Commonwealth v. McGriff

OPINION BY STEVENS, P.J.E.

Appeal from the Judgment of Sentence July 1, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002445-2014 BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E. OPINION BY STEVENS, P.J.E.:

Former Justice specially assigned to the Superior Court.

Rudolph McGriff (hereinafter "Appellant") appeals the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on July 1, 2015, at which time he was sentenced to life imprisonment without the possibility of parole following his conviction of first-degree murder along with concurrent prison terms of two and one half (2 ½) years to five (5) years for his related firearms convictions. We affirm.

Appellant was convicted of murdering his estranged girlfriend (hereinafter "the victim"). As the trial court set forth a comprehensive recitation of the facts developed at trial in its Pa.R.A.P. 1925(a) Opinion, we will not duplicate it herein but, instead, adopt the trial court's summary for purposes of this appeal. See Trial Court Opinion, filed 4/5/16, at 2-48.

We direct the parties to attach a copy of the trial court opinion in the event of further proceedings in this matter.

On July 1, 2015, the jury found defendant guilty of First-Degree Murder, Firearms not to be carried without a license, Carrying firearms on public streets in Philadelphia, and Possessing instruments of crime, and the trial court sentenced Appellant to an aggregate term of life imprisonment. N.T., 7/1/15, 9, 16-17. Appellant filed a post-sentence motion on July 6, 2015, and the trial court denied the same on December 1, 2015.

18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a), respectively.

On December 22, 2015, Appellant filed a timely notice of appeal. On January 12, 2016, the trial court ordered Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b), and Appellant complied on February 10, 2016. In his brief, Appellant presents the following Statement of the Questions Involved:

1. Did the trial court abuse its discretion in permitting the prosecutor to present evidence that [ ] Appellant had repeatedly refused to come in to the police office and talk to the detectives who were investigating the homicide in this case while at the same time prohibiting the defense from presenting the testimony of [ ] Appellant's attorney, Anthony Petrone, Esquire, who had instructed [ ] Appellant not to talk to the police?
2. Did the trial court abuse its discretion in refusing to permit the defense to call witnesses to inform the jury that the victim may have
been slain in response to her participation in a scheme of armed robberies at that location?

Brief for Appellant at 3.

Appellant's first issue as it is developed in his appellate brief requires a threefold analysis. Appellant first asserts the trial court denied him his federal and state constitutional rights to due process and a fair trial when it erroneously permitted the prosecution to elicit repeatedly that Appellant had failed to meet with detectives of the Philadelphia Police Department Homicide Unit.

Before we address the merits of this portion of Appellant's initial claim, we first must determine whether Appellant properly has preserved the issue for our consideration, for it is well-settled that a party must make a timely and specific objection at trial, and the failure to do so results in waiver of that issue on appeal. Pa.R.A.P. 302(a); see also Commonwealth v. Montalvo , 641 A.2d 1176, 1184 (Pa.Super. 1994) (citation omitted) (to preserve an issue for review, a party must make a timely and specific objection at trial, for this Court will not consider claim on appeal not called to trial court's attention at a time purported error could have been corrected).

Pa.R.E. 103 addresses rulings on evidence and requires a contemporaneous objection in order to preserve a claim of error in the admission of evidence. The Rule reads in relevant part as follows:

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion in limine; and
(B) states the specific ground, unless it was apparent from the context. . . .

Pa.R.E. 103(a). "Consistent with ... Pa.R.E. 103(a), a motion in limine may preserve an objection for appeal without any need to renew the objection at trial, but only if the trial court clearly and definitively rules on the motion." Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa.Super. 2011) (citations omitted), appeal denied, ___ Pa. ___, 49 A.3d 441 (2012). Once the trial court enters a definitive ruling on the record, either prior to or during trial, "a party need not renew an objection or offer of proof to preserve a claim of error for appeal." Pa.R.E. 103(b).

Prior to trial, a hearing was held before the trial court at which time Appellant presented argument pertaining to his motion in limine "to preclude statements and comments by the DA in opening and closing and in the presentation of evidence that would in any way imply that [Appellant] is guilty because of pre-arrest silence." Defense counsel further explained generally that "[t]he proffered testimony in this case is that the police asked family members of the decedent to have [Appellant] contact them and give them statements."

