J-S19022-25
2025 PA Super 246
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CODY KAVON REED :
:
Appellant : No. 2552 EDA 2024
Appeal from the Judgment of Sentence Entered August 19, 2024
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0003168-2023
BEFORE: PANELLA, P.J.E., STABILE, J., and BECK, J.
OPINION BY STABILE, J.: FILED OCTOBER 30, 2025
Appellant, Cody Kavon Reed, appeals from his judgment of sentence of
life imprisonment for first-degree murder, criminal conspiracy, robbery,
possession of an instrument of crime with intent, and flight to avoid
apprehension or punishment.1 We affirm.
The trial court’s detailed opinion demonstrates the painstaking way in
which the police assembled their case against Appellant:
On March 3, 2023, around 9:00 a.m., Daquan Tucker’s body was
discovered by a passerby, down a steep embankment, next to the
Schuylkill River Trail. Officer Anthony DiNolfi of the West Norriton
Township Police Department responded to the scene at 185
Schuylkill River Trail a few minutes later.
Detective David Schanes of the Montgomery County Detective
Bureau was able to identify the victim, at the scene, using a
portable fingerprint reader since no identifying information was
found. The detective collected two fired cartridge casings, both
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1 18 Pa.C.S.A. §§ 2501, 903, 907, and 5126, respectively.
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.40 caliber. He later recovered a third projectile from the autopsy.
All three fired cartridge casings were fired from the same firearm.
Dr. Khalil Wardak performed the autopsy and determined that the
cause of death was multiple gunshot wounds to the head. During
the course of the investigation, Riley Weems, the victim’s
girlfriend, spoke to police and gave police critical information. Ms.
Weems explained that on March 2, 2023, the victim left their
house around 6:45 p.m. The victim shared his location with her,
through a shared “live location” on the Find my iPhone application.
At 8:57 p.m., Ms. Weems took a screenshot of his location, which
showed that the victim was in the woods, since she thought that
was strange. She took another screenshot of his location around
9:00 p.m. Ms. Weems was worried and called him at 9:02 p.m.;
the victim answered. He sounded happy, as if nothing was wrong.
She later tried calling him several other times, but he never
answered. At 10:06 p.m., Ms. Weems took a screenshot of the
victim’s cell phone location, which showed that his phone was
around 1000 West Airy Street. The victim’s cell phone location no
longer would update.
Although Ms. Weems testified that she did not remember certain
aspects of her March 3, 2023 statement to police, the recorded
statement showed that on March 2, 2023, before meeting up, the
victim was on a FaceTime call with Appellant. Ms. Weems gave
Appellant her address, so he could send an Uber for the victim.
Detective John Wittenberger of the Montgomery County Detective
Bureau gathered about 24 sources of video surveillance and made
a compilation video. In pertinent part, video from the morning of
March 2, 2023, showed Johnson, with blue Puma hooded
sweatshirt with the hood up, acid wash jeans and holding his
phone. Appellant was wearing jeans and carrying his cell phone.
The two men walked towards Appellant’s apartment and entered.
Around 7:11 p.m. that night, the victim arrived in the vicinity of
Appellant’s apartment in an Uber. The Uber had been ordered
from an account associated with Hailey Covelens, Appellant’s
girlfriend. The victim walked to Appellant’s apartment.
Around 8:32 p.m., video surveillance showed that the victim,
Appellant, and Johnson, exited Appellant’s apartment building and
walked westbound. Additional surveillance videos showed the
three men continue to walk south on Chain Street in the direction
of the Schuylkill River Trail. The entire walk was about 1.4 miles.
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The men went out of view about a block before the trail access
point. There was no surveillance video on the trail.
Around 9:36 p.m., surveillance video picked up two subjects
walking away from the trail and on a path of travel back to
Norristown. On the way back to Appellant’s residence, video at a
7-Eleven showed Appellant and Johnson around the 1500 block of
West Main Street at about 9:38 p.m. They arrived back [at]
Appellant’s apartment around 10:22 p.m. At 10:54 p.m., Brianna
Radley’s vehicle pulled up to Appellant’s residence, the two men
exited the residence, and got into the car. The vehicle left the
area.
