Com. v. Robinson, J. ( 2017 )

J-S56012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSHUA ROBINSON
Appellant No. 3630 EDA 2016
Appeal from the Judgment of Sentence November 10, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0004954-2013
CP-51-CR-0004955-2013
BEFORE: BOWES, STABILE, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2017
Joshua Robinson appeals from the judgment of sentence of 58 and
one-half to 117 years incarceration imposed following his convictions for two
counts of aggravated assault and robbery, in addition to, inter alia, one
count of conspiracy to commit robbery and various firearm charges. We
affirm.
The trial court summarized the incident leading to Appellant’s
conviction in its Pa.R.A.P. 1925(a) opinion as follows.
[I]n the early morning hours of August 9, 2010, Michael Brown,
wanting to purchase thirteen bags of crack cocaine, approached
Gloria Alston and inquired if Alston knew someone from whom
he could buy drugs. Ms. Alston called Kareem White and set up a
meeting for the sale of the drugs to Brown. Kareem White and
William Ross drove to the 1100 block of South Sixty-First Street
* Retired Senior Judge specially assigned to the Superior Court.
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in Philadelphia as arranged, where Brown approached the
passenger side of the car, pulled out money, asked about the
drugs, and if they had guns in the car with them. The defendant,
Joshua Robinson, suddenly appeared in the middle of the street.
Robinson walked slightly past the vehicle, turned and fired twice
into the vehicle. Gunfire was returned and Robinson shot three
or four more times into the vehicle and fled. White was shot in
the back of his head and left torso. Ross suffered a gunshot
wound to the back of his head and left hand. White and Ross
were transported to the Hospital of the University of
Pennsylvania and miraculously, both survived.
Trial Court Opinion, 1/31/17, at 3 (citations to transcript omitted).
We add the following facts. The identity of the shooter remained
unknown until 2012, as Kareem White had implicated another man. Kareem
testified that he believed Kevin Rogers had set him up for a robbery, as he
and Rogers used to sell drugs together. Their illicit partnership ended due to
Kareem’s dissatisfaction with the quality of Rogers’ drugs. On the day of the
shootings, Kareem received a call from Gloria Alston, asking if she could
purchase $100 worth of cocaine. He agreed, and stated that he would drive
to her location.
Kareem, joined by William Ross, arrived and saw Michael Brown,
whom Kareem knew to be Kevin’s cousin. That man approached the car,
and engaged in a conversation with the two dealers. Shortly thereafter,
another individual approached the vehicle and started firing a gun. Based on
this sequence of events, Kareem believed that Rogers had arranged the
shooting, presumably as revenge for severing their drug partnership.
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Detective Frank Mullen interviewed Kareem at the hospital a few hours
after the shooting. Kareem identified Brown in a photo array and suggested
that Detective Mullen speak to Alston. Ms. Alston gave a statement at
approximately 9:00 a.m. She told Detective Mullen and his partner,
Detective Darryl Pearson, that she regularly used crack cocaine and knew a
number of dealers. She would occasionally act as a middleman and arrange
drug sales in exchange for some cash or a cut of the drugs. She was
hanging out in an apartment when a man who identified himself as Kevin
Rogers’s cousin, Jasir, arrived and asked Alston to arrange a drug deal.
Alston did so, and witnessed Jasir approach the vehicle upon Kareem’s
arrival. She saw the shooter approach the vehicle and open fire, but did not
know the shooter. She identified Jasir in a photo array. Detective Pearson
testified that Jasir was, in fact, Michael Brown. Brown was arrested on
September 29, 2010, and charged with robbery.
Authorities continued their investigation, largely through investigation
of cellular phone records. Meanwhile, in early September of 2010, Abdalah
Josma was arrested following a vehicular stop for numerous firearms
offenses. Josma spoke to a detective, and stated that Appellant had
previously given Josma a firearm. Appellant indicated that he had used this
gun to kill two people in a drug deal setup. Josma then showed the
authorities that gun, which was a revolver. Detective Mullen explained that
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since revolvers do not expel casings, forensic attempts to connect the gun to
the shooting would be fruitless.
On March 14, 2012, Brown and his attorney contacted the authorities
to offer information, which ultimately led to Appellant’s arrest. Brown
testified at trial, and related the following. He approached Alston and
identified himself as Rogers’ cousin, and asked her to arrange a sale. When
Brown went outside to wait, he saw Appellant, whom he recognized.
Appellant told Brown he was looking to rob someone. Brown informed
Appellant that he would be buying some drugs, and told him “after
everything I handle is done, you could just go ahead and rob them.” He
then explained to the jury that he approached Kareem’s car, whereupon
Appellant approached and fired his gun.
Following a jury trial, Appellant was convicted of the aforementioned
charges and sentenced.1 Appellant filed a timely notice of appeal and
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal. The trial court authored its
opinion in response and the matter is ready for our review. Appellant raises
the following two issues.
