Com. v. Green, D.

J-S54012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOMINIC TREVON GREEN,
Appellant No. 1487 WDA 2015
Appeal from the Judgment of Sentence Entered August 10, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0005752-2015
CP-02-CR-0013225-2014
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 12, 2016
Appellant, Dominic Trevon Green, appeals from the judgment of
sentence of five to ten years’ incarceration, imposed after a jury convicted
him of one count of persons not to possess a firearm, 18 Pa.C.S. §
6105(a)(1). Appellant challenges the trial court’s admission of certain
evidence that he argues was precluded by the court’s ruling on his pretrial
motion in limine. After careful review, we affirm.
The trial court briefly summarized the evidence presented at
Appellant’s trial as follows:
[O]n August 2, 2014, Alexis Markey, her infant daughter,
[Appellant] and several others were hanging out at [Markey’s]
residence at the Cambridge Square Apartments in Monroeville.
At some point, the gathering moved out to the parking lot and
when everyone was getting into Markey’s vehicle, [Appellant]
got into an altercation with the others over who got to sit in the
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front passenger seat. [Appellant] then pulled out a gun and
threatened to “shoot the car up.” Monroeville Police Officers
arrived on the scene shortly thereafter, having been summoned
by an anonymous … 911 [caller] who described [Appellant] and
the vehicle. Once all of the individuals had been removed from
the car, Officer Brad Martin looked in the car and saw a firearm
protruding from below the back of the front passenger seat, [in
front of] where [Appellant] had been sitting [in the back seat].
Alexis Markey and Patricia Kurn both gave statements to the
[p]olice indicating that the gun found belonged to [Appellant].
Trial Court Opinion (TCO), 1/14/16, at 1-2 (citation to the record omitted).
Based on these facts, the jury convicted Appellant of the above-stated
offense and he was sentenced as stated supra. Appellant filed a timely
notice of appeal, and also timely complied with the court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Herein, Appellant presents one issue for our review: “Did the trial court
abuse its discretion by overruling defense counsel’s objection and failing to
strike a witness’ prejudicial testimony relating to a 911 call when that
testimony had previously been excluded by an in limine ruling?” Appellant’s
Brief at 5.
Before addressing Appellant’s argument, we note that,
[t]he standard of review employed when faced with a challenge
to the trial court's decision as to whether or not to admit
evidence is well settled. Questions concerning the admissibility of
evidence lie within the sound discretion of the trial court, and a
reviewing court will not reverse the trial court's decision absent a
clear abuse of discretion. Abuse of discretion is not merely an
error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.
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Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation
omitted). We also point out that, “[i]n order to preserve for appellate review
any claim of error regarding the admission of evidence, a party must
specifically object to the admission of such evidence at trial.”
Commonwealth v. Boyd, 679 A.2d 1284, 1289 (Pa. Super. 1996) (citation
omitted). “Failure to do so results in a waiver of that claim of error in the
evidence’s admission.” Id. (citation omitted).
Briefly, Appellant claims that the trial court issued a pretrial ruling
excluding any witness from testifying that the anonymous person who called
911 had stated that a person was ‘waving a gun’ outside Alexis Markey’s
vehicle. Nevertheless, during trial, the court overruled defense counsel’s
objection when Markey testified about that remark by the 911 caller.
Appellant explains that he objected to this ‘double hearsay’ but the court
overruled his objection, as well as his later request for a mistrial. Instead,
the court simply provided a cautionary instruction to the jury. Appellant
repeatedly stresses on appeal that the court’s allowing Markey’s at-issue
testimony violated its pretrial ruling. He also asserts that admitting
Markey’s testimony caused him significant prejudice that was not cured by
the cautionary instruction provided by the trial court. Accordingly, Appellant
maintains that he is entitled to a new trial.
After careful review of the record, we disagree that a new trial is
warranted. By way of background, at the start of trial, defense counsel and
the court discussed Appellant’s oral motion in limine, as follows:
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[Defense Counsel]: We talked about it and correct me if I am
wrong, but I believe you said they are allowed to say that they
responded for a report of an argument at the address with a red
Ford SUV.
THE COURT: And the person arguing was wearing gray
sweatpants, but not to mention that the 9-1-1 caller said that
there was a gun.
N.T. Trial, 5/11-5/12/15, at 3.
When Alexis Markey later took the stand for the Commonwealth, she
mentioned the 911 caller’s statement about a gun during the following
exchange:
[The Commonwealth:] On August 2, what did you tell the police
had occurred just before they showed up on the scene?
