and all of those rules and laws that I've given you up to this point?

JUROR NO. 14: I4: Yes.

THE COURT: It wouldn't change anything there?

JUROR NO. 14: (Indicates to the negative).

THE COURT: Okay. And have you had any discussions with any of the other jurors about that potential knowledge knowledge of that individual?

JUROR NO. 14: No. THE THE COURT: All AII right. right. And And you are the the remaining remaining alternate; right? right?

JUROR NO. 14: I4: Yes.

THE COURT: All right. I'm going to give Mr. Schmierer and Mr. Wischnowski an opportunity if they they have any any follow-up follow-up questions. questions.

MR. SCHMIERER: Good afternoon, ma'am.

JUROR NO. 14: I4: Hi.

Hi MR. SCHMIERER: Where did you go to high school?

JUROR NO. 14: Beaver Falls.

MR. SCHMIERER: And you said that you believe that Mr. Brown Brown dated a a friend of yours?

JUROR NO. 14: I4: Yes, I I believe so. MR. SCHMIERER: Where did the friend go to high school.

JUROR NO. 14: She went to Beaver Falls, but then she moved away after that that year to New Brighton.

MR. SCHMIERER: When this friend would have dated potentially Mr. Brown, would that have been when she had moved away?

Page 34 Page of 83 0f 83 JUROR NO. 14: No. When she went to our school. Like, putting putting it together in my together my mind on how, II think it might might have been, like, after our games games maybe, maybe, he he might might have have come come down down toto see see her her at at aabasketball, basketball, after a a basketball game.

MR. SCHMIERER: How often would you you say say you you would have encountered encountered him? him?

JUROR NO. 14: I1couldn't even. It's that fuzzy and that little...I little ... I couldn't even tell you how long they might might have dated. It's just just that it occurred to me that I, IIcould have known this person person at some point point in my my life, life, but but it it was was just in passing. just in passing.

MR. SCHMIERER: Okay.

MR. SCHMIERER: And he Okay. And he wouldn't wouldn't have gone to have gone to your your high high school to the best of your recollection?

NO. 14: No. I'm not even sure where he came from or how, JUROR NO, maybe maybe Aliquippa.

Aliquippa. IIdon't don't know where he know where he could could have come from. have come from..

MR. SCHMIERER: Okay. That's all the questions questions I I have. Thank you, you, ma'am.

THE THE COURT: Anything, Anything, Mr. Mr. Wischnowski?

Wischnowski?

MR. MR. WISCHNOWSKI: No, Your WISCHNOWSKI: No, Your Honor.

Honor.

(WHEREUPON, the (WHEREUPON, juror left the juror left the the courtroom.) courtroom.)

MR. SCHMIERER: Your Honor, for the record obviously, obviously, you you know, the Court will rule on this issue, it's the Defendant's position that the juror juror potentially potentially knowing knowing thethe victim victim in the case in the case would would bebe the the most most prejudicial relationship, and I I understand it was aavery very long long time ago ago and IIunderstand and that the understand that the testimony testimony isis such such that they didn't that they didn't have have a a close relationship, relationship, but but it could potentially bias this juror. this juror.

And being being that we have, she is an alternate, we have, it would not cause aamistrial cause mistrial in in this case, we this case, we would ask that would ask that this this juror be excused. juror be excused.

THE COURT: So, I'll THE I'll take take your your position, position, Mr. Mr. Schmierer, Schmierer, toto be aa motion to strike this juror, and the first part part of the analysis analysis does say that there are per per se reasons that it should be granted, granted, including, if there is aaclose familiar relationship. relationship. And I I don't find such aa relationship relationship exists. I I don't find that this juror is sure that this is any Page 35 0f83 of 83 kind of relationship, and II understand it is with the victim in the case, case, but under the circumstances that she's just just disclosed, and II also find that there that there was was no no intentional intentional hiding hiding of this this information information by by this this individual—I individual-I just want to state that for the record, too, because I I had observed her observed her demeanor. demeanor. The motion motion is is denied, denied, and your objection and your objection is is duly noted. noted."

The Defense called Fredrick Turner to testify. testify."66 Fredrick Turner stated

that he has known the Appellant for about sixty sixty years. Tyrone Clark had years.67Tyrone been staying with him for aafew days days leading leading up up to September September 11, 2021. 61 I1, 2021.

Turner Turner stated that he he told told Clark hang out on the Clark to hang the porch porch on the the day day of the the incident because "a incident because "a little little trouble trouble was coming up up there there at that time" and and Turner wanted Tumer wanted to to prevent prevent people people from from coming coming into into the the house. house."69

Turner testified that he was familiar with William Chris Brown as his neighbor and had neighbor and had known him for known him for about about ten ten years years." Turner was Turner . upstairs in was upstairs in his his bedroom bedroom when the incident incident on his front front porch porch occurred." Upon Upon being being woken up up due to the disturbance, Turner went to the porch porch and saw Chris Brown standing on the front porch porch between the top top and bottom steps. steps. 72 Turner testified that Chris Brown was was bleeding but Turner could not

6s Id. at '1 138-147. at138.147 Id. at 170.

1. 170.

67 Id. J IId. at173.

61 at 173.

1d.

Al Id. at174.

70 at 174.

71 Id. [ at 175. at175. nId.

Page of 83 Page 36 0f immediately immediately determine what caused Brown's injuries injuries until he began began speaking with with Brown.

Brown."73

At this point, Turner called the police. point, Tumer police."74 He stated that he saw Brown

"had something in the back, "75 he testified that he believed it was something back,""> something that could be used as aaweapon but could not definitively definitively say say if it was aa knife.' When When asked why why this this information was not not given to to law law enforcement, enforcement, Turner stated Turner stated that that he he was not asked was not asked to to provide provide a statement but a statement that he but that he would would have given given one if asked." asked." The Appellant, Appellant, Tyrone Clark, was was called called as the the defense's last last witness.

As to the day of the incident, the Appellant Appellant testified that he had been staying staying at Fredrick Turner's house, and that he knew of Chris Brown during during this hang out with him or know him well." time, but did not hang Appellant said welt" The Appellant that he was sitting on the Turner's porch on September 11, 1. 11 .During During his testimony, Clark stated, "Freddie told me if anybody come through the house, don't don't let let them them in. in. He He was was trying trying to to keep keep all the the traffic traffic down, because the task force had blew the door off his house twice.X twice.""79

" Id. Id. I Id. at 14 176. at176.

75 Id. at177,178. at 177, 178. pId.

76 d at 178.

77 at 1d. at 196.

196. ?8 Id. at202, at 202, 203.

79 Id. at203 I. at 203.

Page 37 of 83 0f83 The Appellant Appellant was aware that Brown had had "ripped off' Jayvon "ripped off" Jayvon Turner day before, the day before, but but insisted insisted that Brown Brown was was not not coming coming down to to Turner's house to house to smoke weed "because smoke weed "because [Brown is] aacrackhea. [Brown is] crackhead." Te The Appellant Appellant testified testified that that he he observed Brown walking walking down the street street with a a beer beer in in his hand,$ 1stating hand," stating that once Brown got got to the porch, the Appellant Appellant informed him that that he could not go into into the Turner's house. house. The Appellant Appellant testified testified that that he he believed believed Brown Brown was was high high on crack crack at this this time time and and that he smelled like he he had had been drinking." On cross drinking. On cross examination, the the Appellant Appellant stated that that he he was was familiar familiar with the signs of impairment the signs impairment by individual's individual's high high on crack cocaine cocaine because he was a a coordinator at a a drug program in the past," past.> The The Appellant testified that that Brown Brown was was insistent on going in in the the house, despite house, being repeatedly despite being told that repeatedly told that Fredrick Turner was Fredrick Turner was not allowing not allowing visitors." visitors." According According to the the Appellant's Appellant's testimony, Brown Brown never never knocked on on the door because the door the Appellant because the Appellant would would not not let let him. Brown then him. 85 Brown then told the told the Appellant Appellant that he was going anyway, at which point going in the house anyway, point the Appellant Appellant got up from from his seat. 16 The Appellant stated his seat." stated that when he got off he got off

+1 8° Id.at at205 205. ai Id. Id 1d. at218 &2IA at 218.

0 Id. 13 at 219.

1at219 as Id.at I at 208.

85 Id sa Id. At209 I at 209.

Page 38 of 83 the porch the chair, he porch chair, he observed observed Brown Brown reaching reaching behind behind him. him."$7 The The Appellant Appellant testified that testified he had that he seen Brown had seen Brown with an "old with an "old raggedy knife" in raggedy knife" in the the past, and past, and that he that he believed believed Brown Brown was was reaching reaching for that knife for that knife in order to in order to cut cut him." The him." The Appellant testified that he became fearful and thought thought that Brown was going going to pull on aaknife on him, which is when he cut Brown with aarazor. razor."89

When the Commonwealth When the Commonwealth replayed replayed surveillance surveillance footage during cross- footage during cross- examination, the examination, Appellant could the Appellant could not not identify when Brown identify when Brown headed towards headed towards grab a Turner's door, or when Brown reached behind him to grab weapon, and a weapon, footage failed to the footage to establish that that Brown Brown had been holding holding aabeer on the porch. 90 porch." When questioned about When questioned about the jail call the jail call that that was previously admitted, was previously admitted, the the Appellant stated Appellant stated that that Will Turner had Will Tumer had told told him him Brown Brown stated stated he he would drop would drop the charges in the charges in exchange exchange for Will Turner for Will Turner paying paying him him money. money." The Appellant The Appellant explained that the explained that the Will Will referred referred to to in in the the phone call was phone call not William was not William Chris Chris Brown, Brown, but in reference but in to Will reference to Turner. 92 Will Turner.

p Id. asAH Id. "Id. " at 211.

Ad At211 p 90Id. at 207. at207 [ 91Id. at 225. at22$.

92 Id. at 227. • at227.

Page 39 of 0f 83 On July 8, 2022, prior to Jury Instructions being being provided to the jury, jury, the court asked if either party was requesting requesting special special interrogatories interrogatories to be be included in the verdict slip. slip." 93

THE COURT: And the verdict slips, has anybody anticipated requiring requiring any specific specific interrogatories interrogatories on the verdict slip? slip? Mr. requests comes from the Wischnowski, usually that requests Commonwealth Commonwealth because its tied because its tied into something. into something.

MR. WISCHNOWSKI: WISCHNOWSK.J: For, let me think. For, for the first two counts, well, well, actually, for for Count 1I and and 2, 2, can we have aaspecial special interrogatory for deadly weapon weapon used, whether aadeadly weapon weapon was was used. used. It It affects whether whether or not not we we use the basic matrix matrix or the enhanced matrix at sentencing.

THE COURT: Mr. Schmierer?

MR. SCHMIERER: I appropriate.

I believe that's appropriate.

THE COURT: Okay.

Okay."94

Question at 2:38p.m.

2:38p.m.

THE THE COURT: We We are back on on the the record, record, and and we're we're in in chambers. Today it's July 8t'', 8", and in the case of Commonwealth of Pennsylvania Pennsylvania versus Tyrone Tyrone Clark, Clark, the jury jury is is out deliberating and out deliberating and has has been been soso since since the the lunch hour ... Iwas lunch hour...I was just provided with a a note from the jurors jurors in this envelope.. envelope. It's been clocked. The note reason, "According "According to the statue of Commonwealth law, law, what what is of adeadly is the definition ofa deadly weapon?" And it's not signed, so I'll turn the original over to the official court reporter, and I'll hear from the parties first, but let me say this: here is the statutory statutory definition of aadeadly weapon. The statutory definition is set forth in Title 18, Section 2301, and the general provisions of that particular particular chapter.

