Com. v. Wright, G. ( 2019 )

J-S53024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
GERALD WRIGHT
Appellant No. 2574 EDA 2018
Appeal from the Judgment of Sentence Entered August 3, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0004499-2017
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 09, 2019
Appellant, Gerald Wright, appeals from his judgment of sentence of
imprisonment for attempted murder, 18 Pa.C.S.A. § 901, and related offenses.
Appellant argues that the trial court erred by permitting evidence of his post-
arrest silence in response to a police detective’s question. We affirm.
The trial court recounted the evidence adduced during Appellant’s bench
trial as follows:
On April 20, 2017, at approximately 11:00 PM, Tyrrell Faison,
Omar [no last name] and [Appellant] decided to get Chinese food.
[Appellant rode as a passenger] in a Kia minivan while Faison and
Omar followed in a white Lexus. At around 15th Street and Nedro
Avenue, the Kia minivan that [Appellant] was a passenger in
stopped, and Faison stopped his car as well. Faison saw
[Appellant] exit the van and walk up toward Conlyn Street. A few
minutes later, he heard 6-7 gunshots. Once Faison heard the
gunshots, he ducked and when he looked outside again, he saw
the Kia pull off. Faison drove off immediately as well.
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During this time period, Tyrell Barnes was headed to the KFC near
15th and Conlyn Streets until he stopped to chat with his friend,
uncle, and a few other people, on Conlyn Street, about a block
away from the KFC. After chatting for a bit, Barnes sat in the front
passenger seat of his friend’s car to smoke some marijuana with
his friend, Eugene. Shortly after entering the vehicle, Barnes
heard shooting, at least five shots. He and Eugene exited the
vehicle and Barnes ran up Conlyn Street, away from 15th Street.
Barnes had run about 25 steps when he hit the ground and noticed
he had been shot.
After Barnes was shot, his uncle helped him and he was taken to
Einstein Hospital. Barnes remained in the hospital for four days
and had one surgery where the left side of his body, underneath
his armpit, was stapled. Barnes was shot five times: once in his
left arm, once under his lung, once right behind his heart, and
twice in his back. Barnes needed the assistance of a walker for
about three weeks after he was discharged from the hospital, and
two bullets remained in his body, one behind his heart and the
other on the right side of his back.
Around the same time that the shooting occurred, Police Officer
Chad Gugger and Police Officer Reuben Henry responded to a
radio call reporting gunshots in the area of 15th Street and Conlyn
Street. As the officers approached Conlyn Street, they observed
a black Kia Sedona and a white Lexus driving the wrong way on
the 1700 block of Conlyn Street, a one-way street, at a high rate
of speed. The two vehicles continued at a high rate of speed,
arrived abruptly at a stop sign, passed through the intersection
over Conlyn Street, and made a left to go around a U-shaped
street on Grange. Officer Gugger lost sight of the vehicles for
approximate 3-5 seconds, and when he regained sight of them,
both were stopped in the middle of Grange Street, near a red-
roofed building. Once he caught back up to the two vehicles, they
proceeded to drive off again. The officers continued following the
two vehicles north on Ogontz Avenue until the Kia Sedona made
a left on Nedro Avenue. The officers followed the Kia and Officer
Henry put out flash information on the Lexus.
Upon following the Kia, Officer Gugger activated his lights and
sirens. The Kia continued to speed away with police following until
it eventually crashed into a home located at 2152 Nedro Avenue.
After the Kia crashed, Officer Gugger saw [Appellant] flee from
the rear driver’s side of the vehicle, and he proceeded to give
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chase. While fleeing, [Appellant] saw two other officers
approaching westbound on Nedro Avenue, [and] he then went
toward the sidewalk, put his hands in the air, and got down on the
ground. Officer Gugger successfully handcuffed [Appellant] and
walked him back to the police car. Subsequently, Officer Gugger
returned to the Kia to see if there was anyone else inside. He
noticed the back door of the Kia was still open and he looked on
the rear driver’s side, and on either the floor or the seat area, he
observed a spent fired cartridge casing ("FCC").
After detaining [Appellant], officers completed a 75-229 form
which gave, among other things, a description of the person
arrested and description of clothing at the time of arrest. The 75-
229 form for [Appellant] stated that [Appellant] was arrested
wearing a black hooded sweatshirt, black pants, and tan boots.
Once [Appellant] and [the Kia’s] driver were taken into custody,
Officer Henry returned to Grange Street at the area that he had
observed the Lexus and Kia briefly stop. When he searched the
area with his flashlight, he observed a 9mm Glock handgun with
an extended clip located half on the sidewalk and half on the
grass.
