Com. v. Thelismond, L.

J-A12005-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
LINDLEY THELISMOND
Appellee No. 1261 MDA 2020
Appeal from the Order Entered September 24, 2020
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000539-2019
BEFORE: LAZARUS, J., STABILE, J. AND MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: FEBRUARY 14, 2022
In this murder prosecution, the Commonwealth of Pennsylvania appeals
from a pretrial order granting the motion in limine of Appellee, Lindley
Thelismond, to exclude evidence of his gang membership and drug dealing.
We vacate the trial court’s order and remand for further proceedings for the
reasons given below.
Appellee is charged in a single-count information with criminal homicide
under 18 Pa.C.S.A. § 2501(a) for shooting and killing James Jeter at the
residence of Richard Andino on February 27, 2019. On August 5, 2020,
Appellee filed a motion in limine to exclude, inter alia, any reference to
anyone’s association or affiliation with any gang or Andino’s sales of drugs
from Andino’s home. On September 18, 2020, the court held a telephonic
hearing during which the parties submitted evidence in support of their
respective positions. In particular, the Commonwealth submitted transcripts
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of two interviews it had with Andino after the shooting. Several days later,
the Commonwealth submitted a memorandum in opposition to the motion in
limine in which it argued that the evidence of gang membership and drug sales
was admissible under Pa.R.E. 404(b) as res gestae evidence and as evidence
of Appellee’s motive.
The trial court took the following evidence into account while deciding
Appellee’s motion in limine. On February 27, 2019, Richard Andino placed a
call to 911 indicating that there had been a shooting at his home address,
1036 Orchard Avenue, in the city of Lebanon, Pennsylvania. Interview of
Richard Andino (“Interview I”),1 2/28/19, at 12, 15-16. Officers of the
Lebanon City Police Department responded to the location and detained
Andino, his minor children, and two other gang members, who had picked up
Andino and his children in an SUV and were attempting to drive away from
the location. Id. at 16.
In custody, Andino helped detectives identify Appellee as the shooter
and provided them with a narrative of the events leading up to and following
the homicide. Andino explained that Appellee was a “Crip” originally from New
York. Interview I at 8, 31. They became acquainted when Andino received a
____________________________________________
1 The Commonwealth submitted transcripts from two interviews with Andino
into evidence during the September 18, 2020 hearing on Appellee’s motion in
limine. One transcript was from an interview on May 27, 2019 (“Interview
I”), and the other transcript was from an interview on September 16, 2020
(“Interview II”).
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call from a high-ranking “Crip” in New York, requesting that Andino keep
Appellee hidden and safe in Lebanon. Interview II at 15-16.
Notably, the Commonwealth informed the trial court that it would not
contend during trial that Appellee needed to hide in Lebanon because he was
involved in a shooting in New York. Commonwealth’s Memorandum Of Law
In Support Of Admission Of Evidence Of Gang Involvement And Drug Dealing
Under the Res Gestae Exception, at 5 n.4 (Commonwealth “does not intend
to characterize the incident in New York as a shooting or an incident of
violence”). Similarly, in this Court, the Commonwealth repeatedly asserts that
it does not seek to introduce evidence of, or refer to, Appellee’s involvement
in the New York shooting. Commonwealth’s Brief at 8 n.2, 50 n.13, 55 n.16.
During this time when Andino was providing protection for Appellee in
Lebanon, Andino was “on the run” from several warrants stemming from a
local probation violation. Interview I at 3-4. As a result, he frequently
travelled back and forth between New Jersey and Lebanon and usually entered
his wife’s residence on Orchard Avenue only after she left to work her 7 p.m.-
7 a.m. night shift job. Id. at 5-6, 20. On those dates when Andino was
coming to his wife’s home in Lebanon, he called Appellee and let him know
that he could come over in the evening and engage in drug sales out of the
residence. Id. at 6, 8, 20; Interview II at 4. Appellee typically arrived after
Andino’s wife left for work, bringing a bag containing drugs and other personal
property with him. Interview II at 4-5. Appellee would place those items in
a dresser by the front door of the Andino home to facilitate his drug
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transactions. Interview I at 6, 13; Interview II at 26. For those dates when
Andino was not in Lebanon, as well as the daytime hours when Andino’s wife
was home from work, Andino had arranged housing for Appellee nearby with
one of Andino’s friends. Interview I at 3-4.
On the night of the shooting, Appellee, sometimes called “Mader” by
Andino, arrived at 1036 Orchard Avenue at around 7 p.m. for the specific
purpose of selling drugs. Interview I at 8; Interview II at 5. Initially, Andino
was in the kitchen cooking, while Appellee was in the living room by the
dresser near the front door. Interview II at 5. Andino’s children were upstairs.
