Com. v. Johnson, R. ( 2014 )

J-A20022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASSAN JOHNSON
Appellant No. 2045 EDA 2013
Appeal from the Judgment of Sentence March 4, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000702-2011
CP-51-CR-0000703-2011
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 25, 2014
Appellant, Rassan Johnson, appeals from the March 4, 2013 aggregate
judgment of sentence of two consecutive terms of life imprisonment without
the possibility of parole after a jury found him guilty of two counts of first-
degree murder, and one count each of conspiracy, criminal attempt-murder,
and burglary.1 After careful review, we affirm.
The trial court has set forth the relevant facts and procedural history
as follows.
On June 16, 2005, at approximately 1 p.m.,
Kareem Alvarest was leaving his house in the Mantua
section of Philadelphia when he ran into his friend
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1
18 Pa.C.S.A. §§ 2502(a), 903, 901 (to commit first-degree murder), and
3502(a).
J-A20022-14
Lionel Campfield. Mr. Campfield was upset and told
Mr. Alvarest that a mutual friend, Lamar Thomas,
had just been murdered. The two men drove to the
home of [Appellant], who was also a friend of Lamar
Thomas. After Mr. Alvarest and Mr. Campfield
ree men stood
murder. The men theorized that two other men from
the neighborhood, Alonzo Robinson and Elbert
Tolbert, were responsible for the killing, and decided
to take revenge. After awhile [sic], another man,
Maurice Brown, joined Mr. Campfield, Mr. Alvarest,
and [Appellant].2 Mr. Brown told the three men that
lived. [Appellant] retrieved an AR-15 assault rifle
and an AK-47 assault rifle from his house.
[Appellant] gave Mr. Campfield the AK-47 and kept
the AR-15. Mr. Brown then drove Mr. Campfield, Mr.
corner store and purchased red white and blue
scarves, which [Appellant] and Mr. Campfield tied
around their faces. Mr. Alvarest wore a hoodie, the
strings of which he pulled tightly around his face.
5863 Malvern Street, Mr. Brown pulled into the
alleyway behind the house and pointed out to the
basement. [Appellant], Mr. Campfield and Mr.
Alvarest then got out of the car, with [Appellant]
carrying the AR-15, Mr. Campfield carrying the AK-
47, and Mr. Alvarest carrying his own .45 caliber
handgun. [Appellant] kicked in the back door of Ms.
basement. They made their way through the
basement and up the basement stairs.
[Appellant] kicked open the basement door
that led into the main house and began firing
towards a couch where Mr. Robinson was sitting.
Mr. Campfield ran into the room after [Appellant]
and began firing at Mr. Tolbert, chasing him up the
stairs to the next floor. Eleven-year-old Nashir
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Hinton, Holly But
walking to the kitchen when the shooting
commenced. Although Mr. Robinson and Mr. Hinton
were each shot multiple times, Mr. Tolbert escaped
unharmed.
After [Appellant] and Mr. Campfield together
fired 29 rounds in the house, [Appellant], Mr.
Campfield, and Mr. Alvarest ran out of the front door
outside. [Appellant] took over driving, and the four
men fled the scene.
When police arrived at the scene of the
shooting, Alonzo Robinson had suffered multiple
gunshot wounds but was still alive. He was
transported to the Hospital of the University of
Pennsylvania, where he was pronounced dead at
11:40 p.m. He had been shot ten times, once in the
head, twice in the left leg, three times in the right
leg, once in the left arm, twice in the right arm, and
once in the right hand. The medical examiner
recovered five bullet jacket fragments, several
copper and lead fragments, and a bullet core from
dead at the scene at 8:25 p.m. He had been shot
three times in the back and once in the right arm.
The medical examiner recovered two bullets and a
were submitted to the FIU for testing. The FIU
determined that those two bullets and the bullet
jacket, and a bullet jacket recovered from Mr.
of AR-15 assault rifle.
When police processed the crime scene at
5863 Malvern Street, they recovered 60 pieces of
ballistics evidence. This evidence including nineteen
fired cartridge casings from 223 REM Wolf
ammunition, which is manufactured for AR-15
assault rifles. The evidence also included ten fired
cartridge casings from IK-85 Sherwood Import
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which is manufactured for AK-47 assault rifles. A
bullet jacket recovered from the living room of the
crime scene was fired from the same AR-15 with
which Mr. Robinson and Mr. Hinton were shot.
