Com. v. Briddell, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN BRIDDELL,
Appellant No. 3369 EDA 2012
Appeal from the Judgment of Sentence November 16, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008010-2010
BEFORE: BOWES, SHOGAN, and OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 12, 2014
Sean Briddell appeals from the judgment of sentence of six to twelve
years incarceration followed by eight years probation imposed by the trial
court after a jury convicted Appellant of conspiracy to commit robbery.
We affirm.
On September 4, 2012, Appellant proceeded to a jury trial on three
counts of robbery and one count of criminal conspiracy to commit robbery.
He was acquitted of the three robbery charges, but convicted of conspiracy
to commit robbery. That conviction is premised upon the following:
On May 30, 2010 at approximately 2:00 a.m., the
complainants, Joni Gamble, his brother Stephen Gamble, and
Stephen's fiancée, Estrella Carrion, entered a Chinese store at
1334 Girard Avenue in Philadelphia to get some food. Both Joni
and Stephen testified at trial that they first noticed Appellant
standing inside the store at the front, and observed Appellant
look at them when Stephen pulled out his wallet to pay for the
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food he had ordered. Joni and Stephen then observed Appellant
exit and speak with two other males who were standing just
outside the store. Appellant and the two other males then
walked off together.
Appellant and the two other males returned approximately
five minutes later. Appellant stayed just outside the door while
the other two males entered the store. One of the males came
up behind Stephen Gamble, pulled out a gun, tapped him with
the gun, and said "You know what this is." (N.T, 9/5/12, pp. 68,
139). The second male, who was standing near the door, told
the three victims to get on the floor, but the gunman said that
was not necessary and to just give him their money. As
Stephen fumbled with his wallet, the gunman reached in and
grabbed the money out of the wallet. He then shook Stephen's
hand and said "Thanks a lot." (N.T., 9/5/12, pp. 69, 141). Joni
Gamble told the men he only had a dollar on him and handed it
to the gunman. During the robbery, Joni testified that he
observed Appellant look both ways like he was looking out.
When the two men exited the store, Joni testified that he saw
the gunman hand over the money he had taken from them to
Appellant. Appellant and the two other men then ran off
together.
Estrella Carrion called police immediately following the
robbery. Joni Gamble flagged down Philadelphia Police Officer
James Parker and got into the police vehicle. Moments later
they spotted Appellant walking side by side with the other two
males around 15th and Poplar Streets. Joni testified that he
immediately identified them as the robbers and police ordered
them to stop. Appellant was taken into custody while his
companions fled east on Poplar. Other police officers
apprehended one of the other men shortly thereafter. The
gunman, Kevin Dowe, was finally arrested on June 29, 2010.
There was a stipulation by and between counsel that
Officer Grou of Criminal Intelligence would testify that photos of
Appellant and Kevin Dowe show matching tattoos consisting of a
"B" on the right arm and a "G" on the left arm, consistent with
tattoos for a group known as "BG". (N.T., 9/6/12, pp. 155-156).
There was a further stipulation that Assistant District Attorney
Jennifer Hoffman would testify that when she reviewed
Appellant's Facebook page she observed several photos of
Appellant's co-defendants posted thereon. She would further
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testify that Appellant posted a message on his Facebook page
on September 4, 2012, the first day of trial, that read "Been in
court all day. Just picked my jury today and start trial
tomorrow. It is what it is till it ain't. A snitch n , that's that
shit that I don't like. Y'all should kill yourself, rat ass n s."
(N.T., 9/6/12, pp. 156-158).
Trial Court Opinion, 1/7/14, at (unnumbered pages) 2-4 (superfluous
citations to the record omitted).1
In this appeal from his judgment of sentence, Appellant raises these
contentions:
1. Did not the lower court err by admitting into evidence a post
made on the social media website Facebook regarding
"snitching" where this post was not authenticated, was not
relevant and any probative value was outweighed by the danger
of unfair prejudice?
2. Did not the lower court err by denying appellant's motion for a
mistrial after appellant inadvertently rode the same bus home as
a deliberating juror, the juror realized that appellant lived in her
neighborhood and the juror stated she was afraid to go out of
her house?
The first issue we address is whether the trial court erred in admitting
into evidence the postings of a Facebook page. In this respect, Appellant
argues both that the page was not properly authenticated and that the
posting was not relevant.
____________________________________________
1
While Appellant stipulated to the contents of the Facebook page in
question, he retained the right to raise objections to the admissibility of the
evidence based upon grounds of relevancy and authenticity. N.T. Trial,
9/6/13, at 157.
