Com. v. Bradshear, R.

J-S90019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAFAEL BRADSHEAR
Appellant No. 2633 EDA 2015
Appeal from the Judgment of Sentence Dated August 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010127-2014
BEFORE: OTT, J., SOLANO, J., and JENKINS, J.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 30, 2016
Appellant Rafael Bradshear appeals from the judgment of sentence
imposed after he was convicted of aggravated assault, unlawful possession
of a firearm, carrying a firearm without a license, and possession of an
instrument of crime.1 We affirm.
The trial court summarized the facts of this case as follows:
On July 22, 2014, Nabeel Din was sitting on his porch on
Rorer Street in Philadelphia speaking with a friend [Ezequiel
Lopez]. Sometime after 9:00 p.m., Din called [Appellant] and
asked him for marijuana. A short time later, [Appellant]
approached Din, and the two started arguing. [Appellant] was
upset because Din asked [Appellant]’s mother where he could
get marijuana earlier that evening. [Appellant] and Din started
fighting on the porch. The fight continued down the street at the
intersection of Tabor Road and Rorer Street. [Appellant]
removed a gun from his pocket and pointed the gun at Din’s
____________________________________________
1
18 Pa.C.S. §§ 2702, 6105, 6106, and 907.
J-S90019-16
head. Din grabbed the gun and [Appellant] pulled the trigger,
firing a bullet over Din’s left shoulder. Din and [Appellant]
“tussled” for the gun, and during the struggle [Appellant] shot
Din in the foot. Din immediately ran away from [Appellant]; Din
eventually collapsed on the front lawn of a house on Rorer
Street.
Trial Ct. Op., 12/3/15, at 1-2 (citations to the record omitted).
Lopez and his stepfather, Bladimil Ortiz, immediately called 911 to
report the shooting. N.T. Trial, 6/9/15, at 84-85, 88, 128-29; 6/10/15, 131-
32.2 Officer Anthony Comitalo, who was on patrol that night, responded to a
radio call about the incident. He found Din lying on the lawn in front of a
house. Din had been shot in the ankle and was in severe pain. Din would
not provide any information about the shooting to Officer Comitalo. Trial Ct.
Op. at 2. Another officer suggested that Din had shot himself, and Din
replied, “all right.” Before he was placed in the ambulance, Din told the
police that two men tried to rob him and then one of them shot him. Inside
the ambulance, he provided physical descriptions of the alleged robbers.
Trial Ct. Op. at 3; N.T. Trial, 6/9/15, at 166-69.
Detective Timothy Hartman also went to the crime scene to investigate
the shooting. He recovered two .25 caliber fired cartridge casings from the
intersection of Tabor Road and Rorer Street. Trial Ct. Op. at 2.
____________________________________________
2
The 911 call was played at the trial. N.T. Trial, 6/9/15, at 84-85. This
recording is not in the certified record.
-2-
J-S90019-16
At the crime scene, Ortiz told police that he had information regarding
the shooting and gave them his phone number. N.T. Trial, 6/10/15, at 47-
49, 146-47. He later gave the police a surveillance video recording from his
house, which showed the initial fight between Din and Appellant and the
aftermath of the shooting, but did not show the shooting itself. Id. at 127-
33.
Detective Robert Hassel called Ortiz the next day, and Ortiz provided
descriptions of the shooter and a man who was with him at the time of the
shooting, as well as their cell phone numbers. The number Ortiz provided
for the shooter was Appellant’s. The number he provided for Appellant’s
companion belonged to a man named Ryan Eitienne. N.T. Trial, 6/10/15, at
73, 105, 109; 6/11/15, at 13.3
On July 24, 2014, Ortiz gave a formal statement to a detective. Ortiz
did not feel comfortable talking at his house, so he met the detective on the
street about ten blocks away. Ortiz told the detective that on the night of the
shooting, he was inside his house and saw Lopez walking up the street.
Ortiz asked Lopez where he was going; Lopez responded that he was going
with Din and there was going to be a fight. Ortiz told Lopez to come back,
but Lopez refused. Ortiz walked to the front of the house, opened the door,
____________________________________________
3
A detective interviewed Eitienne and gave him a notice to appear in court
on June 1, 2015, the day the trial was initially scheduled to begin. However,
Eitienne did not appear, the trial was continued, and a bench warrant was
issued. Eitienne could not be located for the trial. N.T., 6/10/15, at 72-80.
-3-
J-S90019-16
and heard gunshots. He saw the shooter run away. Ortiz identified
Appellant as the shooter from a photo array and told police where Appellant
lived. N.T. Trial, 6/10/15, at 106-07, 144-51; Ex. C-7. In his statement,
Ortiz did not mention any conversation he had with Lopez regarding the
identity of the shooter. See Ex. C-7.
On July 28, 2014, Lopez gave a statement to the police. He was
initially reluctant to talk to the police, but said he eventually gave a
statement because the police threatened to arrest him if he did not. In his
statement, Lopez said that he was talking to Din when two men approached
and started fighting with Din. The fight continued up the street, and one of
the men shot Din. Lopez said he was “right next to” Din when Din was shot.
Lopez told the police he did not recognize either of the men who approached
Din. He described one man as black and wearing jeans. He did not provide
a description of the other man. N.T. Trial, 6/9/15, at 96-107; Ex. C-9.
Din gave several statements to the police. At 10:50 p.m. on July 22,
2014, while he was in the hospital, Din gave a statement in which he said
that he got into a fight with two men, and one of them shot him. He
described the two men, but claimed he did not know them. Trial Ct. Op. at
3; Ex. C-12.
On July 24, 2014, while still in the hospital, Din gave a second police
statement, in which he said that a man named Edwin had shot him. Trial Ct.
Op. at 3; Ex. C-13. Because of the information they had received from Ortiz
-4-
J-S90019-16
that day, police suspected that Din had provided false information. Din was
released from the hospital later that day. Shortly after he got home, the
police went to his house, asked him to accompany them to the police
station, and took a third statement from him there. N.T. Trial, 6/9/15, 176-
79; 6/10/15, at 50-55.
In that third statement, Din identified Appellant as the shooter. Din
explained that he had identified Edwin in his previous statement because he
was upset with Edwin for implicating him in a robbery. Din said he had not
identified Appellant earlier because he did not want any trouble. See Trial
Ct. Op. at 3; N.T. Trial, 6/9/15, at 79; 6/10/15, at 55; Ex. C-14.