Interview I at 9; Interview II at 30. Eventually, Andino joined Appellee in the
living room, where Andino played 2K, a video game, while Appellee, still
seated by the dresser containing the drugs and his bag of other items,
watched rap music videos created by his friends in New York. Interview I at
9, 14; Interview II at 10-11. As described by Andino, Appellee’s demeanor
during this time was “normal” and “regular.” Interview II at 10.
At approximately 9:30 or 10 p.m., James Jeter arrived at 1036 Orchard
Avenue, as he and Andino planned to go out somewhere together. Interview
I at 9; Interview II at 11. Jeter, also a “Crip,” was a good friend of Andino’s
and had been released from state prison only four days earlier. Interview I at
24-25, 35-36. During Jeter’s 2½-year prison term, Andino had “held him
down,” sending Jeter money and answering his calls. Id.
Appellee, in contrast, had not previously met Jeter and did not know
Jeter was coming to Andino’s home that evening. Interview II at 10. Upon
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arriving, Jeter texted Andino to let him know he was outside, and Andino got
up from his game to open the front door and let Jeter inside. Id. Andino had
two minutes left in his video game and indicated to Jeter that he wanted to
finish it. He introduced Jeter to Appellee and then went back to finish his
game. Id. at 11.
After about a minute where “nobody said nothing for a little bit,” Jeter
struck up “friendly conversation” with Appellee, asking Appellee where he was
from. Id. at 12. When Appellee said, “I’m from Brooklyn, Flatbush,” Jeter
responded, “[Oh, I’m from Flatbush. I’m from Flatbush, too, Vanderveer.”
Id. Vanderveer is a distinct subsection of the projects in Flatbush, and those
different geographic subsections represent different subsects of the “Crips,”
rival subsects that engage in intergang fighting. Interview I at 14; Interview
II at 12. As explained by Andino, “You know, Flatbush, they, they blocks
against blocks out there and stuff . . .” Interview I at 14. After the revelation
by Jeter that he was from Vanderveer, Appellee “out of nowhere” became
agitated, saying to Jeter “[W]hy you here?” and “[W]hy did you ask me that?”
Interview I at 11; Interview II at 17. Jeter responded, “Yo, like what are you
talking about, I’m just telling you where I’m from. I’m from Flatbush. You
from Flat. I’m just telling you I’m from Vandeveer side.” Interview I at 14.
Appellee, at that point standing about four feet from Jeter, continued to
press the issue, stating “[Y]o, what you mean, so what you trying to say.”
Interview I at 14. Appellee then said to Jeter, “why do you got your hands in
your pocket.” Interview II at 17. When Andino heard that statement, he put
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his game controller down and got up to try to calm down Appellee, pointing
out that Jeter’s pants were so tight that you could see everything in his
pockets. Interview II at 18. Andino laughed and Jeter laughed, until they
saw that Appellee was still serious. Id.
As Appellee continued to verbally confront Jeter, the argument
escalated, prompting Andino, at 10:12 p.m., to call Appellee’s “Big Homie” in
New York. Interview I at 59-60; Interview II at 19. “Big Homie” is a term
specific to gang involvement; Appellee’s “Big Homie” was the person that
brought Appellee into the “Crips” and ranked over him. Interview II at 19-20.
Andino had two reasons for placing a call to Appellee’s “Big Homie”: to calm
Appellee down and “to talk to him and to let him know that he got to go back
to New York.” Interview II at 20. In the call, Andino spoke to Big Homie first,
saying “[Y]o, listen, he got to go, I don’t want him here no more, he’s in my
house, he’s violating, coming at my friends.” Id. At Big Homie’s request,
Andino then put Appellee on the phone. Id. As Appellee engaged in
conversation with Big Homie, Appellee stopped screaming and appeared to
calm down. Id. at 21. Eventually, Appellee handed the phone back to Andino,
who told Big Homie, “I’m going to send him home, he’s going to go home right
now, but he got to go back down to New York. . .” Id. Andino then hung up
the phone and called a cab to come get Appellee, because he was trying to
“eliminate the whole situation” and let Appellee know he had to leave.
Interview I at 61. Andino “wanted to get him out.” Interview II at 22.
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Within ten seconds, however, Appellee was back to confronting Jeter,
asking if he wanted to fight. Id. at 21. Jeter responded, “I don’t even know
you, but if you want to fight, we can fight . . . I’m not no pussy.” Id. at 22.
As the argument continued, Andino intervened, telling Appellee and Jeter that
“you all not fighting in my house at all.” Id. Since a fight might attract police,
Andino grew concerned that the cab wasn’t arriving quickly enough. Interview
I at 11; Interview II at 30. He decided to call another Crip, Ezra, to come pick
up Appellee and get him out of the house. Interview II at 30. Andino then
began screaming and “cursing out” Appellee and Jeter about fighting in his
house. Id. at 25. The yelling got so loud that Andino could not hear what
was being said by anyone, until he finally heard the cab beep its horn. Id.