Detective Heather Long reviewed call detail records for cell phones
belonging to Appellant, Johnson, the victim, and Ms. Radley. The
detective reviewed the download of Ms. Weems’ phone.
Additionally, she corroborated the phone detail records with the
clips of surveillance video testified to by Detective Wittenberger.
On the morning of the murder around 10:59 a.m., cell site data
showed that Appellant and Johnson’s phones were traveling
together in the vicinity of Appellant’s apartment building. The
surveillance video from 11:03 a.m. showed that Appellant was
wearing a grey jacket, grey sweatshirt, and gray baseball cap.
Johnson was wearing a bright blue Puma sweatshirt and lighter
blue, acid wash jean, and black sneakers. Handset location of
Johnson’s phone at that same time showed his cell phone in the
vicinity of Appellant’s residence from 11:03 a.m. until 8:06 p.m.
Cell site data also put Johnson in the vicinity of Appellant’s
residence during this same time period. Surveillance video
supports the fact that they remained there during this time.
From about 8:38 p.m. until 10:15 pm. [on March 2 nd], during the
critical time period, cell site data showed Appellant’s phone faced
the site and sector of his residence. This was consistent with
handset location. Johnson’s cell site data showed that during this
same time, his cell site side and sector also faced Appellant’s
residence. However, the victim’s handset records showed his
phone left the vicinity of Appellant’s residence around 8:32 p.m.,
which was corroborated by the video which showed the victim
along with Appellant and Johnson, leaving Appellant’s apartment.
In fact, the victim’s handset records match the path of travel of
the three men in the surveillance video. The men were last seen
on the video around 8:40, about 250 to 300 yards from the
Schuylkill River Trail.
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The victim’s handset records from 8:40 p.m. to 9:00 p.m. show
movement of his cell phone and the handset location at around
that time. At 9:09 p.m., the victim’s cell phone location converged
with the cell location from the Find My iPhone application and the
location of the victim’s body the next morning.
By 9:20 p.m., the victim’s cell phone began to travel away from
where his body was found. This was consistent with video
surveillance of a path of travel traveled by two figures. More
specifically, at 9:37 p.m., two subjects, one wearing light over
dark which was consistent to what Appellant had been wearing
earlier; and dark over light clothing, consistent with what Johnson
had been seen in in earlier surveillance, walked in a path
consistent with the victim’s handset location. At 9:40 p.m. the
victim’s cell phone traveled to West Main Street. This is consistent
with surveillance video that showed two subjects walking in the
direction of the 7-Eleven. Screenshots at the 7-Eleven at 9:52
p.m. showed Appellant and Johnson. After 10:18 p.m., the
victim’s cell phone stopped communicating with the network, and
was last located in the vicinity of Appellant’s apartment.
Handset records indicated that Appellant’s and Johnson’s phones
were at Appellant’s residence during the critical time period and
there was no user-initiated activity during this time period.
However, after video showed Appellant and Johnson arrive back
[at] Appellant’s residence, there was user-initiated activity on
their phones.
Ms. Radley’s cell phone arrived in the vicinity of Appellant’s
residence around 10:58 p.m. Around that time, video showed
that the two subjects emerged from Appellant’s residence and
entered her vehicle. Appellant was carrying a white bag.
Thereafter, cell phone records showed the travel of all three
phones away from Appellant’s residence. There were no further
records for Appellant’s phone after March 4th. Ms. Radley’s phone
and Johnson’s phone continued to travel together until March 6 th,
which is the last cell site information for Johnson’s phone. By
March 7th, cell site data showed Ms. Radley’s phone to be in the
vicinity of 826 Monroe Street, Stroudsburg area. After 12:44 p.m.
her phone was no longer connected to the network. This was in
close proximity in time or right after the police contacted Ms.