Based on the identifications by Din and Ortiz, detectives obtained a
search warrant for Appellant’s last known address: his grandmother’s house
at 5242 Rorer Street. The police executed the warrant the next day,
July 25, 2014. In Appellant’s grandmother’s bedroom closet, they found a
loaded .25 caliber semiautomatic handgun, sixty-two .25 caliber bullets of
various brands, and materials commonly used to package marijuana. The
gun was registered to Appellant’s grandmother; after testing, the police
excluded the gun as the weapon used in the shooting of Din. In the
basement of the house, which was used as a bedroom, detectives found mail
addressed to Appellant and male clothing. Trial Ct. Op. at 9-10; N.T. Trial,
6/10/15, at 56-68, 86.
-5-
J-S90019-16
Police also obtained a warrant for Appellant’s cell phone records.
Those records revealed the following calls on the night of the shooting: a call
from Appellant to Eitienne at 9:15 p.m.; a call from Din to Appellant at 9:33
p.m.; a call from Appellant to his mother at 9:38 p.m.; several additional
calls from Appellant to Eitienne between 9:36 and 9:51 p.m.; a call from
Appellant to Din at 9:54 p.m.; and a call from Appellant to his mother at
10:04 p.m. N.T., 6/10/15, at 100, 107-14; Exs. C-35 and C-36.
An arrest warrant was issued for Appellant. On July 29, 2014,
Appellant wrote on his Twitter4 page, “It be the tuffest niggas ratting
manee,”5 and “This my last day out here.” Appellant surrendered to the
police that same day. Trial Ct. Op. at 11, N.T., 6/10/15, at 68-71; Ex. C-38.
He was charged with attempted murder, aggravated assault, conspiracy,
carrying a firearm without a license, unlawful possession of a firearm, and
possessing an instrument of crime.
After Appellant’s arrest, Din testified before a grand jury and identified
Appellant as the man who shot him. He testified that he initially did not
____________________________________________
4
“Twitter” is a type of social media account. Messages posted on the
service are known as “tweets.” See generally Nixon v. Hardin Cty. Bd.
of Educ., 988 F. Supp. 2d 826, 830 n.1 (W.D. Tenn. 2013) (explaining how
Twitter works).
5
There is no definition or explanation of Appellant’s use of the word “manee”
in the record.
-6-
J-S90019-16
identify Appellant because he was afraid that if he did, someone in his family
would get hurt. N.T. Trial, 6/9/15, at 180-81, 216-37; Ex. C-15.
Appellant was tried by a jury from June 9-12, 2015. During the trial,
the Commonwealth was permitted to introduce Appellant’s July 29, 2014
Twitter postings as evidence. N.T. Trial, 6/10/15, at 3-4, 70-71; Ex. C-38.
Over Appellant’s objection, the trial court ruled that it also would permit the
Commonwealth to introduce evidence of the .25 caliber ammunition found in
the closet of Appellant’s grandmother. N.T. Trial, 6/9/15, at 3. The court
asked Appellant and his counsel whether, in light of that ruling on the
ammunition, they wanted introduction of evidence about the loaded .25
caliber gun that was found in the closet with the ammunition and the fact
that police had determined that that gun was not used in the shooting of
Din. Both Appellant and his counsel responded that they wanted that
additional evidence regarding the gun admitted. Id. at 4-5. Thereafter, the
Commonwealth elicited testimony from a detective regarding both the
ammunition and the gun. Id. at 60-64.
At trial, Din identified Appellant as the person who shot him. N.T.,
6/9/15, at 144-51, 184-85. He testified that he had not identified Appellant
at first because he “ain’t want no more problems” and “I thought that’s it, it
was over.” Id. at 167. He hoped that when he told the police that he was
robbed and did not know who did it, that “it was just going to go away” and
“nobody was going to get locked up or nothing.” Id. at 170. Din testified
-7-
J-S90019-16
that he concocted the story about Edwin because Din wanted to “get him
back” for telling the police that Din had robbed him. Id. at 174. Din
explained that he ultimately told the truth because he did not want to be
arrested for giving false reports. Id. at 178-79.6
Lopez testified that, on the night of the shooting, he was outside with
Din when two black men (who he said he did not know) approached Din.
One of the men got into a verbal argument, and then a physical fight, with
Din. Lopez tried to stop Din from fighting, but Din refused. Lopez testified
that he heard gunshots but did not see the shooting. In contrast to what he
told the police in his statement (in which he said he was “right next to” Din
when Din was shot), Lopez testified at trial that he was about ten feet away
from Din when Din was shot. Lopez testified that he did not remember
much of his police statement, and he did not identify the shooter during the
trial. He initially testified that he did not call 911, but when confronted with
the recording of his call, he admitted that he had done so. When asked by
the Commonwealth, “Did you tell your stepdad who you saw shoot?” Lopez
testified that he did not. Trial Ct. Op. at 4; N.T. Trial, 6/9/15, at 68-84, 95-
107.
Ortiz testified that, on the night of the shooting, he saw Appellant
fighting with Din, but did not see the shooting. He had trouble remembering
____________________________________________
6
Din was later arrested for falsely implicating Edwin. N.T. Trial, 6/9/15, at
174.
-8-
J-S90019-16
what he had told the police, but he testified that he had identified Appellant
as the shooter in his July 24, 2014 statement because he had seen Appellant
fighting with Din and because Lopez told him that the man fighting Din was
the shooter. N.T. Trial, 6/10/15, at 134-150; 6/11/15, at 4-15. Ortiz’s
testimony about what Lopez told him about the identity of the shooter
contradicted Lopez’s prior testimony that he had not made such a statement
to Ortiz. Appellant objected to Ortiz’s testimony on this issue, but the
objection was overruled. Id. at 135. Appellant did not then move for a
mistrial or request a limiting instruction. See id.
After Ortiz testified, he revealed that a man in the courtroom called
him a “snitch” as he was taking the stand on the second day of his
testimony. Ortiz said that the man continued to look at him and moved his
mouth without saying anything aloud during Ortiz’s testimony and continued
to look at Ortiz after Ortiz left the witness stand. Ortiz said he told the man,
“I don’t worry about you.” Ortiz maintained that his testimony was not
affected by this interaction. Over Appellant’s objection, the trial court
allowed the Commonwealth to recall Ortiz as a witness to testify about this
incident, and also to call an assistant district attorney who had witnessed
what happened in the courtroom. N.T. Trial, 6/11/15, at 43-55.
At the conclusion of all trial testimony, Appellant moved for a mistrial.