When he visually confirmed that the cab was waiting outside, Andino told
Appellee, “[Y]o, the cab is here, go ahead, I’ll talk to you tomorrow or
something. . .” Id.
Andino watched Appellee begin putting on his red jacket and appear to
be moving toward the drawer where he kept his bag and drugs. Id. at 25-
26. Andino then turned to Jeter and began apologizing to him. Id. at 26. It
was at that point that Appellee pulled a gun from the drawer and shot Jeter
three or four times. Interview I at 15; Interview II at 26-27. Jeter said, “He’s
shooting me . . . this dude’s really, really shooting me,” and Andino looked
toward Appellee, who by then was pointing the gun in Andino’s direction. Id.
at 27. Andino thought the gun looked jammed, because the slide of the gun
was locked open. Id.
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While Andino stood frozen, Appellee appeared to begin moving toward
the back door, before turning back to the drawer and grabbing his bag out of
it. Interview I at 42; Interview II at 28-29. Still wearing his red jacket only
partially on, Appellee then ran out the back door, taking his bag and the
murder weapon with him. Interview I at 37; Interview II at 29. By that point,
Jeter was on the floor. He told Andino, “[Y]o, I’m bleeding.” Interview I at
12. Andino immediately called 911 and reported the shooting. Id. at 12, 15-
16. Because of his outstanding warrants, he panicked and told the 911
operator that he was in Cleona but that someone had told him there had been
a shooting at his house in Lebanon. Id. at 15-16.
Still concerned about his outstanding warrants, Andino wanted to leave
the house before the police arrived. Interview II at 30. He called his children
downstairs and thought about removing any remaining drugs from the
drawers of the dresser so that the police would not find drugs in his wife’s
house, but “there was too much stuff. . . [E]verything was sloppy.” Interview
II at 33. Andino and his children left the house on foot and began walking
down 11th Street, until they saw Ezra approaching in an SUV, with another
gang member, I.L, in the front passenger seat. Interview I at 24; Interview
II at 31. Andino and his children got in the SUV, and Ezra turned the car into
the alley behind Andino’s house. Interview II at 31-32. When he did so, the
headlights of the vehicle revealed guns on the corner under electric meters.
Interview I at 47, 53; Interview II at 33-34. Since Andino did not want police
to find guns near his wife’s house, he got out of the car, scooped up the guns,
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and put them inside I.L.’s bookbag in the front seat, before climbing back into
the backseat of the SUV. Interview II at 34-35.
As the SUV proceeded down the alley, the occupants of the vehicle also
saw Appellee’s red jacket lying in the alley. Interview I at 37; Interview II at
33. They did not stop to pick it up but continued driving, until they were
stopped by the police. Interview II at 34-35.
At the police station, while Andino was providing the above narrative to
police and assisting them in determining the “government name” of Appellee,
calls and texts began coming into his phone from Appellee’s Big Homie and
others. Interview I at 7, 36, 55, 60. Police directed Andino not to take the
calls, and Andino expressed fear of gang retaliation for “ratting.” Id. at 23,
31. He asked if there were any way he could assist police without endangering
his family, stating, “I understand it’s a homicide, but with me not around it
could endanger my family because the guy that did it was a Crip.” Id. at 31.
He worried whether other members of the gang would find out he was in the
police station and expressed concern that “serious people” were calling him
on the phone. Id. at 32-33, 36, 55.
When asked whether the other gang members in the SUV would
corroborate his story about how the guns got into the car, Andino indicated
they might not want to talk, because they would not want to be snitches. Id.
at 22, 34. Detective Larry Minnick assured Andino that gang rules about
snitching changed when there was a homicide, and Andino admitted that he
might know where Appellee was. Id. at 23, 31, 34. Finally, at approximately
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3:00 a.m. on February 28, 2019, Andino agreed to make two recorded phone
calls to help police locate Appellee. Id. at 56-57. Both calls were to Matthew
Correa, the person with whom Andino had arranged housing for Appellee at a
North 12th Street residence in the city of Lebanon. Interview II at 3-4. In
the first call, Correa confirmed that Appellee had returned home to Correa’s
North 12th Street residence and was still there. N.T., 5/27/20, at 11. A few
minutes later, Andino made a second recorded call to Correa’s phone and
eventually spoke directly to Appellee, who apologized to Andino, thus
inferentially acknowledging that he had shot Jeter. Id. at 12.
