Com. v. Turner-Smith, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY TURNER-SMITH :
:
Appellant : No. 2193 EDA 2020
Appeal from the Judgment of Sentence Entered June 8, 2020
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000104-2019
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 9, 2022
Anthony Turner-Smith (“Turner-Smith”) appeals from the judgment of
sentence following his convictions for persons not to possess firearms,
possession of firearm with altered manufacturer’s number, and firearms not
to be carried without a license.1 We affirm.
On January 2, 2019, homeowners in Parkesburg called police to report
an unfamiliar Mercedes parked in their driveway, and provided the car’s
license plate number. Detective Ryan Murtaugh, who received the call,
recognized the vehicle’s description and license plate number from Turner-
Smith’s social media posts, including a SnapChat video, and he knew that
Turner-Smith had an outstanding warrant for his arrest. Detective Murtaugh
arrived at the scene with other officers. They approached the car, which had
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 6105, 6110.2, 6106.
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heavily-tinted windows, identified themselves as police officers, and ordered
the occupants to lower their windows. Emily Warner, Turner-Smith’s
girlfriend, opened the rear driver’s-side door and got out. She told the police
she had a gun in her bra. Police recovered the gun as well as a bag of fentanyl
from the bra. Ms. Warner said that the gun and the fentanyl were Turner-
Smith’s and that he had taken them from the center console and put them
into her bra when the police approached. The gun had an obliterated serial
number. Laboratory inspection showed Turner-Smith’s fingerprint on the gun.
N.T., 2/18/20, at 58-73; N.T., 2/19/20, at 20-27, 89, 94-95, 142-43, 150-51.
Police also recovered $1,250 from Turner-Smith, as well as keys to the
Mercedes and to a BMW. On Turner-Smith’s cell phone, police later found a
photograph of him holding a black and silver gun. Later, when Detective
Murtaugh asked Turner-Smith if he wanted to give a statement, he said that
he did not mean to get Ms. Warner “tied up in this.” N.T., 2/18/20, at 88-93,
146-50.
Prior to trial, Turner-Smith moved to exclude the photograph from his
phone of him holding a gun. He asserted that the Commonwealth had made
late disclosure of the photograph in violation of the discovery rules, the
photograph was not authenticated, it was offered to prove criminal propensity,
and it was more prejudicial than probative. N.T., 2/18/20, at 2-5. Turner-
Smith also sought to exclude, for lack of authentication, the SnapChat video,
which he sent to another phone and which showed him with the Mercedes and
a BMW. The trial court denied both motions.
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The case proceeded to a jury trial. After the first day of trial, Turner-
Smith learned that Ms. Warner had been investigated in 2017 for delivering
drugs to a confidential informant (“CI”) who later died. N.T., 2/19/20, at 8-
10. He moved for a mistrial or, alternatively, an in camera hearing, to
investigate the alleged prior sale. The trial court denied the motions for a
mistrial or, alternatively, an in camera hearing and also precluded Turner-
Smith from cross-examining Ms. Warner about the 2017 incident. Ms. Warner
thereafter testified that the gun and drugs found in her bra belonged to
Turner-Smith, and that he hid them there when police approached the car.
She also testified that, on multiple occasions in the months before the
encounter with police, she had seen Turner-Smith with the gun recovered from
her bra. N.T., 2/19/20, at 24, 38-43.
At the conclusion of trial, the jury convicted Turner-Smith of the above-
listed gun charges and acquitted him of possession with intent to deliver a
controlled substance and possession of a controlled substance.2 On June 8,
2020, the trial court sentenced him to an aggregate term of seventy-two to
one-hundred eighty months of imprisonment. Turner-Smith filed a timely
post-sentence motion, which was denied by operation of law when the trial
court did not rule on it within 120 days. See Pa.R.Crim.P. 720(B)(3)(a).
Turner-Smith filed a timely notice of appeal, and both he and the trial court
complied with Pa.R.A.P. 1925.
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2 See 35 P.S. § 780-113(a)(30), (16).
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Turner-Smith presents the following issues for our review:
1. Whether the trial court abused its discretion in considering
evidence of fentanyl and indications of intent to deliver in
fashioning [Turner-Smith’s] sentence after Turner-Smith
had been acquitted of all drug charges?
2. Whether the evidence was []sufficient to support the
convictions on persons not to possess firearms . . .
possession of firearm with altered manufacturer’s number .