I. Did the trial court err and cause irreparable harm to Appellant
when the court allowed the Commonwealth to elicit testimony
from a witness, Gloria Alston, regarding fears of retaliation when
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Appellant was acquitted of two counts of attempted homicide.
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there was no evidence of any retaliation in relation to Appellant
and when the jury could only conclude that Appellant could have
been the only one with motive or interest in retaliation?
II. Did the trial court err and cause irreparable harm to Appellant
by allowing the Commonwealth to read witness Gloria Alston's
out-of-court, hearsay statement into evidence when there was
no significant issue with the witness' memory and there was no
Brady/Lively impeachment because there was no evidence that
the witness was recanting or disavowing her prior statement?
Appellant’s brief at 4.
Both of these claims attack the trial court’s decision to admit evidence.
The admission of evidence “is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.
2015) (citation and quotation omitted). “Accordingly, a ruling admitting
evidence will not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous.” Commonwealth v. Huggins, 68 A.3d
962, 966 (Pa.Super. 2013) (citations and internal quotations omitted).
The first claim involves the prosecutor asking Ms. Alston if she was
scared. The pertinent exchange was as follows:
Q. [A]re you nervous today?
A. Yes, I am very nervous.
Q. Are you a little scared today?
A. I'm afraid, yes.
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[APPELLANT]: Objection, Your Honor.
THE COURT: Overruled.
Q. What are you afraid of?
A. Retaliation.
[Appellant]: Objection.
THE COURT: Overruled, but that's enough of that.
N.T., 11/2/16, at 107.
Appellant alleges that the trial court erroneously overruled his
objection and caused prejudice, as there was no objective evidence of any
retaliation. In its Pa.R.A.P. 1925(a) opinion, the trial court states that Ms.
Alston “was obviously distressed at testifying in open court and the
exchange with Ms. Alston was merely an explanation as to why the witness
was acting as she was on the witness stand.” Trial Court Opinion, 1/31/17,
at 4-5.
We find that the court did not abuse its discretion. We addressed a
substantially similar set of circumstances in Commonwealth v. Bryant,
462 A.2d 785 (Pa.Super. 1983), and opined that evidence of a witness’s
subjective fear are permissible to explain aspects of the witness’s testimony:
In general, “‘threats by third persons against ... witnesses are
not relevant [and thus not admissible into evidence] unless ...
the defendant is linked in some way to the making of the
threats.’” Commonwealth v. Carr, 436 Pa. 124, 127, 259 A.2d
165, 167 (1969) (citation omitted). Nevertheless, an exception
to the rule exists where the evidence in question was not offered
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to prove the accused's guilt “but to explain a [witness's] prior
inconsistent statement.”
In the present case the Commonwealth witness revealed his
subjective fear that Appellant or Appellant's
family might threaten him or his family if he testified against
Appellant. The witness did not intimate that he had actually
received threats from any source. Furthermore, the testimony
concerning possible threats was not introduced to establish
Appellant's guilt but was adduced to reconcile the inconsistencies
in the witness's pre-trial and at-trial statements.
Id. at 788 (emphasis in original, some citations omitted). Likewise, the trial
court permitted the testimony as a way of explaining Ms. Alston’s demeanor
and behavior on the stand. Furthermore, Ms. Alston did not state that she
was actually threatened, only that she subjectively feared that retaliation
could occur. We therefore find no error.
The second issue concerns a lengthy question to Ms. Alston, which
involved reading the entire content of her statement to Detective Mullen.
However, we note that prior to taking that action, the Commonwealth
attempted to refresh her recollection as indicated by the following exchange:
Q. Okay. I'm going to step back just a little bit. This guy Michael
Brown, did you know a guy named Kev who lived on that same
block?
A. Yeah.
Q. Did Michael Brown ever, I guess, was it ever told to you that
Michael Brown was Kev's cousin?
A. No.
Q. No?
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A. No.
N.T., 1/31/16, at 106. The prosecutor then offered Ms. Alston a document,
which Ms. Alston recognized as having reviewed previously with the
prosecutor in preparation of her testimony. She reviewed the statement and
acknowledged that the document was the statement she gave to Detective
Mullen:
Q. . . . And [Detective Mullen] had asked you questions. Is that
fair?
A. Right.
Q. That night?
A. Yes.
Q. And the first few pages are the Miranda warnings that he
gave you. He told you all your rights and all that kind of stuff?
A. Uh-huh.
Q. Is that right?
A. Right.
Q. Okay. And then I read to you the first, I read to you your
whole statement.
A. Right.
Q. Earlier today.
A. Yes.
Q. When we were at lunch.
A. Yes.
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Q. Okay. And all of that was true and correct to the best of your
memory. Is that fair?