Upon hearing those recorded calls, police traveled to the North 12th
Street address and arrested Appellee. A search of the upstairs room in which
Appellee had been sleeping revealed two bags in plain view: a Nike backpack
and a clear bag. The bags contained socks, a change of clothes, and a total
of five bullets. The four bullets found in Appellee’s Nike backpack matched
the ballistic evidence found at the crime scene, both in caliber and model.
Police also searched the crime scene at 1036 Orchard Avenue. They found
Jeter’s body within inches of a dresser by the front door, the same dresser
from which Appellee had pulled the murder weapon before shooting Jeter, as
well as Appellee’s bag containing personal property. A search of the dresser
revealed multiple drugs and materials integral to the sale of drugs, as well as
papers describing gang vocabulary and hierarchy, including the term “Big
Homie.”
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The police charged Appellee with one count of criminal homicide, and
the charge was bound over for court following a preliminary hearing on March
21, 2019. Andino testified at the hearing on behalf of the Commonwealth.
Following this testimony, Andino, who was out on bail with electronic
monitoring, began receiving gang-related threats and acts of retaliation,
including eggs thrown at his family’s cars and home. Interview II at 37-38.
Ultimately, Andino found three dead rats with knives stuck in them at his back
door and the lines to his surveillance camera severed, and “[t]hat was the end
for [him].” Id. at 38. Fearing for the safety of his family, he cut off his
monitoring bracelet and fled to Florida with his wife and children, where
authorities eventually located him and brought him back to Lebanon on a
warrant. Id.
During the evidentiary hearing on September 18, 2020, the
Commonwealth made several statements about Andino’s experiences in
protective custody following his return from Florida. Although the
Commonwealth did not introduce any evidence in support of these statements,
Appellee’s attorney did not object to them. Specifically, the Commonwealth
advised that Andino, now in a protective custody unit within the Lebanon
County Correctional Facility, the same facility in which Appellee awaits trial,
continues to receive gang-related threats, as inmates throw fecal matter and
urine on him and approach his cell with comments about being “a rat” and
“snitching.” N.T., 9/18/20, at 10-11. Andino has also received calls from
Appellee from within the prison phone system. Id. at 11. These calls contain
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references to gang association and hierarchy woven into dialogue about the
homicide. In one call, Appellee expressed concerns that he is “dead heat,” a
gang term indicating that, because of his actions, he has been dropped from
affiliation with the gang. Id. In that call, Andino told Appellee he disrespected
gang hierarchy by shooting someone in another gang member’s household.
Id.
On September 24, 2020, the trial court issued an order that “there
should be no reference to anyone’s association or affiliation in or with any
gang . . . [and] there shall be no reference to [Appellant] or [] Andino selling
drugs from [] Andino’s house.” Order, 9/24/20.2
On October 20, 2020, the Commonwealth filed the appeal presently
under review, certifying under Pa.R.A.P. 311(d) that the trial court’s order
substantially handicapped the prosecution of this case. Both the
Commonwealth and the trial court complied with Pa.R.A.P. 1925.
In its Pa.R.A.P. 1925 opinion, which we quote more extensively below,
the trial court wrote that it excluded evidence of gang membership because
(1) the Commonwealth’s purpose in introducing this evidence was to show
that Appellee participated in a shooting in Brooklyn, (2) this evidence was not
the “crux” of the Commonwealth’s case and therefore was unnecessary to
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2 The trial court also stated in its order, “Should the attorney for the
Commonwealth believe the defense ‘opened the door’ to such testimony
during the examination of a witness or in any opening or closing statement,
the Commonwealth’s attorney should seek approval from the Court before
questioning any witness about these matters and/or to seek the appropriate
jury instruction.” Order, 10/2/20.
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introduce, Trial Ct. Op., 11/25/20, at 6, 11, (3) gang affiliation was “not critical
to prove any of the elements of first-degree criminal homicide,” id. at 9, and
(4) this evidence prejudiced Appellee.
The Commonwealth raises two issues in this appeal:
[1.] Did the trial court abuse its discretion by excluding all
evidence regarding the gang affiliation of [Appellee], [the] victim,
and Commonwealth witnesses, when that evidence is relevant to
establish the complete story of the case, as well as the motive of
[Appellee] and the credibility of the Commonwealth eyewitness
[Andino], and when the probative value of such evidence
outweighs any potential prejudice?
[2.] Did the trial court abuse its discretion by excluding all
evidence regarding the sale of drugs by [Appellee] and the
Commonwealth’s eyewitness [Andino] from the location of the
homicide, when that evidence is relevant to establish the complete
story of the case, and its probative value outweighs any potential
prejudice?