. . and firearms not to be carried without a license. . .
because the Commonwealth failed to prove the element of
possession beyond a reasonable doubt? Additionally,
whether the evidence was []sufficient to support the
conviction for possession of firearm with altered
manufacturer’s number . . . on the ground that the
Commonwealth failed to prove that [Turner-Smith]
knowingly or recklessly disregarded the fact that the
number was altered beyond a reasonable doubt?
3. Whether the verdicts of guilt on persons not to possess
firearms . . . possession of firearm with altered
manufacturer’s number . . . and firearms not to be carried
without a license . . . were against the weight of the
evidence?
4. Whether the trial court abused its discretion by denying
[Turner-Smith’s] motion for a mistrial following disclosure
by the Commonwealth that a witness was investigated for a
prior drug delivery? Additionally, whether the trial court
abused its discretion in precluding [Turner-Smith] from
cross-examining the witness on this prior delivery?
5. Whether the trial court abused its discretion by admitting a
SnapChat video of [Turner-Smith] with a black Mercedes-
Benz and a white BMW on the following grounds: the video
was not properly authenticated under Pa.R.E. 901(a) and
the probative value of the video was outweighed by the
danger of unfair prejudice[?]
6. Whether the trial court abused its discretion in admitting an
undated photograph of [Turner-Smith] holding a firearm on
the following grounds: the Commonwealth disclosed the
photograph late, the photograph was not authenticated, the
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photograph constituted improper propensity evidence, and
the probative value of the photograph was outweighed by
the danger of unfair prejudice?
Turner-Smith’s Brief at 5-6 (reordered for clarity; unnecessary capitalization
omitted).
Turner-Smith asserts in his first issue that the trial court abused its
discretion at sentencing by improperly considering the drug charges of which
he had been acquitted. A claim that a sentencing court considered an
improper factor presents a challenge to the discretionary aspects of sentence.
See Commonwealth v. Tobin, 89 A.3d 663, 667-69 (Pa. Super. 2014)
(holding that the assertion that a sentencing court improperly considered nolle
prossed charges constitutes a discretionary sentence claim). A discretionary
aspects of sentence claim is not appealable as of right; the appellant must
invoke this Court’s jurisdiction by satisfying a four-part test. This Court must
determine:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
presented at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s claim
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
citations and brackets omitted).
Based on our review, Turner-Smith failed to properly preserve this issue.
He did not raise any objection at the sentencing hearing. Additionally,
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although he asserted in his sentencing argument that the Commonwealth was
unduly focusing on his “lifestyle” given his acquittal of the drug charges, see
N.T. 6/8/20, at 19-21, he focused his mitigation argument on the assertions
that he had merely possessed the gun, there was no proof of his involvement
in obliterating the gun’s serial number, and the jury acquitted him of the drug
charges. Id., at 25-28. In his post-sentence motion, Turner-Smith argued
that this was his first firearms conviction, that he had merely possessed the
gun, and that his sentence was excessive. See Post-Sentence Motion,
6/14/20, at 4. Thus, neither at sentencing nor in his post-sentence motion
did Turner-Smith assert that the trial court improperly referred to fentanyl or
the drug charges of which he was acquitted or claim that the trial court
considered an improper factor at sentencing. Because Turner-Smith did not
preserve his appellate claim that the trial court improperly considered
evidence of the drug charges at sentencing, he waived review of that
discretionary sentence issue. See Pa.R.A.P. 302(a) (issues not raised in trial
court are waived and cannot be raised for the first time on appeal). See also
Moury, 992 A.2d at 170; see also Commonwealth v. Cartrette, 83 A.3d
1030, 1043 (Pa. Super. 2013) (holding that an unpreserved discretionary
aspects of sentence claim is waived).3
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3 Even if Turner-Smith had preserved this issue, no relief would be due. A
court does not commit reversible error by entertaining impermissible
evidence; its sentence is only reversible if the court relied in whole or in part
(Footnote Continued Next Page)
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In his second issue, Turner-Smith challenges the sufficiency of the
evidence of his firearms convictions asserting: (1) the police did not find him
in actual possession of the gun, and (2) merely touching the gun did not
constitute possession. He also challenges the sufficiency of evidence of his
possession of a firearm with an altered manufacturer’s number conviction
because there is no evidence that he knew or recklessly disregarded that the
manufacturer’s number had been altered.