MR. WICSHNOWSKI: My My position position would just just be to instruct them on the generic definition.

93 Transcript of Record, July 8, 2022, at 4, Commonivealth v. pnscript of Record, July 8, 2022, at 4, Commonwealth • Tyrone Clark, Clark-, 1651 of 2021.

2021 Id. pd Page 40 of 0f 83 THE COURT: Just for the record, deadly weapon is defined in deadly weapon that section, and a a copy of which I've provided to both counsel, as follows: Any firearm, whether loaded or unloaded, or any device designed as aaweapon and capable of producing death or serious bodily injury or any other device or instrumentality instrumentality which in the manner in which it is used or intended to be used is calculated or likely to produce death or serious bodily injury.

So the question becomes, when you have a a statutory definition of a a word that's used in the instruction, the first question is there there anything anything that that prohibits prohibits me me from from using using that? that? Mr. Mr. Schmierer, what do you think?

M.R..

MR. SCHMIERER: Judge, without researching the issue, I I couldn't couldn 'I tell you if there's anything prohibiting prohibiting it. I I believe if the instruction, as set forth in the standard criminal jury instructions, does not include aadefinition, which if the Court will recall, other instructions that were read today did include definitions of certain terms, specifically the self-defense instruction did have aadefinition therein, and it would be my position that the Court would just instruct the jury that the instructions are that which the Court has already provided. If they would like the Court to read those instructions that were already given given aasecond time, then I I wouldn't have an issue with that, but to look into the statute and pick out certain definition and then supplement standard jury instructions, I I would not, II would object to that.

MR. WISHNOWKSI: I I haven't researched this very very specific specific issue, but given that is the general definition contained in the definitions of the statute and it is a a defined term, I I think it would be helpful to define that term for the jury since they have to deliberate about it. So II don't see any issue with supplementing supplementing it, and I'm Im not aware of any case law that would prohibit prohibit supplementing supplementing an instruction in this fashion.

THE COURT: I I don't believe that providing this information would be misleading. That's the first thing that I I would like to say, and with the indulgence of the parties, I say, I called you as soon as I I received this, and II didn't have a a chance to look this up myself myself. II have quick access to Westlaw so I'm going to ask just for your your patience patience for a a moment while I I lookup aa few things.

Page 41 of83 of 83 All right. I I was aware of the notion, and it's been referred to to as aawell-settled principle that the standard jury instructions are not themselves binding, do not alter the discretion in me crafting jury instructions, and so given that that is the status of the law and given the clear authority that a a trial judge may frame jury instructions and language that deviates from standard instructions, so long as the instruction adequately and accurately defines essential terms, so long as I I abide by that polestar, IIfeel feel that giving the definition in Section 2301 2301 is something that something that could could very very easily easily have have been been included included in in the the original instruction and at this point point it very well maybe if I I have this instruction come up. It doesn't misstate the law or what a a deadly weapon is. It doesn't confuse the jury by telling them that this is what it is. They have a a specific question, and this is one of those times where it can definitely be answered with exact words. The question can be with, when I I say exact words, I I mean words straight from what they reference as Commonwealth law.

So my intentions are to read the definition and tell them that this definition was not previously provided provided to them; however, this is the definition that arises out of Pennsylvania law, which is in something we call Title 18 18 in Section 2301.

2301. I I don't like to give too too may technical terms, but I I think the reference to Pennsylvania law is necessary there.

Mr. Schmierer, if it was misleading or if I I thought thought it wasn't exactly what they were looking for, I I would consider your position, but your objection is noted, and we'll give this short definition. definition."°

ISSUES ISSUES Appellant's Concise Statement of Matters Complained of on Appeal are as follows follows (recited (recited verbatim):

9' Id.at 97-101 4d at 97-101.

Page 42 of 0f 83 a) The Commonwealth did not present sufficient evidence to prove prove the Defendant's guilty beyond aareasonable doubt as to each element of the crime at Count 2, Aggravated Assault as aafelony of the first degree. degree. b) The Commonwealth did not present sufficient evidence to prove prove the Defendant's guilt beyond aa reasonable doubt as to each clement element of the crime at Count 3, Simple Assault as aamisdemeanor of the second degree. degree. c) The Commonwealth did not present sufficient evidence to proveprove the Defendant's guilt beyond aa reasonable doubt as to each element of the crime at Count 4, Recklessly Endangering Another Person as a a misdemeanor misdemeanor of the the second degree. d) The verdict of guilty of the crime at Count 2, Aggravated Aggravated Assault as a a felony felony in the first degree, is against the weight weight of the evidence. e) The verdict of guilty of the crime at Count 3, SimpleSimple Assault as a a misdemeanor of the second degree, was against the weight weight of the evidence. f) f) The verdict of guilty of the crime at Count 4, Recklessly Recklessly Endangering Endangering Another Person as aa misdemeanor of the second degree, is against the weight weight of the evidence. g) Te The Court erred in denying Defendant's motion to to strike juror juror number JL5A-8, because she had a a personal belief that if aa Defendant were not guilty that the Defendant would testify and she equivocated on her ability to set set her personal belief aside and follow the Court's instruction. h) The Court erred in denying the Defendant's motion in limine to introduce the prior crimen falsi convictions of the alleged victim under the premise that the Defendant did not provide written notice to the Commonwealth, where the Commonwealth acknowledged providing the criminal record of the alleged victim about a a week prior to the trial and the Commonwealth suffered no prejudice prejudice from the lack of written notice and had aa fair opportunity to contest the use of such evidence. i) The Court erred in denying denying the Defendant's motion in limine to introduce the falsi convictions of the alleged victim and this error was prior crimen falsi because the probative probative value of allowing allowing this evidence substantially outweighed its prejudicial prejudicial effect.

Page 43 0f Page 43 of 83 j) The Court erred in denying the Defendant's motion in limine to preclude preclude the Commonwealth's introduction of aaportion of a a jail phone call made by by the Defendant where the Defendant allegedly made aa statement about an unknown third party convincing the alleged victim to drop the charges where its probative value is outweighed by aadanger of unfair prejudice prejudice confusing confusing the issues, and misleading misleading the jury. jury. k) The Court erred in denying the Defendant's motion in limine to preclude preclude the Commonwealth's introduction of a a portion of a a jail phone call made by by the Defendant Defendant where where the the Defendant Defendant allegedly allegedly made made aa statement about about an an unknown third party convincing the alleged victim to drop the charges because it is an improper use of other crimes, wrongs, or acts evidence offered against the accused by the Commonwealth was insufficient to overcome the balance balance test test in in Pa.R.E.

Pa.R.E. 404(b)(2).

404(b)(2).

1) l) The Court erred in not providing the jury with aa limiting limiting instruction regarding regarding the the introduction introduction of of the the jail recording where where the the Defendant Defendant allegedly allegedly made made aastatement about an unknown unknown third party convincing the party convincing the alleged alleged victim to drop the charges. charges. m) The Court erred in m)The in permitting permitting the the Commonwealth to commentcomment on thethe Defendant's retention of counsel prior prior to to trial in violation of his rights rights under the Pennsylvania and United States Constitutions. n) The The Court erred in permitting pennitting the questioning which the Commonwealth's questioning which suggested suggested to the jury that the Defendant has an obligation to assist the Commonwealth in meeting its burden of proof, thus shifting the burden to the Defendant, in violation of his rights rights under the Pennsylvania and United States Constitutions. o) The Court erred in permitting the Commonwealth to impermissibly suggest that Defendant and by extension, Defendant's counsel, had an obligation to assist law enforcement in the investigation of the case in violation of his rights under the Pennsylvania and United States Constitutions. p) p) The Court erred in overruling the Defendant's objection under the best evidence rule where Officer Bialik was asked to provide his opinion that the alleged alleged victim victim was standing in a a passive passive or non-threatening way way in in a a video, where the officer did not personally observe the incident. incident Page 44 0f Page 44 of 83 q) The Court erred in permitting the fact witness, Sabrina Christie, who was not qualified as an expert witness, to testify that a a laceration that is 5 centimeters in depth is deep enough to pierce pierce the "platysma muscle." r) The Court erred in denying the Defendant's motion to strike the juror, juror, for cause, cause, who both notified who both notified the the Court Court and and testified that she testified that she believed she believed she possibly knew the possibly knew the victim in the the past. past.

s) The Court s) The Court erred erred in in supplementing supplementing the the jury jury instruction with the instruction with statutory the statutory definition set forth in Title 18, Section 2301, for a deadly weapon, a deadly weapon, where the definition was not contained in the standard criminal jury jury instruction."

ANALYSIS THE COMMONWEALTH ESTABLISHED BEYOND AA REASONABLE DOUBT THAT APPELLANT COMMITTED THE CRIMES CHARGED AGAINST HIM SUFFICIENCY AND SUFFICIENCY AND W EIGHT OF WEIGHT OF THE THE EVIDENCE EVIDENCE The Appellant asserts that the Commonwealth did not sufficiently sufficiently establish that he was guilty guilty of the crime at Count 2, Count 3 and Count 4. In essence, he challenges challenges the sufficiency of the evidence showing that he was guilty of the crimes for which he was convicted; however, the Appellant fails to identify with specificity which elements the Commonwealth failed to establish with sufficiency at trial and the Appellant Appellant has thereby thereby waived all sufficiency of evidence claims. In Concise Statement of %concise 96 of Matters Complained on Appeal, ofFennsylvania Appeal, Commonwealth of Pennsylvania v. v, Tyrone Clark, 11651 of 2022.

2022 " rageWe rerind remind counsel of the importance expert, focused appellate advocacy, importance of expent, advocacy. Wile While criminal defendants often believe that the best way way to pursue appeals is by raising pursue their appeals raising the greatest number of issues, actually, the opposite is true: selecting true: selecting the few most important important issues succinctly succinctly stated presents the greatest likelihood of success ... [Tlhe success..[TJhe proportion to their merit and that aalarge number of claims number of claims raised in an appeal is usually in inverse proportion raises the presumption presumption that all invalid. As all are invalid. As Judge Judge Aldisert Aldisert puts puts it, it, `Appellate Appellate advocacy advocacy isis measured by effectiveness, not loquaciousness."' See Commonwealth v. not loquaciousness." • Ellis, 626 A.2d A.24 1137, 1140-41 1140-41 (Pa. (Pa. 1993), citing R.RR Aldisert, "The Appellate AIdisert, Appellate Bar: Bar- Professional Competence & Professional Competence & Professional Professional Responsibility Responsibility— A A View View From the From the Jaundiced Eye Jaundiced Eye of One Appellate Appellate Judge," Judge," I IICAP.U.L.REV. CAP.U.L.REV. 445, 445,458 ((1982) 1982).

Page 45 of of83 Commonwealth v, v. Bonnett, 239 A.3d 1096, 1106 1106 (Pa. Super. Ct. 2020), (Pa. Super. 2020), the Superior Court Superior Court concluded concluded that that aasufficiency sufficiency of of evidence claim was evidence claim was waived waived on on appeal where the Appellant in the Concise Statement of Errors pursuant pursuant to Pa.R.C.P. 1925(b), stated his intention to question on appeal appeal "[w]hether "[whether the[re] the[re] was was insufficient insufficient evidence to to sustain a a verdict verdict of of guilty guilty of each charge charge in in each case." Specifically, the Superior Court concluded concluded "that Appellant's Appellant's challenge challenge to the sufficiency sufficiency of the evidence is is waived because because his his Rule Rule 1925(b) 1925(b) statement did not not adequately identify identify the errors that he intended challenge on intended to challenge appeal." Id. on appeal." Id. The Bonnet Court found that the requirements of Pa.R.A.P. 1925(b)(4)(ii) 1925(b)(4)(ii) mandate that mandate that aaRule Rule 1925(b) statement must 1925(b) statement must "concisely identify each "concisely identify each ruling or ruling or error that the appellant appellant intends intends to challenge with to challenge with sufficient detail to identify identify all all pertinent issues for the judge." Id. (citing (citing from Pa.R.A.P. 1925(b)(4)(ii)).

