Com. v. Gainer, J. ( 2016 )

J-A32012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH THOMAS GAINER,
Appellant No. 1673 WDA 2014
Appeal from the Judgment of Sentence September 4, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0017534-2009
BEFORE: SHOGAN, OTT, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 25, 2016
Appellant, Joseph Thomas Gainer, appeals from the judgment of
sentence entered following his conviction of criminal homicide, robbery and
criminal conspiracy. We affirm.
The trial court summarized the procedural and factual history of this
case as follows:
[Appellant] was charged with Criminal Homicide,1
Robbery,2 Carrying a Firearm Without a License3 and Criminal
Conspiracy4 in relations [sic] to events that occurred when he
was 17 years old. Prior to trial, the firearms charge was
dismissed. Following a jury trial held before [the trial court]
from April 11-14, 2011, [Appellant] was convicted of Second-
Degree Murder and all remaining charges. On April 20, 2011,
[Appellant] appeared before [the trial court] and was sentenced
to a mandatory term of life imprisonment. Timely Post-Sentence
Motions were filed and were denied by operation of law on
September 26, 2011. [Appellant] appealed, raising a Miller
claim, among other issues. [The trial court] conceded that the
sentence was illegal and the Superior Court remanded the case
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for re-sentencing. [Appellant] was re-sentenced on September
4, 2014 to a term of imprisonment of 35 years to life. Timely
Post-Sentence Motions were filed and were denied on September
[18], 2014. This appeal followed.[1]
1
18 Pa.C.S.A. §2501(a)
2
18 Pa.C.S.A. §3701(a)(1)-4 counts
3
18 Pa.C.S.A. §6106(a)(1)
4
18 Pa.C.S.A. §903(a)(1)
Briefly, the evidence presented that on the evening of
October 16, 2009, Albert Bock was working as a bartender at the
K & M Pub in Mt. Oliver. His girlfriend, Samantha Snelsire and
his friends Paul Malloy and Michael Plish were hanging out at the
bar while Bock worked. After closing the bar in the early
morning hours of October 17, 2009, Bock and his friends left the
bar and went to Bock’s house at 310 Beltzhoover Avenue in the
Beltzhoover section of the City of Pittsburgh, where they sat on
the porch and talked. Inside the house were Bock’s brother,
Tony and Tony’s son, DJ.
Bock and his friends were on the porch for a few minutes
when [Appellant] and two other men came onto [the] porch and
pointed guns at Bock and his friends. [Appellant] and the other
two men went to each of the victims and forcibly took money,
keys and cell phones out of their pockets. When [Appellant]
determined that was not enough, he demanded that Bock bring
him into the house so he could take more things. When Bock
refused, saying that his young nephew was in the house,
[Appellant] tried to enter the house on his own. He was stopped
by Bock’s dog who ran at him. [Appellant] put the gun to Bock’s
head and demanded that he tie up the dog and let him in the
house. When Bock again refused, saying that his young nephew
was inside the house, [Appellant] shot Bock in the head, killing
him instantly.
[Appellant] and his friends fled the scene. However,
[Appellant] returned to Bock’s house at approximately 5:00 a.m.
By that time, the police and crime scene technicians were
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1
Appellant and the trial court complied with the requirements of Pa.R.A.P.
1925.
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processing the crime scene. [Appellant] spoke briefly to the
homicide detectives and told them he was going to his
grandfather’s house to get some stereo equipment. The
Detectives took his contact information and also some pictures
because they thought his behavior was odd. Later, they
included [Appellant’s] picture in a photo array, where he was
identified by Snelsire, Malloy and Plish. [Appellant] was arrested
and confessed to the crime.
Trial Court Opinion, 1/13/15, at 1-3.
Appellant presents the following issues for our review:
1. Whether the Trial Court erred making the determination
not to suppress Appellant’s statement and found that Appellant
knowingly waived his Miranda[2] rights and made a voluntary
confession where the police knew at the time of arrest for
criminal homicide that Appellant was 17 years old when he
asked for his parent and a lawyer?
2. Whether the Trial Court erred in finding that Appellant
“opened the door” regarding the inventory list from the search
that was conducted of Appellant’s parents[’] home such as to
allow the Commonwealth to present rebuttal witness testimony
indicating the presence of a gun when Appellant’s mother on
cross-examination by the prosecutor stated that she did not see
a warrant and only “got a piece of paper that said what they
were removing from my house”?