He argued that Ortiz’s testimony was “filled with hearsay from his son,
inadmissible hearsay, that a curative instruction of any kind [telling] the jury
-9-
J-S90019-16
to only regard that evidence as to whether or not the son Mr. Lopez made a
consistent or inconsistent statement would be inadequate.” N.T. Trial,
6/11/15, at 60-61. The trial court denied the motion for a mistrial, but gave
the following limiting instruction to the jury:
You heard the testimony regarding alleged conversations
between Mr. Bladimil Ortiz and Ezequiel Lopez regarding the
alleged identity or description of the shooter. That testimony
was admitted for a limited purpose, that is to evaluate the
weight and credibility of Mr. Lopez’s testimony. You may not
regard that evidence as proof of the truth of anything asserted in
those statements.
N.T. Trial, 6/11/15, at 62, 130-31.
On June 12, 2015, the jury found Appellant guilty of aggravated
assault, carrying a firearm without a license, and possessing an instrument
of crime. The jury found Appellant not guilty of attempted murder. Based
upon the evidence submitted to the jury and a stipulation that Appellant had
a prior felony adjudication, the trial court found Appellant guilty of unlawful
possession of a firearm. On August 13, 2015, the trial court imposed a
sentence of 7-14 years’ incarceration for aggravated assault and a
concurrent sentence of 3-6 years’ incarceration for carrying a firearm
without a license.
In this appeal, Appellant raises the following issues, as stated in his
brief:
1. Was the evidence insufficient to support the verdict, where
nobody but the complainant testified to having witnessed the
shooting, and where the complainant’s testimony was so
incredible that it may not support a verdict beyond a reasonable
- 10 -
J-S90019-16
doubt, as it was only in his fourth version of events that he
named the appellant at all (in his third version, he falsely named
a man named Edwin as the shooter, see N.T. 6.9.15, p. 173; in
his second version, he said it was two men trying to rob him,
see id. at 168; in his first version, given to first responders
before he had had time to formulate a lie, the police said that he
shot himself and he agreed, see id. at 165-66)?
2. Was admission of the .25 caliber ammunition found in the
appellant’s grandmother’s house in her bedroom (N.T. 6.9.15, p.
3), an abuse of discretion where such evidence was more
prejudicial than probative, given that the .25 caliber handgun
also found in the appellant’s grandmother’s room (which was on
a different floor from the appellant’s basement room where he
slept and where his mail was found) was a small gun of the type
that are commonly marketed to women, and was properly
registered to her and was clearly her property, and had nothing
to do with the appellant?
3. Was admission of two postings from social media an abuse
of discretion where such postings were more prejudicial than
probative, and were not relevant (see N.T. 6.10.15, pp. 3-4)?
4. Was admission of testimony that a member of the
audience called a witness a “snitch” an abuse of discretion where
such testimony was highly prejudicial to the appellant but was
not probative, as the witness in question testified under oath
that the incident did not affect his testimony at all (N.T. 6.11.15,
pp. 35-36), and there was no evidence that the appellant caused
the member of the audience to act out?
5. Was denial of the appellant’s mistrial motion (N.T. 6.11.15,
pp. 59-62) an abuse of discretion?
Appellant’s Brief at 4-5.
- 11 -
J-S90019-16
Sufficiency of the Evidence
First, Appellant claims that the evidence was insufficient to support the
verdict.7 In reviewing this issue, we apply the following standard of review:
The standard we apply in reviewing the sufficiency of the
evidence is 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 beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)
(internal quotation marks, brackets, and citations omitted), appeal denied,
806 A.2d 858 (Pa. 2002).
____________________________________________
7
The trial court held, and the Commonwealth argues in its brief, that
Appellant waived his sufficiency claim because Appellant’s Pa.R.A.P. 1925(b)
statement did not challenge a particular conviction or a specific element of
any particular conviction. Trial Ct. Op. at 5-6; Commonwealth’s Brief at 10-
12. We conclude, however, that Appellant’s Rule 1925(b) statement, which
phrased the sufficiency issue almost exactly as Appellant does in his
Statement of Questions Involved, was adequate to preserve the issue.
- 12 -
J-S90019-16
While issues of credibility are generally the sole province of the trier of
fact, Appellant relies on an exception to that general rule for “testimony
[that] is so inherently unreliable that a verdict based upon it could amount
to no more than surmise or conjecture.” Appellant’s Brief at 15; see
Commonwealth v. Smith, 467 A.2d 1120, 1122 (Pa. 1983). This Court
applied this exception in Commonwealth v. Bennett, 303 A.2d 220 (Pa.
Super. 1973). The defendant in that case had been convicted of receiving
stolen property (a car) on the basis of inconsistent testimony by an
accomplice named Jones. In finding Jones’ testimony insufficient to support
the conviction, we explained:
Jones (who had been contradictory with respect to his own
perpetration of the larceny) sought to implicate the defendant by
giving several wholly different, conflicting and inconsistent
versions of when and how he had told her that the car had been
in fact stolen by him. On a previous occasion Jones had denied
he had ever conveyed to defendant knowledge of the car’s theft.
With each new version Jones would recant the previous one and
protest that the newest version was in fact the true one. This
situation presented the jury not with a mere conflict or
contradiction in testimony which was reasonably reconcilable by
them, but a situation falling within the rule: . . . a case should
not go to the jury where the party having the burden offers
testimony of a witness, or of various witnesses, which is so
contradictory on the essential issues that any finding by the jury
would be a mere guess . . . . When the testimony is so
contradictory on the basic issues as to make any verdict based
thereon pure conjecture the jury should not be permitted to
consider it.
Id. at 220-21 (quotation marks and citation omitted).
Twenty years later, the Supreme Court applied this principle in
Commonwealth v. Karkaria, 625 A.2d 1167, 1172 (Pa. 1993), in which it
- 13 -
J-S90019-16
overturned a conviction on multiple charges of rape because it was “not
based on anything more than speculation and conjecture.” The Court noted
numerous “critical inconsistencies” in the record: (1) the complainant
initially reported only that the defendant (her stepbrother) “touched” her,
not that he penetrated her; (2) she initially “was unable to offer sufficient
testimony as to the material elements of the crime of rape,” causing the
District Attorney to decline to prosecute; (3) her initial reports were made
when her mother was reconciling with the defendant’s father, whom she
hated; (4) her testimony regarding when the rapes occurred was
“disturbingly vague”; (5) she “insisted that the assaults only occurred when
[the defendant] was babysitting and yet she also admitted that during the
time period charged in the indictment [the defendant] no longer acted as the
babysitter”; and (6) she described only one specific incident of rape, which
occurred years before the time period charged in the indictment, and offered
only one scenario for each of 300 alleged incidents of sexual assault. Id. at
1171. The Court concluded that the evidence presented at trial was “so
unreliable and contradictory that it is incapable of supporting a verdict of
guilty, and thus, [was] insufficient as a matter of law.” Id. at 1172.
