Com. v. Smith, T. ( 2018 )

J-S30017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TERRELLE LAMAR SMITH
Appellant No. 1191 WDA 2017
Appeal from the Judgment of Sentence entered July 18, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0014980-2014
BEFORE: BENDER, P.J.E., STABILE, J. AND STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 21, 2018
Appellant, Terrelle Lamar Smith, appeals from judgment of sentence
entered in the Court of Common Pleas of Allegheny County on July 18, 2017,
amending the January 20, 2016 judgment of sentence imposed following
Appellant’s conviction of possession of firearm with altered manufacturer’s
number, carrying a firearm without a license, and flight to avoid
apprehension.1 Appellant argues the evidence was insufficient to support his
conviction for flight to avoid apprehension. He also argues the trial court erred
in permitting the Commonwealth to introduce evidence of the “De Ruad Mob”
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1) and 5126(a), respectively.
J-S30017-18
tattoo Appellant has on his chest. Following review, we vacate in part and
affirm in part.
In its Rule 1925(a) opinion, the trial court condensed the underlying
facts of the case, noting “[Appellant] was convicted after a jury disbelieved
his alibi witnesses. According to him, he was at a nearby hospital when a City
of Pittsburgh officer, who knew him from prior interactions, spotted someone
and that someone ran[,] after pulling a gun from the waistband of his pants.”
Trial Court Opinion, 12/19/17, at 1.
At trial, the Commonwealth presented testimony from two police
officers, Officers Lafferty and Robey, who testified they saw two black males
standing next to a black Audi on De Ruad Street at approximately 7:20 p.m.
on September 17, 2014. Officer Lafferty identified one of those individuals as
Appellant and stated that Appellant noticed the officer, quickly turned, began
to pull a firearm from his waistband, and ran on De Ruad Street toward
Wyandotte Street. Notes of Testimony (N.T.), 10/15/15, at 57, 63, 68.
Officer Lafferty explained that the officers gave chase while instructing
Appellant to drop the gun. Id. at 64-65. Appellant dropped the gun and
continued to run on Wyandotte Street toward Firth Avenue. Id. at 65. The
officers were unsuccessful in their attempt to catch up with or apprehend
Appellant. In the course of the chase, Officer Robey retrieved the discarded
gun. Id. at 44.
-2-
J-S30017-18
Officer Lafferty testified he was familiar with Appellant from other
encounters on De Ruad Street, where the chase began. Id. at 58-59. He
stated he was aware that Appellant had a tattoo on his chest that read, “De
Ruad Mob,” and identified a photograph of a bare-chested Appellant showing
the tattoo in question. Id. at 60. He explained that “De Ruad Street Mob is
a gang in the Hill District of the City of Pittsburgh.” Id. at 61.
The Commonwealth also presented two expert witnesses. The first was
a member of the Pittsburgh Police Department’s Mobile Crime Unit, who
processed the gun and collected DNA from it. Id. at 81-85. The second was
a DNA analyst from the Allegheny County Medical Examiner’s Officer who
explained that testing revealed a DNA mixture of three or more individuals.
N.T. at 101. He noted that “all of the genes that were associated with the
DNA profile of [Appellant] were also found in the DNA results from the DNA
mixture that were (sic) found on the gun. [Appellant] could not be excluded
as a potential contributor to that DNA mixture.” Id. at 102. The prosecutor
asked:
So you are saying basically the two options were [Appellant]
touched the - - he is part of the DNA mixture or, in the alternative,
the chances of randomly selecting someone who would match that
DNA profile that was on the mixture is roughly the same as the
chances of winning the Powerball?
Id. at 105. In response, the expert stated, “It’s roughly. Roughly that.” Id.
The defense presented four alibi witnesses who testified that Appellant
was at Mercy Hospital visiting his brother at the time of the events described
-3-
J-S30017-18
by the two officers. The defense also presented testimony from Doron
McCarthy, whom Officer Robey had identified as the owner of the Black Audi
parked next to which Appellant was standing when first observed by the
officers. McCarthy stated that he was familiar with Appellant, though they
were not friends. Id. at 161. He testified he was on De Ruad Street on the
night in question, visiting his aunt who was ill. While he could not identify the
individual chased by the officers, he was “a hundred percent sure” the
individual was not Appellant. Id. at 161-169.