1925(b)(4)(i1)). Parties to an appeal were put on notice that careful consideration should be given given to the preparation of a a 1925(b) concise statement because it is "a "acrucial component of the appellate appellate process" process" because this is the mechanism in place place which which "allows the trial court to identify and focus on those issues the parties parties plan plan to raise on appeal." appeal." Id. Id.

Page 46 of 83 Even though the sufficiency claims have been waived, this court will address the claims asserted by the Appellant that every element of the crimes convicted will addressed. be addressed.

The standard and scope of review of challenges to the sufficiency of the evidence is well-settled: [W]e evaluate the [Wle the record record in in the the light light most most favorable favorable to the Commonwealth as verdict winner, giving it the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient sufficient to support support the the verdict verdict when when itit establishes establishes each each material element of the crime charged and the commission thereof by by the accused, beyond a a reasonable doubt. Any doubt about the Appellant's guilt is to bebe resolved by the fact-finder unless the evidence is so weak and inconclusive that, as matter of law, no probability probability of of fact fact can can be be drawn from from the the combined combined circumstances. circumstances.

Additionally, the Commonwealth may sustain its burden solely solely by by means of circumstantial evidence. evidence."

In In applying the the above above test, the the entire entire record record must must be be evaluated and all all evidence actually received must be considered. It is left to the fact-finder to judge judge a a witnesses' credibility, resolve conflicts in testimony testimony and weight the evidence. 99 [T]he trier trier of of fact fact while while passing passing upon upon the the credibility of of witnesses witnesses and the the weight weight of the evidence produced, is free free to believe all, part or none of the evidence. 10°On

98 Commonwealth v. commonwealth v. Lake, 281 A.3d 341, 2022 PA Super 142, at *2 (Pa. (Pa. Super. Super filed Aug. 2022) (citations Aug. 15, 2022) (citations and quotations quotations omitted). omitted) Commonwealth v. +commonwealth 99 v. Payne, Payne, 868 A.2d A.2d 1257 1257 (2005). (2005) Commonwealth v. voe _orwealth 11 v. Orr, 38 A.3 Orr,38 A.3d 868,872-73(Pa. 868, 872-73 (Pa. Super. Super. 2011) 2011).

Page 47 0f83 of 83 review, the court must determine detennine if "any rational trier of fact could have found the essential elements of the crime beyond a a reasonable doubt,Io doubt. " 101

The Appellant attacks the sufficiency of the evidence supporting supporting his conviction of aggravated assault. Likewise, the Appellant also raises a sufficiency a sufficiency of the evidence claim to the crimes of Reckless Endangering Endangering Another Person and Simple Assault. As stated in Commonwealth v. Cianci, " "aa conviction for aggravated assault requires a a person, under circumstances manifesting extreme indifference to the value of human life, to to ( 1) attempt to cause serious bodily injury injury to another, or (2) (2) cause such injury intentionally, knowingly or recklessly. By contrast, to commit commit [Reckless [Reckless Endangering Another Person Person ("REAP")], ("REAP")], a a person must recklessly engage in conduct which places or may place another person person in actual danger of death or serious bodily injury... Additionally, unlike aggravated assault, REAP requires the element of actual danger of death or serious bodily injury. An individual could attempt to cause serious bodily injury to another person person without placing that person in actual danger, which would support aaconviction for aggravated aggravated assault but not REAP." REAP,»Io2

Lastly, the Appellant argues that the Commonwealth failed to provide sufficient evidence for aa conviction of simple assault. assault. "A "A conviction for simple

Jackson • or ckson 101 v. Virginia, 443 U.$.

U.S. 307,319 307,319 (4(1979) 1979).

COm. v. o Com.

102 I,. Cianci, 130 A.3d A34 780, 782-83 782--83 (Pa. Cc. 2019) (Pa. Super. C. 2015) Page Page 48 of 83 of 83 assault requires the Commonwealth to establish that aa defendant caused, or attempted attempted to cause, bodily injury injury to another person." person,"Io 103

In addition to challenging the sufficiency of the evidence, the Appellant Appellant also claims that the verdicts for Count 2, Count 33and Count 4 are against the weight weight of the evidence. In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 306 ((1998), 1998), the Pennsylvania Supreme Court held that issues not included in a a Pa.R.A.P. I 925(b) Pa.R.A.P.1925(b) statement are deemed waived on appeal. appeal. In that case, the Court noted the purpose purpose of Rule 1925(b) as being aid to trial judges in identifying and focusing focusing upon upon those issues which the parties plan to raise on appeal. The general general statement that the identifying a verdict was against the weight of the evidence without identifying specific a specific weight issue is too vague to allow the court to identify identify the issues raised on appeal.

In In order order for for the the trial court to to address address the the weight weight of evidence claim as as stated, it would have to guess what issue or issues the Appellant is appealing. appealing. This the trial court is not required to do. As stated in Commonwealth v. Dowling, Dowling, 778 A.2d 683, 686 (Pa. (Pa. Super. 2001), "a "a concise statement which is too vague to allow to identify the issues raised on appeal is the functional equivalent of no the court to concise statement at all." In order to preserve preserve aa challenge to either the sufficiency or weight of the evidence on appeal, an appellant's Rule 1925(b) concise statement must state with specificity specificity the elements or verdicts for which the appellant alleges that the evidence was insufficient or against the weight of the

o Commonwealth v. Jenkins, 96 A.3d 103 1055 (Pa. Super. 2014).

A.34 1055(Pa. 2014) Page 49 of 0f 83 evidence. See Commonwealth v. 1248-[12]49 v, Freeman, 128 A.3d 1231, 1248-[12149 (Pa. Super. (Pa. Super. 2015) 2015) (finding (finding waiver waiver of appellant's sufficiency of appellant's sufficiency andand weight weight challenges where challenges where thethe Pa.R.A.P. Pa.R.A.P. 1925 1925 statement was was too too vague vague to to permit permit the the court to identify identify ((I) 1) which crimes, or the elements of any any crimes, that the Commonwealth Commonwealth allegedly allegedly failed failed to prove prove beyond beyond aa reasonable reasonable doubt; or (2) doubt; or (2) which verdicts were contrary to the weight of the evidence, and and the the specific specific reasons why the verdicts were contrary to the weight of o,f'the the evidence). Such Such specificity is is of of particular particular importance importance in where [the in cases where [the appellant] appellant] was was convicted of convicted of multiple multiple crimes, each of of which which contains contains elements elements that that the the Commonwealth must prove prove beyond aareasonable doubt.

Commonwealth v. Commonwealth v. Juray, Juray, 275 275 A.3d 1037, 1048 A.3d 1037, 1048 (Pa. (Pa. Super. Super. 2022) 2022) (emphasis (emphasis added).

Appellant Appellant has failed failed to to comply with Rule Rule 1925(b) 1925(b) and this court has concluded that Appellant's weight of the evidence issues as stated in the 1925(b) Concise Concise Statement are are too too vague vague to to permit permit review of that issue by by the trial trial court and have therefore been waived. The Rule 1925(b) statement raise aaweight weight of evidence claim that that merely merely contained boilerplate boilerplate language language which which is is too vague to too vague to allow allow the court to identify the to identify the issues raised on appeal. appeal.

Even Even though though the the weight of evidence evidence claims have have also been been waived, waived, those claims will be addressed. will also be "The The weight exclusively for the finder of fact, who is free weight of the evidence is exclusively to believe believe all, all, none[,] none[,] or some of of the evidence and to to determine determine the credibility of the the witnesses." witnesses.Io' A court A court may 104 may not not substitute its its own own judgment judgment for that of of the trier trier of

Commonwealth r. o commonwealth 144 545 (Pa. v. Talbert, 129 A.3d 536,545 (Pa. Super. Super. 2015) 20I5) (quotations (quotations omitted).

Page 50 of 83 fact. Io> facet 10 ' ·gResolving "Resolving contradictory testimony and questions questions of credibility credibility are matters for the finder of fact." fact,1o6

"In order for an Appellant Appellant to to prevail prevail on aachallenge challenge to to the weight of the weight of the evidence, the evidence must be so tenuous, vague vague and uncertain that the verdict shocks shocks the the conscience of court. »Io7 of the cout "107 When When ruling ruling on aaweight weight claim, the trial trial court must determine determine whether whether "certain "certain facts facts are so so clearly clearly of greater greater weight weight that that to to ignore ignore them, or to give give them equal weight weight with all the facts, is to deny deny justice." justice." Commonwealth v. Holt, 273 A.3d 514, 532 (Pa. (Pa. 2022), 2022), cert. denied sub nom. Holt v. Pennsylvania, 22-5463, 2022 WL 16542034 (U.S. (U.S. Oct. 31, 2022) (citation (citation omitted).

In the case before us, the Appellant attacks the sufficiency of the evidence underpinning underpinning his his convictions on on identical grounds grounds as those that were were alleged alleged in his his weight of evidence claim. In In particular, Appellant alleges particular, the Appellant alleges that that the Commonwealth presented insufficient evidence to establish, beyond a a reasonable doubt, that Tyrone Clark assaulted William Brown on September September 11, 2021.

These claims, as developed by the Appellant, are asserted with the backdrop consisting consisting of evidence that that includes testimony from from the the victim, William William Christopher Brown, who identified Tyrone Clark as the man who caused his injuries at trial.

Id 105p o o Commonwealth 106cosmorowealth v.i, Delmonico, 251 AdA.3d 829,837 829, 837 (Pa. Super. 2021). (Pa. Super 2021). See id. id. (citing (citing Talbert, Talbent, 129 A.3d at 545).

545) on Talbert, 107 A.3d at 54$ r4bent, 129 A.d 545 (internal quotation marks and citations omitted) (internal quotation omitted).

Page 51 of 83 Brown provided testimony stating the Appellant cut him while they they were both on Fredrick Tumer's Turner's front porch. porch.

The Commonwealth also offered testimony from the responding responding police police officer, Officer Bialik, who testified that his immediate concern when he first encountered the victim victim was was to to get him him to the the hospital hospital because because he might might die.

Evidence involving camera footage admitted; that footage of the altercation was also admitted; surveillance footage footage showed the Appellant Appellant and and the victim standing standing on on the the porch porch in in aa manner consistent with the testimony provided by Brown. This footage footage also depicted the Appellant leaping towards the victim and the victim fleeing scene. fleeing the scene, Photographs of the subsequent blood trail leading from Turner's porch, past several porch, past parked cars and down Beaver Road were also admitted into evidence.

Brown's treating physician also testified, and explained explained that upon upon seeing seeing the laceration to the victim's throat, her immediate priority priority was to prevent prevent him from dying. dying. During During her her testimony, she she explained that that Brown Brown was was admitted admitted to the trauma trauma unit as a a Level 11trauma patient, nothing he was "actively bleeding bleeding in a a life- threatening way." 108 Furthermore, the Appellant took the stand and stated that he had in fact cut William Christopher Brown with a a razorblade while they were both on Fredrick Turner's porch.