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Radley’s parents.2 Between March 9th and April 6th there were
several Airbnb rentals all reserved from an account associated
with Ms. Radley. The last rental was on March 31, 2023, for seven
nights, at 11 North Rhode Island Avenue, Atlantic City. On April
6, 2023, over 20 SWAT officers responded to that location and
Appellant and Johnson were taken into custody.
Pa.R.A.P. 1925 Opinion, 12/13/24, at 2-8 (cleaned up; citations omitted).
Appellant and Johnson were tried together, and a jury found Appellant
and Johnson guilty of the charges referenced above. On August 19, 2024, the
court entered sentence against Appellant. Appellant filed timely post-
sentence motions, which the court denied, and a timely appeal to this Court.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues in this appeal:
Did the lower court err by failing to grant Appellant’s Motion for
Judgment of Acquittal because the Commonwealth’s evidence was
insufficient to sustain convictions on the charges of Conspiracy to
Commit First Degree Murder, First Degree Murder, Robbery, Flight
to Avoid Apprehension and Possession of an Instrument of
Crime[?]
Did the lower court err and abuse its discretion by not permitting
defense counsel to cross-examine a witness about the victim’s
intent to meet with a third person on the night of the murder[?]
In his first argument, Appellant contends that the evidence was
insufficient to sustain his convictions. We disagree. Appellant and Johnson
lured the victim, Daquan Tucker, into Norristown, where they brought him to
the Schuylkill River Trail and shot him. After the killing, they took the victim’s
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2 The police also told Appellant’s and Johnson’s girlfriends that arrest warrants
had been issued for Appellant and Johnson. N.T., 6/4/24, at 119-20.
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cell phone and fled. This evidence, construed in the light most favorable to
the Commonwealth, defeats Appellant’s sufficiency challenge.
When the defendant challenges the sufficiency of the evidence, our
standard of review is
whether viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact, while passing upon the
credibility of witnesses and the weight of the evidence produced
is free to believe all, part or none of the evidence.
Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2019).
First-degree murder is a criminal homicide committed by an intentional
killing. 18 Pa.C.S.A. § 2502(a). To sustain a first-degree murder conviction,
the Commonwealth must establish that: (1) a human being was unlawfully
killed; (2) the defendant did the killing; and (3) the killing was willful,
deliberate, and premeditated. Id. at § 2502(a), (d); Commonwealth v.
Hicks, 156 A.3d 1114, 1123-24 (Pa. 2017). When there is no direct evidence
of intent to kill, the factfinder may infer intent from the act itself and all
surrounding circumstances. Commonwealth v. Simmons,
662 A.2d 621,
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629 (Pa. 2005). Use of a deadly weapon on a vital part of the body is a clear
indicator of intent to kill. Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa.
Super. 2013) (“[s]pecific intent to kill can be proven where the defendant
knowingly applies deadly force to the person of another”).
The defendant is guilty of conspiracy to commit first degree murder if
he: (1) intends to commit or aid in the commission of the criminal act; (2)
enters into an agreement with another to engage in the crime; and (3) the
defendant or another co-conspirator commits an overt act in furtherance of
the agreed upon crime. Commonwealth v. Le, 208 A.3d 960, 969 (Pa.
2019); see also 18 Pa.C.S.A. § 903(a). “The essence of a criminal conspiracy
... is the agreement made between the co-conspirators.” Commonwealth v.
Murphy,
844 A.2d 1228, 1238 (Pa. 2004). A conviction for conspiracy
requires proof of the existence of a shared criminal intent. Le,
208 A.3d at
969. For first-degree murder, a conspirator must also possess the specific
intent to kill. Commonwealth v. Rios,
721 A.2d 1049, 1053 (Pa. 1998).
Whether a person had the same intent to kill as their co-conspirator may be
“inferred from words, conduct, the attendant circumstances including the
actions taken after the killing and all reasonable inferences that follow from
them.”
Id.
The nature of conspiracy is that there is often no direct evidence of the
defendant’s criminal intent or the conspiratorial agreement. Murphy, 844
A.2d at 1238. Thus, “[a]n agreement sufficient to establish a conspiracy can
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be inferred from a variety of circumstances including, but not limited to, the
relation between the parties, knowledge of and participation in the crime, and
the circumstances and conduct of the parties surrounding the criminal
episode.” Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008).