3. Whether the Appellant, as an indigent defendant, was
prejudiced by the denial of the Trial Court to allow him to use
the same sophisticated audio system consisting of Bluetooth
headsets for each juror to play the Commonwealth’s eyewitness
taped statements when that equipment was used for the playing
of his taped statement?
Appellant’s Brief at 5.
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant first argues that the trial court erred as a matter of law by
failing to suppress Appellant’s statement confessing to the murder.
Appellant’s Brief at 17. Appellant maintains that “[t]he evidence presented
at the suppression hearing viewed in the light most favorable to the
Commonwealth did not establish by a preponderance of the evidence that
Appellant knowingly and intelligently waived his right to a parent/counsel
and knowingly and intelligently confessed to the crime.” Id.
The standard of review an appellate court applies when considering an
order denying a suppression motion is well established. An appellate court
may consider only the Commonwealth’s evidence and so much of the
evidence for the defense as remains uncontradicted when read in the
context of the record as a whole. Commonwealth v. Russo, 934 A.2d
1199, 1203 (Pa. 2007). Where the record supports the factual findings of
the trial court, the appellate court is bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error. Id. However, it
is also well settled that the appellate court is not bound by the suppression
court’s conclusions of law. Id.
With respect to factual findings, we are mindful that it is
the sole province of the suppression court to weigh the credibility
of the witnesses. Further, the suppression court judge is entitled
to believe all, part or none of the evidence presented. However,
where the factual determinations made by the suppression court
are not supported by the evidence, we may reject those findings.
Only factual findings which are supported by the record are
binding upon this [C]ourt.
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Commonwealth v. Caple, 121 A.3d 511, 517 (Pa. Super. 2015). In
addition, we are aware that questions of the admission and exclusion of
evidence are within the sound discretion of the trial court and will not be
reversed on appeal absent an abuse of discretion. Commonwealth v.
Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).3
Miranda warnings are required where a suspect is subjected to
custodial interrogation. Commonwealth v. Ingram, 814 A.2d 264, 271
(Pa. Super. 2002). Custodial interrogation is defined as “questioning
initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant
way” and is confined to interactions in which the “police should know that
their words or actions are reasonably likely to elicit an incriminating
response.” Miranda, 384 U.S. at 444; Ingram, 814 A.2d at 271.
With regard to waiver of Miranda rights, this Court has explained:
Miranda holds that “[t]he defendant may waive effectuation” of
the rights conveyed in the warnings “provided the waiver is
made voluntarily, knowingly and intelligently.” The inquiry has
two distinct dimensions. First the relinquishment of the right
must have been voluntary in the sense that it was the product of
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3
On October 30, 2013, our Supreme Court held that the scope of review of
a suppression court’s decision is limited to the evidence produced at the
suppression hearing, and not the whole record. In the Interest of L.J., 79
A.3d 1073, 1076 (Pa. 2013). That case does not apply here, however,
because the ruling is prospective and was decided after this case had
commenced. Id. at 1089 (stating that the ruling applies to “all litigation
commenced Commonwealth-wide after the filing of this decision.”).
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a free and deliberate choice rather than intimidation, coercion or
deception. Second, the waiver must have been made with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it. Only if the
“totality of the circumstances surrounding the interrogation”
reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that Miranda
rights have been waived.
In Re: T.B., 11 A.3d 500, 505-506 (Pa. Super. 2010).
Furthermore, this Court has stated the following in assessing whether
a juvenile knowingly waived his Miranda rights:
A determination of whether a juvenile knowingly waived his
Miranda rights and made a voluntary confession is to be based
on a consideration of the totality of the circumstances, including
a consideration of the juvenile’s age, experience,
comprehension, and the presence or absence of an interested
adult. In examining the totality of circumstances, we also
consider: (1) the duration and means of an interrogation; (2)
the defendant’s physical and psychological state; (3) the
conditions attendant to the detention; (4) the attitude of the
interrogator; and (5) “any and all other factors that could drain a
person’s ability to withstand suggestion and coercion.” “[W]e
acknowledge that the per se requirement of the presence of an
interested adult during a police interview of a juvenile is no
longer required. Nevertheless, it remains one factor in
determining the voluntariness of a juvenile’s waiver of his
Miranda rights.”
Commonwealth v. Knox, 50 A.3d 732, 746-747 (Pa. Super. 2012)
(internal citations omitted).