The Supreme Court has explained that this principle “is applicable only
where the party having the burden of proof presents testimony to support
that burden which is either so unreliable or contradictory as to make any
verdict based thereon obviously the result of conjecture and not reason.”
- 14 -
J-S90019-16
Commonwealth v. Galloway, 434 A.2d 1220, 1222 (Pa. 1981) (quoting
Commonwealth v. Farquharson, 354 A.2d 545, 550 (Pa. 1976)). In this
connection, the Court has made clear that evidence is not insufficient simply
because witnesses make inconsistent statements. Thus, for example, in
Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012), the Court held that
out-of-court statements by three witnesses who identified the defendant as
the perpetrator provided sufficient evidence to support a guilty verdict even
though they were later recanted at trial. 52 A.3d at 1144-48, 1171. The
Court explained:
Even when there are well recognized concerns regarding the
reliability of evidence, such as in instances where evidence of
guilt is provided by a criminal accomplice who is deemed a
corrupt and polluted source, our Court has not categorically
regarded all such evidence to be so inherently unreliable that it
cannot, by itself, support a verdict of guilt. Instead, our Court
considers questions regarding the reliability of the evidence
received at trial to be within the province of the finder-of-fact to
resolve, and our Court will not, on sufficiency review, disturb the
finder-of-fact’s resolution except in those exceptional instances
. . . where the evidence is so patently unreliable that the jury
was forced to engage in surmise and conjecture in arriving at a
verdict based upon that evidence.
Id. at 1165 (citations omitted). The Court noted that cross-examination
“furnishes the best method by which the witness’s motives for changing his
or her story, from that given previously, may be fully and thoroughly
explored.” Id. at 1169.
In addition, the Supreme Court has held that the testimony of a
witness who had a criminal record and was reluctant to implicate the
- 15 -
J-S90019-16
defendant can be sufficient to support a verdict. See Commonwealth v.
Hudson, 414 A.2d 1381, 1385-86 (Pa. 1980). In Hudson, the Court held
that the testimony of two witnesses was not “patently unreliable,” although
the witnesses (1) may have been intoxicated when defendant admitted the
crimes to them; (2) had criminal records; (3) denied knowledge of the
defendant at first; and (4) assisted the defendant after he committed the
crimes. Id. The Court explained:
[N]either inconsistencies in the Commonwealth’s evidence nor
attempts by [a witness] to avoid involvement in a criminal
episode render his testimony patently unreliable under the
Farquharson standard. The fact that [a witness] initially gave
inconsistent statements to the police is a matter for the jury in
determining his credibility. [A witness’s] prior crimes are also
matters going to his credibility and issues of credibility are
properly resolved by the trier of fact.
Id. at 1385 (citations omitted).
Here, relying on Bennett and Karkaria, Appellant claims that the
evidence was insufficient to support his conviction because the
Commonwealth “cannot establish that the Appellant introduced the gun or
tried to shoot Din without Din’s own testimony, which is utterly incredible.”
Appellant’s Brief at 15. Appellant emphasizes Din’s first two statements to
the police, in which he did not identify Appellant as the shooter, as well as
Din’s criminal record. Id. at 15-16.8
____________________________________________
8
At trial, Din testified that he was serving a five to ten year sentence of
imprisonment for burglary and had previously been convicted of theft twice.
(Footnote Continued Next Page)
- 16 -
J-S90019-16
We disagree. Unlike Karkaria and Bennett, this case does not involve
such “exceptional” circumstances, see Brown, 52 A.3d at 1165, as would
require this Court to disregard the jury’s findings about the credibility of the
evidence identifying Appellant as the shooter. Unlike the complainant in
Karkaria, Din was clear about when the crime occurred. Din also explained
why he had given prior inconsistent statements. He asserted that he did not
identify anyone at first because he did not want to cause more problems for
himself and he hoped the problem would just go away. N.T. Trial, 6/9/15, at
167, 170. He testified that he identified Edwin because he was angry that
Edwin had implicated him in a robbery. Id. at 172-74. Further, he said that
he ultimately told the truth and identified Appellant when faced with the
possibility of being charged with making false statements to the police. Id.
at 178-79. Once he identified Appellant as the shooter, Din again identified
him before the grand jury and at trial. Id. at 184-85, 216-37. Neither Din’s
prior inconsistent statements nor Din’s criminal record rendered his
testimony so unreliable that it could not support the verdict. See Hudson,
414 A.2d at 1385-86. The jurors were aware of the relevant facts and
_______________________
(Footnote Continued)
N.T., 6/9/15, at 136-37. Appellant attached to his brief a summary of Din’s
criminal record. Because this summary is not part of the certified record and
contains information that is not otherwise in the record, we will disregard it.
See Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super.) (“‘[f]or
purposes of appellate review, what is not of record does not exist’ . . .[, and]
copying material and attaching it to a brief does not make it a part of the
certified record” (internal citations omitted)), appeal denied, 959 A.2d 928(Pa. 2008).
- 17 -
J-S90019-16
inconsistencies, and it was within their province to assess Din’s credibility.
See id.Moreover, unlike in Karkaria and Bennett, other evidence
corroborated Din’s account of the crime. Ortiz testified that he saw
Appellant fighting with Din shortly before the shooting. N.T., 6/11/15, at 4.
Phone records corroborated Din’s testimony that he called Appellant shortly
before the shooting. N.T., 6/9/15, at 143-44; 6/10/15, at 111. The phone
records also showed calls between Appellant and the number Ortiz identified
as belonging to the man who accompanied Appellant on the night of the
shooting. N.T., 6/10/15, at 111-12. In sum, we hold that the evidence,
when viewed in a light most favorable to the Commonwealth, was sufficient
to support the jury’s verdict.
Evidentiary Rulings
In his second, third, and fourth issues, Appellant challenges
evidentiary rulings made by the trial court. Our standard of review for these
claims is deferential:
The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation
marks and citations omitted), cert. denied, 137 S. Ct. 92 (2016).
- 18 -
J-S90019-16
In general, all relevant evidence is admissible. Pa.R.Evid. 402.
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.” Pa.R.Evid.
