Com. v. Flowers, K. ( 2023 )

J-A09031-23
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHAWN DIVINE FLOWERS :
:
Appellant : No. 190 MDA 2022
Appeal from the Judgment of Sentence Entered December 21, 2021,
in the Court of Common Pleas of York County,
Criminal Division at No(s): CP-67-CR-0001962-2019.
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED: JULY 25, 2023
Appellant, Kashawn Divine Flowers appeals from the judgment of
sentence imposed after a jury convicted him of first-degree murder.1 We
affirm.
On February 4, 2019, the Commonwealth charged Appellant with
criminal homicide and possession of firearm prohibited following the shooting
death of Hezekiah Walker on August 18, 2014. Eventually, the case was set
for trial on one count each of first-degree and third-degree murder.
On February 6, 2020, the Commonwealth moved in limine to admit
testimony from two cooperating witnesses about Appellant’s gang affiliation
and related gang activity. It stated that Appellant associated with the South
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1 18 Pa.C.S.A. § 2502(a).
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Side gang in York City, which had a dispute with the West Side gang after the
2013 killing of Joseph “Plaga” Gomez. The Commonwealth outlined its
witnesses’ expected testimony that on August 17, 2014, Dysheem Jones gave
Appellant a handgun that Jones used earlier that day, and then Appellant went
to the West Side “lurking” for the “opposition”—looking to kill an opponent.
The witnesses would describe that Appellant told them that he saw Walker,
asked where he was from, and shot him in the head. The witnesses would
also state how their group would dispose of handguns by putting them in safes
or burying them.
Appellant responded on February 28, 2020, objecting to (a) testimony
that he was “in a gang,” (b) references to the South Side or West Side, (c)
testimony about “lurking” or “opposition,” and (d) testimony about the killing
of Joseph Gomez in 2013. Response, 2/28/20, at 3. At argument before the
trial court on May 27, 2021, Appellant further emphasized his position that
the term “gang” was unnecessary and prejudicial.
The trial court indicated its concern that the Commonwealth witnesses
would testify as to general actions of other gang members in disposing of
guns. N.T., 5/27/21, at 5–6. However, the trial court ruled that the term
“gang” was not overly prejudicial and granted the Commonwealth’s first
motion in limine in full. Id.
On October 1, 2021, the Commonwealth filed its second motion in
limine, seeking to admit expert testimony about gangs. Appellant filed a
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response in opposition on October 12, 2021. The trial court granted the
motion the same day.
The case proceeded to a jury trial on October 18–21, 2021. The trial
court detailed the pertinent facts at trial as follows:
On August 18, 2014, at 6:00 A.M. Officer Derrick Millhouse
responded to the 300 block of West King Street [in York City] for
reports of a possible shooting and a man down. When Officer
Millhouse arrived at the scene, he observed the victim with an
obvious gunshot wound to the head [lying] on the sidewalk with
a large pool of blood around his head. Officers secured the scene
and found spent shell casings, bullet fragments, and damage to
one of the nearby houses. There were no eyewitnesses of the
shooting, no gun was found, and no DNA evidence was recovered
from the scene. On August 18, 2014, Brenda McCleary was living
[nearby] and heard three gunshots around 2:30 a.m. outside of
her home. Additionally, Edward Daniels who lives [nearby] heard
gunshots from his home on the date of the incident between 2:40
a.m. and 3:00 a.m.
The victim was identified as Hezekiah Walker, and Dr.
Samuel Land of Forensic Pathology Associates, an expert in
forensic pathology, performed an autopsy on Hezekiah Walker and
determined the cause of death was a gunshot wound to the head.
Additionally, the autopsy report indicated that Hezekiah Walker
sustained a perforating gunshot wound to his right leg. Dr. Land
ruled Hezekiah Walker’s manner of death a homicide.
Detective Anthony Fetrow of the York City Police
Department was assigned as the lead detective to investigate the
death of Hezekiah Walker. Detective Fetrow determined Hezekiah
Walker’s last known location was 600 West College Avenue, a
corner house on West Street and College Avenue. 600 West
College was the home of Zach Williams, Hezekiah Walker’s friend,
which was next to a large business. Detective Fetrow obtained
the large business[’] surveillance video from August 18, 2014 to
determine Hezekiah Walker’s whereabouts between the time he
left Zach William[s’] home and when the shooting occurred.