On July 22, 2005, approximately one month
after Alonzo Robinson and Nashir Hinton were killed,
Robert Brooke
28th Street in North Philadelphia. When Mr. Brooker
arrived at the house, he noticed that the door was
ajar. He pushed the door further open, and
[Appellant] pulled Mr. Brooker inside the house.
[Appellant] was holding an AK-47 assault rifle, which
he pointed at Mr. Brooker at close range.
[Appellant] then fled out the front door. Mr. Brooker
called the police, describing [Appellant] as wearing
blue jean shorts and a white t-shirt, and carrying a
duffle bag and an AK-47 assault rifle.
Philadelphia Police Sergeant Ezekiel Williams,
who was in the area of 28th Street, received a radio
[Appellant] walking down the street with a duffle bag
in his hand. [Appellant] was wearing blue jean
shorts and a white t-shirt, which matched the flash
description. As Sergeant Williams got out of his
patrol vehicle, [Appellant] set the bag in the middle
of the street and ran towards Newkirk Street.
Sergeant Williams began chasing [Appellant], but
then returned to secure the duffle bag. When
Sergeant Williams opened the bag, he observed an
AK-47 assault rifle. Sergeant Williams put the bag in
the trunk of his patrol car. He then spotted
[Appellant] near the rear of a house on Newkirk
Street, and began chasing him again before calling
for backup. [Appellant] ran into an abandoned
property. When backup arrived, they surrounded
the building and captured [Appellant], who was then
wearing the same blue jean shorts but a dark-
colored shirt. Sergeant Williams identified him as
the man who had dropped the bag in the street a
few minutes earlier. Mr. Brooker was brought to the
scene, and identified [Appellant] as the man who
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pointed an AK-47 assault rifle at him. Both Sergeant
Williams and Mr. Brooker noted to the police that
[Appellant] had changed his clothes. [Appellant]
was arrested for the illegal possession of the AK-47,
which had 19 live rounds in the magazine.3
On November 6, 2008, Kareem Alvarest, who
was serving a federal sentence for weapons charges,
provided a statement to homicide detectives
admitting to his participation in the shooting of Mr.
Robinson and Mr. Hinton. Mr. Alvarest told the
police the series of events surrounding the murders,
including identifying [Appellant] as his co-
conspirator, who shot both victims with an AR-15
assault rifle.
On May 4, 2010, Philadelphia Police Officer
George Fox was patrolling Northwest Philadelphia
with his partner, Officer Burke, when he observed a
black Cadillac run a stop sign at the comer of 6th
Street and Lindley Avenue in Philadelphia. Officer
[Appellant], who was driving the Cadillac,
accelerated and did not pull over. As [Appellant]
attempted to pass a tractor trailer, he struck a
began running down the street. [Appellant] was
wearing tan pants and a red shirt. Officer Fox and
Officer Burke both chased [Appellant], who jumped
into an idling, driverless tow truck and fled the
scene. At that point, Philadelphia Police Officer
call for backup, arrived on the scene and began
pursuing [Appellant] in his patrol vehicle. After a
few blocks, [Appellant] jumped out of the tow truck,
and Officer Irvine began pursuing him on foot.
Officer Irvine briefly lost sight of [Appellant] during
the chase, and radioed for backup. Sergeant Steven
Johnson responded to the call, surveyed the area,
and saw [Appellant] running while discarding an item
in an alleyway. Officer Johnson caught up to and
apprehended [Appellant], who was now shirtless.
The red shirt that [Appellant] had been wearing and
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had discarded was recovered from an alleyway
through which [Appellant] had run during the chase.
As Officers Irvine and Johnson were
apprehending [Appellant], Officers Fox and Burke
-15
assault rifle in the backseat. The officers remained
with the car until it could be searched pursuant to a
warrant. When [Appellant] was apprehended later
that night, Officer Fox identified him as the man
whom he saw flee the Cadillac earlier in the day.
Police lifted fingerprints from the car, which matched
[Ap
for illegally possessing the AR-15 assault rifle.4
The AK-
bag on July 22, 2005, was submitted to the FIU for
testing. The FIU determined that all of the SIEC
fired cartridge casings that were ejected from the
AK-47 assault rifle during the murder of Mr.