401. “[T]he threshold for relevance is low due to the liberal ‘any tendency’
prerequisite.” Brady v. Urbas, 111 A.3d 1155, 1162 (Pa. 2015) (emphasis
in original; citing Pa.R.Evid. 401). Relevant evidence may be excluded,
however, if its probative value is outweighed by, among other things, a
danger of unfair prejudice. Pa.R.Evid. 403. “Evidence is not unfairly
prejudicial simply because it is harmful to the defendant’s case. Rather,
exclusion of evidence on this ground is limited to evidence so prejudicial that
it would inflame the jury to make a decision based upon something other
than the legal propositions relevant to the case.” Commonwealth v.
Foley, 38 A.3d 882, 891 (Pa. Super. 2012) (internal quotation marks and
citations omitted), appeal denied, 60 A.3d 535 (Pa. 2013).
The .25 Caliber Ammunition
Appellant claims that the trial court erred in admitting evidence of the
sixty-two live rounds of .25 caliber ammunition found in a closet in the
house where he and his grandmother lived. Also found in the closet was a
loaded .25 caliber handgun that police determined was not used in the
shooting of Din. After the trial court admitted evidence of the ammunition
over Appellant’s objection, Appellant elected to have evidence of the gun
introduced. N.T. Trial, 6/10/15, at 4-5. Appellant now argues that it was
- 19 -
J-S90019-16
error to admit evidence of the ammunition because that evidence was more
prejudicial than probative.
Much of Appellant’s argument on this issue deals with the so-called
“similar weapon exception.” See Appellant’s Brief at 18-22. That exception
recognizes that, although a weapon not “specifically linked” to the charged
crime is usually inadmissible, evidence about the weapon may be admitted
“if the Commonwealth lays a foundation that would justify an inference by
the finder of fact of the likelihood that the weapon was used in the
commission of the crime.” Commonwealth v. Christine, 125 A.3d 394,
396 n.4 (Pa. 2015) (internal quotation marks and citation omitted). “The
theory of the exception is that the weapon possessed could have been the
weapon used [in the crime],” and “[a]ny uncertainty that the weapon is the
actual weapon used in the crime goes to the weight of such evidence,”
rather than its admissibility. Id. at 400 (citation omitted); see
Commonwealth v. Owens, 929 A.2d 1187, 1191 (Pa. Super.) (where
handguns involved in shooting were never recovered, handgun parts and
ammunition found in home of defendant were “relevant as tending to prove
that the defendants had weapons similar to the ones used in the
perpetration of the crime”), appeal denied, 940 A.2d 364 (Pa. 2007).9 In
____________________________________________
9
In Christine, the Court criticized our description of the similar weapons
exception in Owens because it “omitted language referring to the need for a
foundation justifying an inference the weapon was used in the crime.”
(Footnote Continued Next Page)
- 20 -
J-S90019-16
Christine, the Court stressed that the similar weapon exception does not
apply simply because the weapon at issue was similar to the weapon used
in the crime; there must be a foundation that would justify the inference
that the weapon could have been the one used in the crime. Christine, 125
A.3d at 400-01.
Appellant argues that the .25 caliber ammunition recovered from his
and his grandmother’s house was not admissible under the similar weapon
exception because the Commonwealth’s showing that the caliber of the
ammunition was the same as that used in the crime was inadequate under
Christine. Appellant’s Brief at 20. He notes that the ammunition found in
the house was not the same brand as the shells recovered at the crime
scene. Id.
We disagree. Because the ammunition was of the same caliber as that
found at the crime scene, it was relevant, as it tended to make it more
probable that Appellant possessed the gun used in the shooting. See Trial
Ct. Op. at 10; Pa.R.Evid. 401. The similar weapon exception does not
directly fit these facts because the evidence at issue is ammunition, not a
weapon. This case is distinguishable from Christine, where the weapon at
issue could not possibly have been the one used in the assault. See
_______________________
(Footnote Continued)
Christine, 125 A.3d at 400 n.10. However, the Court did not overrule the
holding of Owens.
- 21 -
J-S90019-16
Christine, 125 A.3d at 400. Here, although the .25 caliber handgun found
with the ammunition was found to not be the gun used to shoot Din, it
cannot be said that the .25 caliber ammunition could not be used in the gun
that was used in the crime. Although the ammunition was not the same
brand as the shells recovered at the crime scene, it could fit in any .25
caliber weapon, including the weapon used in the assault. N.T. Trial,
6/10/15, at 94.
For this same reason, this case is distinguishable from
Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013), appeal
denied, 89 A.3d 661 (Pa. 2014). In Stokes, this Court held that the trial
court erred in admitting ammunition found in the defendant’s home, where
that ammunition was of a different caliber than that used in the crime. Id.
at 655. We determined that to the extent the ammunition from the
defendant’s home was relevant at all, its probative value was outweighed by
the potential for unfair prejudice, although we then concluded that the error
in admitting the ammunition was harmless because of the overwhelming
evidence of the defendant’s guilt. Id. at 656. Here, because the
ammunition was of the same caliber as that of the weapon used in the
crime, the ammunition was relevant evidence.
Appellant contends that the Commonwealth did not prove that he had
access to the ammunition, which was in his grandmother’s bedroom closet.
Appellant’s Brief at 21. But there was no evidence that the room or closet
- 22 -
J-S90019-16
was locked. Thus, because Appellant lived in the house, the jury could infer
that he had access to the ammunition. See Commonwealth v. Carroll,
507 A.2d 819, 821 (Pa. 1986) (evidence was sufficient for the jury to
conclude that a husband had constructive possession of drugs found in
woman’s pants in a hotel room he rented with his family);10
Commonwealth v. Aviles, 615 A.2d 398, 403 (Pa. Super. 1992) (factfinder
could conclude that lessee and sub-lessees had access to all bedrooms and
entire residence), cert. denied, 513 U.S. 819 (1994).
We do not agree that the trial court abused its discretion in concluding
that the danger of unfair prejudice did not outweigh the probative value of
the ammunition evidence. Appellant argues that the ammunition evidence
was particularly prejudicial because of its “sheer bulk” and the fact that it
was found with a .25 caliber gun. Appellant’s Brief at 20. But we do not see
how the amount of ammunition by itself would “inflame the jury to make a
decision based upon something other than the legal propositions relevant to
the case.” See Foley, 38 A.3d at 891; Owens, 929 A.2d at 1191. Further,
Appellant waived any argument that the admission of the gun found with the
ammunition increased the prejudice when he agreed that the
Commonwealth could introduce the gun after the court ruled that it would
____________________________________________
10
We may cite cases predating the enactment of the Pennsylvania Rules of
Evidence to the extent they are in accord with the Rules. Commonwealth
v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2000).
- 23 -
J-S90019-16
admit the ammunition. Cf. Commonwealth v. Beasley, 479 A.2d 460,
463 (Pa. 1984) (defendant cannot claim evidence was improperly admitted
when he introduced it).