Specifically, counsel referenced what the victim's "brother" and "sister" "might" say, and anticipated the Commonwealth would argue "that his failure to go to the police is an implication of guilt." N.T., 6/17/15, at 5, 8-9. Notably, defense counsel later clarified that while the Commonwealth "can present the evidence," it would be improper to argue this failure reflects a consciousness of guilt. N.T., 6/17/15, at 17. Counsel further explained the basis for his objection as follows:

[Defense Counsel]: I object to any statements by the brother and sister, evidence that they asked him to go to the police, and then any testimony from any police officer as to whether or not he actually went to the police and any argument that the fact that he didn't go to the police is consciousness of guilt because the police were the ones that asked the family to tell him to come to them.

Id. at 20.

In response, the Commonwealth represented it would limit its questioning of members of the victim's family to their "voluntary conversations" with Appellant to establish a course of conduct whereby Appellant repeatedly lied to and concealed information from them. Id. at 12-17, 21-23. The Commonwealth maintained that such references would be used not to establish Appellant had been hiding from police, but rather to show the credibility of other statements he made in those conversations. The Commonwealth further suggested that if the trial court and defense counsel agreed, the trial court may provide a "cautionary instruction that this evidence on this statement is coming in for the context of [the jury] to determine the credibility of the other statements in that conversation." N.T., 6/17/15, at 20-23. Counsel did not object to the presentation of such testimony for this limited purpose.

Following a brief recess, the trial court reached the following conclusion:

My view is basically that I agree with the Commonwealth in this matter. I do not review it—I do not review it as a pre-arrest silence situation. The conversations that will be testified to by family members with [Appellant] on the day that the victim's body was found and for the period thereafter when they urged him to go to speak to police, that doesn't amount in my mind to pre-arrest silence and so I will deny your motion.

Id. at 25. Once again, counsel did not object to the family members' testimony for this specified, limited purpose.

In his brief, Appellant presents the following summary of the trial testimony of three witnesses, Pricilla Jessie, the victim's sister, Aiking Jessie, the victim's brother, and Naneke Green, the victim's cousin:

At trial, Pricilla Jessie, the victim's sister, testified for the prosecution that after the homicide, she asked [] Appellant to go and meet with the assigned detectives and that [ ] Appellant said that he would, "but he never went" (N.T. 6/18/15, 122). Aiking Jessie, the victim's brother, testified for the prosecution that he also asked [ ] Appellant to talk to the police on several occasions after the mother of his sister, and [ ] Appellant said he would do so (N.T. 6/18/15, 165, 166). Mr. Jessie testified that when he subsequently asked [ ] Appellant again if he was going to talk to the police, [] Appellant said that he would not (N.T. 6/18/15, 168). Finally, Neneke Green, the victim's cousin, testified for the prosecution that [ ] Appellant also told her that he was going to talk to the detectives (N.T. 6/23/15, 147).

Brief for Appellant at 10.

Appellant maintains the Commonwealth was "repeatedly permitted over defense objection" to present the aforementioned testimony. Appellant's Brief at 8, 11. However, as stated previously, defense counsel admitted the Commonwealth could present the evidence, so long as it did not argue it established Appellant's consciousness of guilt, and our review of the certified record reflects that at no time did counsel place a specific objection on the record following the testimony of any of the aforementioned witnesses in this regard.

We conclude that, although he lodged an anticipatory objection prior to the Commonwealth's calling of the victim's brother and sister to testify in connection with his motion in limine, counsel failed to make a timely and specific objection to their testimony on constitutional grounds at the time that it was actually proffered. Moreover, counsel did not specifically reference Ms. Green in his argument on June 17, 2015, at all and failed to object following her trial testimony. Accordingly, we find Appellant has waived for appellate review any constitutional challenge to the testimony.