Robinson and Mr. Hinton were fired by the AK-47
that was seized from [Appellant]. In addition, the 19
live rounds loaded in the AK-47 at the time that it
was seized by the police were of the same SIEC
brand as the fired cartridge casings that police
recovered from the murder scene.
The AR-15 assault rifle that was seized from
submitted to the FIU for testing. The FIU
determined that the 223 REM caliber fired cartridge
casings that police had recovered from the scene of
the murder had insufficient markings to determine
whether they were fired from the same AR-15 that
was seized from [Appellant], but was able to
determine that they were all consistent with being
fired from an AR-15 like the one seized. [Appellant]
was arrested for the murders.
__________________________________________
2
Alonzo Robinson was known by the nickname
el
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3
For the events that transpired on July 22, 2005,
[Appellant] was charged with one count each of
carrying a firearm without a license (18 Pa.C.S.
§ 6106(a)(I)), possessing an instrument of crime (18
Pa.C.S. § 907(a)), and simple assault (18 Pa.C.S.
§ 2701(a)). He was tried and acquitted of all
charges.
4
For the events that transpired on May 4, 2010,
[Appellant] was charged with one count of
possession of a firearm a prohibited person (18
Pa.C.S. § 6105(a)(1)) at docket number CP-51-CR-
0011286-2010. The case was nolle prossed after
federal authorities took over the prosecution.
Trial Court Opinion, 10/17/13, at 3-8 (internal citations omitted; footnotes in
original).
2013, following a five-day trial, the jury found Appellant guilty of the
aforementioned charges. On that same day, Appellant was sentenced to an
aggregate term of life imprisonment without the possibility of parole.2 On
March 12, 2013, Appellant filed a timely post-sentence motion asserting,
inter alia, the evidence was insufficient to convict him on all charges because
there was contradictory evidence as to whether he was present at the time
____________________________________________
2
Specifically, Appellant was sentenced to consecutive terms of life
imprisonment without the possibility of parole on the first-degree murder
imprisonment on the criminal attempt charge, and five to ten years on the
burglary charge. For purposes of sentencing, the conspiracy charge merged
with the first-degree murder and no further penalty was imposed.
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the crimes took place, and, in the alternative, that the verdict was against
t Sentence Relief,
3/12/13, at 1-2. Thereafter, on June 26, 2013, the trial court denied
-sentence motion. On July 23, 2013, Appellant filed a timely
notice of appeal.3
On appeal, Appellant raises the following issues for our review.
I. Is Appellant entitled to an arrest of judgment
on two counts of Murder in the First Degree
and related offenses where the evidence is
insufficient to sustain the verdict as the
Commonwealth did not prove Appellant was a
principal, a co-conspirator or an accomplice[,]
nor did they prove specific intent to kill and
malice?
II. Is Appellant entitled to a new trial on two
counts of First Degree Murder and related
offenses where the verdict is not supported by
the greater weight of the evidence?
III. Is Appellant entitled to a new trial as a result
AK-47 assault rifle into evidence, without
permitting Appellant to introduce evidence of
rifle, making the assault rifle irrelevant and its
admission, without the additional evidence,
unfairly prejudicial to Appellant?
IV. Is Appellant entitled to a new trial as a result
of [t]rial [c]ourt error where the [trial c]ourt
prohibited the defense from cross-examining
Kareem Alvarest, a cooperating witness,
regarding the factual basis of his guilty plea?
____________________________________________
3
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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4
In his first issue, Appellant asserts the evidence was insufficient to
sustain the verdict. Id. at 25. Specifically, Appellant avers that the
not Id. (emphasis in
original). Additionally, Appellant argues there was insufficient evidence to
prove a conspiracy existed. Id. at 26.
Our standard of review regarding a challenge to the sufficiency of the
In reviewing the sufficiency of the
evidence, we consider whether the evidence presented at trial, and all
reasonable inferences drawn therefrom, viewed in a light most favorable to
Commonwealth v. Patterson, 91 A.3d 55, 67 (Pa.
to be resolved by the fact finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be drawn
Commonwealth v. Watley, 81 A.3d
____________________________________________
4
We note that Appellant has discussed the issues in his brief in a different
order than they appear in his statement of questions on appeal. For
purposes of our review, we elect to address them in the order as presented
in the statement of questions.