In sum, we hold that the trial court did not abuse its discretion in
finding that the ammunition was relevant and not unfairly prejudicial.
Appellant’s Social Media Postings
Next, Appellant claims that the trial court abused its discretion in
admitting evidence of his Twitter postings. Approximately one week after
the shooting, and hours before he surrendered to the police, Appellant
tweeted, “it be the tuffest niggas ratting manee” and “this my last day out
here.” N.T. Trial, 6/10/15, at 68-71, 96; Ex. C-38. Appellant concedes that
he “used a street word for witness – rat – that is often used in the context of
threats.” Appellant’s Brief at 23. He argues, however, that his posting
expressed only surprise that someone who is “tough” would cooperate with
the Commonwealth. Id. Appellant argues that the postings were more
prejudicial than probative and were not relevant. Appellant’s Brief at 22.11
The trial court concluded that the postings were probative of Appellant’s
consciousness of guilt and were not unfairly prejudicial. Trial Ct. Op. at 11.
Separate and apart from whatever implication of a threat may be
inferred from Appellant’s tweet, there is no question that Appellant’s use of
____________________________________________
11
Appellant did not challenge the authenticity of the postings at trial, and he
does not do so on appeal. Trial Ct. Op. at 11 n.5.
- 24 -
J-S90019-16
the word “ratting” suggested that Appellant believed someone spoke to the
police and implicated him in the crime. As Appellant acknowledges, the
tweet reflected an “anti-snitching sentiment,” Appellant’s Brief at 24, which
shows his belief that someone identified him as Din’s shooter. Appellant
argues that his characterization of that person as a “rat” or snitch did not
necessarily reflect an admission that the information given to the police
about Appellant’s involvement in the crime was correct. He explains, “the
terms ‘ratting’ and ‘snitching’ are not only used to refer to people who tell
the truth to the police — they are also used to describe people like Nabeel
Din, who lie to the police, leading them to arrest an innocent party (such as
Edwin, the man that Din named as the shooter just prior to naming the
Appellant, and such as the Appellant himself).” Id. But resolution of any
ambiguities in Appellant’s tweet was for the jury, which was free to interpret
the statement as an acknowledgment that someone had informed the police
of a crime he committed. Under that interpretation, the tweet had probative
value.
To the extent that the word “ratting” suggested a possible threat, the
tweet was also admissible to show possible consciousness of guilt. See
Commonwealth v. Raymond Johnson, 838 A.2d 663, 680 (Pa. 2003),
cert. denied, 543 U.S. 1008 (2004). In Raymond Johnson, before his
trial, the defendant approached a witness and said, “Its’ [sic] kind of f___ed
up when people’s families die.” 838 A.2d at 679 (letters omitted in original).
- 25 -
J-S90019-16
The defendant argued that the statement was not admissible because “it
[was] not clear that the comments were intended as a threat.” Id. at 680.
The Court held that regardless of whether the defendant’s words constituted
a threat, they were admissible because they were intended to influence the
witness’ testimony. Id.
Whether Appellant’s postings actually communicated a threat was a
question of interpretation that was properly left to the jury. In
Commonwealth v. Kramer, 371 A.2d 1008 (Pa. Super. 1977), the
defendant’s letter to his wife stating, “(w)hen I get out of here, I am going
to get a gun and you know what I am going to do,” was admissible even
though the defendant said he merely was referring to hunting. The true
meaning of the statement was within the province of the jury. 371 A.2d at
1011-12. Here, the jury could have inferred that Appellant used word
“ratting” with the intent to intimidate, and the Twitter postings therefore
were relevant and admissible. See Raymond Johnson, 838 A.2d at 680.
Moreover, we conclude that the trial court did not abuse its discretion in
finding that “the messages were not unfairly prejudicial as they did not
divert the jury’s attention away from its duty of weighing the evidence
impartially.” Trial Ct. Op. at 11 (quotation marks and citation omitted).
Ortiz’s Interaction with a Courtroom Audience Member
Appellant next claims that the trial court abused its discretion by
admitting evidence that a man in the courtroom audience called Ortiz a
- 26 -
J-S90019-16
snitch immediately before his second day of testimony and stared at Ortiz as
he testified. Appellant argues that evidence of this interaction was highly
prejudicial and not probative. Appellant’s Brief at 25.
“In general, ‘threats by third persons against . . . witnesses are not
relevant [and thus not admissible into evidence] unless . . . the defendant is
linked in some way to the making of the threats.’” Commonwealth v.
Bryant, 462 A.2d 785, 788 (Pa. Super. 1983) (quoting Commonwealth v.
Carr, 259 A.2d 165, 167 (Pa. 1969)). This general rule “refers to the
relevance of a threat as it bears upon the issue of guilt.” Carr, 259 A.2d at
167; accord Commonwealth v. Ragan, 645 A.2d 811, 824 (Pa. 1994).
However, a threat by a third party is admissible for other purposes apart
from proving guilt; these include explaining a witness’s prior inconsistent
statement. Carr, 259 A.2d at 167; Bryant, 462 A.2d at 788.
In Carr, the Court held that threats by an identified third party were
relevant and admissible to explain why a witness wrote a letter exonerating
the defendant. Carr, 259 A.2d at 167. The Court held that “there was no
danger that the jury would treat the threat explanation as relevant to [the
defendant’s] guilt” because someone else had been identified as having
made the threat. Id. The Court further noted that if the defendant was
concerned that the jury might consider the threat relevant to the issue of his
guilt, he could have requested a cautionary instruction. Id.
- 27 -
J-S90019-16
In Commonwealth v. Clarence Johnson, 615 A.2d 1322 (Pa. Super.
1992), appeal denied, 625 A.2d 1191 (Pa. 1993), this Court held that
evidence of threats received by a witness and his mother were admissible
“as evidence of the witness’ state of mind, bias and reason for testifying.”
615 A.2d at 1334. Noting that the jury was specifically instructed not to
consider the threats as evidence of the defendants’ guilt, the Court in
Clarence Johnson held that the trial court did not abuse its discretion in
admitting the evidence. Id. at 1335.
Here, the threatening behavior of an audience member towards Ortiz
was not admitted as evidence proving Appellant’s guilt. Rather, the trial
court explained that it admitted the evidence to assist the jury in assessing
Ortiz’s credibility. See Trial Ct. Op. at 13. Ortiz had made a prior
inconsistent statement in which he said he saw the shooter, and he had
difficulty recollecting what he had previously told the police. His credibility
was in issue, and the evidence of the threat was relevant to assist the jury in
assessing that credibility. See Clarence Johnson, 615 A.2d at 1334.12
Moreover, Appellant was not unfairly prejudiced by Ortiz’s testimony
regarding the threat. First, Ortiz testified that Appellant did not make the
____________________________________________
12
Although Ortiz testified that the threat did not affect his testimony, the
jury was free to accept or reject this assertion. See Commonwealth v.