A confession obtained during a custodial interrogation is
admissible where the accused’s right to remain silent and right
to counsel have been explained and the accused has knowingly
and voluntarily waived those rights. The test for determining the
voluntariness of a confession and whether an accused knowingly
waived his or her rights looks to the totality of the circumstances
surrounding the giving of the confession. The Commonwealth
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bears the burden of establishing whether a defendant knowingly
and voluntarily waived his Miranda rights.
Commonwealth v. Parker, 847 A.2d 745, 748 (Pa. Super. 2004)
The trial court provided the following explanation for its ruling on this
issue:
At the time of his arrest, [Appellant] was 17 years and 10
months old. He had an extensive history with the juvenile
justice system, including arrests for burglary, guns and auto
theft. He was arrested in the presence of his mother and the
arresting Detective, Detective James McGee, waited at
[Appellant’s] home with his mother until his stepfather arrived
and he could explain the situation. Detective McGee told
[Appellant’s] mother and stepfather what the charges were and
asked them to come to the homicide office. [Appellant’s]
interrogation was delayed for two and a half hours while waiting
for his parents to arrive. When they did not arrive, Detective
McGee spoke to [Appellant’s] stepfather on the telephone and
was advised that they were not coming. At that point, the
Miranda rights waiver form was read and explained to
[Appellant]. He signed the waiver form indicating he understood
his rights and agreed to speak with the detectives. He did not
request an attorney or his parents at any time.
At the suppression hearing, [Appellant] stated that several
detectives wearing suits stormed his porch with guns drawn,
and, without speaking, threw him to the ground and took him
away while his mother screamed. He claimed that the detectives
told him he “wouldn’t never come home” unless he said what
they wanted, in which case he would get “juvenile life”.
At the conclusion of the suppression hearing, [the trial
court] made findings of fact before ruling on the Motion. It
stated:
THE COURT: As to the issue of the statement given
by [Appellant], the issue of credibility will be
resolved in favor of the Commonwealth.
[Appellant] wishes for me to believe that he stated
that he shot someone for juvenile life. I’m not sure
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what that’s about. But I found the statement of the
officer to be consistent and clear, and therefore I will
deny the motion to suppress. Your objection,
[counsel], is noted for the record.
The totality of circumstances clearly supports [the trial
court’s] finding that [Appellant] knowingly, voluntarily and
intelligently waived his Miranda rights before confessing to the
crime. [Appellant] was just months away from his 18th birthday
and had an extensive history in the juvenile justice system. His
parents were advised of the charges and chose not to attend the
interrogation. [Appellant] did not ask for his parents or a lawyer
at any time. His testimony that he only confessed to the crime
because the detectives told him he would get “juvenile life” is
both confounding and incredible.
Trial Court Opinion, 1/13/15, at 3-5 (internal citations omitted).
Likewise, our review of the record indicates the totality of the facts
support the trial court’s decision to deny Appellant’s motion to suppress.
Appellant was seventeen years and ten months old at the time of his arrest
and interview by the police. N.T., 4/11/11, at 18. Appellant had previous
exposure to the legal system. As reflected by the “rap sheet” presented by
the Commonwealth at the suppression hearing, Appellant had a criminal
history consisting of seven previous arrests, for a variety of offenses, most
of which were felonies. Id. at 38. Appellant did not display any trouble
understanding the questions on the Miranda forms. Id. at 20-21.
Appellant provided responses which Officer McGee wrote on the form. Id. at
20. Appellant placed his signature at the bottom of the form. Id. Appellant
did not appear to be under the influence of any drugs or alcohol at the time.
Id. at 21.
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Regarding the lack of presence of Appellant’s parents at the police
station, the record reflects that Appellant’s mother was notified by the police
that Appellant was being arrested and would be interviewed. N.T., 4/11/11,
at 15. Appellant’s mother asked if she could call Appellant’s stepfather, to
advise him of the situation. Id. at 15-16. Officers permitted Appellant’s
mother to contact Appellant’s stepfather, and Officer James McGee waited at
Appellant’s house until Appellant’s stepfather arrived. Id. at 16. Officer
McGee provided the information regarding where Appellant would be taken
and advised Appellant’s parents to come to the station. Id. at 16.