Such conduct or circumstances may may create “a web of evidence linking the
accused to the alleged conspiracy beyond a reasonable doubt.”
Commonwealth v. Jordan,
212 A.3d 91, 97 (Pa. Super. 2019). All co-
conspirators can be convicted of first-degree murder, regardless of who
inflicted the fatal wound. Le,
208 A.3d at 969.
Finally, a person may also be liable for crimes of another if he served as
an accomplice. Id. (applying accomplice liability to first-degree murder). A
person acts as an accomplice when he, “with the intent of promoting or
facilitating the commission of an offense…solicits such other person to commit
it, or aids or agrees or attempts to aid such other person in planning or
committing it.” 18 Pa.C.S.A. § 306(c)(1). The amount of aid necessary is
minimal. Indeed, the “least degree of concert or collusion in the commission
of the offense is sufficient to sustain a finding of responsibility as an
accomplice.” Commonwealth v. Mitchell,
135 A.3d 1097, 1102 (Pa. Super.
2016). “No agreement is needed, only aid.”
Id. As with conspiracy, an
accomplice to first-degree murder must also possess the specific intent to kill.
Le,
208 A.3d at 969. In turn, such intent may be inferred from conduct and
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circumstances. An accomplice also is culpable even if he did not inflict the
fatal wound. Id.
Here, the Commonwealth presented ample circumstantial evidence that
Appellant and Johnson entered in a criminal conspiracy with a single goal: to
kill the victim. They executed their conspiracy on March 2, 2023, when they
accompanied the victim into the river trail and shot him three times in the
head. The events leading up to the murder began with Appellant arranging
for the victim to come to Norristown. Before then, the victim had planned to
spend the night with his girlfriend, Weems. Video later depicted Appellant,
Johnson and the victim walking together through Norristown. The last video
of the three showed them walking in the direction of the river trail, about 250
yards away from its entrance. Just under an hour later, Appellant and Johnson
were on video walking north up Schuylkill Avenue, away from the trail, but
without the victim. This street was further west down the trail from where
the victim entered and from the location of his body. In other words, the
victim’s body was found between the entry and exit points.
The evidence established that the victim died shortly after entering the
trail. Specifically, he died shortly after 9:10 p.m., after he stopped responding
to Weem’s calls and text messages. Weems took a screenshot of the victim’s
location while he was on the trail. His body was later found near this spot,
but without his phone. The victim’s phone, however, continued to travel on
the same path as Appellant and Johnson, first west along the trail, then north
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up by Schuylkill Avenue, then back east in the direction of Appellant’s
apartment. Weems took an additional screenshot that showed the phone’s
location at 1000 W. Airy Avenue. Video footage captured Appellant and
Johnson walking across the street at that location at the exact same time.
The phone continued to follow Appellant’s path until it was disconnected from
the network.
Furthermore, Appellant and Johnson fled from Norristown immediately
after the murder, indicating their knowledge of the killing and consciousness
of guilt. See Commonwealth v. Johnson, 838 A.2d 663, 681 (Pa. 2003)
(defendant’s flight indicates knowledge of killing and establishes
consciousness of guilt); Commonwealth v. Housman,
986 A.2d 822, 831
(Pa. 2009) (flight is circumstantial evidence of specific intent to kill). Upon
returning to Appellant’s apartment, Johnson immediately arranged for his
girlfriend to come to Norristown. When she arrived, Appellant loaded a large
bag into the car and the three immediately left. Appellant and Johnson then
spent the next month moving between different Airbnb’s until they were
apprehended in Atlantic City.
This evidence, viewed in the light most favorable to the Commonwealth,
established Appellant’s guilt for first-degree murder beyond a reasonable
doubt. A jury could reasonably infer that Appellant and Johnson accompanied
the victim into the river trail based on their location and movement. On the
trail, they shot him three times in the head, took his phone and fled. Whether
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Appellant fired the fatal shot is irrelevant; he is still guilty either as Johnson’s
accomplice or co-conspirator.