Baez, 759 A.2d 936, 939 (Pa. Super. 2000) (“it is for the fact finder to make
credibility determinations, and the finder of fact may believe all, part, or
none of a witness’s testimony”), appeal denied, 775 A.2d 800 (Pa. 2001).
- 28 -
J-S90019-16
threat. See N.T. Trial, 6/11/15, at 51; Carr, 259 A.2d at 167 (defendant
not prejudiced where threat was made by identified third party). Further,
the trial court instructed the jury to consider the testimony only for the
purpose of evaluating the credibility and weight of Ortiz’s testimony. N.T.,
6/11/15, at 131. The jury is presumed to have followed the court’s
instruction. See Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa.),
cert. denied, 135 S.Ct. 164 (2014).
In sum, we hold that the trial court did not abuse its discretion in
determining that evidence Ortiz was threatened before he testified was
admissible for the purpose of assessing Ortiz’s credibility and was not
unfairly prejudicial.
Denial of Motion for a Mistrial
Appellant’s final claim is that the trial court abused its discretion by
denying his motion for a mistrial, which was based on alleged hearsay in
Ortiz’s testimony — specifically, Ortiz’s testimony that Lopez told him that
the shooter was the man Ortiz had seen fighting with Din.
In reviewing this claim, we apply the following principles:
The trial court is in the best position to assess the effect of a
prejudicial statement on the jury. Thus, the decision of whether
to grant a mistrial is within the sound discretion of the trial
court, and will not be reversed on appeal absent an abuse of
that discretion. The remedy of a mistrial is an extreme one that
is required only when an incident is of such a nature that its
unavoidable effect is to deprive the defendant of a fair and
impartial trial by preventing the jury from weighing and
rendering a true verdict. Furthermore, a mistrial is not necessary
- 29 -
J-S90019-16
if a court’s cautionary instructions adequately cure any
prejudice.
Commonwealth v. Begley, 780 A.2d 605, 624–25 (Pa. 2001) (citations
omitted).
Appellant’s mistrial motion was based on his assertion that “Mr. Ortiz’s
testimony [was] filled with hearsay from his son,” Lopez, regarding the
identity of the shooter. N.T. Trial, 6/11/15, at 60. Although Appellant
objected when Ortiz testified that Lopez told him Appellant had shot Din,
Appellant did not state the basis for his objection, 13 or request a mistrial or a
limiting instruction at that time. See N.T., 6/10/15, at 134-35. Indeed, he
did not move for a mistrial until the end of the trial — the next day — after
all evidence had been presented and after he had unsuccessfully moved for
____________________________________________
13
Rule 103(a) of the Rules of Evidence states:
A party may claim error in a ruling to admit . . . evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion
in limine; and
(B) states the specific ground, unless it was apparent
from the context . . . .
Here, Appellant did not state whether he objected because Ortiz’s testimony
contained hearsay inadmissible under Evidence Rules 802 and 803, or
because the testimony’s probative value would be outweighed by the
prejudice it could cause under Rule 403, or for some other reason. In his
brief to this Court, Appellant cites only to Rule 802. Appellant’s Brief at 29.
- 30 -
J-S90019-16
judgment of acquittal on all charges.14 At that point, Appellant contended
“that a curative instruction of any kind” would be inadequate. N.T. Trial,
6/11/15, at 60-61. Appellant also explained that he had been unable to
effectively cross-examine Lopez regarding what Ortiz said Lopez told him
because Lopez testified before Ortiz gave that testimony. Id. at 61.
The Commonwealth responded that Ortiz’s testimony regarding what
Lopez told him was introduced to impeach Lopez’s prior testimony that he
did not tell his father who the shooter was. On this basis, the
Commonwealth argued that the question to Ortiz about what Lopez told him
was proper impeachment testimony, and it told the court that a limiting
instruction explaining that purpose would avoid any prejudice to Appellant.
The Commonwealth also asserted that Appellant could have recalled Lopez if
he wanted to examine him about Ortiz’s testimony. N.T. Trial, 6/11/15, at
61-62.
The trial court denied Appellant’s motion for a mistrial, but instructed
the jury that the testimony was admitted for “a limited purpose, that is to
evaluate the weight and credibility of Mr. Lopez’s testimony.” Id. at 130-31.
It added, “You may not regard that evidence as proof of the truth of
anything asserted in those statements.” Id. at 131. Appellant agreed that
the wording of that instruction was appropriate. Id. at 62.
____________________________________________
14
The trial court granted the motion for judgment of acquittal on two
counts of conspiracy, and denied it on the other charges.
- 31 -
J-S90019-16
In his brief to this Court, Appellant now asserts:
The trial court erred and abused its discretion in denying the
Appellant’s motion for mistrial based on the admission of
hearsay testimony through Bladimil Ortiz’s trial testimony. . . .
Ortiz initially indicated that he had seen the shooting, but under
oath acknowledged that he had not because he was inside his
house when the shooting occurred. The information that he gave
the police on the night of the shooting purportedly came from his
son, but under oath his son also testified that he had not seen
the shooting. This is core hearsay.
Appellant’s Brief at 28-29. Appellant continues:
[T]he Commonwealth was caught flat-footed when their
witnesses [Ortiz and Lopez] came to court and acknowledged
under oath that they knew a lot less than they had purported to
know when they gave their statements. Ortiz thought he “knew”
what his son had told him, and his son, a teenager when the
shooting occurred, engaged in some “puffery” about standing
with Din and being near him when shot.
Id. at 29-30. Appellant argues that the alleged hearsay in Ortiz’s testimony
reflected an attenuated and prejudicial “‘on the street’ understanding” of
what happened at the shooting. See id. at 29-30. He contends that
“allowing in testimony that amounts to ‘street knowledge’ (i.e. gossip) has
the potential to give the jury the message that ‘everybody knows’ who
committed a certain shooting . . . .” Id. at 30. He also makes two
arguments that he did not raise before the trial court, specifically that the
“prior inconsistent statement” instruction was inadequate because (1) a
written copy of the instruction was not given to the jury, and (2) the charge
was not given immediately after the “prior inconsistent statement”
testimony. Id.