When reviewing a sufficiency of the evidence claim, an appellate court
determines whether the evidence, viewed in the light most favorable to the
Commonwealth, and with all reasonable inferences therefrom, is sufficient to
establish every element of the offense beyond a reasonable doubt. See
Commonwealth v. Haney, 131 A.3d 24, 33 (Pa. 2015). The Commonwealth
may sustain its burden of proof by means of wholly circumstantial evidence.
See Commonwealth v. Williams, 255 A.3d 565, 578 (Pa. Super. 2021).
Possession is an element of each offense. See 18 Pa.C.S.A.
§§ 6105(a)(1), 6106(a)(1), 6110.2. To sustain a conviction of possession of
a firearm with an altered manufacturer’s number, the evidence must also
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on that evidence. Commonwealth v. Smithton, 631 A.2d 1053, 1057 (Pa.
Super. 1993). Here, although the trial court referred at sentencing to the
drug charges of which Turner-Smith was acquitted, it specifically stated that
it disregarded those charges. See, e.g., N.T., 6/8/20, 11-12 (trial court
asserting that it is disregarding the drug charges); cf. id. at 24 (trial court
stating that had Turner-Smith been convicted of the drug charges, he would
have received a minimum sentence of more than ten years, rather than the
six-year minimum sentence the trial court imposed).
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establish that the accused possessed a firearm and acted intentionally,
knowingly, or recklessly concerning the obliteration of the number. See 18
Pa.C.S.A. § 6110.2; see also 18 Pa.C.S.A. § 302(c) (providing the mens rea
for criminal statutes that do not state the mental culpability required).
Based on our review, we conclude that direct evidence established
Turner-Smith’s actual possession of the firearm.4 Ms. Warner’s trial testimony
that Turner-Smith took the gun from the console and hid it in her bra when
police approached established that he was in actual possession of the gun,
and that testimony was corroborated by the presence of his fingerprint on the
gun. See N.T., 2/19/20, at 24, 145-46, 150-51. We therefore reject Turner-
Smith’s assertion that the evidence failed to prove his possession of the gun,
an element of each of the offenses of which the jury convicted him. See 18
Pa.C.S.A. §§ 6501(a), 6110.2(a), 6106(a).5
We further conclude that Ms. Warner’s testimony also established
Turner-Smith’s awareness that the gun had an obliterated serial number. She
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4 We determine that sufficient evidence proved Turner-Smith’s guilt, although
we do so on a different basis than the trial court. See Commonwealth v.
Lehman, 275 A.3d 513, 520 (Pa. Super. 2022) (holding that an appellate
court may affirm a lower court’s decision on any proper grounds without
regard to the ground relied upon by the lower court).
5 Commonwealth v. Boatwright, 453 A.2d 1058, 1059 (Pa. Super. 1982),
which Turner-Smith cites, is inapposite. That case employed a constructive
possession analysis because there was no evidence of the accused’s actual
possession of a gun. Here, Ms. Warner’s testimony that Turner-Smith took
the gun from the console and put it in her bra established his actual possession
of the gun.
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testified that she had seen Turner-Smith with the gun multiple times over
several months, and that he took it from the car console and put it in her bra
as he became aware of the approaching officers. See N.T., 2/19/20, 38-39,
42-43. That testimony showed that Turner-Smith acted knowingly,
intentionally, or recklessly concerning the gun’s obliterated serial number.
See Commonwealth v. Jones, 172 A.3d 1139, 1145-46 (Pa. Super. 2017)
(holding that the evidence was sufficient to allow the jury to infer knowledge
of serial number’s obliteration where the accused possessed a gun and
attempted to conceal it from police detection). See also Commonwealth v.
Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (stating that it is a well-established
principle of sufficiency review that a jury is free to believe all, part, or none of
a witness’s testimony). Thus, Turner-Smith’s sufficiency issues merit no
relief.
In his third issue, Turner-Smith asserts that the verdict was against the
weight of the evidence because his acquittal of the drug charges indicates that
the jury disbelieved Ms. Warner, at least in part. He asserts that Ms. Warner
was unreliable because she was the subject of a pending theft charge, and
that a verdict based on her testimony renders the evidence so unreliable as
to shock the conscience.