Commonwealth’s Brief at 6.3
In a recent decision, our Supreme Court thoroughly explained the proper
standard for reviewing evidentiary rulings of trial courts:
It is well settled that evidentiary rulings are within the sound
discretion of trial courts. See, e.g., Commonwealth v. Laird,
605 Pa. 137, 988 A.2d 618, 636 (2010) (explaining that “the
decision to admit or exclude evidence is committed to the trial
court’s sound discretion”). Accordingly, when a party adverse to
a trial court’s evidentiary ruling seeks appellate review of that
determination, that party carries a heavy burden to demonstrate
that the trial court abused its discretion. Commonwealth v.
Norton, 650 Pa. 569, 201 A.3d 112, 120 (2019). “An appellant
cannot meet this burden by simply persuading an appellate court
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3 The Commonwealth raised both of these arguments in the trial court in its
responsive memorandum in opposition to Appellee’s motion in limine as well
as in its Pa.R.A.P. 1925 concise statement of matters complained of on appeal.
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that it may have reached a different conclusion than that reached
by the trial court; rather, to overcome this heavy burden, the
appellant must demonstrate that the trial court actually abused its
discretionary power.” Id.“Regarding the ‘abuse of discretion’ standard of review, this Court
has explained that the term ‘discretion’ imports the exercise of
judgment, wisdom and skill so as to reach a dispassionate
conclusion, within the framework of the law, and is not exercised
for the purpose of giving effect to the will of the [trial] judge.”
Commonwealth v. Gill, 651 Pa. 520, 206 A.3d 459, 466 (2019)
(internal quotation marks and citation omitted). “Absent an abuse
of that discretion, an appellate court should not disturb a trial
court's discretionary ruling.” Id. “An appellate court will not find
an abuse of discretion based on a mere error of judgment, but
rather ... where the [trial] court has reached a conclusion which
overrides or misapplies the law, or where the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.” Id. at 466-67.
“Importantly, an appellate court should not find that a trial court
abused its discretion merely because the appellate court disagrees
with the trial court’s conclusion.” Id. at 467. “Indeed, when
reviewing the trial court’s exercise of discretion, it is improper for
an appellate court to ‘step[ ] into the shoes’ of the trial judge and
review the evidence de novo.” Id. (internal quotation marks
omitted). In other words, an appellate court may not disturb a
trial court’s discretionary ruling by substituting its own judgment
for that of the trial court.” Id. (internal quotation marks omitted).
Commonwealth v. DiStefano, —A.3d—, 2021 WL 6055945, *5-6 (Pa., Dec.
22, 2021).
The Commonwealth first argues that that the trial court abused its
discretion by excluding evidence of the gang affiliation of Appellee, Andino,
and other individuals. We conclude that the trial court abused its discretion
by (1) failing to analyze multiple details concerning gang affiliation that the
Commonwealth raised during evidentiary proceedings and (2) basing its
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decision on a detail that the Commonwealth promised not to introduce during
trial - Appellee’s alleged involvement in a New York shooting.
“The threshold inquiry with admission of evidence is whether the
evidence is relevant.” Commonwealth v. Collins, 888 A.2d 564, 577 (Pa.
2005). Evidence is relevant if it “has any tendency to make a fact of
consequence more or less probable than it would be without the evidence.”
Commonwealth v. Yale, 249 A.3d 1001, 1022 (Pa. 2021) (citing Pa.R.E.
401(a), (b)). “All relevant evidence is admissible, except as otherwise
provided by law.” Id. (citing Pa.R.E. 402).
Pa.R.E. 404 applies the concept of relevance to character evidence. Id.at 1023 n.26. It provides in pertinent part:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other 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.
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(b).
“[Rule 404(b)(2)] evidence, like all circumstantial evidence, is sufficient
to establish guilt beyond a reasonable doubt.” Yale, 249 A.3d at 1019.
“[Rule] 404(b)(2) generally recognizes the legitimate use of crimes, wrongs
and acts as one type of circumstantial evidence that the prosecution may use
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to establish guilt beyond a reasonable doubt.” Id. Even though this evidence
is probative, Rule 404(b)(2) deems this evidence admissible in a criminal case
only if its probative value outweighs its potential for undue prejudice. Id.
“[E]vidence of prior crimes is not admissible for the sole purpose of
demonstrating a criminal defendant’s propensity to commit crimes.”
Commonwealth v. Green, —A.3d—, 2021 WL 4618865, *6 (Pa. Super., Oct.