Hezekiah Walker was seen in camera view for approximately three
minutes from 2:20 to 2:23 a.m. Next, Detective Fetrow obtained
footage from St. Paul’s Evangelical Congregational Church at 450
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West King Street in York which showed Hezekiah Walker walking
on the south sidewalk toward Penn Street [at 2:35 a.m.]
Additionally, Detective Fetrow obtained surveillance video from
Elite Property Management on the corner of Penn and King
Street[s] which showed Hezekiah Walker at 2:37 a.m. on August
18, 2014. None of the video surveillance obtained showed
Hezekiah Walker having contact with any other individuals.
Hezekiah Walker’s cell phone was found at the crime scene
and [o]fficers conducted a forensic analysis to review any
communication that Hezekiah had in the hours leading up to his
death. Hezekiah Walker exchanged text messages with two ex-
girlfriends between 2:33 a.m. and 2:39 a.m. Based on the
surveillance video and text message communications, [Detective]
Fetrow was able to determine the shooting occurred sometime
around 2:37 a.m. An analysis of Appellant’s cell phone records
indicated that he was near the crime scene between 2:27 a.m.
and 2:46 a.m. on August 18, 2014, the day the shooting occurred.
Through an investigation, Detective Wesley Kahley, an
expert on gang culture and gang affiliation, determined that
Appellant represented himself as a member of the [S]outh [S]ide
criminal street gang in York. Detective Kahley reviewed
Appellant’s social media posts and conversation during his
investigation. Appellant made various posts claiming his
association with the [S]outh [S]ide criminal street gang including:
(1) “[Ots] be my squad,” short for “only the south be my squad,”
(2) “ClaimGangLife,” and (3) “#600K,” indicating disrespect to
opposition as “600” refers to the [W]est [S]ide and “K” is short for
“kill.” Additionally, Appellant has a “F-O-E” tattoo meaning
“family over everything,” indicative of Appellant’s involvement in
gang culture.
Acquaintances of Appellant, Marcos Martinez and Raymond
Bruno Carrasquillo, testified that Appellant and other individuals
from the South Side used the term or phrase “1017” to refer to
their friend, Joseph Gomez, also known as Plaga Two Times
(“Plaga”), who passed away in April of 2013, during a shootout
with Flair Griggs, an individual who hung out in the “West End.”
[Martinez and Carrasquillo] testified that … “beef” and “ops,” were
two terms used to describe the opposition between the “South
Side” and “West Side” “groups” of York. Plaga’s death caused beef
between the South Side and West Side because it made a lot of
people angry, including Appellant. Appellant had two tattoos in
memory of Plaga’s death, one that stated, “RIP Plaga,” and
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another “1017.” [Martinez] went on to testify that Appellant
“wanted to get revenge” for Plaga’s death, and [Carrasquillo]
testified that Appellant was “revengeful” of Plaga’s death.
Additionally, [Martinez] testified that he and other
individuals from the South Side were involved in a shootout on
August 17, 2014, with individuals he believed to be from the West
End. On the same day of this shootout, Appellant came to
[Martinez’s] home around 12:00 in the afternoon and retrieved a
gun, specifically a Colt .45, which was used in the earlier shootout.
Later that night, Appellant returned to [Martinez’s] home and
explained that he drove out West looking for “ops” and shot
someone in the head after the individual told Appellant that he
was from out West. [Firearm toolmark analysis revealed that the
cartridge casings from the shooting on August 18 were discharged
from one of the same guns as the earlier shootout on August 17.]
[Martinez] observed Appellant to be “hype[d],” “excited,”
and “happy” when informing [Martinez] and other South Side
individuals that he shot someone from the West End. While
incarcerated, Appellant was bragging to [Carrasquillo] that he had
a “head shot,” meaning he shot someone in the head and killed
them, on King Street. Appellant proceeded to tell [Carrasquillo]
that on August 18, 2014, he was very emotional and decided that
he would shoot whoever he saw walking on the West Side.
[Carrasquillo] said Appellant appeared happy and excited about
the shooting.
Trial Court Opinion, 4/18/22, at 1–5 (record citations omitted).
The jury found Appellant guilty of first-degree murder. On December
21, 2021, the trial court sentenced Appellant to life in prison without the
possibility of parole. Appellant filed a timely post-sentence motion, which the
trial court denied without opinion on January 3, 2022. Appellant timely
appealed. Both Appellant and the trial court complied with Pennsylvania Rule
of Appellate Procedure 1925.