Even if Appellant properly had preserved this issue for review during trial, his failure to conclude for "strategic reasons" that he did not wish the trial court to provide an instruction stressing that Appellant had a right to remain silent precludes his attempt to claim on appeal he had been prejudiced. See Commonwealth v. Norman , 549 A.2d 981, 986 (Pa.Super. 1988) (en banc) ("[w]hen counsel chooses to refuse appropriate curative instructions for legitimate tactical reason, the defense may not plead prejudice on appeal"). In addition, Appellant does not develop an argument in his appellate brief with proper citation to authority as to how the statements of family members impinged upon his constitutional right against self-incrimination. Indeed, our Supreme Court has held otherwise. See Commonwealth v. Dinicola , 581 Pa. 550, 563, 866 A.2d 329, 337 (2005) (concluding a mere reference to a defendant's pre-arrest silence does not necessarily impinge constitutional rights when guilt is not implied and "[e]ven explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt"). See id (citation omitted). As such, this claim is also waived for lack of development. See Commonwealth v. Spotz , 610 Pa. 17, 157, 18 A.3d 244, 327 (2011).

However, Appellant did object prior to the Commonwealth's calling of Detective Edward Toliver to rebut counsel's statement to another officer that "Nobody cared enough to get a search warrant." N.T., 6/24/15, at 8-9. The Commonwealth indicated that while it had not intended to call Detective Toliver to testify regarding the conversation Appellant had had with him on April 7, 2013, it felt the need to question Detective Tolliver in response to Appellant's questioning of "a number of witnesses as to the [D]etective not serving a search warrant on [Appellant's] home and even went so far as to say to Officer Flager, 'nobody cared.'" N.T., 6/24/15, at 4.

As stated previously, our Supreme Court has held that "a mere reference to pre-arrest silence does not constitute reversible error where the prosecution does not exploit the defendant's silence as a tacit admission of guilt." Commonwealth v. Adams , 628 Pa. 600, 601, 104 A.3d 511, 513 (2014) (Opinion Announcing the Judgment of the Court) citing Commonwealth v. DiNicola , supra ; Commonwealth v. Whitney , 708 A.2d 471, 478 (Pa. 1998). In doing so, the plurality in Adams stated that "[w]hile we have interpreted the constitutional right against self-incrimination generally to prohibit prosecutors from referencing a defendant's silence as substantive evidence of guilt, this Court has also concluded that the right against self-incrimination is not burdened when the reference to silence is 'circumspect' and does not 'create an inference of an admission of guilt.'" Id., 628 Pa. at 609, 104 A.3d at 517 (citation omitted).

Of the five justices deciding Adams , three agreed that the reference to appellant's pre-arrest silence during the police investigation did not impinge on the defendant's constitutional rights. Among the three was then-Chief Justice Ronald Castille, who, in concurrence, offered his view that reference to pre-arrest silence would not violate a defendant's constitutional rights "irrespective of whether the prosecution later exploited the reference." See Adams , 628 Pa. at 611, 104 A.3d at 518. (Castille, J., concurring)

Moreover, our Supreme Court held in DiNicola , that the prosecution could use a defendant's pre-arrest silence not only to impeach a defendant's testimony but also as a fair response to defense arguments. Id. 581 Pa. at 562, 866 A.2d at 336, (finding that "[s]ince the trooper's investigation was obviously limited by [defendant's] decision to reject the request for an interview, we find that the Commonwealth's elicitation of the trooper's testimony regarding this fact constituted fair response"). The admissibility of testimony for purposes of fair response, where there is an appropriate objection thereto, is subject to the trial court's evaluation of probative value versus prejudicial effect under Pa.R.A.P. 403. DiNicola , 581 Pa. at 561, 866 A.2d 336.

In support of its holding that its decision to permit the Commonwealth to present evidence regarding Appellant's failure to report to the Homicide Unit for questioning did not disturb Appellant's Fifth Amendment right against self-incrimination, the trial court stated the following:

[O]n April 7, 2013, the day the decedent was killed, Detective Tolliver spoke with [Appellant] on the phone and explained to him that he was investigating the homicide and that he would like to talk to [Appellant] as part of gathering information. [Appellant], not a suspect at the time, promised that he would come to Homicide to speak to the detectives further. Almost immediately thereafter, [Appellant] reached out to his counsel, Anthony Petrone, who advised him against speaking to anyone. (N.T. Volume 1, 06/4/2015, p.10).
[Appellant], therefore, insists that he simply followed his counsel's advice, and that his Fifth Amendment rights were violated when his non-reporting to Homicide was brought to light through Detective Tolliver's trial testimony.
This court finds that in the case at bar, Detective Tolliver's testimony offered a reasonable explanation as to why a search warrant was not served on [Appellant] in an attempt to locate the gun from which the shots were fired. As the Commonwealth correctly noted, had a search warrant been served on [Appellant], the latter would have interpreted this circumstance as him [sic] being a suspect, which would have scared him away from talking to the detectives.