Appellant’s mother and stepfather indicated that they would be present at
the police station during questioning. Id. at 29-31, 35. When Officer McGee
arrived at the station and met with Appellant there, he indicated to Appellant
that he believed that Appellant’s parents were “on their way” and advised
Appellant that they would wait to proceed with questioning until Appellant’s
parents arrived. Id. at 17. The police delayed questioning of Appellant due
to their expectation that Appellant’s parents were on their way to the
station. Id. at 31, 33. After two-and-one-half hours had elapsed,
Appellant’s parents were contacted regarding their whereabouts and Officer
McGee was then informed that Appellant’s mother and stepfather would not
be coming to the station. Id. at 17, 23, 33-34. After Appellant was
informed that his mother and stepfather would not be coming, he responded
“okay.” Id. at 18. When asked if Appellant would speak to the police
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without his mother or stepfather being there, Appellant indicated that he
would. Id. at 19. During the course of the interview, Appellant never
requested that an attorney, a parent, or other adult be present during
questioning. Id. at 21-22. The interview of Appellant following issuance of
the Miranda warnings lasted approximately three hours. Id. at 34.
In summary, Appellant was seventeen, had previous exposure to the
legal system, was only briefly questioned by police, and understood the
questioning and his rights. Officers made significant effort to inform
Appellant’s parents of the procedure involving Appellant and to enable
Appellant’s parents to be present during questioning. Despite being
informed of his right to such, Appellant did not request that an attorney or
his parents be present during questioning. Consequently, we conclude that
the trial court did not err in denying Appellant’s motion to suppress his
statement to police.
Appellant next argues that the trial court erred in allowing the
Commonwealth to introduce impeachment testimony on a collateral matter.
Appellant’s Brief at 23. Specifically, Appellant asserts that the trial court
erred in allowing the Commonwealth to present testimony in rebuttal to
Appellant’s mother’s testimony regarding items found in and removed from
Appellant’s home pursuant to the search warrant. Id. at 23. Appellant’s
mother testified that only letters and mail had been taken from Appellant’s
room, and such was indicated on an inventory sheet. Id. at 24. The
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Commonwealth presented testimony that a large caliber handgun was also
taken out of the house pursuant to the search and as such, was indicated on
the inventory sheet. Id. at 25. Additionally, Appellant argues that his
mother did not have personal knowledge of the inventory because
Appellant’s father, and not his mother, received the inventory receipt. Id. at
26. Appellant maintains that he was severely prejudiced by admission of the
rebuttal testimony regarding the handgun, and accordingly, should be
granted a new trial. Id. at 27-28.
Our Supreme Court has provided the following guidance in addressing
admission of rebuttal testimony:
It is clear that a defendant may present any admissible
evidence relevant to any mitigating circumstance, including any
evidence regarding the character and record of the defendant ...
[but] the defendant is not entitled to present, without challenge
or rebuttal by the Commonwealth, false or misleading evidence
or to create a false impression of his character or record.
Furthermore, “the admission of rebuttal testimony is within the
sound discretion of the trial court,” and the appropriate scope of
rebuttal evidence is defined by the evidence that it is intended to
rebut. Where the evidence proposed goes to the impeachment
of the testimony of his opponent’s witnesses, it is admissible as
a matter of right. Rebuttal is proper where facts discrediting the
proponent’s witnesses have been offered.
Commonwealth v. Ballard, 80 A.3d 380, 401-402 (Pa. 2013) (internal
citations and quotation marks omitted).
Appellant’s mother, Starlet Lellock, testified at trial and during cross-
examination admitted to receiving an inventory of the items removed from
her home during the search. N.T., 4/14/11, at 389-390. On re-direct, she
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provided the following testimony regarding the items removed from her
home and listed on the inventory:
[Appellant’s counsel]: And the form that you referred to,
the inventory sheet, what was on there?
[Ms. Lellock]: The first thing that it had, they had taken
letters from my son’s room, like mail, and I believe that’s all that
was on there, the first-yeah.
Id. at 392-393.
After the defense rested, the Commonwealth sought to introduce the
testimony of Detective Scott Evans in rebuttal to Ms. Lellock’s testimony.
The following exchange took place between the Commonwealth, Appellant’s
counsel and the trial court:
[The trial court]: [Commonwealth], rebuttal?
[Commonwealth]: Yes, Your Honor. May we approach?
(Thereupon, the following discussion was held at sidebar.)