Appellant raises five issues on appeal:
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A. Was the evidence insufficient to prove, beyond a reasonable
doubt, that [Appellant] committed First Degree Murder where:
(a) there was no eyewitness to the shooting (b) there was no
forensic evidence attributable to [Appellant], e.g., fingerprints
or DNA, found either on the victim or even in the vicinity of the
offense; (c) testimony from two individuals purportedly
implicating [Appellant] in the offense was so corrupt, polluted
and contradictory as to make any verdict based thereon
unreliable and pure conjecture, and (d) the cell triangulation
testimony was, at best, speculative, thus requiring the
conviction be reversed and vacated?
B. Alternatively, was the verdict against the weight of the
evidence and so contrary to the evidence as to shock one’s
sense of justice, thus requiring that the conviction be reversed,
and a new trial granted?
C. Did the trial court abuse its discretion, err and infringe on
[Appellant’s] right to due process of law as guaranteed by the
[federal and state constitutions] by granting the prosecution’s
motion in limine to admit at trial certain testimony pursuant to
Rule 404(b) where: (a) the testimony was not relevant, as it
did not make any material fact at issue more of less probable;
(b) the testimony was rank propensity evidence which sought
to establish [Appellant] as a member of a “criminal street gang”
who had the propensity to engage in violent acts and who may
have been involved in other uncharged crimes; (c) none of the
“permitted uses” set forth in Rule 404(b)(2) which would
permit this propensity evidence applied; and (d) even if some
permitted use of the bad character evidence existed, the
probative value of the evidence was outweighed by its potential
for unfair prejudice, thus requiring that the conviction be
reversed and a new trial granted?
D. Did the trial court abuse its discretion, err and infringe on
[Appellant’s] right to due process of law as guaranteed by the
[federal and state constitutions] by allowing the prosecution to
present expert testimony concerning gang activities and
[Appellant’s] alleged gang affiliation where: (a) to the extent
that any evidence concerning [Appellant’s] involvement with a
gang was relevant, such type of evidence is not beyond the
knowledge of an average layperson, and expert testimony was
not needed to help the jury understand the evidence or
determine a fact in issue; and (b) the expert testimony only
emphasized and bolstered the general nature and
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dangerousness of gang activity and the propensity of gang
members to engage in criminal conduct, thus requiring that the
conviction be reversed and a new trial granted?
E. Did the trial court abuse its discretion, err and infringe on
[Appellant’s] right to due process of law as guaranteed by the
[federal and state constitutions] by denying [Appellant’s]
motion for a mistrial where the prosecution’s expert on gang
activities and [Appellant’s] alleged gang affiliation testified that
gangs are involved in criminal activity, specifically referencing
drug activity, an offense with which [Appellant] was not
charged, thus requiring that [Appellant’s] conviction be
reversed and a new trial granted?
Appellant’s Brief at 7–8 (excess capitalization omitted).
A. Sufficiency of the Evidence
Appellant’s first claim is that the evidence was insufficient to establish
his identity as the person who killed Walker. He emphasizes the unreliability
of the evidence against him. Appellant notes that Martinez and Carrasquillo
had motive to testify favorably for the Commonwealth and gave inconsistent
accounts of what Appellant told them. He further challenges the accuracy of
the cell site location information that placed him in the vicinity of the shooting.
Appellant concludes that in this case, the jury’s verdict could only be the result
of conjecture and must be overturned.
A sufficiency challenge “presents a question of law and is subject to our
plenary review under a de novo standard.” Commonwealth v. Moore, 263
A.3d 1193, 1205 (Pa. Super. 2021) (citing Commonwealth v. Smith, 234
A.3d 576, 581 (Pa. 2020)). We determine “whether viewing all the evidence
admitted at trial in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every element of the crime
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beyond a reasonable doubt.” Commonwealth v. Williams, 255 A.3d 565,
578 (Pa. Super. 2021) (quoting Commonwealth v. Smith, 97 A.3d 782, 790
(Pa. Super. 2014)). A jury is generally “free to believe some, all, or none of
the Commonwealth’s evidence” and to resolve inconsistencies in favor of
either party. Commonwealth v. Jacoby, 170 A.3d 1065, 1078 (Pa. 2017)
(citing Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011)).