A motion for a new trial is addressed to the trial court’s discretion. See
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). A trial court
should not grant a weight claim because of a mere conflict in testimony or
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because it would have decided the case differently, it should only award a new
trial on weight grounds where the verdict is so contrary to the evidence as to
shock one’s sense of justice. See id. It is for the jury to resolve contradictory
testimony and questions of credibility. See Commonwealth v. Delmonico,
251 A.3d 829, 837 (Pa. Super. 2021).
We assess a trial court’s ruling on a weight claim by examining the trial
court’s exercise of discretion; we do not make an independent determination
of whether we believe the verdict is against the weight of the evidence. See
Clay, 64 A.3d at 1055. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict was or was
not against the weight of the evidence. See Commonwealth v. Landis, ---
A.3d ---, ---, 2022 WL 1681494 at *10 (Pa. Super., May 26, 2022).
The trial court reviewed the evidence and determined that the jury’s
verdict did not shock its conscience. See Opinion, 7/13/21, 9. Upon review,
we discern no abuse of discretion in that ruling. The jury heard Ms. Warner’s
testimony and the trial court’s instruction about her outstanding theft charge,
and chose to credit her testimony. Turner-Smith has offered nothing to show
that the trial court abused its discretion by declining to grant his weight claim.
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We may not reweigh testimony the jury credited. See Delmonico, 251 A.3d
at 837-838.6 Thus, Turner-Smith’s weight of the evidence claim fails.
Turner-Smith’s fourth, fifth, and sixth issues assert overlapping
allegations of error in the trial court’s denials of his requests for discovery
sanctions and related evidentiary rulings. We review decisions involving
discovery and evidentiary matters for an abuse of discretion. See
Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017);
Commonwealth v. Wilson, 273 A.3d 13, 19 (Pa. Super. 2022). An abuse
of discretion is demonstrated only 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.” Wilson, 273 A.3d
at 19 (internal citation omitted). It is not enough to persuade an appellate
court that it would have reached a different result; an appellant must show
that the trial court abused its discretionary power. See Commonwealth v.
Norton, 201 A.3d 112, 120 (Pa. 2019).
In his fourth issue, Turner-Smith asserts that the trial court abused its
discretion when it declined to grant a mistrial based on the Commonwealth’s
late disclosure of the fact that police previously investigated Ms. Warner for
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6 We also note that the jury’s acquittal of Turner-Smith on drug charges cannot
be interpreted as a specific finding in relation to some of the evidence, or a
rejection of Ms. Warner’s credibility as Turner-Smith contends. Inconsistent
verdicts may be the result of mistake, compromise, lenity, or some other
factor. See Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012).
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selling drugs to a CI in 2017. He argues that the allegation Ms. Warner
previously sold drugs was relevant to establish the possibility of her guilt of
the charges. He further asserts that he was prejudiced because the
information that Ms. Warner allegedly sold drugs could have undermined the
Commonwealth’s theory of the case and cast doubt on Ms. Warner’s
testimony.
A mistrial is an extreme remedy that is not lightly dispensed.
Commonwealth v. Boczkowski, 846 A.2d 75, 94 (Pa. 2004). It is granted
only 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 the jury from rendering a true verdict. Commonwealth v.
Sanchez, 907 A.2d 477, 491 (Pa. 2006).
Pennsylvania Rule of Criminal Procedure 573 requires the
Commonwealth to disclose “[a]ny evidence favorable to the accused that is
material either to guilt or to punishment, and is within the possession or
control of the attorney for the Commonwealth[.]”). See Pa.R.Crim.P.
573(B)(1)(a). A defendant alleging a violation of mandatory discovery must
“identify and explain the actual evidence at issue.” Santos, 176 A.3d at 884.
A trial court has broad discretion to select the remedy for a violation of the
discovery rules. See Commonwealth v. Simmons, 662 A.2d 621, 634 (Pa.
1995). Those remedies include the grant of a continuance, preclusion of the
admission of evidence, or any other order the court deems just under the
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circumstances. See Pa.R.Crim.P. 573(E). An appellant seeking a new trial
based on a discovery violation must demonstrate how a timelier disclosure
would have affected his trial strategy or how he was otherwise prejudiced by
the late disclosure. See Commonwealth v. Brown, 200 A.3d 986, 993 (Pa.
Super. 2018).