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As we outlined in Commonwealth v. Akbar, 91 A.3d 227, 235
admit evidence at trial
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. 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. (quoting Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009)).
Evidence must be authenticated prior to its admission into evidence,
and Pa.R.E. 901 sets forth the principles applicable to authentication and
identification of evidence. See Commonwealth v. Serrano, 61 A.3d 279
(Pa.Super. 2013). The general principle of authentication is succinctly
stated
or impliedly that the evidence is connected with a person, place, thing, or
event, the party must provide evidence sufficient to support a finding of the
e provides: To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the
e
authenticated through distinctive characteristics, which includes the
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Pa.R.E. 901(a)(4). Thus, a piece of evidence may be authenticated by
circumstantial proof. Commonwealth v. Collins, 57 A.2d 237 (Pa. 2008).
For example, in Collins, the defendant maintained that counsel was
ineffective for not contesting the authenticity of two letters admitted into
evidence. The letters were represented to be from the defendant to a
witness asking that witness not to testify against him. Even though the
witness denied receipt of the letters, our Supreme Court concluded that they
were properly authenticated, based solely upon these facts. The letters
were mailed from the prison where the defendant was housed, contained his
prison identification num
asked the witness to engage in conduct that inured to the benefit of the
defendant. Even though the identifying features in question could have been
created by another person, the Court concluded that these circumstances
Id. at 266; see also In re F.P., 878 A.2d 91 (Pa.Super. 2005)
(contents of instant messages properly authenticated as originating from the
defendant where they referred to events that were described at trial and
In this case, the trial court did not abuse its discretion in concluding
that the Commonwealth established the necessary link between Appellant
and the Facebook page. While Appellant relies upon the absence of certain
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proof, the following was used by the trial court in support of its decision.
the Facebook website with his name. The page had pictures of Appellant
with his co-
trial that referred to the beginning of trial and jury selection, and it was that
post that referred to snitching. These were nearly the same circumstances
at issue in Collins and In re F.P. that were held sufficient to satisfy the
authentication requirements.
n.
if it logically tends to establish a material fact in the case, tends to make a
fact at issue more or less probable, or supports a reasonable inference or
Commowealth v.
Antidormi, 84 A.3d 736, 750 (Pa.Super. 2014) (citation omitted). In this
case, the Facebook post was relevant since it demonstrated consciousness of
guilt. It indicated that Appellant was angry because a witness had testified
against him. Appellant called that witness an offensive term and labeled him
a snitch. A snitch is an informant. By indicating that the witness was a
snitch, Appellant also implied that his testimony was truthful. Thus, the
posting was relevant. Commonwealth v. King, 959 A.2d 405 (Pa.Super.
2008) (fact that defendant wore a shirt that admittedly suggested that
people should not snitch and should be killed if they did was relevant in
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Appellant additionally asserts that any potential relevance of the post
was outweighed by its prejudicial value. Otherwise relevant evidence may
be excluded if its probative value is outweighed by its potential for
Antidormi, supra at 750. In order for that to occur, the
prejudice, confusion of the issues, misleading the jury, undue delay,
pointlessness of presentation, or unnecessary presentation of cumulative
Id
tendency to suggest decision on an improper basis or to divert the jury's
Id.
(citation omitted). The posting at issue herein imputed guilty knowledge,
which is not an improper basis upon which to base a verdict, to Appellant. It
did not confuse or mislead the jury, was not cumulative, and did not delay
outweighed its probative value.
The second issue on appeal concerns an unintended encounter
between Appellant and one of the jurors. The juror viewed Appellant on her
bus while she was riding home and realized that he lived in her
neighborhood.
d stayed in
Id. The juror also indicated that she had never encountered Appellant in her
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neighborhood prior to the event in question, and she represented the chance
meeting would not affect her in connection with her responsibilities as a
juror. Id. at 6.
Appellant claims that the trial court improperly denied his request for a
mistrial based upon this incident. We evaluate the denial of a mistrial
where the incident upon which the motion is based is of such a nature that
its unavoidable effect is to deprive the defendant of a fair trial by preventing
Commonwealth v.
Bryant, 67 A.3d 716, 728 (Pa. 2013) (citation omitted).
We do not view the events in question as depriving Appellant of a fair
trial. While Appellant foc
such prejudice, we cannot agree with this proposition. If the juror indicated
that she was afraid of retribution from Appellant for acting as a juror, it
would make her more likely to acquit rather than convict him. In that way,
she would avoid rather than invite retaliation. There was nothing in the
chance meeting that indicated that the juror was in any way negatively
inclined toward Appellant, or that the encounter would make her more likely
to convict him. Hence, we reject this contention.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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