Identity, like any element of a crime, can be established by evidence that is
circumstantial and which “need not be positive and certain.” Id. at 579
(quoting Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super.
2008)).
However, our Supreme Court has recognized “atypical situations” in
which “the entire body of evidence introduced at trial which furnished the basis
for an appellant’s conviction is so deficient that it does not reasonably support
a finding of guilt beyond a reasonable doubt, as a matter of law.” In the
Interest of J.B., 189 A.3d 390, 409 (Pa. 2018) (citing Commonwealth v.
Jackson, 66 A.2d 841, 843 (Pa. 1949)). In such a case, the reviewing court
must reject the conjectural findings of fact and find the evidence insufficient.
Id. (citations omitted).
Here, Martinez and Carrasquillo testified that Appellant told them that
he shot and killed someone on the west side of York, which is consistent with
Walker’s death. Their testimony, if believed, was sufficient to identify
Appellant as the shooter. We hold that this testimony is not so inherently
unreliable that it is insufficient as a matter of law. Notably, both witnesses
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stated that they had abandoned their gang lifestyles and acknowledged any
expectation of favorable treatment. Further, their testimony was corroborated
by common elements between what Appellant told them, as well as the
identification of the casings down the street from where Walker was shot
coming from the same gun used in the shootout the day before.
The inconsistencies in testimony were up to the jury to resolve, rather
than removing the case from consideration. Jacoby, supra. As to Martinez
and Carrasquillo’s testimony that the shooting occurred around 11 p.m., not
2:30 a.m., this reflects Appellant’s own misperception of the time he told them
that he shot Walker. And while McCleary and Daniels did not recall hearing
any exchange of words before the early morning gunfire, this is logical given
the time of the shooting and relative volume; a voice, even one shouting down
the block, may not be heard the same way as a .45-caliber gunshot. The
totality of the evidence, viewed in a light most favorable to the Commonwealth
as verdict winner, was therefore sufficient to identify Appellant as the person
who killed Walker. Appellant’s first claim fails.
B. Weight of the Evidence
Appellant’s second claim concerns the denial of his post-sentence
motion for a new trial based on the weight of the evidence. He argues that
the trial court abused its discretion by not assessing whether the verdict
shocked its sense of justice, instead merely deferring to the jury’s findings.
Had the trial court appropriately reviewed the evidence, Appellant contends,
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it would have found that the jury’s verdict was so contrary to the weight of
the evidence as to shock the trial court’s sense of justice.
Our Supreme Court has explained the standard to be applied by a trial
court in ruling on a weight-of-the-evidence challenge as follows:
An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court.
Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994). A new
trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Thompson v. City of Phila.,
493 A.2d 669, 672 (Pa. 1985). A trial judge must do more than
reassess the credibility of the witnesses and allege that he would
not have assented to the verdict if he were a juror. Trial judges,
in reviewing a claim that the verdict is against the weight of the
evidence do not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that “notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.”
Id. at 674.
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citation
format altered). Under this standard, a trial court awards relief upon a finding
that “the jury’s verdict is so contrary to the weight of the evidence as to shock
one’s sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Jacoby, 170 A.3d at 1080
(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). This
stands in contrast to an assessment of evidentiary sufficiency, which draws
reasonable inferences in favor of the Commonwealth and accepts that jurors
are free to believe any evidence. Id. at 1078.
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An appellate court, in turn, reviews whether the trial court abused its
discretion in ruling on the weight claim, not whether the verdict itself was
against the weight of the evidence. Commonwealth v. Rogers, 259 A.3d
539, 541 (Pa. Super. 2021) (citing Commonwealth v. Windslowe, 158 A.3d
698, 712 (Pa. Super. 2017)). “An abuse of discretion is not merely an error
of judgment, but is rather [1] the overriding or misapplication of the law, [2]
the exercise of judgment that is manifestly unreasonable, or [3] the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of record.” Id.(quoting Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017)).
It is a misapplication of the law, and thus an abuse of discretion, for a trial
court to deny a weight challenge based only on evidentiary sufficiency.
Commonwealth v. Sullivan, 820 A.2d 795, 806–07 (Pa. Super. 2003). This
Court’s role is then to remand for the trial court to apply the proper standard.
Id. at 807 n.12 (citing Widmer, 744 A.2d at 752).
