Com. v. Cooper, J.

J-A30033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN L. COOPER, JR.,
Appellant No. 250 EDA 2013
Appeal from the Judgment of Sentence December 14, 2012
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0004413-2011
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN L. COOPER, JR.,
Appellant No. 252 EDA 2013
Appeal from the Judgment of Sentence December 14, 2012
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0004425-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.:FILED FEBRUARY 18, 2015
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A30033-14
In these consolidated cases, Appellant, John L. Cooper, Jr., appeals
from the judgment of sentence imposed after his jury conviction of first
degree murder, criminal conspiracy to commit murder, carrying a firearm
without a license, and related offenses.1 We affirm.
On June 1, 2010, officers from the City of Chester Police Department
were dispatched to the 200 block of Patterson Street for a reported shooting.
Officer Michael Dingler was first on the scene and observed the victim,
Jabree Hughes, with multiple gunshot wounds to his back. On June 3, 2010,
at docket number CP-23-CR-0004425-11, Appellant was arrested for
carrying a firearm without a license related to the incident. On April 7,
2011, after further investigation, the Commonwealth filed murder and
related charges against Appellant at docket number CP-23-CR-0004413-11.
The cases were joined for trial, which commenced on October 22, 2012.
For ease of disposition, we will include only those facts from trial that
are pertinent to our review. As the trial court explained in its December 11,
2013 opinion:
. . . [T]he Commonwealth called Alvin Herring, an eyewitness to
the crime, to testify at trial. Herring, who did not come forward
and speak to police until nine months after the incident, was
asked by the Commonwealth on direct examination why he did
not come forward earlier. Herring replied that he did not want to
involve himself in the situation because he was very scared.
(See N.T. Trial, 10/23/12, at 78-79).
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 903, and 6106, respectively.
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Defense counsel effectively cross[-]examined Herring at
trial on his failure to remain on the scene to speak with police,
as well as his failure to call the police the next day, the next
month, or in the following months. (See id. at 94). On re-
direct, the Commonwealth asked the following:
[THE COMMONWEALTH]: Sir, [defense counsel]
went over quite extensively the fact that you didn’t
give a statement in this case and come forward and
speak to the police until several months after the
murder, correct?
[HERRING]: Yes, sir.
[THE COMMONWEALTH]: And you, I think you
indicated, on direct examination[,] that was because
you were scared, right?
[HERRING]: Yes, sir.
[THE COMMONWEALTH]: Sir, what─what happens to
witnesses that come forward in the city of Chester?
(Id. at 182-83).
Defense counsel immediately objected to this question,
and the court immediately sustained the objection and called a
sidebar. (See id. at 183). Defense counsel then moved for a
mistrial, and after discussion between the court and counsel, the
court denied the motion for a mistrial[.] . . .
* * *
. . . [T]he Commonwealth [also] called Deputy District Attorney
Daniel McDevitt to testify about a plea agreement that had been
made with . . . Herring [in an unrelated case]. The
Commonwealth called McDevitt to refute the inference raised by
defense counsel that Herring had received special treatment in
exchange for his testimony at trial. McDevitt testified that
Herring had not been promised anything in exchange for his
testimony. He explained that “under the agreement, the
Commonwealth . . . agreed with Mr. Herring that when he went
to sentencing, the Commonwealth would inform the [j]udge of
the nature and extent of his cooperation in this case, but would
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make no other recommendation as to the sentence that the
[j]udge would impose.” (Id. at 219).
When asked on re-direct examination why the felony
charges that had originally been charged in Herring’s underlying
case had been nolle prossed, McDevitt testified that “[t]here was
insufficient evidence to prove that charge in the Court of
Common Pleas.” (Id. at 232). The defense moved for a
mistrial, which [the trial] court denied. (See id. at 233-35). . . .
* * *
. . . Steven Cooper testified that he had met Appellant in prison,
and that Appellant had told him that he had murdered Jabree
Hughes in retribution for killing an individual by the name of
Cuddy.[2] On cross[-]examination, defense counsel challenged
Cooper’s trustworthiness by asking him if he was “somewhat of a
professional testifier in homicide cases.” (Id. at 331). [Cooper]
answered that he had previously testified in other cases and was
scheduled to testify against a former cellmate . . . in an
upcoming homicide trial. (See id. at 333-34). [Cooper] told
defense counsel that he was testifying in four homicide cases
based upon information that he received in prison. (See id. at
338-39).
