Com. v. Frazier, C. ( 2016 )

J-S10010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARNELL FRAZIER
Appellant No. 1299 EDA 2014
Appeal from the Judgment of Sentence April 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011395-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 24, 2016
Appellant, Carnell Frazier, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for carrying firearms on public streets in Philadelphia,
possession of a firearm with altered manufacturer’s number, possessing
instruments of crime, recklessly endangering another person, simple assault,
and resisting arrest, and a bench trial conviction of persons not to possess
firearms.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
____________________________________________
1
18 Pa.C.S.A. §§ 6108, 6110.2(a), 907(a), 2705, 2701(a), 5104, and
6105(a)(1), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S10010-16
restate them.
Appellant raises the following issues for our review:
SHOULD THE TRIAL COURT HAVE DECLARED A MISTRIAL
AFTER THE PROSECUTOR TWICE MADE WHOLLY
IMPROPER REMARKS ABOUT [APPELLANT] DURING HER
OPENING STATEMENT?
DID THE TRIAL COURT ERR BY ALLOWING INADMISSIBLE
HEARSAY TESTIMONY TO BE INTRODUCED AT TRIAL
WITHOUT OFFERING AN ACCOMPANYING CAUTIONARY
INSTRUCTION?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Susan I.
Schulman, we conclude Appellant’s issues merit no relief. The trial court’s
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed January 7, 2015, at 5-7, 12-16)
(finding: (1) prosecutor’s comments that Appellant “runs his home” and
“runs his neighborhood” were entirely fair, given evidence in case; 2 evidence
presented at trial supported prosecutor’s theory that Appellant repeatedly
cursed and yelled at his neighbors to stay out of his business and terrorized
his neighbors by pointing and waving gun at them inside and outside
Appellant’s home; Appellant’s actions were so menacing that he caused
____________________________________________
2
Commonwealth v. Bridges, 563 Pa. 1, 33, 757 A.2d 859, 876 (2000),
which the court cites on page 6 of its opinion, has been abrogated on other
grounds, unrelated to the proposition upon which the court relies.
-2-
J-S10010-16
entire crowd of neighbors to run inside their homes out of fear; prosecutor’s
comments were fairly based on evidence of record; (2) Appellant concedes
that Officer Scott’s testimony was admitted to show police course of conduct
and what drew officers to 2400 block of Douglas Street, not for truth of
matter asserted; Appellant was not prejudiced by Officer Scott’s testimony
because Officer Scott did not testify that he saw Appellant with gun; Officer
Scott testified only that he received dispatch to area of 2400 Douglas Street
based on report of black male wearing gray sweatshirt and blue sweatpants
waving gun; cautionary instruction was unwarranted where Officer Scott’s
statements were not offered for truth of matter asserted and did not place
gun in Appellant’s hands; Sergeant Caputo testified that when he arrived on
scene he received tip from two unidentified women who directed him to
trash can where he retrieved gun; Sergeant Caputo’s testimony showed his
course of conduct and what drew him to investigate trash can, and was not
offered for truth of matter asserted; jury also heard testimony from witness
who saw gun in Appellant’s hands, so any prejudice resulting from
Sergeant’s testimony was outweighed by other properly admitted evidence
that supported jury’s verdict). The record supports the trial court’s decision;
therefore, we have no reason to disturb it. Moreover, even if the court erred
in not issuing a sua sponte cautionary instruction regarding the officers’
testimony, the error was harmless because an eyewitness testified to seeing
Appellant brandish his gun. See Commonwealth v. Mitchell, 576 Pa. 258,
-3-
J-S10010-16
280, 839 A.2d 202, 214-15 (2003) (stating: “An error will be deemed
harmless where the appellate court concludes beyond a reasonable doubt
that the error could not have contributed to the verdict”). Accordingly, we
affirm on the basis of the trial court’s opinion.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2016
-4-
Circulated 02/11/2016 01:53 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0011395-2012
vs.