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108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation
omitted), appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014). As an
actu Id.credibility of witnesses and the weight of the evidence produced is free to
Commonwealth v. Kearney, 92
A.3d 51, 64(Pa. Super. 2014) (citation
sufficiency is a question of law, our standard of review is de novo and our
Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013) (citation omitted).
Pr claim, we must first
determine whether Appellant has complied with Pennsylvania Rule of
Appellate Procedure 1925(b) to preserve this issue for our review. Rule
identify each
ruling or error that the appellant intends to challenge with sufficient detail to
see
also Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (stating
llant is appealing, that is
), appeal denied, 919 A.2d 956 (Pa.
2007). Any issues not raised in accordance with Rule 1925(b)(4) will be
deemed waived. Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has made
clear that Rule 1925(b) is a bright-line rule. Commonwealth v. Hill, 16
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A.3d 484, 494 (Pa. 2011). Additionally, with regard to claims pertaining to
In order to preserve a challenge to the sufficiency of
the evidence on appeal, Rule
1925(b) statement must state with specificity
the element or elements upon which the
appellant alleges that the evidence was
insufficient. Such specificity is of particular
importance in cases where, as here, the appellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal
quotation marks and citations omitted; emphasis added).
In the case sub judice
3,
¶ 11. Based on our cases, we are constrained to conclude that Appellant
has not complied with Rule 1925(b) because his statement fails to specify
which elements of which offenses the Commonwealth did not prove beyond
a reasonable doubt. See Garland, supra-compliant with Rule 1925(b));
Commonwealth v. Williams, 959 A.2d 1252, 1256 (Pa. Super. 2008)
(concluding that W
insufficient evidence to sustain the charges of Murder, Robbery, VUFA no
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-compliant with Rule 1925(b)). Therefore, we
In his second issue, Appellant argues that he must be awarded a new
trial because the verdict is not supported by the greater weight of the
ppellant asserts that the
Alvarest. Id. at 33. Appellant claims that the testimony of Tolbert
nt and contradicts the testimony of Alvarest when
Id.
day of this offense, that Appellant was present, had the weapon and used
Id.
Id. Therefore, Appellant argues the trial court
erred in denying his post-sentence motion, and that he should be awarded a
new trial because the verdict is against the weight of the evidence. Id. at
33-34.
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
omitted).
evidence concedes that the evidence was sufficient to sustain the
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convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013),
cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our
granted because of a mere conflict in the testimony or because the judge on
the same facts would have arrived at a different conclusion
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).
certain facts are so clearly of greater weight that to ignore them or to give
them equal weight with Id. (internal
Id.t [our role] to consider the underlying
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).
nce
Id.palpable abuse of discretion will the denial of a motion for a new trial based
on the weight of the evidence be upset on appeal. Id. (citation omitted;
emphasis in original).
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merit. First, the Commonwealth presented the testimony of several police
officers, the medical examiner, and experts who testified to the results of
the testing conducted by the FIU and subsequent ballistics reports. Dr.
Office, testified that he performed an autopsy on Hinton and concluded
Hinton died of four gunshot wounds and the manner of death was homicide.
N.T., 2/27/13, at 173. Further, he testified that his colleague, Dr.
McDonald, performed an autopsy on Robinson, the results of which revealed
Robinson died of multiple gunshot wounds, including to the head, and the
manner of death was homicide. Id. at 163-167. Additionally, the testing
were fired from an AR-15 assault rifle, and that the crime scene contained
nineteen fired cartridge casings from an AR-15 as well as ten fired cartridge
casings from an AK-47. N.T., 3/1/13, at 86-87.
In addition to the officers and experts that testified during the
-in- -defendant, Alvarest, also
testified to his involvement and recollection of the crime. Alvarest testified
that on the date of the incident, Brown drove Alvarest, along with Appellant
Robinson would be. N.T., 2/26/13, at 181. Alvarest brought his own .45
caliber handgun with him, while Appellant brought an AR-15 and gave
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Campfield an AK-47. Id. at 182. According to Alvarest, Brown remained
pellant and
Campfield. Id. at 185. Upon entering the house Alvarest testified that
Campfield began firing at Tolbert while Appellant began firing at Robinson
who was on the couch. Id. at 186-187. Alvarest stated that he never fired
his own weapon. Id. at 187. Alvarest was subsequently arrested on federal
charges, and in November of 2008 was also arrested for the murders of
Hinton and Robinson. Id. at 191-192. On November 6, 2008, Alvarest gave
a statement regarding the murders of Hinton and Robinson. Id. at 192.