The same evidence establishes the existence of a conspiracy to kill the
victim. Appellant and Johnson were associates who left their cell phones at
Appellant’s apartment before meeting with the victim, left the river trail
together after shooting the victim, went back to Appellant’s apartment, fled
Norristown together, and moved together to different locations for the next
month until their arrest in New Jersey. See Commonwealth v. Marquez,
980 A.2d 145, 150 (Pa. Super. 2009) (noting “[f]light [is] the logical
conclusion of [a] criminal confederation”).
Appellant argues that the Commonwealth did not present physical
evidence that he entered the trail, possessed a gun, or provided a motive.
Appellant’s brief at 11. He ignores that the Commonwealth could and did
meet its burden with circumstantial evidence alone. Smith, 206 A.3d at 557.
As discussed above, the evidence shows that Appellant walked into the river
trail with the victim and then left the trail without him. The victim’s body
never left the trail, but his phone traveled along the same path as Appellant
and Johnson. The victim died from three shots to the head, establishing use
and possession of a firearm. Further, the lack of motive is irrelevant, for “[i]t
is well established that the Commonwealth is not required, as a matter of law,
to prove the accused’s motive even where the offense charged is murder in
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the first degree.” Commonwealth v. Briggs, 12 A.3d 291, 340 n. 44 (Pa.
2011).
Next, citing Commonwealth v. Phillips, 129 A.3d 513 (Pa. Super.
2013), Appellant argues that there was insufficient evidence to support his
conviction for flight to avoid apprehension. Specifically, he claims that he
could not be convicted of this crime because he fled before law enforcement
filed charges.
The Crimes Code defines the offense of flight to avoid apprehension,
trial or punishment as follows:
A person who willfully conceals himself or moves or travels
within or outside this Commonwealth with the intent to avoid
apprehension, trial or punishment commits a felony of the
third degree when the crime which he has been charged with
or has been convicted of is a felony and commits a misdemeanor
of the second degree when the crime which he has been charged
with or has been convicted of is a misdemeanor.
18 Pa.C.S.A. § 5126. (Emphasis added). Pertinently, the plain language of
this statute makes it an offense if a person conceals himself with the intent to
avoid apprehension when the crime he has been charged with is a felony or
misdemeanor. In other words, Section 5126 requires a specific intent to avoid
apprehension, i.e., arrest, after acquiring knowledge that charges have been
filed. See Commonwealth v. Steffy, 36 A.3d 1109 (Pa. Super. 2012)
(appellant was not avoiding apprehension for speeding ticket but was eluding
police to avoid apprehension and punishment based on his knowledge that he
had an outstanding bench warrant for his arrest). It therefore is incumbent
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upon the Commonwealth to prove a defendant was aware of pending charges
while fleeing. This of course may be shown circumstantially. Smith, supra.
In this case, the trial court ably described the circumstantial evidence
demonstrating that Appellant fled to avoid apprehension while knowing that
charges had been filed against him:
Detective Wittenberger testified that on March 8, 2023, arrest
warrants were issued for Appellant and Johnson. (N.T., Trial by
Jury-Day 2, 6/4/24, 119). In an attempt to find them, the
detective spoke to their respective girlfriends to find out their
whereabouts. Id. He spoke to Briana Radley [Johnson’s
girlfriend] on March 8th, and 22nd. Id. at 120. He spoke to Hailey
Covelens [Appellant’s girlfriend] on March 15th. Id. at 120. They
did not provide the detective with any information. Id.
In addition, Ms. Radley helped Appellant and Johnson initially
leave Norristown and head upstate in Pennsylvania. (N.T., Trial by
Jury-Day 3, 6/5/24, 124-125). Ms. Radley’s phone, Appellant’s
phone, and Johnson’s phone traveled together from the time of
the murder through March 4th, when there were no longer records
for Appellant’s phone. Id. at 132. Ms. Radley’s phone and
Johnson’s phone continued to travel together until March 6th,
which is the last cell site information for Johnson’s phone. Id. at
134-136. By March 7th, cell site data showed Ms. Radley’s phone
to be in the vicinity of 826 Monroe Street, Stroudsburg area. After
12:44 p.m., her phone was no longer connected to the network.