108 Transcript or pnscript of Record, July 6, 2022, at I82, 182, Commonwealth ofPennsvh ania i• Pennsylvania v Tyrone Clark, 1651 of 2021.

Page 52 0f83 of 83 The Commonwealth provided sufficient evidence to prove prove that the Appellant Appellant acted with acted with the the specific specific intent intent to cause the to cause the victim victim serious serious bodily injury. The bodily injury. weight The weight of the of the evidence evidence provided by the provided by the Commonwealth in this Commonwealth in this case case was was sufficient sufficient to to support a a guilty guilty conviction conviction of the the Appellant Appellant as to to Count 2, Count 3 and and Count 4.

Count 4, This court, under these facts, facts, cannot find guilt was find that the evidence of guilt was so tenuous, tenuous, vague and uncertain that the verdict shocks the conscience of the court. Therefore, Therefore, the the weight of the evidence evidence claims, if not not deemed to to be be waived, waived, were properly properly denied THE COURT DID THE COURT DID NOT ERR IN NOT ERR IN DENYING DENYING THE THE DEFENDANT'S DEFENDANT'S MOTION TO STRIKE POTENTIAL JUROR NUMBER JL5A-8 AND NUMBER JLSA-8 JUROR 14 the Appellant argues that the court erred in denying Next, the denying the Defendant's motion motion to to strike a a juror because because she had a a personal personal belief belief that that if if a Defendant Defendant were were not guilty guilty that the Defendant would testify. testify. The The Appellant Appellant argues argues that the juror juror used ambiguous language on her ability to set her personal personal belief aside and follow the the court's instruction.

The issue raised by the Appellant stems from Juror Number JL5A-8 changing an answer on her questionnaire, questionnaire, which asked if the juror juror would have a a problem following the court's instructions that aadefendant in a a criminal case does not have to take the stand or present present evidence, and that remaining remaining silent and presenting no evidence cannot be held against the defendant.

Page 53 of 83 0f83 The Juror had answered answered "no," but her questionnaire indicated that the Juror checked "yes" originally. When asked about changing may have checked changing her answer, answer, the Juror said that she would want to tell her side of the story story if she were aadefendant in a a criminal case, but that she had no issues following following the court's instructions. The Commonwealth proceeded to rehabilitate the potential juror, juror, and she confirmed that she would be be to follow follow the court's instructions.

Similarly, the Appellant argues that the court erred in denying denying their motion for cause in dismissing Juror 14. This claim arises from this Juror disclosing to the court that there was a a possibility she had been familiar with the victim thirty-five thirty-five years ago. This Juror explained that William Brown may have dated aateammate of hers in high-school, but she was unable to confirm if the victim was that same person.

On appeal, challenges involving aamotion to strike jurors for cause are subject to the following test: The test for determining determining whether a a prospective prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.... A A challenge for cause should be granted granted when the prospective prospective juror has such aaclose relationship, relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a a likelihood of prejudice or

Page 54 of 83 0f83 Circulated 12/ WV11013 PM crated 17488PP

demonstrates aalikelihood of prejudice prejudice by by his or her conduct and answers to questions. Io9 questions 109 When When aajuror juror demonstrates demonstrates aalikelihood of prejudice likelihood of prejudice by conduct or by conduct or answers answers to questions, the to questions, the standard standard of of review review "must depends upon "must depends upon the the answers and demeanor of the potential juror as observed by by the trial judge and[,] therefore[,] reversal is appropriate appropriate only only in the case of error."' 10 palpable error.»Io

We will first apply the above test to Juror No. JL5A-8. Here, the potential potential Juror repeatedly stated that she would be able to following following the court's instructions and confirmed she would be able to set aside her desire to provide testimony testimony if she were aadefendant in a a criminal proceeding. proceeding. There is no evidence of palpable palpable error in the court's decision to deny the motion to strike this juror. juror. It should also be be noted that the Appellant in this case did eventually take the stand in his own defense, which ultimately eliminated the main concern defense counsel when raising this motion to strike. l"Therefore, the court did not err in denying strike.'! denying the defense's motion motion to to strike Juror Juror No. No. JL5A-8.

JL5A-8.

14, the court determined that any As to Juror I4, any possible relationship between possible relationship the victim and juror was too remote to qualify her for disqualification under the

Commonwealth r. Io commonwealth 11 563 Pa. 1, v. Bridges, 563PA. 757 A/24 1,7$7 A/2d 859,873 859, 873 (2000) (2000) (citing (citing Commonwealth v. 543 PA. • Wilson, $43 Pa. 429, 429, 672 A.2d 293 6724.24 293 ((1996)).

1996)). "commonwealth Commonwealth • v. Johnson, 299 Pa.Super. Johnson, 299 Pa.Super 172, 445 A.2d 172,445 A.2d 509, 509,512512 ((1982) 1982) (quoting (quoting Commonwealth v. Colon, 223 223 Pa.Super. Pa Super 202, 299 A.24 A.2d 326,328 326, 328 ((1972)) 1972)).

11 ' By Mr. !lg Schmierer, "My Mr. Schmierer, "My concern concem is is that the amount of detail that gave in describing that she gave describing her belief that somebody would necessarily necessarily have to give give their account of the incident would bias her to an extent that if Mr. Mr Clark decides, again be and again he may may decide to to testify, testify, but if he decides not not to testify, testify, that she may may hold that that against against the Defendant merely because of her merely her personally personally held belief belief. So, for that reason, l I did raise that cause motion." Transcript Tescript of Record, July July 5, 2022, at 60, Commonwealth ofPennsylvania i•• .Tyrone Tyrone Clark, 1651 of 2022.

2022 Page 55 of 83 statute. The The juror could could not not confirm with with certainty certainty that that the victim was the same person she was acquainted with in high school, and if it was the same person, person, she had had not seen or or spoken to him in in thirty-five years. explained that she had years. She explained had not not recognized his his name name on on the the witness list, and and that that the the possibility possibility that that this this might might be the person who dated her friend did not cross her mind until the victim's testimony was was completed. This juror juror was was able able to to verify verify that that this this possible possible connection connection would not prevent prevent her from being being fair in this case to be fair and impartial impartial to both sides, nor would it nor would it impact her evaluation impact her evaluation of of the the facts facts and circumstances in and circumstances in any any way, way. She She confirmed she would be able to continue to follow all the instructions given given to her by the court. In consideration of by of Juror Juror 14's 14's testimony, testimony, the the court was correct correct in denying the the Appellant's motion motion to strike strike Juror Juror 14.

14.

COURT WAS CORRECT IN DENYING THE DEFENDANTS THE COURT DEFENDANT'S MOTION IN LIMINE MOTION IN LIMINE TO JO INTRODUCE INTRODUCE EVIDENCE EVIDENCE OF OF VICTIM'S PAST VICTIM'S PAST CONVICTIONS CONVICTIONS The Appellant Appellant next argues that the court erred in denying denying the Defendant's motion motion in in limine to to introduce introduce prior prior crimen crimen falsi falsi convictions of the victim, William William Christopher Brown. Point Christopher Point (h) (h) of the Appellant's Concise Statement claims that the court erred in denying this motion in denying motion "under "under the the premise premise that that the the Defendant Defendant did not not provide written provide written notice notice to to the the Commonwealth;" under under Point Point (i) (i) the the Appellant Appellant states "this error was because the probative value of allowing this evidence substantially outweighed its outweighed its prejudicial effect." Both prejudicial effect." Both issues issues will be addressed will be addressed in in this section. this section.

of 83 Page 56 0f During pretrial discussions, the defense provided provided dockets and criminal information related to two cases involving William Christopher Christopher Brown, Brown; aaguilty guilty plea involving theft by unlawful taking taking from 2006, and a by a conviction of theft by unlawful taking unlawful from 2003.' taking from 2003."'Upon Upon introducing introducing this evidence in this evidence in his his motion, motion, Attorney Attorney Schmierer stated the following: following: "Judge, and I I can show Mr. Wischnowski Wischnowski [the[the Commonwealth] Commonwealth] what I I have if he's agreeable to submitting these. For the first case which is captioned as, I I believe it's, it's captioned as 3157 of 2002, as a a result of the fact that the docket was migrated from this being an older case, the information was unavailable to access on Infocon. However,However, I I do have what is a a petition for hearing on a a violation of probation that was filed by the district attorney, and it does articulate that on January January 29, 2003, the Defendant entered a a plea pica of guilty to a a charge of theft by unlawful taking as a a misdemeanor of the second degree. degree. If the Commonwealth is willing to stipulate that that's the case, I I can offer that to the Court as proof that the alleged victim did, in fact, enter a a plea plea of of guilty to to theft theft by by unlawful unlawful taking." taking." '3 1

There is no indication in the record that notice of the intention to introduce this evidence was provided to the Commonwealth prior to the motion motion in limine; limine; however, however, the objection to the the Commonwealth had no objection Criminal Information being admitted into pretrial pretrial evidence.

In ruling ruling on the the admissibility of crimen falsi falsi convictions, the Superior the Superior Court of Pennsylvania Pennsylvania has utilized weighing the following following factors: In In making this determination, the following this detennination, following factors should be be considered: 1) I) the degree to which the commission of the prior prior Transcript of Record,7/06/22, n12 reascript Record, 7/06/22, at 19, Commonwealth Commonweallh i• Tyrone Clark, 1651 of 2021.

2021. See also Pretrial Exhibit A and B. ad I'p Id. at17 at 17 Page 57 of 83 offense reflects offense upon the reflects upon the veracity veracity of of the defendant-witness; 2) the defendant-witness; 2) the the likelihood, in view of the nature and extent of the prior prior record, that it would have a a greater tendency to smear the character of the defendant and suggest a a propensity propensity to commit the crime for which he stands charged, charged, rather than provide provide aalegitimate legitimate reason for discrediting discrediting him as an untruthful untruthful person; person; 3) the the age and and circumstances circumstances of the the defendant; 4) the strength strength of the prosecution's prosecution's case and the prosecution's prosecution's need to resort to this evidence as compared with the availability availability to the defense of other witnesses through through which its version of of the the events events surrounding surrounding the incident can the incident can be presented; presented; and and S) the 5) the existence of alternative means of attacking the defendant's credibility. credibility.'

The court touched touched on on all of of these factors factors in capacity in in some capacity in its its findings findings on this motion motion in in limine. limine. In In its its finding, finding, the court court stated stated that that while while these these two convictions involved dishonesty, they were over ten years old and the probative value of the evidence was substantially outweighed by the probative prejudicial prejudicial effect. Further, there there were other available available means means to to impeach this witness.

The Appellant Appellant goes on on to say say that the Commonwealth "suffered the Commonwealth "suffered no no prejudice prejudice from the lack of written notice and had aafair opportunity to contest the use the use of such evidence." of such While the evidence." While the court court noted noted the timing and the timing and notice notice provided provided to the Commonwealth in its findings, findings, there were other factors considered that supported supported the denial of this motion in limine. However, it is undeniable that Rule 609 includes aatiming requirement: con. •v. Palo, 2011 PA Super 114 COm. Super 136, 136,24 24 A.3d 1050, 1056 1056 (2011) (2011) (citing Commonwealth v. (citing Commomwealth v. (Montez) Harris, 884 A.2d A.24 920, 925 (Pa.Super. 2005)).

920,925 (PA.Super. 2005)) Page Page 58 of 83 Pa.R.E.