On rebuttal, the Commonwealth recalled Officer Lafferty who explained
he went to Mercy Hospital after the defense filed its notice of alibi. Id. at 179.
However, because approximately six months had passed since the incident
and because the hospital had switched camera systems in the interim, the
hospital no longer had any footage from that night. Id.
The jury returned a verdict of guilty on all three charges. On January
20, 2016, the trial court sentenced Appellant to a term of four to eight years’
incarceration and two years’ consecutive probation for possessing a firearm
with an altered serial number. The court also imposed a consecutive eight
years of probation for carrying a firearm without a license. The court did not
impose any additional sentence for flight to avoid apprehension.
Trial counsel did not file a post-sentence motion or an appeal. On
September 13, 2016, Appellant filed a pro se petition for post-conviction relief
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
-4-
J-S30017-18
Appointed counsel filed an amended petition, which the court granted,
permitting Appellant to file a post-sentence motion. By order entered July 18,
2017, the court granted Appellant’s motion with respect to Appellant’s
probationary sentence, which was corrected from eight to seven years. In all
other respects the motion was denied. This timely appeal followed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant asks us to consider two issues, which we have reordered for
ease of discussion:
1. Whether the trial court abused its discretion by permitting the
Commonwealth to introduce evidence that [Appellant] has a
tattoo stating “De Ruad Street Mob” on his chest, and thereby
unfairly prejudicing [Appellant] by providing the jury with a basis
to conclude that he was in a gang/mob?
2. Whether the Commonwealth introduced sufficient evidence to
convict [Appellant] of flight to avoid apprehension where the
government’s evidence did not demonstrate that [Appellant] fled
from the police to avoid a pending criminal charge, a pending
criminal trial, a sentence to which he was subject, or a sentence
which had yet to be imposed[?]
Appellant’s Brief at 6.
In his first issue, Appellant argues the trial court abused its discretion
by permitting the Commonwealth to introduce evidence of Appellant’s “De
Ruad Mob” tattoo. Appellant claims the evidence resulted in undue prejudice,
providing the jury with a reason to conclude Appellant was in a gang or mob.
As such, Appellant is challenging the trial court’s ruling on admission of
evidence. This Court has explained:
-5-
J-S30017-18
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. In
determining whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the evidence
against the prejudicial impact of the evidence. Evidence is
relevant if it logically tends to establish a material fact in the case
or tends to support a reasonable inference regarding a material
fact.
Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014) (quoting
Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009)
(additional citation omitted). “An abuse of discretion may result where the
trial court improperly weighed the probative value of evidence admitted
against its potential for prejudicing the defendant.” Id. (quoting Weakley,
972 A.2d at 1189 (additional citations omitted)).
In Antidormi, this Court explained:
The threshold inquiry with admission of evidence is whether
the evidence is relevant. “Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make
a fact at issue more or less probable, or supports a
reasonable inference or presumption regarding the
existence of a material fact.” Commonwealth v.
Spiewak, 533 Pa. 1, 617 A.2d 696, 699 (1992). In
addition, evidence is only admissible where the probative
value of the evidence outweighs its prejudicial impact.
Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 160
(1978).
Commonwealth v. Stokes, 78 A.3d 644[, 654] (Pa. Super.
2013) (internal citations modified for uniformity); see also
Pa.R.E. 401; 402; 403.
Otherwise relevant evidence may be excluded if its probative
value is outweighed by its potential for prejudice. “The probative
value of the evidence might be outweighed by the danger of unfair
-6-
J-S30017-18
prejudice, confusion of the issues, misleading the jury, undue
delay, pointlessness of presentation, or unnecessary presentation
of cumulative evidence.” Commonwealth v. Page, 965 A.2d
1212, 1220 (Pa. Super. 2009) (citing Commonwealth v. Dillon,
592 Pa. 351, 925 A.2d 131, 141 (2007) (citing Pa.R.E. 403)).
“The comment to Pa.R.E. 403 instructs that: ‘“Unfair prejudice”
means a tendency to suggest decision on an improper basis or to
divert the jury’s attention away from its duty of weighing the
evidence impartially.’” Id. (quoting Pa.R.E. 403). However,
“[e]vidence will not be prohibited merely because it is harmful to
the defendant.” Dillon, 925 A.2d at 141. “[E]xclusion is limited
to evidence so prejudicial that it would inflame the jury to make a
decision based upon something other than the legal propositions
relevant to the case.” Commonwealth v. Owens, 929 A.2d
1187, 1191 (Pa. Super. 2007) (citing Commonwealth v.