CARNELL FRAZIER 1299 EDA 2014
CP-51-CR-0011395-2012 Comm. v. Frazier, Carnell
Opinion
OPINION
SCHULMAN, S.I., J. II 111111111111111 11111111
7242072031
Carnell Frazier ("Appellant") has appealed this Court's judgment of conviction and
sentence. This Court submits the following Opinion in accordance with the requirements of Pa.
R.A.P. 1925, and for the reasons set forth herein, recommends that its judgment be affirmed.
PROCEDURAL HISTORY
On March 4, 2014, following a jury trial before this Court, Appellant was convicted of
Carrying Firearms on Public Streets or Public Property, 1 Possession of a Firearm with Altered
Manufacturer's Number, 2 Possessing an Instrument of Crime ("PIC"), 3 Recklessly Endangering
Another Person ("REAP"), Simple Assault,4 and Resisting Arrest.' Additionally, following a
subsequent bench trial before this Court, Appellant was convicted of Persons Not to Possess
Firearms.6 On April 21, 2014, upon review of the pre-sentence investigation report ordered by
this Court, and consideration of all relevant facts and circumstances of this case, as well as
Appellant's significant criminal history, this Court sentenced Appellant to an aggregate term of
ten (IO) to twenty (20) years' incarceration, with a five (5)-year probationary e~ellant
118
2
Pa.C.S.
18 Pa.C.S.
§ 6108.
§ 6110.2.
FIL
jAN O '1 2ot5
3
4
18 Pa.C.S. § 907. 't
18 Pa.c.s. § 2101. CriminalApp~a\~ Um
s 1 s Pa.c. s. § 5104. FirstJudic\a\D1stnctof PA
6
18 Pa.C.S. § 6105.
subsequently appealed, and this Court ordered him to file a Concise Statement of Matters
Complained of on Appeal in accord with Pa. R.A.P. 1925(b ). Counsel for Appellant timely
complied.
FACTUAL HISTORY
Appellant does not challenge the weight or sufficiency of the evidence supporting his
convictions. Accordingly, a brief recitation of the salient facts is in order.
The evidence at trial established that, on June 12, 2012, Appellant and his wife, Nikki
Frazier," engaged in a heated domestic dispute inside their residence at 2437 Douglas Street in
Philadelphia. According to Mrs. Frazier, the dispute originated when she accused Appellant --
with whom she had two children, and a third "on the way" -- of cheating on her. The boisterous
dispute escalated to the point where Appellant threw a chair at Mrs. Frazier. Mrs. Frazier's
mother, Kimberly Yancy, who lives at the same residence with Appellant and Mrs. Frazier, went
outside to summon neighbors to check on her daughter. (See N.T. 02/26/14, pp. 5-11; 168-169,
173).
Mrs. Yancy approached Sharee Thomas, who was sitting on her porch with her aunt,
Yolanda Williams, and asked Mrs. Thomas if she would come over to make sure Mrs. Frazier
was okay. Mrs. Thomas obliged, and her aunt, Mrs. Williams, accompanied her to make sure
Mrs. Thomas was safe. Once inside the residence, Appellant descended the second-floor
stairway, yelling in a loud and aggressive tone, "[W]ho's in my damn house, everybody mind
their damn business" and "Get the f out of my house." He then proceeded straight to the
kitchen, where he reached above the refrigerator and retrieved a black handgun, which Mrs.
Williams described as a "MAC-10". Appellant immediately began "pointing [the handgun] at
7
Appellant's wife's official name is Kimberly Nicole Frazier, but she goes by "Nikki". (See
N.T. 02/26/14, pp. 149, 168-169).
2
everybody", including Mrs. Williams, Mrs. Thomas, and his mother-in-law, Mrs. Yancy,
prompting them to flee the residence and seek refuge in the house next door. (See N.T. 02/26/14,
pp. 11-25).