Pa.R.E. 609, which governs the admission admission of impeachment impeachment evidence, evidence, provides as follows: provides as follows: Rule 609. Impeachment Impeachment by by evidence of conviction of crime (b) Time limit. limit. Evidence Evidence of aaconviction conviction under under this rule rule is not admissible if aaperiod of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement confinement imposed imposed for for that that conviction, conviction, whichever whichever is is the the later later date, date, unless unless the the ocurt determines, determines, in in the the interests interests of of justice, justice, that that the the probative probative value of the value of the conviction conviction substantially outweighs its substantially outweighs its prejudicial effect. effect. However, However, evidence of of aaconviction conviction moremore than than ten ten years years old old as as calculated herein herein isis not not admissible admissible unless unless the the proponent gives to the adverse party sufficient written notice of proponent gives intent to use such evidence to provide the adverse party party with a a fair opportunity opportunity to contest the use of such evidence. evidence,'° 1'

The Appellant Appellant claims that the Commonwealth Commonwealth "acknowledged "acknowledged providing providing the criminal record of the alleged victim about a a week prior to trial" and and that that they prejudice from the they suffered "no prejudice the lack lack of written written notice." notice." While itit could be argued that the Commonwealth was not prejudiced prejudiced by the lack of written notice on the part part of the Appellant, Appellant, that is not aafactor to be considered under the plain language of the rule.

In consideration of the foregoing, foregoing, the court was correct in its ruling for the denial of the introduction of crimen falsi evidence of the victim.

ADMISSION OF JAIL CALL AND JURY INSTRUCTION Appellant Appellant next claims that it was error to admit aajail calls in which the Appellant Appellant was aaparticipant. participant. The jail jail call at issue contained comments made by the

0 Commonwealth v. 115 v. Palo, 24 A.3d Ad 1050, 1056 1056 (Pa. (Pa. Super. 2011), emphasis added.

Super 201), Page 59 of 83 Appellant demonstrating his attempts to influence a a witness to perjure perjure himself by by minimizing the Appellant's role in the razor attack, all in an effort to clear the Appellant. Specifically, the Appellant Appellant requested requested the other person person on the call to "[T]alk to "(T]alk to Will because Will's supposed supposed to give give the boy something to drop boy something drop the charges." That portion by the Appellant portion of the call ended by Appellant telling telling the other caller that, in order for his scheme to work, was was "like the only only way way he can drop drop the charges charges is if he is if he [the [the boy] says he boy] says he had had a a knife. knife."" "116

It was clear that It was that the the Appellant was was attempting attempting to get get the the witness witness to to lie at trial trial about who who possessed aaknife knife and he he also also attempted to to put put together together aapayoff payoff to to accomplish that feat. feat. Trial Trial counsel counsel objected objected to to the the admission admission of this evidence evidence at trial. trial. This court ruled that that the the evidence evidence was admissible admissible to demonstrate demonstrate the the Appellant's Appellant's consciousness of guilt guilt and the evidence was not to be admitted for demonstrating that that the the appellant appellant engaged in in any illegal illegal conduct conduct outside of the the allegations made in the instant case.' case.' 17

Admission of "Admission of evidence is is within within the the sound discretion of the the trial court and and be reversed only will be only upon upon aashowing showing that the trial court clearly clearly abused its discretion." Commonwealth Commonwealth v. v. Drumheller, Drumheller, 570 Pa. Pa. 117, 117, 135, 135, 808 A.2d A.2d 893, 893, (2002), (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003) (quoting (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349, 363, 781 A.2d 110, 117 (2001)); (2001)); Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013). "An abuse of discretion is not merely an error of judgment, (Pa.Super. 2013). judgment, but is rather the overriding overriding or misapplication misapplication of the law, or the exercise of

us Transcript 116renscrip of Record, July 6, 2022, at 22, Commonwealth • v. Clark, 1651 of 2021 2021. p. at11 1d. at 111.

of 83 Page 60 0f judgment judgment that that is is manifestly unreasonable, or manifestly unreasonable, the result or the of bias, result of bias, prejudice, prejudice, ill- ill- will will or partiality, as shown byby the the evidence of of record.""g record "I Appellant claims Appellant claims that that the the admission admission of of this evidence was this evidence was "an "an improper improper use use of other crimes, wrongs, or acts evidence offered against accused. "' 19 Te against the accuse.I!9 The trial court clearly court admitted this clearly admitted as being this as relevant to being relevant demonstrate Appellant's to demonstrate Appellant's consciousness of guilt. The recording suggests suggests that Appellant Appellant was engaged engaged in some effort some effort to to prevent prevent or or discourage discourage the the victim victim from from testifying testifying against against him in aa him in truthful manner. truthful manner.

Our Supreme Court has explained, explained, "all relevant evidence, i.e., i.e., evidence which tends to make the existence or non-existence of aamaterial fact more or less probable, is is admissible, admissible, subject to to the the prejudice/probative prejudice/probative value value weighing weighing which attends all decisions attends all decisions upon upon admissibility.19 admissibility." 110 Moreover, Moreover, "all relevant relevant Commonwealth evidence is meant to prejudice aadefendant defendant [and] [and] a a trial court is not required to sanitize the trial to eliminate all unpleasant unpleasant facts from the jury's jury's consideration[.]"' consideration[.]" 21 An An exception to to this this rule rule is that "[e]vidence of aacrime, wrong, that "[e]vidence wrong, or other act act is is not admissible to prove a a person's character in order to show that on a a particular particular occasion occasion the the person acted in person acted in accordance accordance with with the the character." character." Pa.R.E.

Pa.R.E. 404(b)(1).

404(b(1).

Commonwealth v. Tyson, Commonwealth 1's 1yson, 119 A.3d A.34 353,357-58 3$3,357--58 (Pa.Super. 2015) (PA.Super. 2015) (en (en Banc) bane) (quoting, (quoting, Commonwealth v. v. Harris, 884 A.2d 920,924 884 A.2d 920,924 (Pa.Super. 2005), (Pa.Super. 2005), appeal denied, 593 appeal denied, Pa. 726, 593Pa. 726, 928 928 A.2d 1289 (2007)).

A.2d 1289 (2007) I9 Appellant's Appellant's Concise Statement of Matters Complain of on Appeal, ¶8(1) Appeal, 8(I Commonwealth • no comoowealthe 120 v. Dillon, 925 A.2d A.24 131, 136 (Pa. 2007). (Pa. 2007) Commonwealth v. coomorwealth • Dula, 262 A.34 A.3d 609,633(Pa. 609, 633 (Pa. Super. Super. 2021) 2021) (citation (citation omitted). omitted) Page Page 61 of 83 Evidence Evidence may be be admissible for aapurpose other other than to propensity, to show criminal propensity, "such as proving motive, opportunity, opportunity, intent, preparation, preparation, plan, knowledge, plan, knowledge, identity, identity, absence absence of of mistake, mistake, or lack of accident." Pa.R.E.

Pa.R.E. 404(b)(2).

404(b)02).

"Evidence of prior bad acts may also be introduced to prove consciousness Evidence wrongdoing. "122Even of guilt, i.e., that the defendant was aware of his wrongdoing.ma Even where an exception to Rule 404(b)'s prohibition against evidence of prior prior bad acts applies, applies, the evidence is admissible admissible "only if the probative probative value of the evidence outweighs outweighs its potential for unfair prejudice." Pa.R.E. 404(b)(2).

404(b)(2). "Unfair prejudice prejudice means aa tendency tendency to to suggest decision on an improper improper basis basis or to to divert divert the jury's jury's attention away from its duty of weighing the evidence impartially." impartially." Pa.R.E. 403 (comment) (comment).

Pennsylvania courts long recognized that any attempt by an appellant appellant to interfere interfere with with aawitness's witness's testimony is is admissible to to show appellant's appellant's guilt. " I In consciousness of guilt' [ that case, the action of the appellant in threatening one witness witness and attempting to to influence influence another another witness witness to to concoct an an alibi were were found to found to be be permissible permissible evidence of consciousness evidence of consciousness of guilt. 124 of guilt.

"[T]he only offer I [T]he I had was those guys guys [defendants]. [defendants]. These people people offered me me $$5,000.00 5,000.00 not to come to court." cour.' 125 This statement, made by by aawitness, was deemed admissible based on that court's acknowledgement that "testimony

X22 Commonwealth i . Ivy, amowealth • y, 146 A.34 t A.3d 241, 251 (Pa. Super 241,251 Super. 2016) 2016) (citation (citation omitted). iz3 Commonwealth. v. Rega, 593 Pa. 659, 681, 933 A.2d 997,1009 caamomwealth. v. Rega, 593 Pa. 659,681,933 4.24 997, 1009 (2007). (2007) Id. A Commonwealth v. as commonwealth "I v. Johnson, 542 $42 Pa. 384, 398,668 398, 668 A.24 A.2d 97,104 97,104 ((1995) 1995).

Page 62 of 0f 83 regarding attempts by aadefendant in aacriminal prosecution prosecution to interfere with witnesses is admissible to to show the defendant's consciousness ofguilt. of guilt.° In 1%

Commonwealth v. Lark, Commonwealth Lark,'127 evidence of threats made by appellant to aawitness by the appellant was deemed to be be "admissible as such evidence constituted admissions by by conduct showing consciousness of guilt. In this this case, in language, the in clear language, appellant the appellant desperately tried to alter the story that the victim would tell to the jury. jury. His efforts were unsuccessful and what was revealed through his own words in the telephone telephone recording was Mr. Clark's own consciousness of guilt. guilt.

The Appellant also claims that the trial court erred in not providing providing aa limiting instruction regarding the introduction of the jail recording. recording. No such instruction was requested at the time that the recording was played played or when points points for charge were to be submitted and, no objection was made to the final charge charge that did not include aalimiting instruction.

Therefore, Therefore, this this particular challenge challenge has has been waived. waived.1' Pa.R.A.P Pa.R.A.P 302(x) 302(a) requires an appellant to make aatimely and specific objection objection at trial or face waiver of his issue on appeal. Pa.R.A.P. 302(a). Failure "Failure to request request aacautionary cautionary

126 Id. I Commonwealth v. coomoowealth v. Lark, 518 Pa. 290, 308, 543 A.2d 491, 500 Larke, 518 PA. 290, 308,543 A.2 491, 5$00 ((1988) 1988) Transcript of Record, July 6, 2022 at 113, fenscript ' 1 of 2021.

13, Clark, 1651 0f 2021 Page Page 63 of 83 instruction upon upon the introduction introduction of evidence constitutes a a waiver waiver of aaclaim of trial trial court error error in failing failing to issue issue a a cautionary instruction." instruction."129

The The record record reveals reveals that appellant presented this issue for the first time in his that appellant his Rule 1925(b) statement. It is well settled that issues not raised in the lower court are are waived and and cannot be raised for the first time appeal."' Moreover, time on appeal. Moreover, a a party party cannot rectify the failure to preserve an issue by raising raising it for the first time in a a Rule 1925() 1925(b) statement. statement,"' THE APPELLANT'S CLAIM THAT THE COURT PERMITTED THE COMMONWEALTH TO TO COMMENT ON DEFENDANT'S RETENTION OF COUNSEL PROVIDED LITTLE LIITLE GUIDANCE FOR THIS COURT TO CONDUCT AA MEANINGFUL REVIEW In point (m) (m) the Appellant's Concise Statement, the the Appellant Appellant argues: argues: "The "The Court erred in in permitting permitting the Commonwealth Commonwealth to to comment on the the Defendant's Defendant's retention of counsel prior to trial in violation of his rights under the Pennsylvania Pennsylvania and and United States Constitutions.""' Despite multiple Constitutions."I32Despite multiple reviews reviews of the trial trial transcripts transcripts in its entirety, this statement is too vague vague for this court to identify, with absolute certainty, when this alleged comment occurred on the part of the Commonwealth.