- 32 -
J-S90019-16
We will not address the arguments in Appellant’s brief regarding the
timing of the charge or the fact that the jury was not given a written copy of
it, because Appellant did not raise those issues before the trial court. See
Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (“an
appellant may not raise a new theory for an objection made at trial on his
appeal”), appeal denied, 845 A.2d 816 (Pa. 2004). We further note that
the issue framed for us by Appellant — “Was denial of the appellant’s
mistrial motion (N.T. 6.11.15, pp. 59-62) an abuse of discretion?,”
Appellant’s Brief at 5 — is not whether the trial court erred in overruling
Appellant’s objection during Ortiz’s testimony, but rather the distinct issue
whether the trial court erred in denying the motion for a mistrial Appellant
made at the conclusion of the trial. Even though Appellant’s brief challenges
the propriety of three of the trial court’s evidentiary rulings (on admissibility
of the ammunition evidence, tweets, and the alleged courtroom threat), the
ruling admitting Ortiz’s testimony is not among them. After reviewing the
record, the parties’ briefs, and the trial court opinion, we conclude that the
trial court did not abuse its discretion in denying the “extreme” remedy of a
mistrial. See Begley, 780 A.2d at 624-25.
Although Appellant objected to the admission of Ortiz’s testimony that
Lopez identified the shooter, he did not state a basis for the objection at that
time, and he did not then move for a mistrial or request any limiting
instruction to the jury regarding the testimony. It was not until the next
- 33 -
J-S90019-16
day, after the close of all evidence and after the trial court had denied the
bulk of Appellant’s motion for acquittal, that Appellant argued for the first
time that because Ortiz’s testimony was “filled with . . . inadmissible
hearsay,” a mistrial was required. N.T. Trial, 6/11/15, at 60-61. The trial
court then explained that it had admitted the testimony only for the limited
purpose of assisting the jury in its assessment of Lopez’s credibility, and,
although it denied the mistrial, it instructed the jury not to consider the
evidence as proof of anything asserted in the conversation. See Trial Ct.
Op. at 15; N.T. Trial, 6/11/15, at 130-31. In doing so, the trial court did not
err.
First, as the trial court held, Ortiz’s testimony qualified as extrinsic
evidence of a prior inconsistent statement by Lopez about whether he had
told his father the identity of the shooter, and it therefore was admissible to
permit assessment of Lopez’s credibility. It is axiomatic, of course, that
hearsay — “an out-of-court statement, which is offered in evidence to prove
the truth of the matter asserted,” Commonwealth v. Busanet, 54 A.3d 35,
68 (Pa. 2012), cert. denied, 134 S.Ct. 178 (2013) — is inadmissible unless
a specific exception to the hearsay rule applies. See id. (citing Pa.R.Evid.
802). However, “[a]n out-of-court statement is not hearsay when it has a
purpose other than to convince the fact finder of the truth of the statement,”
id., and, in particular, it may be admitted for purposes of impeachment.
See Pa.R.Evid. 803.1(1) cmt. (“An inconsistent statement of a witness that
- 34 -
J-S90019-16
does not qualify as an exception to the hearsay rule may still be introduced
to impeach the credibility of the witness”); Commonwealth v. Charleston,
16 A.3d 505, 526-27 (Pa. Super.), appeal denied, 30 A.3d 486 (Pa. 2011),
abrogated on other grounds by In re L.J., 79 A.3d 1073 (Pa. 2013).
Notably, although Appellant asserts that Ortiz’s testimony contained “core
hearsay,” Appellant’s Brief at 29, Appellant does not address the
admissibility of such testimony for the purpose of impeachment and does not
contend that Ortiz’s testimony was inadmissible for that purpose here.15
In Charleston, this Court upheld the admission of a witness’
testimony that, one week prior to a murder, a neighbor told the witness that
the defendant said he planned to rob the victim. Charleston, 16 A.3d at
526-27. Rejecting the defendant’s claim that the testimony contained
inadmissible double hearsay, we held that the testimony was properly
admitted for impeachment purposes under Rule 613(b) of the Rules of
Evidence. Id. at 513, 527. The Ortiz testimony at issue here is similar to
____________________________________________
15
The Commonwealth argues that Lopez’s statement to Ortiz was not
hearsay because, pursuant to the trial court’s instructions, the jury could
consider it only to assess Lopez’s credibility, and not for the truth of the
matter asserted. Commonwealth’s Brief at 35. The Commonwealth adds,
however, that it views the limiting instruction as “a substantial windfall for
[Appellant], since the identification should have been admitted for its truth
as both a present sense impression and an excited utterance.” Id. at 35-36.
We need not reach that argument.
- 35 -
J-S90019-16
that in Charleston and was admissible for the same reason.16 Once Lopez
denied that he had told his father the identity of the shooter, Ortiz’s
testimony to the contrary was admissible to impeach Lopez’s testimony.
Appellant argues that it was improper to permit the testimony in this way
because Ortiz testified after Lopez and Appellant therefore did not have an
opportunity to cross-examine Lopez about Ortiz’s testimony. But Appellant
was free to seek to recall Lopez to conduct such an examination if he
wished, and he cannot rely on the fact that he failed to do so. See Trial Ct.
Op. at 14.
The fact Appellant waited until a day after the objectionable testimony
before he asked for a mistrial weighed strongly against granting his mistrial
motion. See Pa.R.Crim.P. 605(B) (“the motion shall be made when the
event is disclosed”). If Appellant had sought relief immediately after his
objection to the Ortiz testimony was overruled, then, even if the court
denied the mistrial, the trial court could have fashioned relief from potential
prejudice by immediately instructing the jury about the limits on its proper
use of the contested testimony. By instead waiting a day before making his
motion and then arguing that the relief of a limiting instruction would be too
late and inadequate, Appellant contributed to the problem about which he
now complains. As previously noted, we presume that a jury follows a trial
____________________________________________
16
Appellant makes no argument challenging the admissibility of the
testimony under Rule 613.
- 36 -
J-S90019-16
court’s limiting instruction once it is given. See Hairston, 84 A.3d at 666.
Any reduction in the remedial benefit resulting from any purported lateness
in giving the instruction must be charged to Appellant’s own delay. We thus
conclude that the trial court did not abuse its discretion in denying
Appellant’s motion for a mistrial.
In summary, we conclude that the evidence was sufficient to support
the verdict; the trial court did not abuse its discretion in admitting the
ammunition, Appellant’s Twitter postings, and the threat against Ortiz; and
the trial court did not abuse its discretion in denying Appellant’s motion for a
mistrial.
Judgment of sentence affirmed.
Judge Ott joins the memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
- 37 -