Detective Patrick Murray processed both the crime scene at 15th
and Conlyn Streets and the crime scene at Grange Street, where
he took photographs, created a rough sketch, and recovered
ballistic evidence. While investigating the first crime scene at 15th
and Conlyn Streets, Detective Murray recovered a total of thirteen
9mm FCCs and eleven .45 caliber FCCs which he then placed on
Property Receipt 3273798. Detective Murray then proceeded to
the secondary crime scene at Grange Street where he recovered
two firearms—one empty 9mm Glock with a 30-round extended
magazine and one .45 caliber semi-automatic handgun with an
empty 12-round magazine—that he placed on Property Receipt
3273788.
After his arrest, [Appellant] had been transported to the
Northwest Detective Division. At around 2:00 AM, Detective
Timothy Hartman was tasked with recovering the outer garments
of the suspects, including [Appellant]. Detective Hartman
recovered three of the four suspects’ outer garments without
incident, but when he went to collect [Appellant]’s hooded
sweatshirt (noted in the 75-229) from [Appellant] located in Cell
18, he noticed [Appellant] was no longer wearing it. Detective
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Hartman asked [Appellant] for the location of the sweatshirt, to
which he was met with silence. Detective Hartman looked around
and observed a hooded sweatshirt on the bench of Cell 17, the
cell directly next to Cell 18. Cell 17 was unoccupied at the time
he was tasked with retrieving the outer garments. Based on the
setup of the cells, one would be able to reach outside of the front
cell bar of one cell and throw something into the next cell.
Detective Hartman proceeded to have a conversation with the
individual who had been inhabiting Cell 17 earlier in the evening.
Based on this conversation, Detective Hartman returned to Cell 17
to recover the hooded sweatshirt contained in it. He then asked
Officer Gugger and Officer Henry for verification that the
sweatshirt appeared to be the same as the one [Appellant] had
been wearing when he was arrested. Once this was confirmed,
the sweatshirt was placed on Property Receipt 3273790.
Sometime after the recovery of the sweatshirts from the suspects,
the trace laboratory released a report detailing that the sweatshirt
taken from the cell next to the one [Appellant] was in, and
attributed to [Appellant], had tested positive for the presence of
primer gunshot residue particles.
Upon reaching its verdict, the trial court considered the fact that
Faison saw [Appellant] leave the Kia, walk around the corner,
heard gunshots, and then saw [Appellant] return to the car; after
the Kia crashed, Officer Gugger observed [Appellant] exit the rear
driver side of the Kia; the rear driver side of the Kia was where
the 9mm FCC was found; the 9mm FCC recovered from the Kia
was deemed to be from one of the firearms, later designated
pistol 1, discovered on Grange Street; the 229 form described
[Appellant] as wearing a black hooded sweatshirt, the same
description as the one found in Cell 17 by Detective Hartman; that
same sweatshirt was later identified by Officer Gugger and Officer
[Henry]; and testing determined that there was the presence of
gunshot residue on the hooded sweatshirt recovered from Cell 17.
Trial Court Opinion, 1/22/19, at 2-6.
The trial court found Appellant guilty of attempted murder, aggravated
assault, conspiracy to commit murder, possessing a firearm without a license,
possessing a firearm on a public street and possessing an instrument of crime.
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On August 3, 2018, the court sentenced Appellant to eight to sixteen years’
imprisonment for attempted murder, followed by concurrent terms of
probation of four years for each firearms violation and two years for
possessing an instrument of crime. Appellant’s aggravated assault and
criminal conspiracy convictions merged with attempted murder for sentencing
purposes. Appellant filed timely post-sentence motions, which the court
denied, and a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
1. Did the trial court err by admitting evidence that, after his
arrest and while in police custody, Appellant remained silent in the
face of questioning by law enforcement?
2. Did the trial court improperly admit evidence of a conversation
between an investigating detective and a prisoner in a cell
adjacent to Appellant’s, which produced inculpatory evidence
against Appellant?
Appellant’s Brief at 5.
Both of Appellant’s arguments on appeal relate to the following
testimony during trial:
DETECTIVE HARTMAN: And I went to recover the outer most
garments for the defendant Gerald Wright, sitting in the middle of
the three defendants. Gerald Wright was in 18 Cell, Your Honor,
in our cell room, which is the very last cell on the backside of the
cell room. When I went to get his hood sweatshirt or the outer
most garment -- when I got there, he was in a plain white t-shirt.
I asked him where his sweatshirt was and he refused to answer
me.
DEFENSE COUNSEL: Objection.
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THE COURT: Overruled.
DETECTIVE HARTMAN: I inquired where his sweatshirt was, and
I didn’t get an answer, Your Honor. The cell next to him was 17
Cell. That cell was open and it was unoccupied at the time that I
went down there. There was a hooded sweatshirt sitting on the
bench of 17 Cell. I went and found that the person that was
occupying 17 Cell was being photographed and fingerprinted at
the time. Based on the conversation I had with that gentleman –
DEFENSE COUNSEL: Objection; move to strike.
THE COURT: Without telling us what the conversation was, what
did you do next?