Pennsylvania Rule of Evidence 404(b) prohibits the use of bad acts
evidence to show propensity, but it permits the admission of that evidence for
a proper evidentiary purpose if the probative value of the evidence outweighs
its potential for unfair prejudice. See Commonwealth v. Yale, 249 A.3d
1001, 1015 (Pa. 2021). A defendant’s proffer of evidence of a third party’s
prior crimes or bad acts to show that the third party, not he, committed the
charged crimes is governed by less restrictive standards than those controlling
the admission of an accused’s prior bad acts. Yale, id. Under Pa.R.E. 401
to 403, the trial court must balance the relevance of the evidence of third-
party crimes or bad acts against the danger of confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence. See id. at 1022.
The trial court reviewed Turner-Smith’s issue and concluded that
Turner-Smith failed to establish prejudice from the late disclosure. See
Supplemental Trial Court Opinion, 12/3/21, at 5. The trial court emphasized
that the investigation into Ms. Warner’s alleged 2017 drug sale did not result
in her arrest or charges being filed. Accordingly, the trial court determined
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that the late-disclosed information amounted to a mere allegation of Ms.
Warner’s prior criminal activity. See id.
We discern no abuse of discretion in the trial court’s denial of Turner-
Smith’s motion for mistrial. Ms. Warner had been investigated four years
earlier for an alleged drug sale; however, that alleged sale had not resulted in
charges, and it remained only an unsupported allegation of a prior bad act.
There was no basis for a finding that the Commonwealth made late disclosure
of a material allegation. See Pa.R.Crim.P. 573(B)(1)(a). We discern no
reversible error in the trial court’s denial of a mistrial for the alleged discovery
violation, where Turner-Smith proffered only that Ms. Warner may have been
involved in a prior drug sale, and the said investigation did not result in
criminal prosecution. Moreover, the jury acquitted Turner-Smith of the drug
charges against him. See Boczkowski, 846 A.2d at 94; Sanchez, 907 A.2d
at 491. Thus, no relief is due.7
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7 Turner-Smith also asserted that he was deprived of the opportunity to cross-
examine Ms. Warner about the alleged sale. His argument concerning cross-
examination consists of two sentences and lacks citation to relevant authority.
In any event, his argument appears to depend on the applicability of Yale to
this case. Yale holds that where a third party is charged or convicted of
crimes similar to those with which the accused is charged, evidence of those
charges may be admissible to negate the accused’s guilt. See Yale, 249 A.3d
at 1025. Yale is inapposite to this case. The mere allegation of misconduct
that has not resulted in a conviction or criminal charges is not a proper basis
for cross-examination. See Commonwealth v. Long, 483 A.2d 876, 878
(Pa. Super. 1984) (stating that witness may not be cross-examined about a
mere allegation).
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Turner-Smith asserts in his fifth issue that the trial court abused its
discretion by admitting evidence of a SnapChat video of him with a Mercedes
(the very one he was driving at the time of his arrest) and a BMW because
the video was not authenticated and was more prejudicial than probative.
Authentication entails a relatively low burden of proof.
Commonwealth v. Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017). An
item can be authenticated, inter alia, when there is testimony “that the item
is what the proponent claims it is.” Pa.R.E. 901(a). Digital evidence can be
connected with a person circumstantially, including by identifying content.
See Pa.R.E. 901(b)(11)(B)(i); see also Comment to Pa.R.E. 901(b)(11)
(stating that digital evidence includes social media postings, and that its
admissibility requires only evidence sufficient to support a finding of
authorship).
Prior to trial, the trial court determined that the SnapChat video was
authenticated because Turner-Smith sent it to another SnapChat account.
See N.T., 2/18/20, 22-24. The trial court also rejected the claim that the
video could have been more prejudicial than probative because the jury
acquitted Turner-Smith of the drug charges against him. See Supplemental
Trial Court Opinion, 12/3/21, 2-3.
We discern no error in the trial court’s admission of the SnapChat video.
The video was circumstantially authenticated by its content. See N.T.
2/18/20, at 22-24, Pa.R.E. 901(b)(11)(B)(i). We also observe that Turner-
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Smith concedes on appeal that he sent the SnapChat video to another
SnapChat account. See Turner-Smith’s Brief at 52. Further, the video was
probative because it showed Turner-Smith with the black Mercedes in which
he was found at the time of this incident, and it explained how Detective
Murtaugh knew that Turner-Smith was connected with the car. Finally,
Turner-Smith’s acquittal of all drug charges further undermines his claim that
he suffered unfair prejudice from the admission of the video. Thus, Turner-
Smith’s claim fails.