house by the front door when he saw three people kick in the back door and
enter the house. N.T., 3/4/13, at 22. Tolbert stated Hinton was in the
kitchen when the three men, who he identified as, Alvarest, Campfield, and
Brown, came in the door shooting. Id. at 23. Tolbert stated that as the
ased me up the steps
Id. Tolbert identified Brown as carrying the AK-47 and shooting
at him and Robinson. Id. at 26. Tolbert indicated he could not identify the
type of gun Alvarest was carrying but that he saw him shooting at Hinton
and Robinson. Id. at 27-28. Finally, Tolbert stated that he did not see
Campfield with a gun. Id. at 28.
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Subsequent to the incident Tolbert gave a statement to police at which
time he chose four photos as being those of the shooters from an array of
18. Id. at 37-41. The four photos Tolbert identified were that of Alvarest,
Campfield, Brown and Appellant. Id. Tolbert stated he told police at the
police he saw Appellant outside through a bedroom window when the
shooting occurred. Id. at 43. Tolbert indicated he entered an agreement to
testify for the Commonwealth in exchange for pleading guilty to third degree
murder for the murder of Lamar Thomas. Id. at 47. On cross-examination
time between the date of the incident on June 17, 2005 and the date he
entered a plea agreement with the Commonwealth on December 14, 2006,
did he ever identify any of the men involved in the incident. Id. at 78. Only
upon entering the agreement did Tolbert give police a statement and identify
the four defendants. Id.
The jury, as fact-finder, was presented with conflicting eye-witness
It
is well established that this Court is precluded from reweighing the evidence
and substituting our credibility determination for that of the fact-finder. See
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations
y for the finder
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of fact who is free to believe all, part, or none of the evidence and to
cert. denied, Champney v.
Pennsylvania, 542 U.S. 939 (2004). Herein, the jury after weighing the
testimony of both Al
the events. As noted, we cannot reweigh the evidence, and Appellant has
failed to show how the trial court palpably abused its discretion in declining
to do the same. See Morales, supra. Accordingly, we will not disturb the
In his third issue, Appellant argues that the trial court erred in allowing
Ronald Brooker to testify to the July 22, 2005 incident involving the AK-47
rifle, without allowing Appellant to introduce evidence of his acquittal in a
Appellant asserts
to have been given the permission to infer that Appellant had actually
possessed that AK-47 several weeks after this incident and that he was
guilty of that crime when, in fact, he had been acquitt Id.
at 15-16.
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 not merely
an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
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judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en
banc) (citations and internal quotation marks omitted), appeal denied, 83
A.3d 167 (Pa. 2013).
such evidence is clearly admissible where it can be shown that the evidence
wa Commonwealth v. Stokes, 78 A.3d 644,
654 (Pa. Super. 2013) (citations omitted).
court abused its discretion in prohibiting him from introducing evidence of
his acquittal of possessing the AK-47 in the July 22, 2005 incident in
ealth was permitted to introduce
-
as, at least, being one of the murder weapons in the current case but that
same jury was not going to be informed that Appellant had been acquitted of
Id.- 18 -
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5
Id. at
16.
We begin by addressing the applicable Pennsylvania Rules of Evidence.
Rule 403 governs evidence that may be excluded as its probative value is
outweighed by some other factor, and Rule 404 governs the admissibility of
prior bad acts.
Rule 403. Excluding Relevant Evidence for
Prejudice, Confusion, Waste of Time, or Other
Reasons
The court may exclude relevant evidence if its
probative value is outweighed by a danger of one or
more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.
Pa.R.E. 403.
Rule 404. Character Evidence; Crimes or Other
Acts
(b) Crimes, Wrongs or Other Acts.
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5
We note that Appellant fails to cite any case law in support of his
contention that the trial court was compelled to admit the prior acquittal.
Rather, the only case law Appellant addresses, and distinguishes, aside from
stating the applicable standard of review, is Commonwealth v. Young, 989
A.2d 920 (Pa. Super. 2010), which was relied on by the trial court in its Rule
1925(a) opinion. Further, we elect not to address Young as it is only
relevant to whether the trial court properly allowed the admission of the
cident, an issue
pertains solely to the exclusion of the evidence of his prior acquittal.