[Commonwealth]: Your Honor, I just didn’t know if this was
going to be – you know, the issue about - when Mrs. Lellock
testified about what was in the inventory, taken out of her
house, she said that’s all.
[Appellant’s Counsel]: She did not say that’s all.
[Commonwealth]: She did.
[The trial court]: She said letters, mail, that’s it.
[Appellant’s counsel]: Then I asked her whether she read the
whole thing. She said I didn’t pay any attention to that.
[The trial court]: But it’s still opening the door.
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[Commonwealth]: They took a large caliber handgun out of the
house. And the detective who gave her a copy of the search
warrant and gave the father a receipt is present to testify to all
of that. Can he testify to that?
[The trial court]: Yes.
N.T., 11/14/11, at 413-414.
On the stand, Detective Scott Evans provided the following testimony:
[Commonwealth]: Now, did you author a report regarding the
execution of the search and arrest warrants?
[Detective Evans]: Yes.
[Commonwealth]: Did you give a copy of the search warrant
application to [Appellant’s] mother, Starlet Lellock?
[Detective Evans]: Yes, I did.
[Commonwealth]: Okay. And is that documented in your
report?
[Detective Evans]: Yes, it is.
[Commonwealth]: Okay. Did you give a copy of the receipt or
the inventory to [Appellant’s] father, George Lellock?
[Detective Evans]: Yes.
[Commonwealth]: And again, is that documented in your
report?
[Detective Evans]: Yes, it is.
[Commonwealth]: The items that were authorized to search for,
do they include any revolver type of firearm?
[Detective Evans]: Yes.
***
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[Commonwealth]: And during your search of the residence, can
you tell me what you found and what you listed on the inventory
when you gave that to Starlet Lellock?
[Detective Evans]: Can I review it? I haven’t - I know we got a
gun out of the house.
[Commonwealth]: Okay. Specifically, there was a firearm that
you took out of the house?
[Detective Evans]: Dessert [sic] Eagle. I believe it was a
Dessert [sic] Eagle. I’m fairly certain.
[Commonwealth]: Okay. Is that a handgun?
[Detective Evans]: Yes, it is.
[Commonwealth]: Okay. Also indicia and that kind of thing?
[Detective Evans]: Yes.
[Commonwealth]: Okay. Would it be fair to say that the
handgun that you took out of the house ultimately turned out
not to be the weapon that was used to kill Albert Bock?
[Detective Evans]: That’s correct.
N.T., 11/14/11, at 426-428.
The trial court provided the following analysis on this issue:
It is clear from the record . . . that Ms. Lellock opened the
door to testimony about the gun removed from her home when
she was asked on re-direct what was on the inventory sheet. By
stating that the inventory sheet listed letters and mail and
“that’s all that was on there”, Ms. Lellock clearly opened the door
to testimony that a gun had been recovered from her residence,
and so the Commonwealth was entitled to walk through it.
Trial Court Opinion, 1/13/15, at 9.
We agree. Ms. Lellock testified as to the contents of the inventory list.
As a result, she opened the door to questioning regarding the contents of
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that inventory list. See Commonwealth v. Weiss, 81 A.3d 767, 800 (Pa.
2013) (where appellant testified that he was not capable of hitting someone
with a tire iron, appellant opened the door to rebuttal testimony of a witness
who observed appellant hit an individual with a tire iron in a separate
incident.). The trial court did not abuse its discretion in permitting the
Commonwealth to offer testimony to rebut the false and misleading
testimony presented by Ms. Lellock. Ballard, 80 A.3d at 401-402.
Accordingly, Appellant’s second claim fails.
In his final claim, Appellant contends that he was prejudiced by the
means of presentation of evidence at trial. Appellant’s Brief at 30.
Specifically, Appellant represents:
The Commonwealth utilized a sophisticated audio system
consisting of Bluetooth headsets for each juror to play the
Appellant’s taped statement in court. This system allows each
juror to have individual control over the volume of their
respective ear pieces thus, creating an ideal individual
experience for listening to audio evidence. In sharp contrast,
Appellant’s counsel was forced to use a “boombox” to play the
audio tape to the jury. The “boombox” had to be played very
loudly so that all jurors could hear but in doing so the audio tape
sounded garbled and lost its audibility.
Id. at 30-31. Appellant argues that, as an indigent defendant, he was
unfairly prejudiced by presentment of the evidence in this manner, and as a
result, should be granted a new trial. Id. at 36.