This was in close proximity in time or right after the police
contacted Ms. Radley’s parents. Id. Between March 9th and April
6th there were several Airbnb rentals all reserved from an account
associated with Ms. Radley. Id. at 137-138, 140. The last rental
was on March 31, 2023, for seven nights, at 11 North Rhode Island
Avenue, Atlantic City, where Appellant and Johnson were
ultimately apprehended. Id. at 138.
….Appellant and Johnson continued to abscond from law
enforcement after the arrest warrants were issued and
circumstantial evidence showed they were aware that the
warrants were issued and law enforcement was attempting to
locate them.
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Opinion at 17-18. We conclude that this evidence was sufficient for a jury to
infer and find that Appellant knew that charges had been filed against him,
causing him to continue to conceal himself to avoid apprehension. This was
especially so given the circumstantial evidence of the apparent complicity
between Appellant, Johnson and their girlfriends before and while continuing
to flee. Although Appellant argues that he continued fleeing because he knew
people thought he had killed the victim, the jury was free to reject this theory
and accept the Commonwealth’s view of the evidence. Watkins, 843 A.2d at
1211 (factfinder is free to accept all, some, or none of the evidence).
We further find that the circumstantial evidence supporting Appellant’s
conviction for flight to avoid apprehension, viewed in a light most favorable to
the Commonwealth, is supported by our Supreme Court’s decision in
Johnson. The defendant in that case contended, inter alia, that the trial
court’s instruction on concealing/fleeing was improper because there was no
direct testimony showing that he knew that he was sought after by the police
and the evidence revealed that he resided in New York near the time of the
shooting. The Court, opining on the evidence, stated,
A defendant’s knowledge may be inferred from the circumstances
attendant his flight. See Commonwealth v. Lester, 554 Pa.
644, 658,
722 A.2d 997, 1003 (1998) (citing Commonwealth v.
Rios, 546 Pa. 271, 291,
684 A.2d 1025, 1035 (1996)); see
also [Commonwealth v.] Tinsley, 465 Pa. [329,] 333, 350 A.2d
[791,] 793 [1976] (concluding that such an inference was justified
where the evidence revealed that the defendant abandoned his
normal pattern of living without explanation and could not be
located at his residence or place of employment or through
contacts to his relatives). Here, there was evidence that Johnson
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disrupted his normal pattern of living following Combs’ killing.
Further, the police conducted an extensive search spanning
Pennsylvania and New York, but were unable to locate Johnson for
over one and one-half years when he was finally taken into
custody by the FBI in New York. Johnson’s knowledge that he
was wanted could be inferred from Detective Dietrich’s
testimony that he informed Johnson's friends and family in New
York that he held a warrant for Johnson’s arrest. Additionally, the
difficulty in locating Appellant is consistent with Ramsey’s
testimony that, after Combs’ murder, she was told by Izod, who
was a member of Johnson’s drug-trafficking group, “It’s too hot
and we [are] laying low.” The court therefore properly determined
that the Commonwealth presented sufficient evidence to warrant
the concealment/flight charge.
Id.,838 A.2d at 681 (emphasis added). As in Johnson, (1) Appellant
abandoned his normal pattern of living by absconding from Pennsylvania, (2)
he did so for approximately one month after his crimes were committed, and
(3) Johnson’s and Appellant’s girlfriends and Radley’s parents were informed
of the outstanding arrest warrants for them. These facts, together with the
use and disconnection of phones and the apparent complicity with their
girlfriends, support the inference of Appellant’s knowledge of the charges
against him.