Appellant did not stop there, however. He exited the residence and, waving the gun back
and forth at a crowd of neighbors who had assembled, Appellant repeatedly yelled, "[ A ]nybody
have anything to say?" Everyone started running back inside their houses, and Appellant
continued walking down the block, MAC-10 in hand. Mrs. Williams, who observed these events
from Appellant's next-door neighbor's house, testified that Appellant walked down the block and
re-approached without the handgun a few minutes later, when police arrived at the scene. (See
N.T. 02/26/14, pp. 25-30).
Philadelphia Police Officer Ross Scott and his partner, Officer Clement, arrived on the
2400 block of Douglas Street in response to police broadcasts of "black male with a gray
sweatshirt, blue sweat pants, on the highway with a MAC-IO". There, they encountered
Appellant, who glanced at Officer Scott, but continued walking away at a fast pace. The officers
slowly and cautiously pursued him in their cruiser until approximately mid-block, when they
ordered him to put his hands against the wall. Appellant initially complied with their directive,
but when Officer Ross went to pat him down for weapons, Appellant took his hand off the wall
and began walking away. Officer Scott grabbed him by the wrist, but Appellant snapped his arm
away and took a "defensive stance"; he then "squared up" against Officer Scott and threw a
punch at the officer's head. Fortunately, Officer Scott was able to duck Appellant's punch, at
which time his partner tackled Appellant. The two officers then handcuffed Appellant, who then
spit in Officer Clement's face. They attempted to place him in their patrol car, but he was
3
kicking and "fighting the whole way". Prior to placing him in the vehicle, Appellant tried to kiss
Officer Clement, and said, "I'm going to make you my bitch." (See N.T. 02/26/14, pp. 59-72).
Based on information gathered at the scene, police searched the lot at the end of the block,
where, inside a trashcan chained to playground equipment, they recovered a black MAC-10,
loaded with 18 live rounds, including one in the chamber. The gun was secured under property
receipt, test fired at the ballistics lab, and found to be operable. (See N.T. 02/26/14, pp. 97-108,
115-128).
In his defense, Appellant presented the testimony of his wife, Mrs. Frazier, who conceded
all the above evidence with the exception of the gun. Specifically, she confirmed that she and
Appellant got into a boisterous altercation over his alleged cheating, Appellant threw a chair at
her, he became incensed that neighbors were present and not minding their own business, and
that he was yelling and cursing and told them to "Get the f out of [his] house" -- but did not
retrieve or point a gun at anyone. Mrs. Frazier also claimed that Mrs. Williams -- who was the
only cooperating Commonwealth eyewitness -- conjured up the whole "MAC-10" bit (even
though, lo and behold,police recovered the MAC-JO in the nearby lot). Mrs. Frazier further
claimed that Mrs. Williams' motive for "making it up" was so that she could extract money from
the Fraziers, to wit, she claimed that Mrs. Williams called her up and demanded money in
exchange for not testifying in court. (See N.T. 02/26/14, pp. 149-215; N.T. 02/27/14, pp. 4-15).
Significantly, however, Defendant also maintained that Mrs. Williams' testimony was
biased because, at the time of her police statement, she had a pending federal drug case, and
wished to curry favor with prosecutors. (See N.T. 02/26/14, pp. 45-50). Perhaps sensing the
diametric opposition of Defendant's two theories -- i.e., that Mrs. Williams was simultaneously
motivated to stay both in and out of this case -- and/or perhaps embracing Mrs. Williams' non-
4
wavering and detailed testimony coupled with the corroborating physical evidence -- the jury
found Appellant guilty of the above offenses. On April 21, 2014, following a pre-sentence
investigation, this Court imposed sentence as previously set forth.
DISCUSSION
Appellant raises the following issues on appeal:
1. Whether "[t]his Court erred by denying [Appellant's] request for a mistrial
after the prosecutor twice claimed in her opening statement that
[Appellant] 'runs his neighborhood?'?
2. Whether "[t]his Court erred by precluding Defense Counsel from
questioning Yolanda Williams about the specific criminal consequences
she was facing at the time she made her statement to the police in this
case"?