7, 2021). Nevertheless, “[e]vidence may be admissible in certain
circumstances where it is relevant for some other legitimate purpose and not
utilized solely to blacken the defendant’s character.” Id. Specifically, other
crimes evidence is admissible if offered for a non-propensity purpose, such as
proof of an actor’s knowledge, plan, motive, identity, or absence of mistake
or accident. Id.In addition to permitted uses expressly provided in Rule 404(b)(2),
courts allow another “exception to Rule 404(b) . . . that permits the admission
of evidence where it became part of the history of the case and formed part
of the natural development of facts.” Commonwealth v. Ivy, 146 A.3d 241,
252 (Pa. Super. 2016). This exception is commonly referred to as the res
gestae exception. Id. Res gestae evidence not only may include other crimes
or bad acts but also may include acts that are not crimes or bad acts. See,
e.g., Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006) (in murder
case, evidence admissible under res gestae exception included photos of
defendant with his cohorts).
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When offered for a legitimate purpose, evidence of prior acts is
admissible if its probative value outweighs its potential for unfair prejudice.
Green, 2021 WL at 4618865, *6. Unfair prejudice “means a tendency to
suggest decision on an improper basis or to divert the jury’s attention away
from its duty of weighting the evidence impartially.” Commonwealth v.
Dillon, 925 A.2d 131, 141 (Pa. 2007).
Evidence will not be prohibited merely because it is harmful to the
defendant. This Court has stated that it is not required to sanitize
the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at hand
and form part of the history and natural development of the
events and offenses for which the defendant is charged.
Moreover, we have upheld the admission of other crimes
evidence, when relevant, even where the details of the other
crime were extremely grotesque or highly prejudicial.
Id.Pennsylvania courts have permitted introduction of gang affiliation for a
variety of purposes. It has been held admissible to explain the conduct of a
Commonwealth witness. Commonwealth v. Whitfield, 419 A.2d 27, 29 (Pa.
Super. 1980) (evidence of defendant’s gang membership was admissible to
explain Commonwealth witness’s delay in reporting defendant’s crime). It has
also been admitted as probative of whether the defendant developed and
executed a plan to murder a fellow gang member. Commonwealth v.
Brewington, 740 A.2d 247, 252 (Pa. Super. 1999). Of greatest significance
for the present case, in a recent non-precedential decision,4 Commonwealth
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4We may cite non-precedential decisions by this Court entered after May 1,
2019 as persuasive authority. Pa.R.A.P. 126(b).
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v. Wilson, 2020 WL 2315616 (Pa. Super., May 11, 2020), this Court held that
evidence of gang membership was admissible as res gestae evidence to
complete the story of the defendant’s involvement in a shooting. The
defendant in Wilson, a low-level member of the Black P-Stone Gang, was
convicted of third-degree murder and other offenses for participating in a
drive-by shooting in retaliation for a botched drug deal. Prior to the shooting,
the defendant and his co-conspirators contacted a higher-level member of the
gang for direction. After the shooting, the defendant and other gang members
arranged for the shooter to get out of the area because they believed that a
co-defendant was “snitching” to police. We agreed with the admission of
evidence that the defendant belonged to the Black P-Stone gang under the
res gestae doctrine, since his “movements and actions on the night of the
drive-by shooting would make little, if no, sense absent the background
information of gang affiliation, hierarchy, and protocol.” Id., 2020 WL
2315616, at *6.
Presently, the court opined that the evidence it believed the
Commonwealth wanted to introduce, Appellee’s involvement in a shooting of
another Crip in New York, was inadmissible under the res gestae doctrine or
any other exception to Rule 404(b). Id. at 9-10. The court asserted that the
Commonwealth wanted to introduce res gestae evidence to show that Appellee
was “involved in a shooting with another “Crip” who was from Flatbush.” Trial
Ct. Op. at 9. The court stated:
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The alleged shooting in New York that allegedly involved a “Crip”
who lived in Flatbush is not supported by any evidence other than
possible double hearsay. The Commonwealth has presented no
evidence to show that the New York shooting was why Jeter was
in Andino’s home. The Commonwealth has merely shown that
another “Crip” told Andino about this alleged shooting, which is
inadmissible hearsay. Andino, then, made the assumption that
[Appellee’s] argument with Jeter stemmed from this “beef” that
took place before [Appellee] came to Lebanon, which is
speculation. A member of the “Crips” higher than “Big Homie”
allegedly told Andino about the New York shooting. This person
has not been identified. No witness has been presented that was
present for the New York shooting. [Appellee] has never been
charged in this alleged shooting.
The gang affiliation, therefore, is not relevant to the instant
matter. Additionally, it would be highly prejudicial as it involves
a speculation that connects [Appellee], Jeter, and Andino in the
instant matter by using evidence from a previous alleged
shooting, based on double hearsay, in which no charges were
brought, having no evidentiary support. The fact that [Appellee],
Jeter and Andino were in the same gang is not needed to prove
that [Appellee] shot Jeter. Nor is gang affiliation relevant to show
conspiracy motive, intent, plan, design, ill-will, or malice.
Id. at 11.