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(2) Permitted Uses. This evidence may be admissible
for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. In
a criminal case this evidence is admissible only if the
probative value of the evidence outweighs its
potential for unfair prejudice.
Id. 404(b).
Herein, the trial court determined that evidence of the underlying
incident which occurred on July 22, 2005 was admissible, a determination
that Appellant does not challenge. However, the trial court determined that
of the AK-47 arising from said incident was nonetheless inadmissible. Rule
403 states a trial court may exclude relevant evidence if it risks causing one
unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly prese
Pa.R.E. 403. In its Rule 1925(a) opinion, the trial court determined that the
first trial, as well as the testimony of several other police officers, and
Upon review, we conclude the trial court abused its discretion in
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2005 AK-47 possession charges. The trial court has failed to provide a
compelling explanation as to why any of the reasons set forth in Rule 403
were met. The trial cou
Rather, the jury, as fact-finder, should have been given the opportunity to
etermine his
credibility and the weight to be given to said testimony.
Our inquiry, however, does not end here as we conclude said error by
the trial court was harmless.
It is well established that an error is harmless only if
we are convinced beyond a reasonable doubt that
there is no reasonable possibility that the error could
have contributed to the verdict. The Commonwealth
bears the burden of establishing the harmlessness of
the error. This burden is satisfied when the
Commonwealth is able to show that: (1) the error
did not prejudice the defendant or the prejudice was
de minimis; or (2) the erroneously admitted
evidence was merely cumulative of other untainted
evidence which was substantially similar to the
erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial [e]ffect of the error
so insignificant by comparison that the error could
not have contributed to the verdict.
Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super 2013) (citiation
omitted), appeal denied 87 A.3d 318 (Pa. 2014).
Commonwealth v. Luster, 71 A.3d 1029, 1046
(Pa. Super. 2013) (en banc) (citation omitted), appeal denied, 83 A.3d 414- 21 -
J-A20022-14
(Pa. 2013) (holding the trial court abused its discretion in allowing into
Id.
at 1042.
-
prejudicial because the evidence tying [Appellant] to the AK-47 was
The homicide jury, unlike the prior jury, heard not
only police testimony that the AK-47 was recovered
from a bag that [Appellant] abandoned, but
testimony from the robbery victim describing the
robbery and the bag in which the rifle had been
placed. In addition, the homicide jury, unlike the
prior jury, heard ballistics evidence conclusively tying
the AK-
own co-conspirators testified he was an active
participant and had supplied the gun.
Id. (citations omitted).
Instantly, the jury had the testimony o -defendant,
firing an AR-15 at Robinson who was sitting on the couch. N.T., 2/26/13, at
despite the credibility issues the jury had with his testimony as to who
entered the house and shot the victims. Further, the jury also heard the
testimony of Officer Fox that on May 4, 2010, Appellant was apprehended in
a separate incident when he failed to pull over after running a stop sign.
N.T., 2/27/13, at 121-
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off running, a tow truck driver stopped to help the officers at which time
Appellant jumped in the tow truck and took off with it. Id. at 123-124.
recovered an AR-15 from the back seat. Id. at 126. In light of all the
evidence the jury was presented with, we conclude that it was harmless
-47. See
Stokes, suprafairly overwhelming, the error in admitting the above evidence did not
Finally, in his last issue, Appellant argues that the trial court erred in
prohibiting the defense from cross-examining cooperating witness, Kareem
Alva
Id. Appellant
er, previously, when Alvarest pled guilty, he
acknowledged during the factual basis for the plea that he had possessed a
Id. Accordingly,
Appellant argues the trial court erred in sustaining the
objection to allowing the defense to cross-examine Alvarest on the basis of
his plea.
As stated above, the admissibility of evidence is within the sound
discretion of the trial court and will only be reversed upon a showing of an
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abuse of discretion. Fischere, supra
trial court has the discretion to determine the scope and limits of cross-
examination and that this Court cannot reverse those findings absent a clear
abuse of discretion or an error of Commonwealth v. Washington,
63 A.3d 797, 805 (Pa. Super. 2013).
In the instant matter, Alvarest entered a plea agreement with the
Commonwealth to testify against his co-defendants in exchange for leniency
at the time of sentencing. In considering A
informed that, Alvarest had given a statement to the police at the time of his
arrest that he was bound by, he had plead guilty to the murders of both
Robinson and Hinton, and that he was currently in federal prison. N.T.,
2/26/13, at 210-216. Specifically, at trial, the Commonwealth covered the
underlying agreement with Alvarest as follows.