3. Whether "[t]his Court erred when it refused to give a limiting instruction
regarding the radio call and flash information that Officer Scott testified
to"?
4. Whether "[t]his Court erred by overruling Defense Counsel's objections at
N.T. 2/26/14, 101, 102[,] where the objectionable testimony was
inadmissible hearsay and no limiting instruction regarding same was
given"?
This Court will address Appellant's claims in the order presented above.
1. Prosecutor'sOpening Statement.
Appellant claims that this Court erred by denying his request for a mistrial after the
prosecutor twice claimed in her opening statement that Appellant "runs his neighborhood." This
claim is meritless.
The decision whether to grant a new trial because of prosecutorial misconduct is within
the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998). In reviewing allegations of
5
prosecutorial misconduct, a court must evaluate whether the defendant received a fair trial, not a
perfect one. Commonwealth v. Washington, 700 A.2d 400, 407 (Pa. 1997).
A prosecutor must be free to present his or her arguments with logical force and vigor.
Commonwealth v. Bridges, 757 A.2d 859, 876 (Pa. 2000). "Not every unwise, intemperate, or
improper remark made by a prosecutor mandates the grant of a new trial." Commonwealth v.
Spotz, 47 A.3d 63, 98 (Pa. 2012). "A prosecutor may make fair comment on the admitted
evidence and may provide fair rebuttal to defense arguments." Id. at 97. "Even an otherwise
improper comment may be appropriate if it is in fair response to defense counsel's remarks." Id."Thus, a prosecutor's remarks do not constitute reversible error unless their 'unavoidable
effect ... [was] to prejudice the jury, forming in their minds fixed bias and hostility toward the
defendant so that they could not weigh the evidence objectively and render a true verdict."'
Commonwealth v. Smith, 985 A.2d 886, 907 (Pa. 2009) (quoting Commonwealth v. Washington,
700 A.2d 400, 407-408 (Pa. 1997)). Further, the allegedly improper remarks must be viewed in
their entire context. See Commonwealth v. Smith, 985 A,~ aJ ao i,
Here, Appellant claims that he is entitled to a new trial because the prosecutor stated, "No
one gets in Carnell Frazier's business. He runs his home. He runs his neighborhood." (See N.T.
02/25/14, pp. 37, 47). Putting aside the fact that there was no suggestion whatsoever that
Appellant was involved in the drug trade or other illicit behavior (other than that at bar) -- the
prosecutor's comments were entirely fair given the evidence in this case. Indeed, Appellant was
explicit in this regard. The evidence supported the argument that Appellant not only repeatedly
cursed and yelled at his neighbors to stay out of his business, but he terrorized them by pointing
and waving a MAC-10 at them both inside and outside his house. In fact, the evidence showed
that Appellant's actions were so menacing that he caused an entire crowd of neighbors to run
6
inside their homes out of fear. Thus, the prosecutor's remarks were fairly based on the evidence.
As such, Appellant's claim is meritless.
2. Cross-Examination of Mrs. Williams Regarding Her Pending Criminal
Matterat the Time of Her Statement.
Appellant claims that this Court erred by not permitting him to question Yolanda
Williams about the specific criminal consequences she was facing at the time of her statement to
police (citing N.T. 02/26/15, pp. 48-49). This claim is without merit.
It bears underscoring that this Court did not preclude cross-examination of Mrs.
Williams' pending criminal matter, but rather limited it to establishing that at the time of her
statement, she had an open drug case for which she was on probation at the time of trial -- all of
which was agreed-to beforehand by counsel:
[BYMR. LINK (DEFENSE COUNSEL)]:
Q. And you know neither Nicky or Kim have ever said
he had a gun?
MS. MOORE: Objection.
THE COURT: Overruled.
THE WITNESS: Kim did tell the police she had a
gun.
BYMR. LINK:
Q. Oh she did?
A. Kim did.
THE COURT: Did you say Nicky did or Kim did?
THE WITNESS: Kim, the mother.