[Detective Tolliver's] testimony came in, clearly, to rebut any allegations of ... lazy detective work and the credibility of Detective Tolliver, when he took the witness stand, as the defense attacked Detective Tolliver's credibility. Part of the attack on his credibility was the lack of serving a search warrant and the lack of his diligence. So it came in for that purpose and not to pierce [Appellant's] Fifth Amendment right.

(N.T. Volume, 06/26/2015, pp. 9-10).
Furthermore, it was well known that [Appellant] had a lot of properties, and it wouldn't have been obvious which property to search in the first place. The detectives were also aware that it was easy to dispose of the gun "right away." (N.T. Vollume [sic] 1, 06/24/2015, pp. 7-8).
Upon review of the record, this court is satisfied that the evidence that [Appellant] did not follow through on his promise to come to Homicide to speak to the detectives did not imply any tacit admission of guilt by [Appellant] as it was introduced with a sole purpose of demonstrating the nature and focus of the investigation. Through his trial testimony, Detective Tolliver, whose credibility was a "linchpin" in this case (N.T. Volume 1, 06/24/2015, p. 11), offered a fair response to counter any defense allegations of his supposed lack of conscientiousness as an investigator. The reference to [Appellant's] non-showing up at Homicide was circumspect and contextual; in no way did it create an inference of [Appellant's] consciousness of guilt. This court, therefore, concludes that [Appellant's] right against self-incrimination was not disturbed. No relief is due.

Trial Court Opinion, filed 4/5/16, at 50-52. Upon our review of the record, we find no abuse of the trial court's discretion.

At numerous points throughout trial, Appellant criticized the police for exhibiting apathy in their investigation and highlighted the alleged lack of thoroughness they had showed in their failure to search his various properties for evidence linking him to the murder. See e.g. N.T., 6/17/15 at 91-92; 6/18/15, at 82-85; 6/22/15, at 122-23; 6/23/15, at 174-75; 6/29/15, at 31-40, 44-45. It was in response to such criticism that the trial court properly allowed Detective Tolliver's testimony. See DiNicola , 581 Pa. at 561-62, 866 A.2d at 335-36 (Commonwealth may introduce evidence of pre-arrest silence when defense's examination of a witness challenges the diligence of police investigation of its case).

In addition, the prosecutor indicated that he had inquired as to whether Appellant wished to have the trial court provide a cautionary instruction to the jury "about how to properly use the evidence of [Appellant] telling family members and Detective Tolliver that he would talk to the police or go down to the Homicide Division and give a statement, then never did." The prosecutor explained he would not object to such a cautionary instruction, although defense counsel stated that for "stragetic reasons" he did not want the trial court to provide one. N.T., 6/29/15, at 4. As such, Appellant has waived any claim of purported prejudice as a result of Officer Tolliver's testimony regarding Appellant's pre-arrest silence for his failure to request a curative instruction. See Commonwealth v. Williams , 532 Pa. 265, 277, 615 A.2d 716, 722 (1992) (finding trial court's instruction to jury not to draw any adverse inference from prosecutor's comment upon defendant's post-arrest silence during closing argument sufficient to cure any potential prejudice therefrom).

Appellant also posits the trial court abused its discretion when it ruled that if he were to present testimony of his former counsel, Anthony Petrone, to establish it was he who advised Appellant not to talk to the police, the Commonwealth would be permitted to question counsel on cross-examination regarding his representation of Appellant in prior criminal homicide investigations. Brief for Appellant at 8-9, 12. Appellant stresses that as a result of this ruling, Attorney Petrone was not called to testify.

A review of the record reveals Appellant mischaracterizes the trial court's decision in this regard, for nowhere did the trial court prohibit Attorney Petrone from testifying; instead, the court indicated it would provide the prosecution "wide latitude" in its cross-examination of counsel. N.T., 6/26/15, at 13-17. As the trial court pointed out, defense counsel agreed with its observation that any direction Attorney Petrone may have provided to Appellant not to speak with police did not necessarily mean that was, in fact, the reason he did not do so. In addition, the trial court stressed that Attorney Petrone's testimony regarding his advice to Appellant "neither rebuts the fact that [Appellant] lied to the decedent's family nor rebuts the reason Detective Tolliver did not serve a search warrant." Trial Court Opinion, filed 4/5/16, at 54 (footnote omitted).