129 Commonwealth n commonwealth v. Bryant, 579 Pa. Bryant,5$79 119, 141, 855 A.24 PA. 119,141, A.2d 726,739 726,739 (2004) (citing Commonwealth , (2004) (citing v. Wallace, 522 Pa. Pa. 297,565611 A.2d 719 ((1989 A.24 719 1989) (holding trial counsel's failure to object, when trial countcourt did not issue cautionary instruction following following introduction of evidence of defendant's prior incarceration, resulted in waiver of any claim o£ of error based error based upon upon trial court's failure trial court's failure to give aacautionary to give cautionary instruction); instruction), Commonwealth v. v, Jones, Jones, 501 $01 Pa. 162, 460 162,460 A.2d 739 ((1983) A24 739 1983) (deeming (deeming issue waived where defense counsel immediately objected to prosecutor's conduct but failed failed to request mistrial mistrial or curative instructions) or curative instructions).

130 Commonwealth e commonwealth v. Watson, 835 A.2d A.24 786,791 786,791 (Pa. Super. 2003); see also Pa.R.A.P. (Pa. Super. Pa.R.A.P, 302(a).

302(a) .See Commonwealth v, See , Pi Delta Pt, Psi, Inc., 211 A.3d Ince_21 875, 884 (Pa. A.34 87$,884 (PA. Super. 2019) (stating Super 2019) (stating "issues, even those of constitutional constitutional dimension, dimension, are waived if not not raised raised in in the trial court. count.") ") Appellant's Concise Appellant's Statement of Concise Statement Matters Complain of Matters Complain of of on on Appeal, ¶8(m) Appeal,8(m) Page 64 0f of 83 Raising clear and precise issues is a aparamount pillar to the 1925 opinion process. In Commonwealth v. v Lord, lord, the Supreme Court of Pennsylvania Pennsylvania spearheaded vague issues raised on appeal, appeal, reasoning: reasoning: The absence of a a trial court opinion poses aasubstantial impediment to meaningful and effective appellate review. Rule 1925 is intended to to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a a crucial component of the appellate appellate process." 133 process.133 The court in Lord was addressing general situations where an appellant completely completely fails to mention an issue, however this point was extended to "Concise Statements which are so vague as to prevent the court from identifying the issue to be raised on appeal" by the Pennsylvania Superior Court:134 Court:' When a acourt has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of aa legal analysis which is pertinent to those issues. In other words, a[c]oncise [s]tatement [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no all. 115 Concise Statement at all.> For the reasons explained above, this court feels that providing an analysis on an issue this unclear would amount to guessing on the part of the court. This

►.. Commonwealth v. commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308 ((1998) 1998). •aa coomoowealth Commonwealth v. • Dowling, 778 A.2d 686 (Pa.Super. A.24 683, 686 (Pa.Super 2001). ass Commonwealth • scamowealth v. Reeves, 907 A.21,2(Pa.Super. 2006).

A.2d 1, 2 (Pa.Super. 2006).

Page 65 of 83 court is is unable to to provide provide aameaningful meaningful review review as to the the issue issue raised raised in point point (m) (m) of the Appellant's Concise Statement.

THE COMMONWEALTH DID DID NOT NOT SUGGEST THAT THAT THE DEFENDANT_ DEFENDANT HAD A HAD DUTY TO ADUTY TO ASSIST ASSIST THETHE COMMONWEALTH IN MEETING ITS ITS BURDEN BURDEN OEOF PROOF, PROOF, AND/OR AND/OR ASSIST ASSIST THE THE LAW ENFORCMENT ENFORCMENT IN THEIR INVESTIGATION The next next points points raised raised by by the the Appellant Appellant are are as as follows: n) The Court erred in permitting the Commonwealth's questioning which which suggested suggested to to the the jury that the the Defendant Defendant has has an an obligation to to assist the Commonwealth in meeting its burden of proof, thus shifting the burden burden to to the the Defendant, Defendant, in violation violation of his his rights rights under the the Pennsylvania and United States Constitutions. o) The Court erred in permitting the Commonwealth to impermissibly suggest that Defendant and by extension, Defendant's counsel, had an obligation to assist law enforcement in the investigation investigation of of the case case in violation violation of his his rights rights under the Pennsylvania and United States Constitutions.

Point Point (n) (n) has similar vagueness issues addressed in the section above regarding the analysis for point regarding point (m); (m); it's unclear when the Commonwealth suggested that the Defendant has an obligation to assist the Commonwealth in meeting its burden of proof. proof. This court assumes the Appellant is referencing referencing redirect testimony testimony of the Commonwealth's witness, Officer Bialik. The redirect redirect testimony is relevant to the issue raised in point point (o) (o) and will be addressed here as well.

Page Page 66 of 0f 83 During During the the Commonwealth's initial line questioning, Officer line of questioning, Officer Bialik Bialik was asked about his observations as responding officer on September 11, H, 2021, as well as as his his role in in the investigation as the affiant and and investigating investigating officer.

On cross-examination, counsel for the the Appellant Appellant asked asked aaseries of questions questions related to Officer Bialik's training training and experience experience as an affiant, as well as his process process in interviewing interviewing witnesses to crimes. crimes. Appellant Appellant on cross examination examination also asked Officer Bialik about the inclusion of interviews of a a defendant during his investigations. It should be noted that whether or not the Appellant made aa statement to police was a a question presented by the Defense in their cross- examination of Officer Bialik. Retention of counsel was not an issue touched on or included in the Commonwealth's direct-examination or redirect, as noted in the analysis for the section above. Moreover, the question question initially initially posed by Attorney Attorney Schmierer regarding regarding the officer receiving aastatement from the Appellant Appellant included no limiting time-frame, meaning it was not clear if he was asking the officer if he sought a a statement before or after the Appellant retained counsel for trial.

After a a sidebar concluded, the Commonwealth's re-direct of their witness, Officer Bialik, continued: MR. MR. WISCHNOWSKI: WISCHNOWSKI: Thanks, Your Your Honor.

Honor. Officer Bialik, Bialik, IIwas asking you about your communications, just in general, with defense asking attorneys with the cases that you conduct, the investigations that you lead. Do you you know pretty much every criminal defense in this county?

Page 67 of 83 0f83 BIALIK BIALIK ["A"]: ["A"]: I I know know aalot lot of them I I would would say. say. Yeah, Yeah, IIknow a a lot of them. them.

MR. WISCHNOWSKI WISCHNOWSKI["Q"]: HQ"]: Do you communicate with them almost every day or at least every every day every week?

A: Honestly, no. IIhardly ever. Minus a a few, I I hardly hardly ever speak speak to them.

Q: If a a defense lawyer reached out to you you to ask you questions you some questions about your investigation, would you you make yourself yourself available up up until the time of trial?

A: If someone called, yes.

Q: Q: Did Did anybody onon Mr. Mr. Clark's behalf reach reach out to to you to to ask you you some of those clarifying clarifying questions? questions?

MR. SCHMIERER: I'm going to renew my objection, objection, Your Honor.

THE COURT: Overruled.

BY MR. WISCHNOWSKI: Q: The question is, did Mr. Schmierer or any counsel or Mr. Clark ever reach reach out to to you you to to ask clarify some of those ask you to clarify things you those things you were asked about'? about?

A: A: No. No.'I" We disagree disagree that that this line of questioning questioning was was the Commonwealth's attempt Commonwealth's attempt to to shift the burden of proof to the defense. We also do not agree agree that this line of questioning implied that the Defendant, and by extension, the Defendant's counsel, had an obligation to assist law enforcement in their investigation, as argued by by the Appellant. Conversely, the court viewed this line of questioning as the Commonwealth's attempt to rehabilitate their witness after the defense challenged the thoroughness of the criminal investigation. investigation.

Transcript of Record, July 6, 2022, at rnscript 136 of Record, July 6, 2022, at 140-141, Commonwealth Commonwealth i•• Clarke, Clark, 1651 of 2021.

2024 Page 68 of 83 The case law on this issue is clear. In aacriminal trial, aasuggestion suggestion that a a defendant has a a duty or obligation to produce evidence may may infringe infringe on the defendant's constitutionally-protected presumption of innocence in violation of his fair right fair to trial. right to trial. A statement A statement from from which which the the jury jury can draw an can draw an adverse adverse inference inference from the defendant's failure to produce evidence will violate a a defendant's constitutionally-protected right to be presumed innocent. innocent.'1' However, as stated by by the Supreme Court of Pennsylvania in in Commonwealth v. Sneed, aacomment from the Commonwealth concerning concerning aadefendant's failure to produce produce evidence does not violate aadefendant's right right to aafair trial when when the the statements statements are in response response to "defense counsel's argument" argument" or aa "theory defense[.] )) 139 "theory espoused by the defensef,1139 Additionally, our Supreme Court has found that suggesting suggesting "weaknesses regarding regarding the defense's proffered evidence" does not amount to an improper improper shift of the Commonwealth's burden Commonwealth's burden to to procedure procedure evidence. evidence.Mo

In the case at hand, the Commonwealth's comments were made in response response to allegations advanced by the defense in their cross-examination of Officer Bialik, where the defense attempted to theorize about the completeness of his investigation investigation as lead lead investigating officer and affiant. affiant. If anything, anything, the Commonwealth was was able able

Commonwealth v. carmonwealth 137 v. Miller, 208 A.2d 867, 869-71 869-71 (Fa_ 1965). (Pa. 1965) at I. 870 1d.870.

Commonwealth v. omorwealth 45 A.3d v. Sneed, 4 A.34 1096, 1112 (Pa. 2012).

1096, 1112(Pa.2012 peas v. Pennsylvania, 134 CE 173, Thomas v. Pennsylvania, 134 $.

S.Ct. 173,187 (U.S. 2013) (0.$. 2013) of 83 Page 69 0f83 to establish that it would be out of the ordinary for an investigating officer to speak speak with defense counsel in the course of their investigation. investigation.

WISCHNOWSKI [" Q'T Do you communicate with MR. WISCHNOWSK["Q"]: with [defense [defense attorneys] almost every day or at least every week?

A: A: Honestly, Honestly, no. I I hardly hardly ever. Minus a a few, I I hardly speak to hardly ever speak them.

Since the door was open open in regard regard to the thoroughness thoroughness of Officer Bialik's investigation during cross examination by trial counsel, the court was correct in permitting this line of questioning over the defense's objections.

Likewise, although point (m) (m) is vague vague as to what line of questioning questioning the Appellant Appellant is referring referring to, to, the the court does does not not believe believe it was implied implied that the the Defendant Defendant had had an obligation obligation to to assist assist the the Commonwealth in in meeting meeting its burden burden of proof during this line of questioning. questioning. Additionally, this argument argument fails in light light of the jury instructions read on July 8, 2022: "And And so, to summarize, you may not find the Defendant guiltyguilty based upon upon mere guilt. The mere suspicion of guilt, The Commonwealth has has the the burden burden of of proving proving the the Defendant Defendant guilty guilty beyond beyond aareasonable reasonable doubt. IfIf itit meets meets that burden, then the Defendant is no longer longer presumed presumed innocent, and you should find him guilty. On the other hand, if the Commonwealth does not meet its burden, then you must find him not guilty. guilty,I "141

For the reasons stated above, the Commonwealth's line of questioning did not violate the Appellant's rights under the Pennsylvania Constitution or the United States Constitution.