On re-direct, and in an effort to counter defense counsel’s
attempt to paint the witness as “a professional testifier in
homicide cases”, [(id. at 331),] the Commonwealth asked the
following:
[THE COMMONWEALTH]: Sir, [defense counsel]
went over the fact that you testified before in a
[h]omicide case regarding what somebody in prison
told you.
[COOPER]: Um-hum.
____________________________________________
2
“Cuddy” is spelled both “Cutty” and “Cuddy” in the record. (N.T. Trial,
10/23/12, at 324; N.T. Trial, 10/24/12, at 374; see also Trial Court
Opinion, 12/11/13, at 23, 27).
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[THE COMMONWEALTH]: Who was the [d]efendant
in that case?
[COOPER]: James Armstrong.
* * *
[THE COMMONWEALTH]: And James Armstrong was
convicted of [f]irst [d]egree [m]urder, was he not?
[COOPER]: Yes, sir.
(Id. at 361).
Defense counsel then objected and the court sustained the
objection. [(See id.; see id. at 370).] Following a lengthy
discussion at sidebar, the court denied counsel’s request for a
mistrial, [see id. at 371),] and gave the following curative
instruction[, which defense counsel agreed was sufficient]: “All
right[.] [L]adies and gentlemen of the jury[,] you are to
disregard the witness’s testimony regarding the outcome of any
other trial that he participated in. The witness was not present
for the verdict. The witness has no idea why the jury reached
whatever verdict they reached. And you jurors are to disregard
that[,] and not to consider it in your deliberations.” . . . (Id. at
375).
* * *
At trial, Detective [William] Gordon testified about his
involvement in the investigation of the homicide of Jabree
Hughes. He was shown a surveillance video of the crime scene,
recounted his interviews with Alvin Herring and Steven Cooper,
and testified to his knowledge of . . . []Cutty[]. (See N.T. Trial,
10/24/12, at 364-74). Gordon testified[, over defense counsel’s
objection,] that based upon the results of his investigation and
his professional opinion, he believed that [Appellant’s co-
defendant,] Myron [Darnell] Minor[,3] shot [him].[4] (See id. at
____________________________________________
3
Myron Darnell Minor was also found guilty of murder, conspiracy to commit
murder, and firearms not to be carried without a license for the death of
(Footnote Continued Next Page)
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[391-]92). Gordon testified [on re-cross examination,] that he
based his opinion on the fact that he didn’t believe that anyone
else was shooting that night. (See id. at 398). . . .
The court [did] not believe that the probative value of
[Detective Gordon’s testimony that Myron Minor shot Appellant]
was outweighed by any prejudicial impact.
(Trial Ct. Op., at 18-19, 21-24, 26-27 (citation formatting provided)
(footnotes and emphasis omitted)).
On October 31, 2012, the jury found Appellant guilty of the
aforementioned charges. This timely appeal5 followed.6
Appellant raises the following questions for our review:
I. [Whether the] [t]rial [c]ourt err[ed] where it denied
[Appellant’s] request for a mistrial after the Commonwealth
engaged in prosecutorial misconduct by suggesting to the jury,
through the examination of witness Alvin Herring, that witnesses
_______________________
(Footnote Continued)
Jabree Hughes. He currently has an appeal pending before this Court at
docket number 444 EDA 2013.
4
Appellant suffered a bullet wound at the crime scene. (See N.T. Trial,
10/24/12, at 266). While being treated for the injury at Crozer Chester
Medical Center, he told Detective Gordon and Detective Charles Bothwell
that he got shot at the scene of Jabree Hughes’s shooting when “two boys
walked past [and] shots were fired.” (Id. at 265).
5
Appellant filed separate notices of appeal for his convictions at docket
numbers CP-23-CR-0004425-11 and CP-23-CR-0004413-11. On April 19,
2013, this Court consolidated the appeals sua sponte. (See Per Curiam
Order, 4/19/13, at 1).
6
Pursuant to the trial court’s order, Appellant filed a timely Rule 1925(b)
statement on April 16, 2013. See Pa.R.A.P. 1925(b). The court filed a Rule
1925(a) opinion on December 11, 2013. See Pa.R.A.P. 1925(a).
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to crimes in Chester City in general are subject to physical harm
by testifying?