In reviewing this issue, the trial court set forth the proper legal standard
to be followed in assessing a weight of the evidence claim. Trial Court Opinion,
4/18/22, at 9. (“A true weight of the evidence challenge concedes that
sufficient evidence exists to sustain the verdict but questions which evidence
is to be believed. Exclusively, the finder of fact is to determine the weight of
the evidence and is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. … When reviewing a challenge to
the weight of the evidence, the verdict may be reversed only if it is so contrary
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to the evidence as to shock one’s sense of justice.” (footnotes, citations and
quotation marks omitted)). In applying this correct standard to the case sub
judice, the trial court found as follows:
The elements and supporting evidence for the charge[] of [f]irst-
[d]egree [m]urder are listed in section I [of the trial court’s
1925(a) opinion].[2] The jury, sitting as the finder of fact for the
charges, was free to determine the credibility of all witnesses and
to make inferences based on all the evidence presented at trial.
Appellant states that “the cell phone triangulation evidence was,
at best, speculative,” but fails to support this statement with any
facts or argument; however, the jury was free to determine the
credibility of the testimony related to Appellant’s cell phone
records. Further Appellant alleges that “the testimony of [Marcos]
Martinez and [Raymond] Bruno-Carrasquillo was so corrupt,
polluted and incredible that no reliable jury verdict could be
premised on this testimony;” however, the jury, as factfinder was
free to determine the credibility of each witness, and likely found
both Martinez and Bruno-Carrasquillo to be credible witnesses,
and thus found that Appellant informed both Martinez and Bruno-
Carrasquillo that he has a “headshot” on the [W]est [S]ide on the
same date that Hezekiah Walker was killed by a gunshot wound
to the head on the [W]est [S]ide.
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2 In ruling on the sufficiency of the evidence challenge raised by Appellant,
the trial court stated as follows:
[T]he evidence established that Appellant wanted revenge against
the [W]est [S]ide for the death of his friend, [Joseph Gomez, also
known as Plaga Two Times], and he told at least two individuals
that he shot someone on the [W]est [S]ide the same day that
Hezekiah Walker was shot and killed by a gun shot wound to the
head on the [W]est [S]ide. Appellant outwardly represented
himself as being associated with the [S]outh [S]ide criminal street
gang in York and publicly displayed his affiliation with the [S]outh
[S]ide by posting about killing individuals on the [W]est [S]ide,
the [S]outh [S]ide’s opposition []. Additionally the cell phone
analyst testimony and evidence placed Appellant in the vicinity of
the crime scene on the date and time of the shooting.”
Trial Court Opinion, 4/18/22, at 8 (footnotes omitted).
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Id. at 9-10. Although the trial court did not expressly state that,
notwithstanding all the facts, certain facts are so clearly of greater weight that
to ignore them or give them equal weight with all the facts is to deny justice,
or that the jury’s verdict is so contrary to the weight of the evidence as to
shock one’s sense of justice, it is clear that the trial court applied the correct
legal standard and did not abuse its discretion in denying Appellant’s weight
of the evidence claim. Accordingly, Appellant’s second issue merits no relief.
C. Evidence that Appellant Was in a Gang
Appellant’s third claim is that the trial court erred in admitting testimony
about his gang affiliation. He submits that this evidence should have been
excluded under Pennsylvania Rule of Evidence 404 because it showed only
that he had a propensity for violence and was not relevant for any permissible
purpose. Further, Appellant argues that the potential for unfair prejudice from
evidence that he was in a violent “criminal street gang” outweighed any
probative value. He posits that the evidence was so pervasive and
inflammatory that it stripped him of the presumption of innocence and denied
his right to a fair trial, despite the trial court’s limiting instruction.
The Commonwealth responds that the trial court properly admitted
evidence that Appellant was affiliated with a gang. It explains that the
evidence was relevant to prove Appellant’s motive and to show the sequence
of events leading up to the shooting. The Commonwealth also argues that
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the trial court made no error in finding that the probative value of the evidence
outweighed the potential that it would unfairly prejudice Appellant.
This Court reviews pre-trial evidentiary rulings to determine whether the
trial court abused its discretion. Frazer v. McEntire, 265 A.3d 777, 783 (Pa.
Super. 2021) (citing In re Fiedler, 132 A.3d 1010, 1023 (Pa. Super. 2016)).