141 Transcript of Record, July wrascript July $, 8, 2022, at 62, Commonwealth v. v. Clark, 1651 of 2022.

2022 Page 70 of 0f 83 BEST EVIDENCE CLAIM overruling the Defendant's The Appellant argues that the court erred in overruling objection under the best evidence rule, specifically specifically stating stating that the "Court erred in overruling overruling the Defendant's objection objection under the best evidence rule where Officer Bialik was asked to provide provide his opinion opinion that the alleged alleged victim was standing standing in aa passive passive or non-threatening non-threatening way in in a a video, here here the the officer did did not not personally personally observe observe the the incident. incident"in? The Appellant Te argues that the since the Appellant argues the officer officer only only viewed the surveillance footage, footage, the objection objection should have been sustained under the the best evidence rule. rule. This line during the line of questioning occurred during Commonwealth's redirect of Officer Bialik. The relevant portions portions are as follows: BY BY MR. SCHMIERER: Q: All right. right. Just aafew final questions, Officer Officer Bialik.

Bialik. Now, Now, we we didn't see in the video that you you had gone gone back to retrieve that surveillance video, but you did that at a a later time?

A: A: Yeah.

Yeah. It It was e-mailed to to me. Q: Q: It was e-mailed to you?

A: A: Yes.

Yes.

Okay. And that was from a Q: Okay. a Ms. Brown?

A: Yes.

Yes.

Q: And And you're you're familiar familiar with Brown Brown as being aaneighbor neighbor of Fred Fred Turner's?

Turner's?

A: Yes.

A: Q: Okay.

Okay. And I I think you you testified maybe maybe that you had occasion to speak speak with her in the past past and obtain video from her house on other investigations? '42 Appellant's Concise Statement of Matters Complain of on Appeal, ¶8(p) "Appellant's Concise Statement of Matters Complain of on Appeal, 8(p) Page 71 of 83 A: Yes.

Q: Okay. And so II guess subsequent to that day is when you would have received that video by e-mail?

A: Excuse me?

Q: You would have gotten that video later by e-mail?

A: It would have been very, I I want to say, like, when you see me enter the police station, at the very end of my body camera, it should have been because you see me walking up and talking to Mrs. Brown.

She's looking through and trying to figure out how to e-mail to me. By the time II got back to the station, she had probably e-mailed it to me by then.

Q: Q: Okay. And did did you you have have it it before you you filed filed your your total Complaint?

Complaint?

A: A: Yes.

Yes."141

[BY MR. WISCHNOWSKI:] WISCHNOWSKI] Q: Now, you got to watch the video that Mr. Schmierer referenced of the surveillance camera footage; correct?

A: Yes.

Q: That was provided to you by Jacque Brown?

A: Yes.

Q: And you watched it before you filed the charges; Q:And charges; correct?

A: Yes.

Q: Q: Did that impact the way that you filed the charges and the decisions that you made when you prepared your Criminal Complaint?

A: Yes.

Q: How did it influence you? Well, let me ask it to to you this way. How many people were in that that footage?

A: A: Two.

Q: And were you able to identify them easily?

A: Yes.

143 Transcript of Record, July wenscript July 6, 2022, a1 at 133-13$,1651 133-135, 1651 0f of 2021.

2021, Page 72 of 83 0f83 Q: Who were they?

A: It was Christopher Brown, William Christopher Brown, and the Defendant.

Q: Why weren't you concerned that Mr. Brown might might have raised a a knife before the Defendant raised his knife?

A: His, it appeared he had his arms crossed. I I don't want to, we'll say, say, you couldn't really see arm, but you could see he was in aanon- threatening manner— manner- MR. SCHMIERER: Your Honor, I'm going to object at this point. I I think that we're discussing the video that we've, that hasn't been admitted into evidence at this point, and obviously the video is the best evidence of what is being discussed.

THE COURT: Overruled.

MR. WISCHNOWSKI, WISCHNOWSKI. Thank you. So, you were explaining that Mr. Brown was standing in aa nonthreatening way. How was the beginning of the video, how was Mr. Clark portrayed in that video?

A: Passive. If IIhad to describe him, he was lounging. lounging." 144

The trial transcript shows this line of question was in response to cross- examination of Officer Bialik by Attorney Schmierer. The purpose of this re-direct was to establish the completeness of Officer Bialik's investigation of the incident and to provide context to the charges Bialik included in the criminal information.

The testimony as to what the officer no noticed I iced in the video was in response to a a question as to what impact impact his observation of the video had on the charges that he filed. His explanation of what he observed was not comment on the video so much as his explanation as what he he reviewed to formulate the charges that were included in the Complaint.

Transcript of Record, July reanscript 144 July 6, 6, 2022, Commonwealth v. Clark, 2022, at 141-143, Commonwealth Clark, 1651 165l of 2021.

Page Page 73 of 0f 83 standing in a The Commonwealth did not directly ask if the victim was standing a non- threatening way, they asked why the investigating officer was not concerned that the victim had raised aaknife before the Defendant raised his. Once again, again, this question must be read in the context of the original question that was asked of the office, namely, office, namely, what what he observed in he observed in the the video video which led to which led to his his filing of charges filing of charges against the Appellant. Moreover, it was the Appellant Appellant who was described as standing in aa "passive" manner, not not the victim. victim.

A 2022 Superior Court case, Commonwealth v. Abrams, addressed best A evidence rules as as applied applied to surveillance video: video; Pursuant to Rule 1002, known as the "best evidence rule" under common law, law, "[a]n original writing, writing, recording, recording, or photograph photograph is required in order to prove its content unless these rules, rules, other rules prescribed by the Supreme Court, or a a statute provides provides otherwise." Pa.R.E. 1002.

I 002.

Although the best evidence rule is traditionally traditionally applied applied only only to writings, "[surveillance "[s]urveillance videotapes videotapes `present 'present the same type type of circumstances which the best evidence rule was designed designed to guard guard against,' namely testimony about the content of aavideotape videotape when the original tape has not been produced produced or admitted." Commonwealth v. Green, Green, 162 A.3d 509, 162 A.3d 509, 518 (Pa. Super. 2017), (Pa. Super. citing Commonwealth 2017), citing Commonwealth v. v. Lewis, Lewis, 623 A.2d A.2d 355, 358 (Pa. 355, 358 (Pa. Super. 1993) 1993) (first (first case to apply best to apply best evidence rule to videotape evidence).

While testimony to to prove content isis inadmissible inadmissible if if neither neither an original nor a a duplicate is introduced, introduced, "[a] "[a] duplicate is admissible[,] admissible[,] to to the the same extent as same extent as the original[,] unless the original[,] unless aa genuine genuine question question is is raised raised about the original's authenticity or the circumstances make it unfair to admit the duplicate." admit the duplicate." Pa.R.E.

Pa.R.E. 1003. 14 ' 1003.'°

w Commonwealth v. ias commonwealth e. Abrams, 272 272 A.3d 483 (Pa, (Pa. Super. Super. Ct. 2022), added.

2022), emphasis added Page 74 0f of 83 Here, the actual surveillance footage was played for the jury jury on the same day day as Officer Bialik's testimony. This evidence was introduced when the Commonwealth's next witness, Jacque Brown, was called to testify. testify,"146 Jacque Jacque Brown was able to authenticate that the video was generated generated from surveillance cameras on her property. The authenticity of the surveillance footage footage was not objected to during her testimony.

Rule I1002 is applicable only in circumstances where the contents of the writing, recording or photograph are integral integral to proving proving the central issue in a a trial.... trial... Consequently, if the Commonwealth is introducing introducing a a writing, recording, or photograph at trial, Rule 1002 requiresrequires that the original original be introduced only if the Commonwealth must prove be introduced only if the Commonwealth must prove the the contents of the writing, recording or photograph photograph to to establish the elements of its case." Commonwealth v. Fisher, 764 A.2d 82, 88 (Pa.Super. 2000).

2000). "The rule is not implicated implicated just just because evidence is relevant;" the rule applies if the writing, writing, recording, recording, or photograph photograph is necessary to prove the elements of a acase. Id, Id. at 381.

38]. In other words, the content of the video must be material to, and not just just mere evidence evidence of, of, the issues at bar bar for for the the best evidence evidence rule toto apply. apply.

Lewis, supra at 358.

358. "If the Commonwealth does not need to prove prove the content of the writing or recording recording to prove prove the elements of the offense charged, then the Commonwealth is not required to introduce the original writing or recording." Commonwealth v. Dent, Dent, 837 A.2d 571, 590 590 (Pa.Super. 2003). (Pa.Super. 2003).1 147

In the case at hand, the Commonwealth did not need the surveillance video in order to prove the elements of the charges against the defendant. Nonetheless, case law establishes that a a violation of the best evidence rule is subject to the

146 See Commonwealth's Exhibit 8 gee Commonwealth's Exhibit 8 Commonwealth v. commonwealth 141 v. Green, 2017 PA Super 140, 162 A.3d 509, 518--19 518-19 (2017) (2017 Page 75 0f of 83 test. "I4s Not every violation will rise to the level of reversible error "harmless error tegt 148

in every case where there is aatrue violation. " An error will be deemed harmless violation.""An 149

where the appellate court concludes beyond aareasonable doubt that the error could not have contributed to the verdict.is0 verdict. " The Commonwealth bears the burden of i50

establishing that the error was harmless; this burden is satisfied when the Commonwealth is able to show: show: ((l) 1) the error did not prejudice the defendant or the prejudice was de minimis; or or (2) the erroneously admitted evidence was merely merely cumulative of other untainted evidence which was substantially substantially similar to the erroneously admitted evidence; or or (3) the properly admitted and uncontradicted evidence of guilt was was so overwhelming and the the prejudicial prejudicial effect of the error so insignificant by comparison that the error could not have contributed to the verdict. verdict.'151

As stated, the Commonwealth was able to produce produce the surveillance footage footage in question. Even if defense's defenses best evidence objection was overruled in error, that error was harmless. Regardless of Officer Bialik's testimony regarding regarding what he observed in the footage, the Commonwealth provided testimony from the victim, William Christopher Brown, who was able to describe the incident. This testimony included a a description from the victim of the injuries he had sustained from er Commonwealth v. Lewis, 424 Pa.Super. 531, 623 A.2d 355 (1993).

148 carmomwealth v. Lewis, 424 PA.Super $31,623 A.24 355(1993 1491d. , .. Id. "' Commonwealth it commonwealth e. Mitchell, 576 Pa. PA. 258, 280, 839 A.2d 202,214 202, 214 (2003). (200.3).

Commonwealth v. Green, 2017 PA Super 140,162 151commonwealth 140, 162 A.3d 509,519 509,519 (2017) (2017) (quoting (quoting Commonwealth v. v. Passmore, A.2d (Pa.Super. 2004)).

4.2d 697, 711 (Pa.Super. 2004)) Page 76 of 0f 83 Appellant as aaresult of Appellant's conduct, conduct. While the surveillance footage footage was evidence that would support that the Clark and Brown were on Freddie Turner's porch together, it was not the only evidence offered by the Commonwealth that established this fact. Furthermore, the Appellant was able to establish that he was on the porch with Brown, and the Appellant provided testimony confirming that he did strike Brown with a a razor blade. Therefore, even if the objection objection to this line of questioning was incorrectly overruled, the testimony of the officer who viewed the footage in question was not dispositive of the Appellants guilt guilt and amounts to harmless error.