Q. Now, on the second page it talks about the
agreement and it says at the top there,
therefore, it is hereby agreed by and between
Kareem Alvarest and the district attorney that,
and that second paragraph, it talks about how
the determination of whether or not you have
cooperated completely and to what extent lies
solely in the discretion of the district attorney;
correct?
A. The I see the paragraph. I understand he
will participate in the investigation of those
matters only at the discretion of the district
prosecutorial department or agency.
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Q. Now, on page three, line seven I am sorry
paragraph seven, you see where your guilty
plea agreement indicates what you are
pleading guilty to?
A. Yes.
Q. And it says there you will enter a plea of guilty
to the murder of the third degree of Alonzo
Robinson and the murder of the third degree of
Nashir Hinton?
A. Yes.
Q. And there are some other charges in there too;
right?
A. Yes, sir.
Q.
office declares your agreement null and void,
you will not be able to withdraw your plea;
right?
A. Yes.
Q. And the district attorney will not be bound by
any obligations under this agreement; correct?
A. Yes.
Q. And, basically, this locks you into that first
statement; correct?
A. Yes.
N.T., 2/26/13, at 210, 212, 215.
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The specific objection Appellant complains about on appeal, and ruling
by the trial court, unfolded as follows.
[Defense Counsel]: And the final portion I wanted to
go over was the recitation of the facts, the factual
statement where [A.D.A. Fairman] reads in that Mr.
Tolbert would testify that this defendant, meaning
Mr. Alvarest, was carrying a firearm and began to
shoot at Alonzo Robinson who was known by the
nickname of Onion as Onion was on the couch, and
then later when Mr. Alvarest agrees to that factual
basis as being true.
The Court: Which portion of the factual basis?
[Defense Counsel]: Page twenty-four, Your
Honor, line one. Mr. Tolbert would testify --- and
this is [A.D.A.] Fairman speaking - - Mr. Tolbert
would testify that this defendant, who he would
identify as - -
I believe he would call him Reem, and others burst
into that door from the basement. This defendant,
meaning Mr. Alvarest, was carrying a firearm at the
time and began to shoot at Alonzo Robinson, who
was known by the nickname of Onion, as Onion was
on the couch.
The Court: You know, listen. Do you have an
objection to this?
[A.D.A.] Fairman: I do, Your Honor.
Id. at 234-235.
ilty plea hearing amounts to a prior
statement by Alvarest that should have been admissible grounds for cross-
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court ruled as follows.
[The Court:]
u
made reference to your statement to homicide
And he asks him, the judge asks him,
adopt and agree with that, the answers that you
evidence, which Ms. Fairman has summarized, if
offered at a trial and accepted as true would be
sufficient. Do you understand that?
in my view, have him adopt every sentence that was
stated. If anything, I would permit you to bring out
that he swore to Judge Lerner that his statement
was true, if you wanted to cross-examine him with
the statement, but the fact that she in her allocution
with Judge Lerner says a detail that is inconsistent
with the statement and inconsistent with his
testimony here, and he does not correct the judge
and interrupt it, to me, that is not a prior
inconsistent statement. So I am going to sustain the
objection.
He never even asked do you accept the
rendition of the facts as being true. He asked, do
you accept the statement as being true? Do you
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accept the allegations as being true? He is guilty of
-examination.
bring the jury out.
Your issue is preserved.
N.T., 2/26/13, at 240.
Upon review, we conclude that the trial court did not abuse its
in
fact testify at trial, and Appellant had the opportunity to cross-examine him.
homicide detectives and could have impeached him with any portion of that
statement. Finally, the factual recitation of the facts made by the assistant
district attorney was not a prior statement by Alvarest but rather by the
A.D.A.6 Accordingly, the trial court did not abuse its discretion in sustaining
Based on the for
2013 judgment of sentence.
Judgment of sentence affirmed.
____________________________________________
6
supported by the record. Commonwealth v. Doty, 48 A.3d 451, 456 (Pa.
Super. 2012) (citation omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2014
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