In general, evidence is admissible only if it is relevant. Pa.R.E. 402.
“Evidence is relevant if it tends to make a material fact more or less probable
than it would be without the evidence.” Commonwealth v. Lehman, 275
A.3d 513, 519 (Pa. Super. 2022) (quoting Commonwealth v. Christine, 125
A.3d 394, 398 (Pa. 2015)); see Pa.R.E. 401. In a criminal case, evidence of
motive is always relevant. Commonwealth v. Gwaltney, 442 A.2d 236, 241
(Pa. 1982) (citing Commonwealth v. Faison, 264 A.2d 394 (Pa. 1970)).
Rule 404 provides for the exclusion of certain evidence that otherwise
meets the test for relevance:
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character
trait is not admissible to prove that on a particular occasion the
person acted in accordance with the character or trait.
* * *
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act
is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(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.
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In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(a)(1), (b)(1)–(2). Under this rule, the Commonwealth may not
introduce evidence solely to show that the defendant has a “propensity for
committing criminal acts.” Commonwealth v. Hairston, 84 A.3d 657, 665
(Pa. 2014) (citing Pa.R.E. 404(b)(1) and Commonwealth v. Lark, 543 A.2d
491 (Pa. 1988). However, subject to the balancing test of Rule 404(b)(2),
evidence of a defendant’s other acts can be admitted if it is relevant for
another purpose, including motive and the “res gestae exception.” Id. A jury
is presumed to follow instructions to consider evidence of a defendant’s “other
act” only for one of these limited purposes. E.g., Commonwealth v.
Arrington, 86 A.3d 831, 845 n.11 (Pa. 2014) (citing Commonwealth v.
Brown, 786 A.2d 961, 971 (Pa. 2001)).
Pennsylvania courts have previously addressed admissibility of the
“other act” of being a gang member. Gang membership is relevant to prove
motive to kill, such as killing a member of a rival gang. Commonwealth v.
Gwaltney, 442 A.2d 236, 241 (Pa. 1982)3 (citing Commonwealth v.
Faison, 264 A.2d 394 (Pa. 1970)); Commonwealth v. Blackwell, 363 A.2d
1316, 1317 (Pa. Super. 1976). However, such evidence of motive is not
limited to cases where the victim was in a rival gang. For example, when a
non-gang victim stole drugs from a prospective gang member, a defendant’s
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3 We cite cases from before the adoption of the Pennsylvania Rules of Evidence
mindful that the Rules were not intended to change existing law. See
Commonwealth v. Minich, 4 A.3d 1063, 1072 (Pa. Super. 2010).
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gang membership was relevant evidence of his motive for killing the victim as
a gang enforcer. Commonwealth v. Reid, 642 A.2d 453, 461 (Pa. 1994).
As another example, a defendant’s gang membership was relevant to explain
his participation in shooting at a non-gang member who had sold fake drugs
to a gang member’s girlfriend. Commonwealth v. Wilson, No. 1470 EDA
2019, 2020 WL 2315616, at *5–7 (Pa. Super. May 11, 2020) (unpublished
memorandum).4 Notably, the relevance of gang membership is not limited to
proof of a criminal conspiracy, which is a separate purpose than proof of
motive to kill. See Gwaltney, 442 A.2d at 241 (describing these purposes
as two reasons evidence of gang membership was properly admitted at trial).
Here, Appellant’s gang membership was relevant as evidence of his
motive for killing Walker. The Commonwealth’s theory at trial was that
Appellant went to the West Side territory and shot the first person he saw
there. That Appellant was in the South Side gang makes this more likely and
helps explain his motive in doing so—revenge over the death of Plaga the
previous year at the hands of a West Side gang member.
Further, the trial court did not abuse its discretion in balancing the
probative value and potential for unfair prejudice stemming from evidence
that Appellant was in the South Side gang. N.T., 5/27/21, at 5–6. The court
addressed concerns about the breadth of the Commonwealth’s evidence and
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4 This Court may cite non-precedential decisions filed after May 1, 2019 for
their persuasive value. Superior Court Operating Procedures § 65.37.
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found that using the word “gang” would not be overly prejudicial.5 Moreover,
the trial court instructed the jury that it could consider the evidence of
Appellant’s gang involvement only as proof of motive. N.T., 10/20/21, at 394.
