Com. v. Green, D. ( 2016 )


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  • J-S54012-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    DOMINIC TREVON GREEN,
    Appellant                     No. 1487 WDA 2015
    Appeal from the Judgment of Sentence Entered August 10, 2015
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s):
    CP-02-CR-0005752-2015
    CP-02-CR-0013225-2014
    BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
    MEMORANDUM BY BENDER, P.J.E.:                       FILED SEPTEMBER 12, 2016
    Appellant, Dominic Trevon Green, appeals from the judgment of
    sentence of five to ten years’ incarceration, imposed after a jury convicted
    him of one count of persons not to possess a firearm, 18 Pa.C.S. §
    6105(a)(1).    Appellant challenges the trial court’s admission of certain
    evidence that he argues was precluded by the court’s ruling on his pretrial
    motion in limine. After careful review, we affirm.
    The   trial   court   briefly    summarized   the   evidence   presented   at
    Appellant’s trial as follows:
    [O]n August 2, 2014, Alexis Markey, her infant daughter,
    [Appellant] and several others were hanging out at [Markey’s]
    residence at the Cambridge Square Apartments in Monroeville.
    At some point, the gathering moved out to the parking lot and
    when everyone was getting into Markey’s vehicle, [Appellant]
    got into an altercation with the others over who got to sit in the
    J-S54012-16
    front passenger seat. [Appellant] then pulled out a gun and
    threatened to “shoot the car up.” Monroeville Police Officers
    arrived on the scene shortly thereafter, having been summoned
    by an anonymous … 911 [caller] who described [Appellant] and
    the vehicle. Once all of the individuals had been removed from
    the car, Officer Brad Martin looked in the car and saw a firearm
    protruding from below the back of the front passenger seat, [in
    front of] where [Appellant] had been sitting [in the back seat].
    Alexis Markey and Patricia Kurn both gave statements to the
    [p]olice indicating that the gun found belonged to [Appellant].
    Trial Court Opinion (TCO), 1/14/16, at 1-2 (citation to the record omitted).
    Based on these facts, the jury convicted Appellant of the above-stated
    offense and he was sentenced as 
    stated supra
    .           Appellant filed a timely
    notice of appeal, and also timely complied with the court’s order to file a
    Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
    Herein, Appellant presents one issue for our review: “Did the trial court
    abuse its discretion by overruling defense counsel’s objection and failing to
    strike a witness’ prejudicial testimony relating to a 911 call when that
    testimony had previously been excluded by an in limine ruling?” Appellant’s
    Brief at 5.
    Before addressing Appellant’s argument, we note that,
    [t]he standard of review employed when faced with a challenge
    to the trial court's decision as to whether or not to admit
    evidence is well settled. Questions concerning the admissibility of
    evidence lie within the sound discretion of the trial court, and a
    reviewing court will not reverse the trial court's decision absent a
    clear abuse of discretion. Abuse of discretion is not merely an
    error of judgment, but rather where the judgment is manifestly
    unreasonable or where the law is not applied or where the record
    shows that the action is a result of partiality, prejudice, bias or ill
    will.
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    Commonwealth v. Young, 
    989 A.2d 920
    , 924 (Pa. Super. 2010) (citation
    omitted). We also point out that, “[i]n order to preserve for appellate review
    any claim of error regarding the admission of evidence, a party must
    specifically   object   to   the   admission    of   such   evidence   at   trial.”
    Commonwealth v. Boyd, 
    679 A.2d 1284
    , 1289 (Pa. Super. 1996) (citation
    omitted). “Failure to do so results in a waiver of that claim of error in the
    evidence’s admission.” 
    Id. (citation omitted).
    Briefly, Appellant claims that the trial court issued a pretrial ruling
    excluding any witness from testifying that the anonymous person who called
    911 had stated that a person was ‘waving a gun’ outside Alexis Markey’s
    vehicle.   Nevertheless, during trial, the court overruled defense counsel’s
    objection when Markey testified about that remark by the 911 caller.
    Appellant explains that he objected to this ‘double hearsay’ but the court
    overruled his objection, as well as his later request for a mistrial. Instead,
    the court simply provided a cautionary instruction to the jury.        Appellant
    repeatedly stresses on appeal that the court’s allowing Markey’s at-issue
    testimony violated its pretrial ruling.         He also asserts that admitting
    Markey’s testimony caused him significant prejudice that was not cured by
    the cautionary instruction provided by the trial court. Accordingly, Appellant
    maintains that he is entitled to a new trial.
    After careful review of the record, we disagree that a new trial is
    warranted. By way of background, at the start of trial, defense counsel and
    the court discussed Appellant’s oral motion in limine, as follows:
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    [Defense Counsel]: We talked about it and correct me if I am
    wrong, but I believe you said they are allowed to say that they
    responded for a report of an argument at the address with a red
    Ford SUV.
    THE COURT: And the person arguing was wearing gray
    sweatpants, but not to mention that the 9-1-1 caller said that
    there was a gun.
    N.T. Trial, 5/11-5/12/15, at 3.
    When Alexis Markey later took the stand for the Commonwealth, she
    mentioned the 911 caller’s statement about a gun during the following
    exchange:
    [The Commonwealth:] On August 2, what did you tell the police
    had occurred just before they showed up on the scene?
    [Markey:] When I was at the police station, Officer Skoog, [I]
    think that’s her name, pulled me into the room by myself and
    told me that I had to tell her the whole truth or I was going to
    go to jail. So, she asked if that call for the 9-1-1 was true, that
    there was a gun being waived outside of my car.
    