DETECTIVE HARTMAN: I wasn’t going to tell you, Your Honor.
Based on the conversation I had with that gentleman, I went and
recovered the sweatshirt that was in 17 Cell on the bench. I
showed that sweatshirt to Police Officer Gugger and Police Officer
Henry. And that sweatshirt was placed on Property Receipt
3273790.
N.T., 4/26/18, at 142-43.
Arguably, Appellant waived both of his arguments on appeal because
trial counsel failed to specify the grounds for his objections to Detective
Hartman’s testimony. Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa.
Super. 2018) (“[i]n order to preserve an evidentiary objection for purposes of
appellate review, a party must interpose a timely and specific objection in the
trial court”). We will excuse this defect, because the trial court’s opinion
demonstrates that it understood the nature of counsel’s objections despite
their vagueness.
Both of Appellant’s arguments concern the admissibility of evidence
introduced during trial. Evidentiary rulings are within “the sound discretion of
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the trial court and its discretion will not be reversed absent a clear abuse of
discretion.” Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super.
2014).
First, Appellant complains that Detective Hartman’s testimony, “I asked
[Appellant] where his sweatshirt was and he refused to answer me,” was an
impermissible reference to Appellant’s post-arrest silence because of the
detective’s failure to administer Miranda1 warnings. No relief is due.
Detective Hartman testified to the court, sitting as fact-finder, that he
recovered the outer garments of Faison and two other suspects that were in
custody for the shooting. The detective then proceeded to Appellant’s cell and
discovered that Appellant was not wearing the sweatshirt that, according to
the 75-229 form, he had been wearing at the time of his arrest. Nor was the
sweatshirt in Appellant’s cell. The detective asked Appellant where his
sweatshirt was, and Appellant “refused to answer.” N.T., 4/26/18, at 142.
The detective located the sweatshirt in an adjoining cell that could be reached
through the bars of Appellant’s cell. The sweatshirt tested positive for gun
residue.
The “mere revelation of [a criminal defendant’s] post-arrest silence does
not establish innate prejudice.” Commonwealth v. Spotz, 870 A.2d 822,
833 (Pa. 2005). “Even an explicit reference to silence is not reversible error
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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where it occurs in a context not likely to suggest to the jury that silence is the
equivalent of a tacit admission of guilt.” Id.
Appellant argues that the trial court committed reversible error by
construing his silence as a tacit admission of guilt. Under the circumstances
of this case, it is possible to construe Appellant’s silence as inculpatory.
Conceivably, he remained silent because he knew he had just abandoned
evidence of a crime (gunshot residue on his sweatshirt). Nevertheless, even
if Appellant’s silence was an admission of guilt, the law presumes that when
the trial court sits as factfinder, it disregards any inadmissible evidence in its
consideration of the case. Commonwealth v. Gribble, 863 A.2d 455, 462
(Pa. 2004); Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003)
(in non-jury trial, judge presumed to have disregarded inadmissible hearsay
testimony). The burden falls upon Appellant to overcome this presumption,
but he fails to do so, because the trial court made clear in its opinion that it
based its verdict on evidence unrelated to Appellant’s silence. The court wrote
that it found the following evidence dispositive: Appellant’s acquaintance,
Faison, who was driving behind the Kia in which Appellant was riding, saw
Appellant exit the Kia and walk up Conlyn Street. Opinion at 5. Faison then
heard gunshots and observed the Kia pull away. Id. Police officers testified
that the Kia sped down a one-way street the wrong way and continued to
evade the officers until it crashed into the side of a house. Id. Appellant
alighted from the Kia and fled on foot. Id. Near the Kia, police found an
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operable handgun that had just been fired. Id. They also found matching
projectiles and fired cartridge casings in the Kia and at the crime scene. Id.
Following his arrest, Detective Hartman found Appellant’s sweatshirt in an
adjoining cell. Id. The crime lab found powder from a discharged firearm on
the sleeve of the sweatshirt. Id. at 6. Since this evidence established
Appellant’s guilt independent of his silence, Appellant’s argument fails.
In his second argument, Appellant claims that the court erred by
admitting hearsay evidence of a conversation between Detective Hartman and
the individual who occupied the cell adjacent to Appellant. We disagree.
To begin, the Commonwealth did not introduce the substance of the
conversation. Detective Hartman merely stated that he had a conversation
with the individual who occupied the cell next to Appellant and described the
steps he took after the conversation. Even if the detective had testified about
the contents of the conversation, his testimony would not have been hearsay.
“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.3d 1031, 1037 (Pa.
Super. 2014). Had the content of the conversation in question been
introduced, it would have been admissible to show the detective’s course of
conduct. Further, had any content of the conversation constituted
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inadmissible hearsay, the trial court, sitting without a jury, presumably would
have disregarded it in reaching its verdict. Dent, 837 A.2d at 582.
For these reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/19
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