Broaster, 863 A.2d 588, 592 (Pa. Super. 2004)).
Id. at 750.
Prior to trial, Appellant’s counsel filed a motion in limine, seeking to
preclude “any and all testimony containing reference to [Appellant’s]
purported gang affiliations.” Motion in Limine, 7/27/15, at 2 (unnumbered).
The motion was based on Officer Lafferty’s reference to Appellant as a “known
De Raude (sic) Street Mob Gang Member” in his Affidavit of Probable Cause.
Id. at ¶ 3. Appellant asserted he knew of “no such organization and has no
gang affiliations.” Id. at ¶ 5. He claimed character evidence was irrelevant
and inadmissible under Pa.R.E. 402. Even if relevant, it would be inadmissible
under Pa.R.E. 403 because the danger of prejudice outweighed its probative
value. Id. at ¶¶ 6-8.
The Commonwealth did not file a response to the motion. However,
prior to trial, the Commonwealth did file a motion to compel, asking the trial
court to compel Appellant “to submit to the photographing of any and all
-7-
J-S30017-18
tattoos on [his] body, including tattoos on his chest.” Motion to Compel
Submission to Photographing of Tattoos, 10/13/15, at 2 (unnumbered). The
Commonwealth contended that the photographs were “necessary to show the
identity of [Appellant] as a person who is known to be affiliated with De Ruad
Street.” Id. at 1, ¶ 3.
Argument on pre-trial motions was held on October 13, 2015. At that
time, the following exchange took place:
Appellant’s Counsel: I did file a motion with respect to in limine
with respect to a reference to this De Ruad Street Gang Mob.
[Officer Lafferty] has included that in his reports. And I find that
very prejudicial and would like to have that prohibited from
testimony. Unless the Commonwealth is prepared to make a
foundation.
Trial Court: Is there any way you can establish that that’s his
gang?
Prosecutor: The officer has informed me he has a tattoo on his
chest, [Appellant], that says, “De Raude (sic) Street Mob Gang.”
Trial Court: I mean, I can’t make him take off his shirt. If you
have a video or something, I would allow you to use it. But I can’t
- - I can’t say, “Pull your shirt up and show it.” Do you understand
what I mean?
Prosecutor: The reason - - I do. The reason we would want to
introduce it is just because that occurred - - the crime occurred
on that street. It would show that he would likely be in that area
because he is member of that gang.
Trial Court: If the officer saw it and he says, “I know he’s in that
gang because I saw his tattoo on his chest,” I mean, that’s the
street it’s on. I am not going to bar anyone from the truth. If
that’s the truth, then he can say what he wants. You can cross-
examine him and do what you want to do about it. But if you saw
the tattoo and it said that and that’s the street he is on, then I am
allowing it to come in. Anything else?
-8-
J-S30017-18
Appellant’s Counsel: No, Your Honor.
Prosecutor: No, Your Honor.
N.T., Pre-Trial Proceedings, 10/13/15, at 9-11.
At trial, the following exchanges occurred:
Prosecutor: Now, is there anything that you’re familiar with
regarding [Appellant] other than the fact that you see him on that
street all the time that would associate him with De Ruad Street?
Officer Lafferty: I know that he as a tattoo which says, “De
Ruad Mob” on his chest.
Prosecutor: I am going to show you what I have marked as
Commonwealth Exhibit 4. Can you describe that?
Officer Lafferty: That’s a photo of [Appellant] with his shirt off
smiling and a picture of the tattoo on his chest area.
Prosecutor: And that’s the tattoo that you are referencing?
Officer Lafferty: Yes.
Prosecutor: Commonwealth moves to admit
Commonwealth Exhibit 5.
Appellant’s Counsel: No objection, Your Honor.
Trial Court: So admitted.
***
Prosecutor: What’s the significance of the fact that it says,
“De Ruad Mob?”
Officer Lafferty: De Ruad Mob, De Ruad Street Mob is a gang in
the Hill District of the City of Pittsburgh. And [Appellant] is - -
Appellant’s Counsel: Objection, Your Honor.
Trial Court: What would be the objection?
-9-
J-S30017-18
Appellant’s Counsel: May we approach?