The first error in this analysis is the trial court’s misperception of the
nature of the res gestae evidence of gang membership that the
Commonwealth intends to present. The trial court believes that the
Commonwealth seeks to introduce evidence of Appellee’s involvement in a
New York shooting. The Commonwealth, however, expressly promised not
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to present this evidence.5 The Commonwealth intends to present other res
gestae evidence of gang membership, including the following:
(1) Jeter and Andino were fellow Crips, which explains why Jeter was at
Andino’s house on the night of Jeter’s death;
(2) Appellee was at Andino’s house that night because a high-ranking
Crip in New York asked Andino to keep Appellee hidden and safe in Lebanon,
and because Appellee permitted Appellee to sell drugs from Andino’s residence
as a courtesy to a fellow Crip;
(3) Appellee began a heated argument with Jeter because Appellee
learned that he and Jeter belonged to rival subsets of the Crips in Flatbush;
(4) Andino telephoned Appellee’s “Big Homie” during the argument
because Big Homie was Appellee’s superior in the Crips hierarchy, and Andino
thought that Appellee would respect his superior’s instruction to return to
Flatbush;
(5) Andino told Big Homie that Appellee was “violating” because
Appellee was violating the Crips’ rules of conduct;
(6) Appellee shot Jeter because Jeter belonged to a rival subset of the
Crips and because Appellee blamed Jeter for the outcome of the argument,
Big Homie’s order to return to New York;
____________________________________________
5Commonwealth’s Memorandum Of Law In Support Of Admission Of Evidence
Of Gang Involvement And Drug Dealing Under the Res Gestae Exception, at 5
n.4.
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(7) Ezra and I.L., two other Crips in the neighborhood, were willing to
pick up Appellee from Andino’s residence because Andino, a fellow Crip, asked
for their assistance;
(8) After Appellee shot Jeter and fled from Andino’s house on foot, Ezra
and I.L. picked up Andino and allowed Andino to scoop up guns on the street,
including the murder weapon that Appellee had dropped, because the Crips’
rules required them to help Andino cover up evidence of the murder;
(9) While Andino was in custody, he expressed fear of gang retaliation
when he received texts and calls from other Crips members, including
Appellee’s “Big Homie,” because Andino knew about the penalties imposed by
the Crips for “ratting”;
(10) During a telephone call between Andino and Appellee, Appellee
expressed concern that he was “dead heat,” because this was a Crips term
that referred to gang members who were expelled from the gang due to
misconduct;
(11) During the same call, Andino told Appellee that he disrespected
Crips hierarchy because he shot someone in another gang member’s
household;
(12) After testifying against Appellee at the preliminary hearing, Andino
received threats for “ratting,” including three dead rats with knives inserted
in them left by the back door of the home he shares with his wife and children,
because Crips rules prohibit gang members from testifying against other
members or alerting the authorities about other members’ crimes;
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(13) Andino fled to Florida due to fear of retaliation by other Crips for
testifying against Appellee; and
(14) Andino continues to receive threats while in protective custody
because Crips rules prohibit gang members from cooperating with prosecutors
against other Crips members.
The trial court mentions many of these fourteen points in the fact section
of its opinion, but it almost completely fails to refer to these points in the
analysis section of its opinion. Trial Ct. Op. at 8-12. The lion’s share of the
court’s analysis focuses on the alleged New York shooting, which the
Commonwealth promises not to raise at trial.
Only twice does the court say anything that pertains to the evidence the
Commonwealth intends to present. The court makes the cursory claim that
“any membership to the ‘Crips’ does not show a basis as to why the three men
were together on the night Jeter was shot and killed,” Trial Ct. Op. at 11. The
court’s failure to support this decision with any detail casts serious doubt on
whether the court gave any consideration to the facts proffered by the
Commonwealth. Although DiStefano warns us against reweighing the trial
court’s evidentiary rulings ourselves, DiStefano does not preclude us from
directing the trial court to review an evidentiary issue a second time when, as
here, its first review is tantamount to no review at all.
Next, the court claims that “the Crips association can be taken out of
the equation,” i.e., precluded from evidence, “without altering the facts of the
matter.” Trial Ct. Op. at 8. All the Commonwealth needs to present, the court
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continues, are the following facts, which the court labels as the “crux” of this
case:
[Appellee] was at Andino’s house; [Appellee] and Jeter argued;
Jeter was shot and died from multiple gunshot wounds; Andino
saw the [Appellee] shoot Jeter; the murder weapon was found by
Andino along with other guns in the alleyway behind the Orchard
Street residence where the shooting took place; [Appellee]’s palm
print was found on the murder weapon; [Appellee]’s hands were
tested and found to have gunshot residue; and [Appellee]
admitted that he shot Jeter to Andino while on a recorded phone
call with him after the murder.