7
BYMR. LINK:
Q. And you were just going to assist, it was purely out
of helping the family out; is that your testimony?
A. I was there when it happened, but I didn't want to
get involved with it afterwards.
Q. You weren't there when she said anything to the
police?
A. She told the police when I got in the house, she said
these were the ladies in there when he pulled the gun out.
Q. And you testified you had this open case at the time,
correct?
A. Yes, with the federal government.
Q. A bigger case, not one handled here in the
Philadelphia County court?
MS. MOORE: Objection.
THE COURT: Sustained.
BYMR. LINK:
Q. At the point of this incident no deals had been
worked out in your favor, correct?
A. Not at all.
Q. And were you told how many possible years you
were looking at if your case had gone to trial, the federal case?
MS. MOORE: Objection.
THE COURT: Sustained.
BY MR.LINK:
Q. Had you been down to the United States Attorney's
Office for what's called a proffer at this point?
MS. MOORE: Objection.
8
THE COURT: Sidebar.
(The following discussion was held at sidebar
between the Court and counsel.)
THE COURT: Ms. Moore?
MS. MOORE: I thought we talked about how this
would be limited yesterday and I don't believe it's relevant what
her proffer would be on her federal case.
THE COURT: I did and you [Mr. Link] did agree
that your cross-examination would be limited to the fact that she
had an open drug case and that she was now on probation. We
specifically agreed that that's what you would limit your cross-
examination to.
MR. LINK: I was going to get into the facts of the
case.
THE COURT: Not getting in the facts of a proffer.
MR. LINK: Your Honor, my objection is under
"Commonwealth v. Mitchell" everything in her state of mind is
relevant. If she knows she's looking at a huge amount of state
time, federal time.
THE COURT: You are permitted to ask whether or
not any deal was discussed, you're not permitted to go into details
and we agreed on this yesterday. I find that there's a connection
here that can establish bias on the part of this witness and
understand those circumstances and you agreed yesterday that the
extent of the cross-examination would be that she, in fact, had an
open case at the time and that she is now on probation. So no,
you're not getting into the details of the proffer.
MR. LINK: Can I get into the fact of what she was
expecting to face had the case gone to trial?
THE COURT: No.
9
(Following occurred in open court:)
BYMR. LINK:
Q. At the time of this you had-- it wasn't for
possession, it was for distributing drugs, correct?
A. Correct.
Q. And at this point nothing was working out in your
favor, correct?
A. No.
Q. You were trying to work something out with your
lawyer, correct?
A. No.
MS. MOORE: Objection.
THE COURT: Overruled.
MR. LINK: Can I revisit the question regarding the
proffer?
THE COURT: No, you may not.
BYMR. LINK:
Q. At some point you did things for the federal
government to turn things into something favorable for you?
MS. MOORE: Objection.
THE COURT: Sustained.
BYMR. LINK:
Q. Are you happy with the sentence you got of
probation and house arrest?
10
MS. MOORE: Objection.
THE COURT: Overruled.
THE WITNESS: Yes.
(N.T. 02/26/14, pp. 45-50).
As the foregoing demonstrates, this Court permitted counsel to establish that: (a)Mrs.
Williams had an open case at the time of the incident; (b) the factual nature of her open case --
drug distribution -- which obviously poses a hefty penalty; ( c) she had not worked out any deals
with federal prosecutors prior to her statement in this case; and ( d) after which she received a
relatively lenient sentence of probation and house arrest (no jail time). Accord Commonwealth
v. Evans, 512 A.2d 626, 632 (Pa. 1986) (defendant "must have the opportunity at least to raise a
doubt in the mind of the jury as to whether the prosecution witness is biased"). Thus, Appellant
clearly was permitted to raise a doubt in the mind of the jury as to whether Mrs. Williams was
biased.8
In that regard, it was within the exclusive province of the jury to accord weight, including
none at all, to Mrs. Williams' testimony. See Commonwealth v. Widmer, 744 A.2d 745, 751
8 Moreover, this Court specifically instructed the jury as follows:
Let's talk about Yolanda Williams. You heard evidence
that Ms. Williams had an open federal drug charge at the time she
gave a statement to police regarding Mr. Frazier having a gun and
being involved in this incident. You are to consider her open drug
charge, the evidence of that for the possible bias that Ms. Williams
may have toward prosecution in giv[ing] that statement. You may,
if you choose, find the evidence of bias, however, to be unrelated
to this case and you may choose to disregard that evidence
completely.