Turner-Smith’s final issue asserts that the trial court abused its
discretion by admitting evidence of a photograph from his phone of him with
a black and silver gun when the present charges concerned his possession of
a black gun. He argues that the photograph was: (1) produced late in
discovery and should have been excluded as a sanction for a discovery
violation; (2) not authenticated with evidence of when and where it was taken
and could have been altered; (3) improper propensity evidence; and (4) more
prejudicial than probative.
As stated previously, a trial court has broad discretion to select the
remedy for a violation of the discovery rules. See Simmons, 662 A.2d at
634. The trial court here determined that the appropriate remedy for the
Commonwealth’s delayed disclosure of the photograph was a continuance,
and we discern no abuse of discretion in the trial court’s ruling. Although this
court does not condone the late discovery of the photograph in this case, any
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unfair surprise to the defense was mitigated by the fact that the challenged
photograph was found on Turner-Smith’s own phone. Additionally, Turner-
Smith was offered the option to seek a continuance to further investigate the
photograph but elected not to do so. Thus, reversal is not warranted for the
Commonwealth’s late disclosure of the photograph. See Simmons, 662 A.2d
at 634.
Turner-Smith’s argument that the photograph of him with the black and
silver gun was not properly authenticated also lacks merit. Turner-Smith
concedes that his phone contained the challenged photograph. See Turner-
Smith’s Brief at 31. The concerns he raises about tampering or the location
and time the photograph of him on his phone was taken are not persuasive,
given that the photograph was found on his own phone. See
Commonwealth v. Williams, 241 A.3d 1094, 1104-05 (Pa. Super. 2020)
(holding that the trial court did not abuse its discretion in admitting evidence
of a photograph from a phone the accused conceded was his and whose
depiction he did not dispute).
Turner-Smith’s next claim that the photograph was inadmissible as
propensity evidence that was unduly prejudicial also fails. Prior bad acts
evidence is admissible when offered for a proper evidentiary purpose. See
Yale, 249 A.3d at 1015. One such purpose is where the evidence tends to
prove that the accused previously had access to a weapon similar to the one
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used in a charged crime. See Commonwealth v. Christine, 125 A.3d 394,
400 (Pa. 2015).
The trial court found that the photograph of Turner-Smith with the black
and silver gun, similar in size, shape, and color to the one seized by police at
the scene, was admissible because it tended to show his access to a gun
similar to one found during the incident. See N.T., 2/18/20, at 5. Further,
when the Commonwealth introduced evidence of the photograph, the trial
court also gave a limiting instruction to the jury that it was the for the jury to
determine if the photograph showed Turner-Smith with a gun, and that the
photograph was, in any event, not proof that Turner-Smith had possessed the
gun in this case either prior to, or during his interaction with police. See N.T.,
2/18/20, 146-47. The trial court accordingly determined that the photograph
of the black and silver gun was relevant, and that its instruction cured any
possible unfair prejudice. See Trial Court Opinion, 7/13/21, 6-7.
We conclude that the trial court did not abuse its discretion by rejecting
Turner-Smith’s propensity challenge and his argument that the photograph’s
potential for unfair prejudice outweighed its probative value. An accused’s
prior possession of a weapon that could have been used in the charged crime
is admissible, and any uncertainty about whether it is the same weapon is an
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issue of weight for the jury. See Christine, 125 A.3d at 400.8 Further, the
trial court gave a limiting instruction to the jury that it could not infer Turner-
Smith’s guilt in this case from his possible prior possession of either a gun or
the gun in this case. See N.T., 2/18/20, 146-47. We are therefore not
persuaded that the trial court abused its discretion when it allowed the
photograph in evidence. See Christine, 125 A.3d at 400; see also Wilson,
273 A.3d at 20 (emphasizing that the trial court is not required to sanitize the
trial to eliminate unpleasant but relevant facts). Thus, Turner-Smith’s
challenge to the admission of the photograph merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2022
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8 The plurality opinion in Commonwealth v. Holt, 237 A.3d 514 (Pa. 2022),
would require the Commonwealth to lay a foundation to justify the inference
that the gun it offers as other acts evidence is the gun used in the charged
crime. See id. at 537. Even applying this standard from a case decided after
Turner-Smith filed his brief, we would hold that evidence that the photograph
of the gun was taken from Turner-Smith’s phone was of a gun similar in size,
shape, and color to the gun recovered on the scene, establishing a foundation
for the photograph’s admission into evidence. See N.T., 2/18/20, at 5.
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