II. [Whether the trial court] err[ed] where the [c]ourt
permitted the Commonwealth to introduce evidence through
Deputy District Attorney McDevitt in an effort to establish that
the lead charge of [d]rug [d]istribution was dropped in the
prosecution of Commonwealth witness Alvin Herring because the
case lacked sufficient evidence, and all where the witness was
not qualified to testify to same, and where no expert report was
provided to counsel?
III. [Whether the] [t]rial [c]ourt err[ed] where it denied
[Appellant’s] [m]otion for a [m]istrial and permitted
Commonwealth witness Steven Cooper to testify that the other
murder cases he testified in had resulted in convictions?
IV. [Whether the] [t]rial [c]ourt err[ed] where the [c]ourt
permitted the testimony of Detective Gordon as to who shot
[Appellant], when that testimony was rampant speculation,
conjecture and surmise?
(Appellant’s Brief, at 3).
In Appellant’s first and third issues, he challenges the trial court’s
denial of his motions for a mistrial. (See id. at 3, 9-11, 15-16).7
Preliminarily, we observe that “[g]ranting a mistrial is an extreme
remedy, and we defer to the trial court’s discretion on the matter. A trial
court need only grant a mistrial where the alleged prejudicial event may
reasonably be said to deprive the defendant of a fair and impartial trial.”
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7
For ease of disposition, because Appellant’s first and third issues challenge
the trial court’s denial of his motions for a mistrial, we will address them
together; and then we will review the second and fourth questions, which
maintain that the trial court erred in making evidentiary decisions. (See
Appellant’s Brief, at 3, 9-18).
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Commonwealth v. King, 959 A.2d 405, 418 (Pa. Super. 2008) (citations
and internal quotation marks omitted).
Further,
[i]t is well-settled that the review of a trial court’s denial of
a motion for a mistrial is limited to determining whether the trial
court abused its discretion. An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will . . . discretion is abused. A trial court may grant a
mistrial only where the incident upon which the motion is based
is of such a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict.
Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011), cert.
denied, 132 S.Ct. 2377 (2012) (citations and internal quotation marks
omitted).
In Appellant’s first issue, he claims that the trial court abused its
discretion in denying his motion for a mistrial on the basis of the
prosecutor’s question to Herring, “[W]hat happens to witnesses that come
forward in the City of Chester?” (Appellant’s Brief, at 9). Appellant argues
that, although this question was not answered, it was “intentionally designed
by a prosecutor to infect the jury wit [sic] the belief that all witnesses in
Chester were subject to physical harm as a result of testifying.” (Id.).
Appellant’s issue does not merit relief.
“[T]o obtain relief for alleged prosecutorial misconduct, (which is the
framework in which this issue is cast), appellant must establish the
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prosecutor’s conduct had the unavoidable effect of prejudicing the jury . . .
as to render it incapable of fairly weighing the evidence and arriving at a just
verdict.” Commonwealth v. Brown, 987 A.2d 699, 709 (Pa. 2009), cert.
denied, 131 S.Ct. 76 (2010) (citation and internal quotation marks omitted).
Further,
[t]he scope of redirect examination is largely within the
discretion of the trial court. An abuse of discretion is not a mere
error in judgment but, rather, involves bias, ill will, partiality,
prejudice, manifest unreasonableness, or misapplication of law.
Moreover, when a party raises an issue on cross-examination, it
will be no abuse of discretion for the court to permit re-direct on
that issue in order to dispel any unfair inferences.
Commonwealth v. Fransen, 42 A.3d 1100, 1117 (Pa. Super. 2012),
appeal denied, 76 A.3d 538 (Pa. 2013) (citations and quotation marks
omitted).
Here, Appellant has failed to establish prosecutorial misconduct where,
other than general statements that he was “grotesquely prejudice[ed]” by
the Commonwealth’s question, he utterly fails to identify any actual
prejudice. (Appellant’s Brief, at 9; see id. at 9-11); see also Brown,
supra at 709. In fact, Herring did not respond to the Commonwealth’s
question before the court sustained defense counsel’s objection, and “[i]t is
difficult to see how the jury could have drawn any inferences whatever from
the unanswered question alone. Therefore, the question had no prejudicial
effect.” Commonwealth v. Garcia, 479 A.2d 473, 479-80 (Pa. 1984)
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(concluding that defendant not prejudiced by prosecutor’s question where
witness did not respond before objection sustained).
Additionally, defense counsel cross-examined Herring raising the
inference that he had not come forward sooner because he was fabricating
his version of events in return for a plea deal. (See N.T. Trial, 10/23/12, at
93-94). In response, the Commonwealth asked the question in an attempt
“to dispel any unfair inferences” raised by Appellant’s attorney. Fransen,
supra at 1117 (citation omitted); (see also N.T. Trial, 10/23/12, at 187).