Appellant’s reliance upon Phillips is unavailing. Phillips only made
clear that the plain language of Section 5126 requires that a person has been
charged with a crime before he may be found guilty of flight to avoid
apprehension. Id., 129 A.3d at 518. In that case, the defendant fled on foot
after the car he was in crashed after a high-speed police chase. He was
charged with and convicted of, inter alia, flight to avoid apprehension. On
appeal, we concluded that since the Commonwealth did not prove that
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defendant had been charged with a crime when he fled, insufficient evidence
existed to find him guilty of that offense. We therefore reversed the
defendant’s judgment of sentence and discharged him on that count. Id. at
519.
This appeal does not present the same circumstances as in Phillips. In
Phillips, the defendant was arrested immediately after a chase and before he
was charged with flight to avoid apprehension. Instantly, while it is true
Appellant fled immediately after committing the crimes of which he was
convicted, unlike Phillips, he continued to flee even after charges were filed
against him to avoid apprehension. Under the plain language of Section 5126,
Appellant could be found guilty of flight to avoid apprehension.
We acknowledge that there appears to be difference of opinion in this
Court’s unpublished memoranda as to whether Section 5126 requires the
Commonwealth to prove that the defendant knows he has been charged with
a felony or misdemeanor offense. Compare Commonwealth v. Baker,
2019 WL 7173300, *2 (Pa. Super. 2019) (“Section 5126 applies where the
defendant flees knowing that a criminal charge is pending against him”) with
Commonwealth v. Bronson,
2023 WL 2360866, *5 (Pa. Super. 2023)
(Section 5126 does not require proof that defendant knew he had outstanding
arrest warrant at time he fled from police). Our review of Section 5126
demonstrates that a defendant must be aware that charges have been filed
against him to be found guilty of a Section 5126 offense. Had our legislature
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intended to criminalize flight after committing a crime without knowledge that
charges have been filed, it could have done so simply by making it a crime to
avoid apprehension after committing a crime. Instead, Section 5126 imparts
a specific intent to avoid apprehension (arrest) after charges have been filed,
thus requiring a nexus between the intent to flee and the reason for fleeing.
As discussed above, the detailed circumstantial evidence in this case
demonstrates that Appellant was aware that charges were filed against him
during his month-long flight following the murder.
Appellant seems to suggest that Section 5126 only applies when the
defendant learns that charges have been filed before he flees. The plain
language of Section 5126, however, demonstrates that it applies where the
defendant learns about the charges before or after he flees. Appellant cites
no relevant authority that Section 5126 excuses a defendant’s flight when he
learns about the charges after he flees. Nor can we fathom any rationale that
supports such a defense.
Finally, Appellant does not offer any specific argument that there was
insufficient evidence to support his convictions for robbery or possession of an
instrument of a crime. There was sufficient evidence to sustain his convictions
on both charges. The evidence establishes that Appellant and Johnson took
Appellant’s phone after the murder and later disposed of it around the time it
was disconnected from the network. See 18 Pa.C.S.A. § 3701(a)(1)(i)
(defining robbery as inflicting serious bodily injury in commission of a theft).
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The use of a gun to kill the victim demonstrates Appellant’s guilt for possession
of an instrument of a crime. See Commonwealth v. Santiago, 980 A.2d
659, 662 (Pa. Super. 2009) (using loaded gun to kill satisfies elements of
possession of an instrument of crime); Commonwealth v. Gladden,
665
A.2d 1201, 1208 (Pa. Super. 1995) (applying accomplice liability to possession
of an instrument of a crime); 18 Pa.C.S.A. § 907(a).
For these reasons, Appellant’s challenge to the sufficiency of the
evidence fails.
In his second and final argument, Appellant contends that the trial court
erred by excluding testimony that the victim intended to meet with another
person on the night of the murder. We agree with the Commonwealth that
Appellant waived this argument.
During trial, the trial court sustained the Commonwealth’s hearsay
objection when defendant’s counsel asked the victim’s girlfriend whether the
victim told her that “he was meeting with E?” The Commonwealth objected
on the basis of hearsay, and the court sustained the objection. Counsel did
not present an offer of proof or argue that the testimony was admissible. He
simply moved to a different line of questioning. N.T., 6/4/24, at 67-68.