As the Commonwealth asserts, the scope of cross-examination is always a matter within the trial court's discretion. Commonwealth's Brief at 34 citing Commonwealth v. Dowling , 778 A.2d 683, 687 (Pa.Super. 2001). Appellant's arguments pertain only to what prejudice he surmises he "would have suffered" had Attorney Petrone testified. Brief for Appellant at 14. As such, he has failed to show, in fact, that his constitutional rights were violated or that he was prejudiced, as the cross-examination never occurred due to a strategic decision defense counsel made not to call counsel on the stand:

[Defense Counsel]: And if Petrone does not testify, you're not going to argue in any form or imply or draw reasonable inference that his not going to the police when he told Tolliver he would is consciousness of guilt or a lie or anything else, because that's not why you introduced it?
[The Prosecutor]: That's correct.
The Court: Okay. Then we're on the same page?
[Defense Counsel]: I think we are.

N.T., 6/26/15, at 16-17. In light of the foregoing, Appellant's first issue lacks merit.

In his second question presented, Appellant states the trial court denied his federal and state constitutional rights to due process and a fair trial when it prevented him from presenting testimonial evidence from Jamar Nesmith and Rasheeda Rogers. Appellant maintains their testimony would have established they, along with the victim, had been involved in a prostitution conspiracy to rob drug dealers in the vicinity wherein the victim was murdered. Although not specified in his Statement of Questions Presented, Appellant further argues in his appellate brief that the trial court abused its discretion when it excluded evidence that a BB gun had been found in the decedent's vehicle.

When considering challenges to the admissibility of evidence, we employ a well-settled standard of review:

The admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Witmayer , 144 A.3d 939, 949 (Pa.Super. 2016) citing Commonwealth v. Woodard , ___ Pa. ___, 129 A.3d 480, 494 (2015).

Initially, we note that while Appellant frames his argument pertaining to this issue in terms of the denial of his constitutional rights in his appellate brief, he did not present a constitutional challenge before the trial court either at the time of trial or in his Rule 1925(b) statement. It is well-established that "[a] party complaining, on appeal, of the admission of evidence in the court below will be confined to the specific objection there made." Commonwealth v. Cousar , 593 Pa. 204, 231, 928 A.2d 1025, 1041 (2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2429, 171 L.Ed.2d 235 (2008). 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. Arroyo , 555 Pa. 125, 142, 723 A.2d 162, 170 (1999); thus, Appellant has waived this claim for his failure to properly raise it below. See N.T., 6/17/15, at 32-36, 39-46; 6/23/15, at 180-81; Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); Dowling , supra at 686 (finding appellant waived claim on appeal where he presented one theory in his Rule 1925(b) statement and a different one in his appellate brief).

In addition, to the extent Appellant generally asserts the trial court abused its discretion in excluding the testimony of Mr. Nesmith and Ms. Rogers in his Rule 1925(b) statement and appellate brief, we find he waived this challenge for his failure to raise a timely and specific objection with the trial court.

Prior to trial, the parties presented argument on the Commonwealth's motion to exclude the proposed testimony of Mr. Nesmith who had given a statement to a defense investigator the prior week. Positing the statement lacked proper foundation and was rife with hearsay, the Commonwealth explained that if called to testify, Mr. Nesmith would state that he had committed robberies with the victim in the past and that he received a call from someone indicating there was "a hit" on her. The Commonwealth elaborated that such evidence would be used to show there was another reason why the victim would have been in the block of Bailey Street where the murder occurred and that someone other than Appellant would have had a motive to kill her. N.T., 6/17/15, at 30-31. The Commonwealth highlighted that because there was no other evidence to corroborate Mr. Nesmith's statements that the victim had engaged in prior robberies, such testimony would be improper under Pa.R.E. 404(b).

This rule reads, in relevant part, as follows:

(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses
. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses
. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1), (2).