(N.T. 02/27/14, p. 77).
11
(Pa. 2000). That the jury elected to embrace Mrs. Williams' testimony despite being apprised of
her potential bias, simply provides no basis for relief.
3. Police Radio Calls and Flash Information.
Appellant next contends that this Court erred by not giving a limiting instruction
regarding the radio call and flash information to which Officer Scott testified. This claim fails.
"Admission of evidence is a matter within the sound discretion of the trial court, and will
not be reversed absent a showing that the trial court clearly abused its discretion."
Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009) (citation omitted). "Not merely an
error in judgment, an abuse of discretion occurs when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-
will, as shown by the evidence on record." Id. oA-qo. ·
"'It is well established that certain out-of-court statements offered to explain the course of
police conduct are admissible because they are offered not for the truth of the matters asserted but
rather to show the information upon which police acted.'" Commonwealth v. Trinidad, 96 A.3 d
1031, 1037 (Pa. Super. 2014) (citations omitted).
Here, Appellant concedes that Officer Scott's testimony was admitted to show police
course of conduct (i.e., what drew him to the 2400 block of Douglas Street), and not for the truth
of the matter asserted (i.e., that there was a male holding a gun). Nonetheless, he claims that he
was unduly prejudiced by this testimony.
Appellant misapprehends the testimony, however, as Officer Scott never testified that he
saw Appellant with a gun. The relevant portion of Officer Scott's testimony is as follows:
12
[BY MS. MOORE:]
Q. So on that specific day did you receive a radio call
about that time [5:17 p.m.]?
A. Yes.
Q. And was there a radio call for the area of2400
Douglas Street?
A. 2400 Douglas and a few seconds later, 2500
Douglas.
Q. Can you tell me what the radio call [was] for?
MR. LINK: Objection.
THE COURT: Overruled.
THE WITNESS: It was a radio call for a black
male with a gray sweatshirt, blue sweat pants, on the highway with
aMAC-10.
BY MS. MOORE:
Q. And how far away were you from the area?
MR. LINK: I am going to renew my objection and
ask for a limited instruction.
THE COURT: Overruled.
BY MS. MOORE:
Q. How far were you from the area after you get that
call?
A. Block-and-a-half.
(N.T. 02/26/14, pp. 61-63).
Following Officer Scott's testimony, a recess was taken during which the following
discussion occurred outside the jury's presence:
13
THE COURT: What could be your problem with that?
MR. LINK: She just introduced all the testimony regarding
the nature of the radio call and the nature of the flash.
THE COURT: Which is completely proper in any police
investigation. I can't imagine where you're coming from, you
don't think an officer can testify as to what flash information was,
which was why he was called on the block. I mean, if that's the
case then why don't we just change the rules of [evidence] just to
fit this case alone.
MR. LINK: It's never admissible to show when it's
offered for the truth of the matter.
THE COURT: It's always admissible to show why the
officer responded and why he zeroed in on this defendant.
MR. LINK: I agree 100 percent, which is why I asked for a
limiting instruction.
THE COURT: There's no limiting instruction I need to
give for why a police officer is doing his job.
(N.T. 02/26/14, pp. 82-85). Thus, a limiting instruction was not required in this case as the out-
of-court statement neither was offered for the truth of the matter asserted, nor did it place the gun
in Appellant's hands. Cf. Commonwealth v. Trinidad, supra (trial court did not err by allowing
detective to testify about a recorded statement he took from out-of-court declarant, which
specifically described the defendant's involvement in the shooting). A fortiori, therefore,
Appellant is due no relief.