Trial Judge: Sure.
[Whereupon, discussion at side bar as follows:]
Appellant’s counsel: I was under the impression that the
admission of the tattoo was limited to his knowledge of the
area and there would be no discussion about any gang or
mob behavior.
Trial Court: What’s your thoughts?
Prosecutor: I can direct the witness to say that he’s known
to frequent that street and not mention the work “gang.” Is
that - -
Appellant’s counsel: Well, the line, the questioning tends
to establish there is a mob and a gang. The idea was just
the location of the street.
Prosecutor: The line of questioning was to establish he is
known to be in that area.
Appellant’s Counsel: Well, you’ve done that.
Prosecutor: That’s all I am trying to establish.
Trial Judge: Let’s move on. The jury will be finders of fact.
I think they will interpret De Ruad to be a mob. They will
make that determination. If you have any basis to establish
that’s a gang, that he is in a gang, you can use it. But if
there is nothing specifically that verifies he is, then I think
that we’ve done enough, and the jury can draw their own
conclusions from the tattoo.
Prosecutor: Okay.
Appellant’s Counsel: Thank you, Your Honor.
[Open court, jury present.]
- 10 -
J-S30017-18
Prosecutor: Officer, this occurred on De Ruad Street when you
first saw [Appellant]; correct?
Officer Lafferty: Yes.
Prosecutor: And that’s the same De Ruad, same spelling as
what’s on his chest?
Officer Lafferty: Affirmative. Yes.
N.T., Trial, 10/15/15, at 60-63.
As the above exchanges reflect, Appellant’s counsel did not object to the
questions about the tattoo or to the introduction of the photograph into
evidence. It was only when Officer Lafferty noted that De Ruad Street Mob is
a Hill District gang that counsel objected, before Officer Lafferty offered any
testimony concerning Appellant’s affiliation, or lack thereof, with that gang.
When testimony resumed following the side bar discussion, there was no
further reference to the De Ruad Mob, other than to confirm De Ruad Street
as the location of the events of September 17, 2014, and the spelling of
Appellant’s tattoo. Moreover, there was no objection lodged to the
Commonwealth’s closing when the prosecutor referenced the tattoo and its
apparent indication that Appellant “identifies himself as a member of the De
Ruad Mob.” N.T., Trial, 10/16/15, at 197.
Addressing Appellant’s contention that the trial court abused its
discretion in permitting evidence of Appellant’s tattoo, the trial court
reasoned:
[Appellant] has a tattoo on his chest. It says “De Ruad Mob.” This
incident happened on De Ruad Street. A rather short street in the
- 11 -
J-S30017-18
City of Pittsburgh not far from UPMC-Mercy Hospital and PPG
Paints Arena, the home of the current Stanley Cup Champion,
Pittsburgh Penguins.[2] Before trial this admissibility of the
“tattoo” was brought up. The court heard from both sides.
Ultimately, the court authorized a photograph to be taken of the
tattoo and that photograph was then admitted. The basis for its
admission was its relevance outweighed the prejudice. The case
was tried through the filter of an alibi offered by [Appellant]. Him
having a tattoo made it more probable than not that he would be
on that very street when the officer saw him immediately before
the chase began.
Trial Court Rule 1925(a) Opinion, 12/19/17, at 2 (unnumbered) (some
capitalization omitted).
Appellant argues the trial court considered only the relevance of the
evidence, failing to analyze whether the relevance outweighed the prejudice
associated with the tattoo. Appellants’ Brief at 19. He contends:
Such is underscored by (i) trial testimony from law enforcement
[] that [Appellant] was seen De Ruad Street all the time, making
evidence of the tattoo unnecessary and cumulative to other
evidence placing [Appellant] frequently on the street in questions,
and (ii) [the trial judge’s] own statement during trial that the jury
“will interpret De Ruad to be [a] mob.”
Id. at 19 (citation to notes of testimony omitted). However, as counsel for
the Commonwealth noted during argument on its motion to compel
submission to photographing the tattoo:
[Appellant] is the one that got the tattoo that said “Mob.” He is
the one making the statement he is part of the De Ruad Mob. It’s
not anyone else putting those words in his mouth. He chose to
get that tattoo. Any prejudicial value is coming from the fact
[Appellant] put the word “Mob” in.