Accordingly, we conclude that the trial court did not abuse its
discretion when it denied Appellant’s motion for a mistrial. See
Chamberlain, supra at 422. Appellant’s first issue does not merit relief.
In his third issue, Appellant claims that the trial court abused its
discretion in denying his motion for a mistrial after it “permit[ed] witness
Steven Cooper to testify that other murder cases in which he had testified
resulted in convictions.” (Appellant’s Brief, at 15). Specifically, Appellant
argues, “[a]ll that the testimony did was to impermissibly bolster the
credibility of Steven Cooper.” (Id. at 16). We disagree.
It is well-settled that:
The trial court is in the best position to assess the effect of
an allegedly prejudicial statement on the jury, and as such, the
grant or denial of a mistrial will not be overturned absent an
abuse of discretion. . . . Likewise, a mistrial is not necessary
where cautionary instructions are adequate to overcome any
possible prejudice.
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Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000), cert.
denied, 533 U.S. 932 (2001) (citations omitted).
In the case before us, Appellant has failed to demonstrate any actual
prejudice to support his claim, and instead engages in speculation. (See
Appellant’s Brief, at 15-16).
Additionally, the record reveals that, on cross-examination, defense
counsel elicited from Cooper that he had given the Commonwealth
information in four homicide cases, and was scheduled to testify against an
individual named James Armstrong. (See N.T. Trial, 10/23/12, at 331-39).
He asked the witness, “you’re something of a professional testifier in
[h]omicide cases, aren’t you?” (Id. at 331). On cross-examination, the
Commonwealth established that Cooper had already testified in Armstrong’s
case, and that Armstrong was convicted of first degree murder. (See id. at
361). Thereafter, the trial court sustained defense counsel’s objection,
denied his motion for a mistrial, and gave the jury a curative instruction
advising it “to disregard [Cooper’s] testimony regarding the outcome of any
other trial that he participated in [because he] was not present for the
verdict [and] has no idea why the jury reached whatever verdict they
reached.” (Id. at 375; see id. at 371, 375). Defense counsel agreed that
the court’s curative instruction was sufficient. (See id.).
Therefore, Appellant has failed to prove that he was prejudiced by
Cooper’s testimony about another verdict, where the court struck the
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response, and gave the jury a curative instruction that it is presumed to
have followed. See Simpson, supra at 1272. Accordingly, the trial court
did not abuse its discretion when it denied Appellant’s motion for a mistrial
on this basis. See Chamberlain, supra at 422. Appellant’s third issue
lacks merit.
In Appellant’s second and fourth issues, he argues that the trial court
erred in permitting certain testimony by Commonwealth witnesses. (See
Appellant’s Brief, at 3, 12-14, 17-18). We disagree.
Our standard of review of the trial court’s admission of evidence is
well-settled:
Admission of evidence is a matter within the sound
discretion of the trial court, and will not be reversed absent a
showing that the trial court clearly abused its discretion. Not
merely an error in judgment, an abuse of discretion occurs when
the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence on record.
Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (citation
omitted).
Further,
Evidence may . . . be excluded if the probative value is
outweighed by the danger of unfair prejudice. Pa.R.E. 403.
Evidence is not unfairly prejudicial simply because it is harmful
to the defendant’s case. The trial court 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. Exclusion of evidence on the grounds that it is prejudicial
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.
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Commonwealth v. Flamer, 53 A.3d 82, 88 n.7 (Pa. Super. 2012) (case
citations and quotation marks omitted).
Here, in his second issue, Appellant maintains that the trial court
abused its discretion when it “permitted Deputy District Attorney McDevitt to
offer improper and irrelevant opinion evidence with regard to the reasons for
the voluntary dismissal of [possession with intent to deliver cocaine] charges
against Commonwealth witness Alvin Herring.” (Appellant’s Brief, at 12).
Specifically, Appellant argues that “[i]t was important for the jury to know
that Herring had received a plea bargain in which serious charges were
dropped to much more minor charges. What McDevitt believed was
irrelevant.” (Id. at 14). Appellant’s issue lacks merit.
Pursuant to Pennsylvania Rule of Evidence 602, a fact witness “may
testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to
prove personal knowledge may consist of the witness’s own testimony.”