We presume that the jury was able to follow this instruction and thus conclude
that the trial court did not abuse its discretion in applying the Rule 404(b)(2)
balancing test. Arrington, supra.
Appellant’s third claim fails.
D. Expert Testimony on Gangs
Appellant’s fourth claim is that the trial court erred in allowing testimony
from Detective Kahley, who was qualified as an expert in gang membership
affiliation and identification in York City, and who concluded that Appellant
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5 The only witness who used the word “gang” was Detective Kahley, who
identified the South Side group as a “criminal street gang.” E.g., N.T.,
10/20/21, at 338 (emphasis added). We note that “criminal street gang” is a
well-defined term in federal law and several state statutes. 18 U.S.C. § 521;
see United States v. Green, 618 F.3d 120, 123 (2d Cir. 2010) (rejecting a
challenge to the federal definition); see, e.g., Alaska Stat. Ann.
§ 11.81.900(b)(13); Cal. Penal Code § 186.22(f); Md. Crim. Law § 9-804
(amended 2020 to replace “criminal gang” with “criminal organization”); N.J.
Stat. Ann. § 2C:33-29. By contrast, Pennsylvania law only defines a “criminal
gang” in an offense that was not charged here. 18 Pa.C.S.A. § 5131(e); see
42 Pa.C.S.A. § 9720.4 (sentencing enhancement).
Appellant did not object to Detective Kahley’s use of the phrase “criminal
street gang” at trial or in his post-sentence motion. He first challenged the
admissibility of this phrase in his Rule 1925(b) statement. This was too late
for the trial court to remedy any heightened prejudice caused by the
detective’s use of this legal term of art. Therefore, Appellant waived any
challenge to the phrase “criminal street gang.” See Commonwealth v.
Mason, 130 A.3d 601, 639 & n.47 (Pa. 2015) (finding waiver where a
defendant first raised a claim in his Rule 1925(b) statement).
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was in the “South Side Criminal Street Gang.” See N.T., 10/20/21, 320–338.
Appellant contends that Detective Kahley’s testimony was not necessary or
helpful for the jury to understand any fact in issue. Given the testimony from
Martinez, Carrasquillo, and Detective Fetrow, Appellant submits that allowing
Detective Kahley’s inflammatory, prejudicial testimony was reversible error.
The Commonwealth responds that Detective Kahley’s expertise went
beyond that of a layperson and that it was needed to prove Appellant’s gang
affiliation. It adds that the trial court properly instructed the jury to minimize
any prejudice stemming from the evidence that Detective Kahley used to
identify Appellant as a member of the South Side gang.
As with other evidence, we review the admission of expert testimony to
determine whether the trial court abused its discretion. Commonwealth v.
Huggins, 68 A.3d 962, 965 (Pa. Super. 2013) (citing Commonwealth v.
Watson, 945 A.2d 174, 176 (Pa. Super. 2008)). Pennsylvania law permits
expert testimony where:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702. Testimony from an appropriately qualified expert “is permitted
only as an aid to the jury when the subject matter is distinctly related to a
science, skill, or occupation beyond the knowledge or experience of the
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average layman.” Commonwealth v. Williams, 274 A.3d 722, 729 (Pa.
Super. 2022) (quoting Commonwealth v. Duffey, 548 A.2d 1178, 1186 (Pa.
1988)).
Here, Appellant’s gang affiliation was relevant as evidence of his motive
for shooting Walker, the first person he encountered when he went to the
West Side in revenge for the death of Plaga. Gwaltney, supra. It was
therefore a fact in issue in determining Appellant’s guilt. Furthermore,
Detective Kahley possessed specialized knowledge beyond that of an average
layperson that he used to identify Appellant as a member of the South Side
gang. The detective explained that to identify gang members, he used the
FBI’s process that includes consideration of numerous criteria. N.T.,
10/20/21, at 328. Based on his review of these criteria, he concluded that
Appellant represented himself as a “member of the South Side Criminal Street
Gang in York.” Id. at 328–338 (describing factors).6
While other witnesses provided information about the affiliated groups
in York City and the background of Plaga’s death, Detective Kahley’s expertise
____________________________________________
6 In his reply brief, Appellant notes that Detective Kahley opined that certain
hashtags meant “criminal activity related to the gang life,” when they were
really titles of mix tapes by a rapper. Appellant did not challenge this aspect
of the detective’s testimony at trial. He did not cross-examine Detective
Kahley at all. We note that the trial court instructed the jury that another one
of Appellant’s posts was just song lyrics by the same rapper, which was “not
to suggest that Appellant in any way has done anything other than pirated the
lyrics of a rap song relative to an incident that occurred in York City.” N.T.,
10/20/21, at 314. Cf. Commonwealth v. Williams, 245 A.3d 710, 722 &
n.17 (Pa. Super. 2021) (finding a cautionary instruction mitigated any unfair
prejudice stemming from a jail letter and rap song lyrics used to establish the
defendant’s identity as the shooter).