____________________________________________
2 The trial court’s opinion predated the June 2018 Stanley Cup championship
in which the Washington Capitals defeated the Las Vegas Golden Knights.
- 12 -
J-S30017-18
N.T., 10/14/15, at 18-19. We agree.
As the Commonwealth suggests, “the only real issue for the jury was
the identity of the man whom the officers saw discard the gun on De Ruad
Street. The challenged evidence was a photo of a tattoo that established
[Appellant’s] connection to that particular street.” Commonwealth Brief at 15.
We find the trial court properly concluded the relevance of evidence
regarding Appellant’s tattoo outweighed any prejudice to Appellant. We
discern no abuse of discretion in that determination. This conclusion is
bolstered by Officer Lafferty’s testimony relating to his identification of
Appellant, whom he knew from previous encounters—including one
documented as recently as two weeks before the events in question, as well
as the officer’s prior awareness of the tattoo at issue. See N.T. Trial,
10/15/15, at 57-60. Moreover, Officer Lafferty was unequivocal in his
identification of Appellant, even without reference to the tattoo, as reflected
in the following exchange between Officer Lafferty and the prosecutor:
A. I got a good look at him when we were on De Ruad Street
because he was facing me whenever I dropped down onto the
street. And when he ran he turned around, I think around two
times looking at me, so I got a look at, like, the side of his face
when he was running.
Q. When did you first know it was [Appellant]?
A. Immediately. I immediately knew it was him. While I was
running - - When I got to Watson [Street] I called out over the
radio the actor’s description. And then I actually said the name.
I said, “It’s Tyrone Smith. It’s Tyrone Smith.” That’s what I said
over the radio. But I was huffing and puffing. And I realized, oh,
- 13 -
J-S30017-18
I gave the wrong name. And I said, “It’s Terrelle Smith, Terrelle
Smith.” And I said it over the radio numerous times.
Q. So you knew who it was immediately and as you were chasing
him?
A. Yes.
N.T., Trial, 10/15/15, at 68.
We find no abuse of discretion in the trial court’s ruling. Appellant’s first
issue fails.
In his second issue, Appellant contends the evidence was insufficient to
support his conviction of flight to avoid apprehension. A person is guilty of
“flight to avoid apprehension, trial or punishment” if he “willfully conceals
himself or moves or travels within or outside this Commonwealth with the
intent to avoid apprehension, trial or punishment[.]” 18 Pa.C.S.A. § 5126(a).
In its Rule 1925(a) opinion, the trial court agreed with Appellant that
the evidence was not sufficient to support the conviction. The court
determined the only evidence to support the jury’s verdict was the stipulation
between the parties providing that Appellant had previously been convicted of
a felony as of the date of the events leading to his arrest. The court explained:
This is simply not enough. The jury needed more facts. The
evidence did not show he was avoiding trial. In fact, the evidence
showed his trial was over and done with. The evidence did not
show he was avoiding punishment or avoiding something that
might flow from a sentence, like a probation violation warrant.
The totality of the government’s evidence fails to answer the
quintessential question in this type of case – What was he
avoiding? On this record that simple question remains a mystery.
The conviction at Count 3 should be reversed and [Appellant]
should be adjudicated not guilty of this accusation.
- 14 -
J-S30017-18
Trial Court Rule 1925(a) Opinion, 12/19/17, at 2-3 (unnumbered) (citation
omitted).
In its brief, the Commonwealth notes that it “is constrained to agree
with [Appellant] that the evidence was indeed insufficient to sustain his
conviction for violating § 5126.” Commonwealth Brief at 17. However, the
Commonwealth also recognizes that Appellant did not receive any additional
sentence for his conviction of flight to avoid apprehension. Id. As a result,
the Commonwealth contends, we need not remand for resentencing because
vacating the conviction will not disturb the sentencing scheme. We agree.
See In the Interest of P.S., 158 A.3d 643, 652-53 (Pa. Super. 2017), appeal
denied, 174 A.3d 1029 (Pa. 2017) (citing Commonwealth v. Thur, 906 A.2d
552, 569 (Pa. Super. 2006) (“if our decision does not alter the overall
[sentencing] scheme, there is no need for a remand.”)).
Appellant’s conviction for flight to avoid apprehension is vacated. In all
other respects, we affirm Appellant’s judgment of sentence.
Judgment vacated in part and affirmed in part.
- 15 -
J-S30017-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2018
- 16 -