Pa.R.E. 602. Also, as we stated above, “when a party raises an issue on
cross-examination, it will be no abuse of discretion for the court to permit
re-direct on that issue in order to dispel any unfair inferences.” Fransen,
supra at 1117 (citation omitted).
In the present case, Deputy District Attorney McDevitt, who was in
charge of the prosecution at Herring’s trial, testified about his personal
knowledge of the addendum to Herring’s plea agreement. (See N.T. Trial,
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10/23/12, at 217, 230); see also Pa.R.E. 602. He stated that, pursuant to
the addendum, which McDevitt had signed himself, Appellant would plead
guilty to lesser charges and, in return, the Commonwealth only would inform
the sentencing judge of his cooperation in this case, but those were the
entire terms of the agreement. (See id. at 219). On cross-examination,
defense counsel established that, with the Commonwealth’s approval,
Herring pleaded guilty to lesser charges that he faced, and that, if he did not
comply with the agreement’s terms, it would be void. (See id. at 220-25).
Co-defendant’s counsel thoroughly questioned McDevitt about the applicable
sentencing guidelines for the lesser charges to which he pleaded and for the
felony charge that was nolle prossed pursuant to the agreement. (See id.
at 225-28). She established that, pursuant to the plea agreement, Herring
was required to cooperate with the Commonwealth in this case. (See id.).
On re-direct, in an effort to dispel any unfair inference created by defense
counsels’ questions regarding the plea agreement’s terms, the prosecutor
asked McDevitt why the felony charge had been withdrawn, and McDevitt
stated that “[t]here was insufficient evidence to prove that charge to the
Court of Common Pleas.” (Id. at 232).
Based on the foregoing, we conclude that Appellant’s contention that
McDevitt impermissibly offered expert testimony is belied by the record, in
which he testified as a fact witness with personal knowledge of Herring’s
plea agreement and case. See Pa.R.E. 602. Additionally, the trial court
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properly exercised its discretion in denying Appellant’s motion for a mistrial
on the basis of McDevitt’s testimony, where such testimony was relevant to
rebut the inference raised by defense counsel that the felony charges
against Herring were withdrawn pursuant to the plea agreement. See
Akbar, supra at 235; Fransen, supra at 1117. Appellant’s second issue
does not merit relief.
In his fourth issue, Appellant argues that the trial court erred when it
“permit[ed] Sergeant Gordon to testify as to rank speculation, to wit, that
[Appellant] was shot by codefendant Myron Minor.” (Appellant’s Brief, at
17). We disagree.
At trial, Detective Gordon testified about his involvement in the
investigation of the homicide of Jabree Hughes. The Commonwealth showed
him video surveillance of the crime scene, and he recounted his interviews
with Herring and Cooper. (See N.T. Trial, 10/24/12, at 364-74). On cross-
examination, defense counsel reviewed Detective Gordon’s report and notes,
and asked the names of individuals who were identified during the
investigation as possibly having been involved in the shooting. (See id. at
377-86). Detective Gordon testified on cross that his notes stated that
Herring was a potential suspect. (See id. at 385). On redirect, Detective
Gordon clarified that, based on the result of his further investigation and his
professional opinion, he “absolutely” did not believe Herring shot Appellant.
(Id. at 391). The Commonwealth asked Detective Gordon who he believed
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shot Appellant, and he stated that “I think he was shot by Myron Minor.”
(Id. at 392; see id. at 391). On re-cross examination, Detective Gordon
admitted that he did not have any facts or eyewitnesses to support his
conclusion. (See id. at 398-99).
Based on the foregoing, despite Detective Gordon’s admission on re-
cross that he did not have facts or eyewitnesses to support his conclusion,
the trial court properly allowed the Commonwealth to elicit further testimony
on subjects covered on cross-examination. Detective Gordon’s testimony
was not mere speculation where he was involved in the investigation,
reviewed video surveillance, and had conducted interviews with witnesses.
It was for the jury to decide how much weight to give the testimony, see
Commonwealth v. Moreno, 14 A.3d 133, 135 (Pa. Super. 2011), appeal
denied, 44 A.3d 1161 (Pa. 2012), and the trial court did not abuse its
discretion in allowing the testimony where it was relevant to the rebuttal of
any inferences raised by defense counsel on cross-examination that Herring
shot Jabree Hughes. See Akbar, supra at 235; Flamer, supra at 88 n.7;
Fransen, supra at 1117. Appellant’s fourth issue does not merit relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
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