DR. CHRISTIE PROVIDED TESITMONY AS THE VICTIMS TREATING PHYSICIAN, NOT AN EXPERT WITNESS PHYSICIAN, Next, the Appellant claims that "[t]he Court erred in permitting permitting the fact witness, Sabrina Christie, who was not qualified as an expert witness, to testify that a a laceration that is 5 S centimeters in depth is deep enough to to pierce the the `'platysma platysma muscle.""" The testimony in question involves Commonwealth witness Dr. muscle,19 Sabrina Christie Christie (Dr. Christie), who testified as William Christopher Brown's treating physician.

Dr. Christie testified and referred to her operative dictation records for the victim during the course of his treatment. treatment.S Her testimony that aalaceration that is I"

5 centimeters in depth is enough to pierce the platysma muscle was permitted, as concise Concise Statement of Errors Complained on Appeal, Appeal, 8(q) ¶8(q). s See Commonwealth Exhibit 11.

153 ge IL Page 77 of 83 0f83 she had personal knowledge of the injuries sustained by by the victim and she was required to measure the wound in the course of his treatment. Her operative dictation records were not prepared in anticipation of litigation or for trial.

Our Superior Superior Court has addressed issues regarding regarding challenges challenges to treating treating physician physician testimony on appeal. In Krolikowski Krolikowski v. v. Ethicon Ethicon Womens' Womens' Health Health && Urology Div. of Urology aaDiv. ofEithicon, Eithicon, Inc., Inc., the court explained: Appellant's Appellant's argument fails for several reasons. First, the Polett Court placed no emphasis on the fact that the treating physician was qualified as an expert at trial. Rather, the Court focused on the fact that the physician's causation opinion was formed formed during the course of treatment, rather than in anticipation of litigation. See See Polett, Polett, 126 A.3d at 924-26. See also Crespo, See also Crespo, 167 A.3d at 182 (concluding treating physician waswas "qualified to comment as a a fact witness on causation because his testimony was based based on his observations, diagnosis, and medical judgment at the time he rendered treatment to to [the plaintiffl;" plaintiff];" question posed to physician asked him to clarify clarify "his own notes"). notes") 154 I9

In another case, Kurjan Kurjan v. v. Anisman, the Superior Court explained when testimony of aatreating physician can can survive an expert witness testimony challenge; specifically stating that opinions formed by aatreating physician physician before litigation are admissible." admissible. 155 "Assuming arguendo "Assuming arguendo that Dr. Hector's testimony is considered to be be `opinion' opinion' testimony, this testimony is still admissible as Dr. Hector was plaintiffs plaintiff's treating physician prior to and without any regard to litigation."

grolikow.skt Krolikowski • 15¢ v. Ethic Ethicon on Womens`Health & Urology a Womens' Health & aDhr Die, ofEthicon, Inc., 240 A.3 A.3d 151 (Pa. Super. Super, Ct. 2020) Kurjan v, grfan v. Anisman, 851 Amusma, 8$1 A.2d 152,156 A.24 152, 16 (Pa.Super. 2004) Super. 2004) (Pa Page 78 of 83 0f83 In In another challenge to physician testimony challenge to appeal, the testimony on appeal, the Superior Superior Court differentiated between expert testimony and opinion expert medical testimony opinion testimony of aatreating treating physical. physical.

Appellant Appellant first first alleges alleges that because Dr. that because Dr. Channapati Channapati testified testified as as a a medical expert, medical expert, he he was required to was required to provide provide aa pre-trial pre-trial report report pursuant pursuant to to Pa.R.C.P. Pa.R.C.P, 4003.5. Therefore, Therefore, Appellant argues that Appellant argues that because because Dr. Dr. Channapati Channapati did did not not provide provide aapre-trial pre-trial report, the trial report, the trial court court should should have have precluded precluded his testimony. The his testimony. The trial court found trial court found that that Dr. Dr. Channapati was not required to provide a a pre-trial pre-trial report report pursuant pursuant to to Rule Rule 4003.5 4003.5 because because he he was was notnot retained retained in in anticipation anticipation of of litigation. litigation. WeWe agree. agree. This Court has This Court has held held that that where where a doctor's a doctor's opinions and knowledge are acquired before an action commences, commences, the doctor's doctor's "opinions proffered at trial fall outside the scope scope of Rule 4003.5." KatzKat v. St. Mary's Mary's Hospital, Hospital, 816 A.2d 1125, 1125, 1127 (Pa.Super. 2003). Presently, Dr. (Pa.Super. 2003). Dr. Channapati was was the the decedent's treating treating physician. His testimony related to his personal observations of the decedent decedent in the the months months prior prior to to her her death. death. HeHe testified regarding regarding her her condition and the care he provided to her. Dr. Channapati Channapati did not express any express any opinion opinion regarding regarding whether Appellee Appellee was was negligent negligent or or breached the standard of care required required for apersonal a personal care home. Thus, Thus, it it is is clear clear that that Dr. Channapati's testimony Dr. Channapati's testimony regarding regarding thethe decedent's decedent's condition was condition was not offered offered asas expert expert medical opinion and that medical opinion that he he was was not retained not retained byby Appellee Appellee in in anticipation anticipation of of trial. trial. Accordingly, Accordingly, the the trial trial court court diddid not not err err in in finding finding Rule Rule 4003.5 4003.5 inapplicable.' inapplicable.I 11

Similarly, Dr. Dr. Christie provided provided testimony testimony regarding regarding the the victim's victim's injuries injuries as as related related to to her her personal observations in personal observations in the course of the course of his his treatment. treatment. A A treating treating physician's testimony testimony is subject to is not subject expert witness to expert witness disclosure disclosure when when the opinions the opinions or facts or facts are developed in are developed the normal in the nonnal course course of of medical treatment for medical treatment for aapatient and patient and are not are not developed developed in in anticipation of litigation. anticipation of litigation. As the treating As the treating physician physician who who

1Alwine s6wte •v. Sugar Creek Rest, Rest, Inc., 241, ¶ Ie., 2005 PA Super 291,$n13-15, 883 A.2d 605, 610 (Pa. Super. Ct. (Pa. Sper. Ct, 2005) 2005$) Page of 83 Page 79 0f 83 measured the depth of the injuries sustained by William Christopher Christopher Brown, she was permitted to testify whether or not an injury. injury was deep enough to pierce deep enough pierce the platysma muscle, as this knowledge knowledge was required injury. required for her to treat Brown's injury.

This does This does not not amount amount to to expert expert testimony, testimony, as alleged by as alleged by the the Appellant, and the Appellant, and the court was correct in ruling ruling over over defense counsel's counsel's objection on on this this matter. matter.

JURY INSTRUCTION REGARDING THE DEFINITION FOR DEADLY WEAPON UNDER THE STATUE NOT CONTAINED IN STANDARD CRIMINAL CRIMINAL JURY JURY INSTRUCTION INSTRUCTION Finally, Finally, the the Appellant argues that Appellant argues that the the trial court erred trial court erred in in providing providing aa definition for deadly weapon weapon under the statute, which was not contained in standard criminal jury instructions. Prior to jury jury instructions being being provided, provided, the court asked court asked if there were if there any specific were any specific interrogatories interrogatories being being requested on the requested on the verdict verdict slip. The Commonwealth requested aaspecial special interrogatory interrogatory for deadly weapon for deadly weapon to Count 1 I and 2, over no objection from the defense counsel. This issue is related to a a question question posed by the jury jury during during the course of deliberations, where they they requested the the statutory definition for "Deadly Weapon." Weapon." It's well-settled that suggested suggested standard jury jury instructions themselves are not binding. 157Suggested binding.' Suggested standard jury jury instructions do not alter the discretion afford to judges in crafting trial judges crafting jury jury instructions; the instructions are guides only."' The only, The trial courts of Pennsylvania Pennsylvania "are invested with broad discretion in crafting jury "ICommonwealth v. commooealth v. Simpson, Simpson, 620 Pa. Pa. 60, 60, 95, 95, 66 A.3d 253,274 66 A.3d 253,274 (2013). (2013) Id. p

Page 80 of 83 instructions, and such instructions will be upheld so long as they clearly and accurately present the law to the jury for its consideration." its consideration.1s 159

There is no doubt that the instructions read to the jury jury were a a clear and accurate presentation of the law. law, In ruling on this matter, the court stated the following: I I was aware of the notion, and it's been referred to as aawell- settled principle that the standard jury instructions are not themselves binding, do not alter the discretion in me crafting jury instructions, and so given that that is the status of the law and given the clear authority that aatrial judge may frame jury instructions and language that deviates from standard instructions, so long as the instruction adequately and accurately defines essential terms, so long as I I abide by that polestar, IIfeel that giving the definition in Section 2301 is something that could very easily have been included in the original instruction and at this point it very well maybe if I I have this instruction come up. It doesn't misstate the law or what aa deadly weapon is. It doesn't confuse the jury by telling them that this is what it is. They have aaspecific question, and this is one of those times where it can definitely be answered with exact words. The question can be with, when I I say exact words, IImean words straight from what they reference as Commonwealth law.

So my intentions are to read the definition and tell them that this definition was not previously provided to them; however, this is the definition that arises out of Pennsylvania law, which is in something we call Title 18 in Section 2301. IIdon't like to give too may technical terms, but I I think the reference to Pennsylvania law is necessary there. there.''10

159 Commonwealth coamomealth v.v. Rainey, 593 Pa.Pa. 67, 112-13,928 112-13, 928 A.2d A2d 215, 242-43 242-43 (2007). (2007) reo Transcript of Record, July 8, 2022, at geanscript at 100-01, 100-0I, Commonwealth ofof Pennsylvania v. v. Tyrone Clark, 1651 of 2021.

2021 Page 81 of 83 The The instruction instruction read to to the the jury included included the the exact exact language language under statutory under the statutory definition of deadly weapon. Providing this clarifying instruction to the jury jury was well within the discretion of the trial judge in this case.

CONCLUSION CONCLUSION

For the reasons stated above, this court respectfully respectfully submits that the allegations of error in this case are without merit and therefore this court's holding holding resulting from a a deemed denial denial should be be affirmed. affirmed. The The Beaver County Clerk of Beaver County of Courts is hereby directed to file the record of these proceedings Superior proceedings with the Superior Court of Pennsylvania, an appropriate order shall follow.

Respectfully Respectfully Submitted,

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EZE St CH Page Page 82 of 0f 83 IN THE IN THE COURT COURT OF OF COMMON COMMON PLEAS OF BEAVER PLEAS OF BEAVER COUNTY, COUNTY, PENNSYLVANIA PENNSYLVANIA CRIMINAL CRIMINAL DIVISION DIVISION

COMMONWEALTH COMMONWEAL TH OF PENNSYLVANIA CP-04-CR-001651-2021 VS. vs. 1412 WDA 2022 TYRONE CLARK

ORDER ORDER AND NOW, this 30" day of January, 2023, it appearing appearing that the defendant has filed a a Notice of Appeal Appeal in the above-captioned above-captioned case and it further appearing appearing that the the accompanying Memorandum Opinion satisfies the requirements requirements of Pa. R.A.P. 1925(a), it is ORDERED that the Clerk of the Criminal Court Division of the Court of Common Pleas of Beaver County County transmit the record in the above captioned case case to to the the Superior Superior Court Court forthwith. forthwith. _ BY THE COURT:- COLMT ~ C

ll4 Mitchell Mitchell P.-,ha•qn, P.Sha[en, r, E Judge Judge z-

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Page 83 0f83 of 83