Subsequently, counsel for Appellant likewise asked Detective
Wittenberger whether the victim “was to meet with somebody by the name of
E” on the night of the murder. Id. at 137. The Commonwealth objected on
the basis of hearsay, and the court sustained the objection. Counsel for
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Johnson requested a sidebar conference, but the conference was not
transcribed. At the conclusion of the conference, the court again sustained
the objection. Id. at 138.
According to Appellant,
If [Detective Wittenberger] was permitted to respond, an
assumption can be made that he would have stated that he saw a
text from [the victim] that was sent to his girlfriend in which he
states that he intended to meet up with an individual named “E”.
This declaration falls squarely within the exception to the hearsay
rule for declarant’s state of mind (intent). This was critical
information because it would have raised reasonable doubt about
who [the victim] met with on March 2nd into March 3rd, especially
in a purely circumstantial case.
Appellant’s Brief at 13.
Appellant waived this argument. Issues not raised before the trial court
are waived and cannot be raised for the first time on appeal. Pa. R.A.P. 302(a).
Trial judges “must be given an opportunity to correct errors at the time they
are made.” Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super.
2008). To avoid waiver, “one must object to errors, improprieties or
irregularities at the earlies possible state of the criminal… adjudicatory
process.”
Id. at 580. The defendant must make a “timely and specific
objection” to preserve an issue for review. Commonwealth v. Duffy,
832
A.2d 1132, 1136 (Pa. Super. 2003). If the ruling excludes evidence, the
moving party must inform the court of the substance of the evidence by an
offer of proof, unless the “substance was apparent from the context.” Pa.R.E.
103(a)(2). Thus, the defendant may not raise a new theory of relief that he
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did not present to the trial court. If counsel states the grounds for an
objection, “then all other unspecified grounds are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Lopez, 57 A.3d 74, 81-82
(Pa. Super. 2012).
Here, the trial court sustained the Commonwealth’s hearsay objection
when Appellant’s counsel asked the victim’s girlfriend if the victim told her
that he was meeting with E. Counsel did not present an offer of proof or argue
that the testimony was admissible. The trial court again sustained the
Commonwealth’s hearsay objection when Appellant’s counsel asked Detective
Wittenberger a similar question. The court affirmed that it was sustaining the
objection after an unrecorded side bar. Counsel again failed to present any
argument as to the admissibility of the evidence on the record. Appellant now
argues for the first time on appeal that this testimony was admissible to show
the victim’s intent under the state of mind exception to the hearsay rule.
Appellant waived this argument because he did not raise it during trial.
Commonwealth v. Smith, 47 A.3d 862, 866 (Pa. Super. 2012) (“[i]n order
to preserve application of a hearsay exception for appellate review, that
specific exception must first be raised before the trial court”).
Even if Appellant had preserved this argument, it would not have
entitled him to relief, because exclusion of this evidence was at most harmless
error.
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Harmless error exists where: (1) the error did not prejudice the
defendant or the prejudice was de minimis; (2) the erroneously admitted
evidence was merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison that the error
could not have contributed to the verdict. Commonwealth v. Chmiel, 889
A.2d 501, 521 (Pa. 2005).
Appellant appears to believe that the excluded evidence would have
been relevant to demonstrate that he met with another person on the night
of the murder instead of Appellant. For present purposes, we will assume that
this evidence was admissible and that the court erred by excluding it from
trial. Nevertheless, the evidence of record demonstrates that the victim met
with Appellant and Johnson on the night of the murder; the three men entered
the river trail; the victim’s body was found on the trail; Appellant and Johnson
exited the trail with Appellant’s cellphone; and Appellant and Johnson fled
Norristown and took steps to evade apprehension for another month. This
evidence proves overwhelmingly that even if Appellant intended to meet with
E on the night of the murder, he met instead with Appellant and Johnson, and
that Appellant was guilty of murder. Thus, exclusion of the evidence
concerning Appellant’s intent to meet with E was at most harmless error.
For these reasons, we affirm Appellant’s judgment of sentence.
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Judgment of sentence affirmed.
Date: 10/30/2025
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