4. Sergeant Caputo's Course of Conduct Testimony
Finally, Appellant contends that this Court erred by overruling counsel's objection to
Sergeant Gregory Caputo's testimony concerning information he gathered at the scene that led
14
him to the discovery of the handgun (citing N.T. 02/26/14, pp. 101-102). This claim is
unavailing.
Sargeant Caputo testified that when he arrived on the block of2400 Douglas St, he
observed a trash-strewn empty lot. He was approached by two females who told him that the
"male your officers stopped down there threw a gun in the lot by the alleyway right there."
Sargeant Caputo testified that the women refused to identify themselves and "kept walking". He
then directed officers to the location they described, where the officers recovered a firearm from
a trashcan. N.T. 02/26/14, pp. 101 - 105.
As discussed in the previous section, " .. [c]ertain out-of-court statements offered to
explain the course of police conduct are admissible because they are offered not for the truth of
the matters asserted but rather to show the information upon which police acted."'
Commonwealth v. Trinidad, 96 A.3d 1031, 1037 (Pa. Super. 2014) (citations omitted). Sargeant
Caputo's recitation concerning the tip from the two unidentified women was not offered for the
truth of whether, in fact, Appellant possessed a firearm, but instead for the legitimate purpose of
explaining the course of the investigation that immediately preceded the recovery of the firearm.
As previously discussed, the jury had already heard testimony from Ms. Williams who placed the
gun in his hands. Any possible prejudice accrued to the Appellant from Sargeant Caputo's
testimony is far outweighed by the weight of the evidence that supported the jury's verdict.
In addition, in order to preserve a claim of trial court error, counsel must lodge a
contemporaneous objection and request a remedy such as a mistrial or cautionary instruction.
See, e.g., Commonwealth v. Johnson, 42 A.3d 1017, ioAl,tn.5 CH,.~01~(claim that trial court erred
by failing to provide a cautionary instruction waived by failure to request a curative instruction)
(citing Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised
15
for the first time on appeal.")); see also Commonwealth v. Sanchez, 82 A.3d 943, 970-971 (Pa.
2013) (trial court error claim waived where counsel did not ask for a curative instruction or move
for a mistrial); Commonwealth v. Sandusky, 77 A.3d 663, 670-671 (Pa. Super. 2013) (failure to
move for a mistrial or request a curative instruction results in waiver of claim despite objection
by counsel; "' [E]ven where a defendant objects to specific conduct, the failure to request a
remedy such as a mistrial or curative instruction is sufficient to constitute waiver"') ( citing
Commonwealth v. Manley, 985 A.2d 256, 267 n. 8 (Pa. Super. 2009); Commonwealth v. Jones,
501 Pa. 162, 166, 460 A.2d 739, 741 (1983) (finding prosecutorial misconduct claim waived
where defense counsel immediately objected to the prosecutor's conduct but failed to request
mistrial or curative instructions)). Cf. Commonwealth v. Rhone, 619 A.2d 1080, 1083 (Pa.
Super. 1993) (declining to find waiver where counsel failed to request a curative instruction, but
lodged an objection, moved to strike the comment, and requested a mistrial).
Here, while counsel lodged an objection to the alleged hearsay testimony, he did not
move for a mistrial or request a cautionary instruction. (See N.T. 02/26/14, pp. 101-102). As
such, Appellant's claim is waived. Commonwealth v. Manley, supra; Commonwealth v.
Sandusky, supra; Commonwealth v. Sanchez, supra; Commonwealth v. Johnson, supra;Commonwealth v. Jones; supra. Indeed, common sense dictates that a trial court cannot be
faulted for failing to provide relief that it was never requested to provide. Accordingly,
Appellant's claim is unavailing.
CONCLUSION
For the reasons set forth in the foregoing Opinion, this Court's judgment of conviction
and sentence should be affirmed.
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DATE: t/zlr~
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