A. Right.
Id. at 109-110. The Commonwealth then read an answer from the
statement, wherein Ms. Alston stated that Jasir (a/k/a Michael Brown) had in
fact identified himself as Kevin’s cousin. Ms. Alston responded that she did
not remember saying that. Examination continued, and Ms. Alston again
experienced difficulties recalling certain details, prompting the prosecutor to
again reference the prior statement, this time by directly reading what the
statement said.
Q. Okay. And do you know where Reem lived?
A. No.
Q. Okay. Do you remember telling Detective Mullen that Reem
lived right next door to Kev?
A. I don't remember.
Q. Okay. Let's just go right here. Court's indulgence. Well, let's
go back. Miss Alston, the first question that the detective asked
you was, "Tell me what you can about what happened outside of
eleven hundred South Sixty-First Street on 8/9/10 at
approximately 12:40 a.m. from the beginning." You give a very,
very long answer. It starts on page one and ends on page two;
is that correct?
A. I guess.
Q. Okay. Let's go to page three.
Question: "When Jasir went to visit" --
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[APPELLANT]: Objection. I don't know what. Is she being
impeached? I think she said she doesn't remember. If she
doesn't remember, she can look at it, review it and see if it
refreshes her memory, but she can't be read the question.
Id. at 114-15. The trial court overruled the objection, and the prosecutor
then read the statement in full, reciting the questions and answers given,
which occupied eight pages of transcript. After reading the entire statement,
the prosecutor concluded with, “Miss Alston, I just read you that whole
thing. Do you remember giving that answer?” The witness responded,
“Most of it.” The prosecutor then asked, “When you say most of it, what is
it? What’s different that you don’t? I guess, what do you not remember?”
Id. at 124.
As indicated by the objection, Appellant insisted that the proper course
was to show Ms. Alston the statement to see if it refreshed her recollection.
Appellant argues that the trial court abused its discretion because “there was
no significant issue with the witness’s memory and . . . there was no
evidence that the witness was recanting or disavowing her previous
statement.” Appellant’s brief at 10.
The Commonwealth responds that the trial court properly permitted
the prosecutor to read the questions and answers pursuant to Pa.R.E.
803.1(3), which states:
(3) Recorded Recollection of Declarant-Witness. A
memorandum or record made or adopted by a declarant-witness
that:
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(A) is on a matter the declarant-witness once knew about but
now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the declarant-witness when the
matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or her
knowledge at the time when made.
If admitted, the memorandum or record may be read into
evidence and received as an exhibit, but may be shown to the
jury only in exceptional circumstances or when offered by an
adverse party.
Pa.R.E. 803.1(3).
We agree that the trial court did not abuse its discretion in permitting
the Commonwealth to read the questions and answers, as all three
requirements were met. First, a review of Ms. Alston’s testimony, as
excerpted supra, plainly establishes that she could not recall the details of
her statement, which was given approximately six years before her in-court
testimony. Second, the prosecutor asked the witness if her prior statements
reflected “what happened that night” to which Ms. Alston stated, “Yeah.”
Finally, Ms. Alston conceded that she reviewed her statement with the
prosecutor in preparation for her testimony, and agreed when asked, “And
all of that was true and correct to the best of your memory. Is that fair?”
Accordingly, we disagree with Appellant’s assertion that there was no
significant issue with the witness’s memory. In this vein, we note that in
Commonwealth v. Shelton, 170 A.3d 549 (Pa.Super. 2017), we affirmed
the trial court’s decision to permit introduction of prior statements in a
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videotaped interview pursuant to this same hearsay exception. With respect
to whether the witness evidenced any difficulties recalling the details of
previous statements, we specifically noted that the witness admitted to
memory issues but would nevertheless answer questions:
At trial, the victim acknowledged that her memory of events was
“much better then [.]” Importantly, she informed the court that
when the Commonwealth asked her a question at trial to which
she could not recall the answer, she would say “no,” rather than
admit that she did not recall. Although the victim was able to
testify at trial about many details of the abuse by her father,
from our review of the transcribed portions of the video
recording we discern that the victim reported the events of
abuse more fully, with a greater level of detail, at her forensic
interview. The victim testified that there were times during
her testimony when she did not recall the answer to a
question posed by the Commonwealth but instead of
admitting as such, she answered the question in the
negative.
Id. at 552–53 (citations to transcript omitted, emphasis added). The same
is true here; Ms. Alston simultaneously admitted that she could not recall the
particular answers given, but nevertheless answered many questions as if
she recalled all details. Hence, we cannot conclude that the trial court
abused its discretion in permitting the Commonwealth to read the statement
to the witness.
Additionally, we add that by asking Ms. Alson if she had any
corrections or anything to add regarding the statement, the prosecutor
effectively gave the witness an opportunity to explain anything that was
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incorrect in the statement, as opposed to introducing the statement as
substantive evidence. Therefore, we find no error.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2017
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