In response, Appellant averred such testimony went to the heart of his defense in that Mr. Nesmith and Ms. Rogers knew the victim well and the trio had engaged in dangerous activities as was proven by the victim's robbery conviction. N.T., 6/17/15, at 32-35. Appellant further related that Mr. Nesmith had been shot at, proving he was the victim of a hit. Id. at 34. Appellant admitted no one ever had been arrested for shooting of Mr. Nesmith. Id. at 34-35. Following a brief recess, the trial court made the following ruling:

THE COURT: I know the defense has explained to me that defense reviews this as vitally important to the defense in this case, and that may be, but the evidence lacks the proper foundation. It's speculative. And ultimately all it proves, even if it's true, is that it goes to character assassination of the deceased. I'm going to grant Commonwealth's motion to preclude it.

Id. at 35.

Appellant did not object to the trial court's decision at this juncture, and the trial court proceeded to consider on the record a juror issue. Thereafter, defense counsel indicated his investigator had just handed him a Facebook page belonging to Ms. Rogers. Although he admitted that prior thereto Ms. Rogers had denied any involvement in the murder, counsel maintained that the innuendo contained in the Facebook post constituted a clear and direct implication that Mr. Nesmith is "a rat." Id. at 39-41. Counsel added that as he was pondering the trial court's ruling, he remembered surveillance video of the area depicted another individual, clearly not Appellant, wearing a gray hoodie and walking down Bailey Street and returning about twenty-five minutes later not wearing the hoodie. Id. at 41-43. Counsel posited it would be fair to present this evidence, to the jury to establish another individual may have had a motive to commit the murder. Id. at 42.

The Commonwealth retorted, inter alia, that the Facebook post was not authenticated and its contents were vague. Id. at 44-45. The trial court indicated that the document did not change its ruling, and Appellant, again, did not place a timely and specific objection on the record. Id. at 46. As a result, for the reasons set forth supra , Appellant has waived this issue for appellate review.

Notwithstanding, even if Appellant had preserved his claim that Mr. Nesmith and Ms. Rogers should have been permitted to testify, we would conclude that it lacks merit because the trial court properly exercised its discretion in granting the Commonwealth's motion to exclude this proposed testimony. Appellant claims that the testimony would have tended to show the crimes of which Appellant was accused may have been committed by someone else and that it was "crucial to the defense to be able to present a basis for the jury to find that she may have been there for another purpose and that she may have suffered harm as a result of her involvement in previous criminal activity." Brief for Appellant at 24-25. To the contrary, the mere suggestion that someone else may have had a motive to commit a crime does not constitute evidence. Commonwealth v. Foley , 38 A.3d 882, 887 (Pa.Super. 2012). Also, a review of the record reveals Appellant presented no extrinsic evidence at trial to corroborate the bald allegations that the victim had been involved in prior robberies. As such, the trial court properly determined the evidence lacked a proper foundation, was speculative and, if it were admitted, "would undeniably go to character assassination of the deceased." Trial Court Opinion, filed 5/5/16, at 57.
The trial court also correctly determined that Ms. Rogers' Facebook post and the referenced videotape were inadmissible evidence. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Pa.R.E. 801(c). Hearsay generally is inadmissible unless it falls within one of the exceptions to the hearsay rule delineated in the Pennsylvania Rules of Evidence. Commonwealth v. Savage , 2017 WL 900023, at *4 (Pa.Super. Mar. 7, 2017). In this case, Appellant fails to argue or to point to any exception to the hearsay rule under which either Ms. Rogers' Facebook post or the referenced videotape might fall. --------

Finally, Appellant challenges the trial court's ruling in response to the Commonwealth's motion in limine presented during trial asking the court to preclude Appellant from introducing evidence that police had recovered a BB gun from the victim's car after her body was found. N.T., 6/23/15, at 177. In doing so, Appellant maintains the fact that a BB gun was found in the victim's vehicle corroborates the proposed testimony of Mr. Nesmith which would have suggested individuals in the vicinity other than Appellant could have had contact with or a motive to harm the victim. While the trial court indicated it would have permitted the admission of this evidence if Appellant had asserted he acted in self-defense, it ultimately found it "less than insignificant" and, therefore, inadmissible. N.T., 6/23/15, at 178-179. We find the trial court did not abuse its discretion in excluding this proffered evidence. Witmayer , supra. Appellant's second claim has no arguable merit.

Judgment of Sentence Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/21/2017

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