Our standard of review regarding evidentiary issues is well-settled:
The admissibility of evidence is at the discretion of the trial court
and only a showing of an abuse of that discretion, and resulting
prejudice, constitutes reversible error. An abuse of discretion is
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not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence of record.
Commonwealth v. Glass, 50 A.3d 720, 724-725 (Pa. Super. 2012)
(internal citations and quotation marks omitted).
The trial court provided the following explanation in support of its
denial of Appellant’s request to replay the two witnesses’ recorded
statements on the Commonwealth’s audio equipment:
At trial, [Appellant] introduced the recorded statements of
eyewitnesses Michael Plish and Samantha Snelsire during their
cross-examinations. The statements were played through
defense counsel’s computer and the jury was given transcripts of
the recording so they could follow along. [The trial court] was
able to hear the statements and confirmed with the jury that
they were also able to hear the statements. Later in the trial,
the Commonwealth introduced [Appellant’s] confession and
played the audio recording for the jury. The Commonwealth
used audio equipment with headsets for the jurors. Immediately
thereafter, [Appellant] began to argue [and asserted that it was
not a fair trial if the witness’s statement were not played on the
same audio equipment].
[The trial court] does not own audio equipment used by
the Commonwealth and cannot force the Commonwealth to allow
[Appellant] to use its audio equipment. The audio recordings
presented by defense counsel were audible to both [the trial
court] and the jury and the jury was also given a transcript of
the recordings so they were able to follow along with the audio.
[Appellant] was not prejudiced in any way by the
Commonwealth’s refusal to share its audio equipment and
[Appellant] was not discriminated against in any way due to his
indigent status. This claim is meritless.
Trial Court Opinion, 1/13/15, at 9-10.
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The record reflects that the audio statements made by Mr. Plish and
Ms. Snelsire were played by the defense during cross-examination of each
witness. N.T., 4/13/11, at 155, 211. As noted by the trial court, these
statements were played by defense counsel through her laptop. Id. Of
particular relevance is the fact that nobody objected to the clearness or
audibility of these statements when they were played.4 Id. 157-168, 211-
227. Additionally, a transcript of the recorded statement was provided
simultaneously with the audio statement for the jurors’ benefit. Id. at 156-
157, 326.
Subsequently, during the testimony of Detective James McGee, the
Commonwealth played the audiotaped statement Appellant had given to
homicide detectives following his arrest. N.T., 4/13/11, at 328. Based on
the record, it appears that this audio equipment involved individual headsets
for the jurors.5 Id. at 325-328. At that point, defense counsel requested
that she be permitted to use this particular equipment to replay Mr. Plish’s
and Ms. Snelshire’s statements. Id. at 325-326. The trial judge denied this
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4
We note that when Appellant’s counsel initially began to play Ms. Snelsire’s
statement, the court and jury indicated they were having difficulty hearing
the statement. The volume was adjusted and there was no subsequent
indication that the court or the jury was having difficulty hearing the audio
statement.
5
The Commonwealth asserts that the equipment used to play Appellant’s
statement belonged to the Allegheny County Office of the District Attorney.
Commonwealth’s Brief at 34.
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request on the basis that the statements when originally played were audible
and that she did not want that evidence presented a second time. Id. at
325-326. The trial judge also noted that the jurors indicated that they could
hear the statements. Id. at 326-327.
Accordingly, we cannot conclude that Appellant was prejudiced by the
trial court’s denial of his request to utilize the Commonwealth’s audio
equipment to replay the statements of witnesses Plish and Snelsire. As
noted, there is no evidence that the jurors or court were unable to hear the
statements, nor was there an objection made that the statements were
inaudible. Transcripts of the statements were provided along with the
statements, thus ensuring that the jurors understood the statements.
Moreover, the trial court did not abuse its discretion in refusing to
allow Appellant to play the statements for the jury a second time. Replaying
those statements may have resulted in undue emphasis being placed on that
testimony and prejudice to the Commonwealth’s case. Commonwealth v.
Taylor, 596 A.2d 222, 223 (Pa. Super. 1991) (holding that the trial court
did not abuse its discretion in disallowing the replaying of an audio
statement based on its conclusion that replaying the statement would tend
to emphasize the recorded statements over the other evidence admitted at
trial and, therefore, would be improper.). Accordingly, Appellant’s final
claim lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2016
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