    Id. at 81
    (emphasis added). In response to Markey’s mention of the 911
    caller’s reference to a gun, defense counsel stated: “Objection. And I ask
    that the last response be stricken.” 
    Id. The court
    overruled that objection
    and request, simply stating, “I’ll overrule[].” 
    Id. at 82.
    The Commonwealth’s questioning of Markey continued. At one point,
    Markey stated, “there was just a little altercation about seats.    And that’s
    when somebody called into the police station and said that they saw a gun
    being waived outside of my car with a child in it.” 
    Id. at 82.
    A short while
    later, Markey testified that her “neighbor called about the gun being waived
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    outside of [Markey’s] car.” 
    Id. at 84.
    Appellant did not object to either of
    these subsequent references to the 911 call by Markey.
    On the morning of the second day of trial, defense counsel made an
    oral motion for a mistrial, stating:
    [Defense Counsel]: In regards to what Alexis [Markey] testified
    to on direct examination about the 9-1-1 call, she mentioned the
    information that Your Honor specifically excluded under a motion
    in limine.     Now, I’m not saying that [the Commonwealth]
    solicited it by any means, but it was [the prosecutor’s] obligation
    to inform her witnesses when there is a granted motion in limine
    to not mention that information.
    As such, I would move at this time for a mistrial because
    information that was specifically excluded by Your Honor was
    brought in on direct from the Commonwealth witness.
    
    Id. at 99.
    In response, the Commonwealth stressed that it had advised the police
    officers not to testify about the mention of a gun by the 911 caller, and it
    explained that it had not known that Markey was aware of content of the
    911 call. 
    Id. at 99-100.
    The court stated that it was clear from the officers’
    testimony that they knew not to mention the gun reference by the 911
    caller, and the court further concluded that “the response that … Markey
    gave was not responsive to the question asked.” 
    Id. at 101.
    Ultimately, the
    court declined to declare a mistrial, but directed that the Commonwealth not
    mention, in its closing argument, the 911 caller’s reference to a gun.      
    Id. Additionally, the
    court offered to give the jury a cautionary instruction, which
    defense counsel approved.       
    Id. Accordingly, the
    jury was instructed as
    follows: “[Y]esterday you heard evidence that Alexis Markey referred to a 9-
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    1-1 call.    This evidence is inadmissible and must be disregarded by you.”
    
    Id. at 103.
    Based on this record, we first conclude that Appellant has waived the
    specific arguments he presents herein.      First, while Appellant objected to
    Markey’s initial mention of the 911 caller’s gun comment, he did not offer
    any specific basis for that objection. Even more problematic is Appellant’s
    utter failure to lodge any objection when Markey made two more, nearly
    identical references to that 911 call later in her testimony. Because Markey
    testified about the content of the 911 call without an objection by Appellant,
    we conclude that he has waived his claim that admitting such testimony was
    error by the court.
    In any event, we would also agree with the Commonwealth and the
    trial court that Markey’s testimony was not so prejudicial as to warrant a
    new trial.     First, the trial court clearly instructed the jury to disregard
    Markey’s mention of the 911 call, and we must presume that the jury
    followed that instruction.   Commonwealth v. Baker, 
    614 A.2d 663
    , 672
    (Pa. 1992).     Additionally, as the Commonwealth stresses throughout its
    brief, Markey did not testify that the 911 caller identified Appellant, or even
    someone matching Appellant’s description, as the person waving the gun;
    instead, Markey simply stated that the 911 caller said someone was waiving
    a gun outside her vehicle.      Given that there were five adults, including
    Appellant, present in Markey’s car when police arrived, Markey’s testimony
    did not clearly convey to the jury that the 911 caller claimed to see
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    Appellant with a firearm. Moreover, both Markey and Patricia Kurn testified
    at trial that they saw Appellant with the gun. Thus, there was ample other
    evidence of Appellant’s guilt, aside from Markey’s mention of a vague
    comment by the 911 caller. Under these facts, we would reject Appellant’s
    argument that “[t]he jury very well could have found [Appellant] guilty
    based solely on the hearsay testimony presented about the 911 call.”
    Appellant’s Brief at 21.
    Additionally, while Appellant maintains that the court’s admission of
    Markey’s   testimony   unfairly   surprised   him   and   “likely   hindered   the
    defense[,]” 
    id., he offers
    no explanation of what he would have done
    differently had he known such evidence would be admitted. Thus, we would
    not accept his bald allegation that he was prejudiced simply due to his being
    surprised by the admission of Markey’s at-issue testimony.
    In sum, we conclude that Appellant did not preserve his challenge to
    the admission of the challenged evidence, but, even if he had, we would
    deem his arguments meritless. Accordingly, we affirm Appellant’s judgment
    of sentence.
    Judgment of sentence affirmed.
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    J-S54012-16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/12/2016
    -8-
    

Document Info

Docket Number: 1487 WDA 2015

Filed Date: 9/12/2016

Precedential Status: Non-Precedential

Modified Date: 12/13/2024