Trial Ct. Op. at 6. This is not the proper analysis when deciding a motion in
limine. When the court reviews a motion in limine, its job is to examine
whether the proffered evidence itself is admissible, not to decide whether
other evidence is more important. If the proffered evidence itself is
admissible, the proponent of the evidence should have the right to present it,
whether or not the court believes other evidence is more central to the
proponent’s case. Rejection of evidence on the ground that other evidence is
“the crux” of the case constitutes undue interference with the proponent’s
right to choose how to try its case. See Commonwealth v. Ogrod, 839 A.2d
294, 345 n.30 (Pa. 2003) (“a prosecutor is given reasonable latitude in
presenting his or her version of the case to the jury”).
Since the trial court failed to directly address whether the res gestae
evidence of gang membership is admissible, a remand is necessary for
performance of this task. If the evidence is probative, and its probative value
outweighs its potential for unfair prejudice, the court should allow the
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Commonwealth to present it, whether or not the court believes it falls within
the “crux” of the case.6
The trial court’s second error was its failure to consider whether the
proposed evidence is admissible under Rule 404(b) to demonstrate Appellee’s
motive to shoot Jeter. This Court has held in other criminal cases that the
victim’s membership in a rival gang was admissible under Rule 404(b) to
demonstrate the defendant’s motive to murder the victim. See
Commonwealth v. Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013);
Commonwealth v. Childress, 680 A.2d 1184, 1187–88 (Pa. Super. 1996).
We also note that first-degree murder is a specific intent crime.
Commonwealth v. Simpson, 754 A.2d 1254, 1269 (Pa. 2000) (to sustain
conviction for first-degree murder, Commonwealth must prove, inter alia, that
defendant acted with specific intent to kill). “Motive may . . . be probative of
intent to kill if the evidence establishes a motive to kill.” Commonwealth v.
Zimmerman, 504 A.2d 1329, 1335 n.4 (Pa. Super. 1986).
Accordingly, pursuant to DiStefano, we remand this case to the trial
court for consideration of whether the disregarded evidence is admissible
under Rule 404(b) to demonstrate Appellee’s motive.
____________________________________________
6We refrain from undertaking this task ourselves because DiStefano instructs
us not to step into the trial court’s shoes and substitute our own view of the
evidence for that of the trial court. Id., 2021 WL 6055945, at **5-6.
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In its second argument, the Commonwealth argues that the trial court
abused its discretion by excluding all evidence of drug dealing by Appellee and
Andino at Andino’s house. We remand for further review of this evidence.
The trial court stated in its opinion:
[Appellee] was charged with one (1) count of 18 § 2501 §§ A
Criminal Homicide (F1). [Appellee] was not charged with delivery,
possession with intent to deliver, or conspiracy in relation to
drugs. The inclusion of testimony or evidence as to any alleged
involvement in drug delivery, distribution, or sale is not needed in
order to prove any of the elements of the offense charged. It is
irrelevant to the instant matter. There is no evidence that Jeter
was at Andino’s residence to purchase drugs from Andino or the
[Appellee]. Per Andino, Jeter was merely at Andino’s home to
visit, as they were friends. The shooting death of Jeter is wholly
unconnected to any drug possession or alleged intent to deliver
by [Appellee] or Andino. Jeter was not present in Andino’s home
to use or buy drugs. The argument that ensued between Jeter
and [Appellee] had no relation to the sale of drugs. Testimony to
or evidence of [Appellee]’s alleged involvement in drug dealing
activity is unfairly prejudicial, outweighs the probative value
thereof, and should accordingly be suppressed.
While the Commonwealth is correct in noting that the [Appellee]
and Andino have a history that includes references to drugs and
drug-dealing from Andino’s home, it is wholly incorrect in
connecting these circumstances to any involving the victim, James
Jeter. Because there is no evidentiary baseline connection
between the two men, the Commonwealth cannot connect
[Appellee]’s prior activity to the victim or his murder.
Trial. Ct. Op. at 12-13.
Our decision to remand on the gang affiliation issue is dispositive of the
issue of drug dealing evidence. As explained above, we are remanding this
case because, inter alia, the trial court failed to examine whether multiple
facts relating to gang affiliation are admissible under the res gestae doctrine.
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Among the facts that the court must consider in its review gang affiliation is
the fact that Appellee and Andino engaged in drug dealing at Andino’s house.
Thus, we remand the issue of drug dealing in order for the court to examine
it as part of its review of res gestae evidence of gang affiliation.
Accordingly, we vacate the order granting Appellee’s motion in limine
and remand to the trial court for further proceedings in accordance with this
memorandum.
Order vacated. Case remanded for further proceedings in accordance
with this memorandum. Jurisdiction relinquished.
Judge Musmanno did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/14/2022
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