[Markey:] When I was at the police station, Officer Skoog, [I]
think that’s her name, pulled me into the room by myself and
told me that I had to tell her the whole truth or I was going to
go to jail. So, she asked if that call for the 9-1-1 was true, that
there was a gun being waived outside of my car.
Id. at 81 (emphasis added). In response to Markey’s mention of the 911
caller’s reference to a gun, defense counsel stated: “Objection. And I ask
that the last response be stricken.” Id. The court overruled that objection
and request, simply stating, “I’ll overrule[].” Id. at 82.
The Commonwealth’s questioning of Markey continued. At one point,
Markey stated, “there was just a little altercation about seats. And that’s
when somebody called into the police station and said that they saw a gun
being waived outside of my car with a child in it.” Id. at 82. A short while
later, Markey testified that her “neighbor called about the gun being waived
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outside of [Markey’s] car.” Id. at 84. Appellant did not object to either of
these subsequent references to the 911 call by Markey.
On the morning of the second day of trial, defense counsel made an
oral motion for a mistrial, stating:
[Defense Counsel]: In regards to what Alexis [Markey] testified
to on direct examination about the 9-1-1 call, she mentioned the
information that Your Honor specifically excluded under a motion
in limine. Now, I’m not saying that [the Commonwealth]
solicited it by any means, but it was [the prosecutor’s] obligation
to inform her witnesses when there is a granted motion in limine
to not mention that information.
As such, I would move at this time for a mistrial because
information that was specifically excluded by Your Honor was
brought in on direct from the Commonwealth witness.
Id. at 99.
In response, the Commonwealth stressed that it had advised the police
officers not to testify about the mention of a gun by the 911 caller, and it
explained that it had not known that Markey was aware of content of the
911 call. Id. at 99-100. The court stated that it was clear from the officers’
testimony that they knew not to mention the gun reference by the 911
caller, and the court further concluded that “the response that … Markey
gave was not responsive to the question asked.” Id. at 101. Ultimately, the
court declined to declare a mistrial, but directed that the Commonwealth not
mention, in its closing argument, the 911 caller’s reference to a gun. Id.
Additionally, the court offered to give the jury a cautionary instruction, which
defense counsel approved. Id. Accordingly, the jury was instructed as
follows: “[Y]esterday you heard evidence that Alexis Markey referred to a 9-
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1-1 call. This evidence is inadmissible and must be disregarded by you.”
Id. at 103.
Based on this record, we first conclude that Appellant has waived the
specific arguments he presents herein. First, while Appellant objected to
Markey’s initial mention of the 911 caller’s gun comment, he did not offer
any specific basis for that objection. Even more problematic is Appellant’s
utter failure to lodge any objection when Markey made two more, nearly
identical references to that 911 call later in her testimony. Because Markey
testified about the content of the 911 call without an objection by Appellant,
we conclude that he has waived his claim that admitting such testimony was
error by the court.
In any event, we would also agree with the Commonwealth and the
trial court that Markey’s testimony was not so prejudicial as to warrant a
new trial. First, the trial court clearly instructed the jury to disregard
Markey’s mention of the 911 call, and we must presume that the jury
followed that instruction. Commonwealth v. Baker, 614 A.2d 663, 672
(Pa. 1992). Additionally, as the Commonwealth stresses throughout its
brief, Markey did not testify that the 911 caller identified Appellant, or even
someone matching Appellant’s description, as the person waving the gun;
instead, Markey simply stated that the 911 caller said someone was waiving
a gun outside her vehicle. Given that there were five adults, including
Appellant, present in Markey’s car when police arrived, Markey’s testimony
did not clearly convey to the jury that the 911 caller claimed to see
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Appellant with a firearm. Moreover, both Markey and Patricia Kurn testified
at trial that they saw Appellant with the gun. Thus, there was ample other
evidence of Appellant’s guilt, aside from Markey’s mention of a vague
comment by the 911 caller. Under these facts, we would reject Appellant’s
argument that “[t]he jury very well could have found [Appellant] guilty
based solely on the hearsay testimony presented about the 911 call.”
Appellant’s Brief at 21.
Additionally, while Appellant maintains that the court’s admission of
Markey’s testimony unfairly surprised him and “likely hindered the
defense[,]” id., he offers no explanation of what he would have done
differently had he known such evidence would be admitted. Thus, we would
not accept his bald allegation that he was prejudiced simply due to his being
surprised by the admission of Markey’s at-issue testimony.
In sum, we conclude that Appellant did not preserve his challenge to
the admission of the challenged evidence, but, even if he had, we would
deem his arguments meritless. Accordingly, we affirm Appellant’s judgment
of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2016
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