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filled in the gap of concluding that Appellant was a member of the South Side
gang. Because this was proper expert testimony, the trial court did not abuse
its discretion in granting the Commonwealth’s motion in limine to admit it.
Appellant’s fourth claim fails.
E. Mistrial
Appellant’s fifth claim is that the trial court erred in denying his motion
for mistrial after Detective Kahley mentioned drugs. The relevant excerpt of
testimony is as follows:
[Assistant District Attorney Lombardo:] I would like to draw your
attention to 2014 and 2013 in York City. Were there gangs in York
City at that time?
[Detective Kahley:] Yes. Throughout my career, there have been
gangs in York City.
Q. What kind of gangs have there been?
A. Our biggest problems come from local criminal street gangs,
which you also see the national gangs, such as Bloods, Crips, Latin
Kings. Those forms of group[s] that come to our area. We really
saw a rise in the mid-’90s of our local street gangs that were kind
of banding together because of members of the United Blood
Nation coming into York taking over the drug selling areas.
N.T., 10/20/21, at 324 (emphasis added).
Appellant moved for a mistrial based on the reference to drug dealing.
The trial court denied the motion and provided a cautionary instruction:
THE COURT: Ladies and gentlemen, in the answer of Detective
Kahley, there was reference made to gangs who engage in drug
dealing. This case is not about drug dealing. It never has been.
They have been instructed that they will—this will not occur. I so
instruct the detective. Don’t take it as any indication that this is
a trial about that. It’s clearly not. Thank you.
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Id. at 326.
Appellant now argues that the instruction was flawed because it did not
tell the jury to disregard the testimony and avoid attributing it to Appellant’s
guilt. Even if the instruction had been proper, Appellant submits that it would
have been inadequate to cure the error in light of Detective Kahley’s other
testimony that Appellant was a member of a criminal street gang. He
concludes that the trial court abused its discretion by denying his motion for
mistrial.
The Commonwealth responds that Detective Kahley’s remark was not
intentionally elicited, was not exploited, and was cured of taint by the trial
court’s instruction. Commonwealth’s Brief at 49 (citing Commonwealth v.
Manley, 985 A.2d 256, 266–67 (Pa. Super. 2009)). Therefore, the
Commonwealth argues that the trial court did not abuse its discretion by
denying Appellant’s motion.
A ruling on a motion for mistrial is within the discretion of the trial court.
As such:
“It is well-settled that the review of a trial court’s denial of a
motion for a mistrial is limited to determining whether the trial
court abused its discretion.” . . . “A trial court may grant a mistrial
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 weighing and rendering a
true verdict.” It is also settled that a mistrial is not necessary
where cautionary instructions are adequate to overcome any
potential prejudice. The law presumes that a jury will follow the
trial court’s instructions.
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Commonwealth v. Dula, 262 A.3d 609, 633 (Pa. Super. 2021) (quoting
Commonwealth v. Gilliam, 249 A.3d 257, 274–75 (Pa. Super. 2021)).
Here, we discern no abuse of discretion. Detective Kahley’s reference
to selling drugs arose while he was providing background information about
the history of gangs in York City. Notably, the detective did not state that
Appellant had any involvement with drug sales, nor that this homicide case
was motivated by drugs. Moreover, the trial court promptly instructed the
jury that the case was not about drug dealing. Absent any indication that the
jury disregarded this instruction, we conclude that the trial court’s instruction
was sufficient to cure any prejudice from Detective Kahley’s solitary remark
about drug sales. Therefore, the trial court did not abuse its discretion in
denying Appellant’s motion for a mistrial, and Appellant’s fifth claim fails.
Judgment of sentence affirmed.
President Judge Panella joins.
Judge Kunselman files a Concurring and Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/25/2023
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