Com. v. Stevens, I.

J-S09031-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ISIAH MICHAEL STEVENS, :
:
Appellant : No. 1109 WDA 2018
Appeal from the Judgment of Sentence Entered July 18, 2018
in the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000473-2018
BEFORE: PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.:
FILED APRIL 25, 2019
Isiah Michael Stevens (Appellant) appeals from the judgment of
sentence imposed after he was found guilty of three counts of robbery and
one count each of theft, recklessly endangering another person (REAP),
terroristic threats and receiving stolen property. We affirm.
As a result of an incident that took place on February 7,
2018, [Appellant] was arrested and charged with[, inter alia, the
aforementioned crimes]. At trial, the testimony and evidence
established the following.
Yvonne Ramsey testified that she is 60 years old and works
at a Long John Silver’s establishment in Uniontown. She had been
employed there for over 40 years and is currently a shift manager.
Her duties include hiring staff, making food orders, overseeing
audits, and taking care of bank deposits.
Ms. Ramsey knew [Appellant] because [Appellant] went to
school with her youngest son. [Appellant] also worked at Long
John Silver’s on two occasions. Most recently, he had worked there
for about one year[,] from 2016 to 2017. Ms. Ramsey stated that
* Retired Senior Judge assigned to the Superior Court.
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she was the one who hired [Appellant], and that they worked side-
by-side in the back. She even considered him a family friend.
While working at Long John Silver’s, [Appellant] was the fry
cook. He worked varying shifts, but normally worked from [9 a.m.
to 4 p.m. or 4 p.m. to 11 p.m. Appellant] was terminated from
his employment early in 2017.
About a year after [Appellant’s employment] was
terminated, on February 7, 2018, Ms. Ramsey arrived for work at
about 8:45 [a.m]. She proceeded to go to the safe and set the
safe because it has a time delay of ten minutes. She then opened
up the different stations of Long John Silver’s. At around 9[:00
a.m.], two other employees arrived; Ms. Ramsey let them in.
After that, the safe started beeping-signaling it was ready-
so Ms. Ramsey went back to the safe. She then began to count
the money and deposit it into a red envelope. There was
$1,090.86. She placed the red envelope into her purse and told
her employees she was going to the bank. This was all part of her
normal, daily routine.
Ms. Ramsey then went to her car, which was parked in the
drive-thru lane on the side of the restaurant[] right next to the
exit door. She got into her car and put her purse on the passenger
seat. The purse still contained the red envelope; the envelope
contained the cash.
Ms. Ramsey heard footsteps. The next thing she knew, Ms.
Ramsey was being pushed back against her seat by [Appellant.
Appellant] said, “Give me your fuckin’ purse.” As he reached for
the purse, the two of them struggled briefly for control and Ms.
Ramsey suffered a cut to her thumb. When Ms. Ramsey saw that
[Appellant] was holding a silver, six-inch steak knife with serrated
edges, she feared for her life and then just handed [Appellant] the
purse. He exited the car, went around the vehicle, and started to
run off.
Ms. Ramsey knew who the assailant was while the heist was
unfolding; she could see his face and his hazel eyes. She also
knew him by the sound of his voice. [Appellant] was laying [sic]
across her body in the car as he stretched to get the purse. His
face was six inches from hers. Ms. Ramsey remembered
[Appellant’s] attire that day: he was wearing a black, hooded
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sweatshirt with the hood up, black pants, dark shoes, and a red
belt. He also wore latex gloves.
After [Appellant] took the purse and began running off, Ms.
Ramsey screamed at him, “[Appellant], please don’t do this.” Ms.
Ramsey ran back inside the store and immediately called her
husband. She then called the police and told them what happened.
The state police arrived. Ms. Ramsey gave a statement and told
the investigating trooper that [Appellant] was the assailant.
Ms. Ramsey testified that her purse also had her wallet,
sunglasses, medication, and other items inside. The cost of those
items totaled approximately $800. She never got those back.
The Commonwealth also called Trooper Jason Ashton of the
Pennsylvania State Police to testify. Trooper Ashton was the
investigating officer in this case. After talking with [Ms. Ramsey],
Trooper Ashton got an arrest warrant for [Appellant]. The Trooper
also went to search the residence of [Appellant], located at 13
Front Street, Apartment 3 in Dunbar, Pennsylvania.
When he arrived at the residence, Trooper Ashton made
contact with Ms. Ashley Breakiron, who also lived there. Ms.
Breakiron was the girlfriend of [Appellant]. She gave written
consent for Trooper Ashton to search the residence. Trooper
Ashton proceeded to the kitchen where he found a variety of
knives. There were six knives that fit into a butcher block. One
slot in the block was missing a knife. The Trooper took pictures of
the knife set with the missing knife.
There was other evidence in the testimony that corroborated
[Appellant’s] culpability in the theft. For example, Ms. Ramsey
testified that when [Appellant] worked at Long John Silver’s, he
worked about three feet away from where she counted and
deposited money each morning and that he had an opportunity to
observe her. Trooper Ashton testified that right before this
incident, [Appellant] had a vehicle impounded. Right after the
incident, [Appellant] was able to get his car back for $230, paid
for with cash by Ms. Breakiron.
Trial Court Opinion, 11/13/2018, at 1-4.
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Following a jury trial, Appellant was convicted of the abovementioned
crimes, and on July 18, 2018, the trial court sentenced Appellant to four and
one-half to nine years of incarceration. Appellant did not file a post-sentence
motion. This timely-filed appeal followed.1 On appeal, Appellant presents
one issue for our consideration: whether the trial court “erred in allowing the
Commonwealth to introduce photographs and testimony regarding a missing
knife from a knife set found in [Appellant’s girlfriend’s] residence?”2
Appellant’s Brief at 3 (unnecessary capitalization omitted).
Our standard of review for the admission of evidence is well-settled.
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. Manivannan, 186 A.3d 472, 479-80 (Pa. Super. 2018)
(citation omitted).
In support of his claim, Appellant sets forth the following argument in
his appellate brief.
In the present case, the [trial c]ourt permitted the
Commonwealth to introduce a photograph through the testimony
1
Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.
2
At trial, Appellant conceded that he and his girlfriend, Ms. Breakiron, lived
together at the Front Street apartment during the relevant period of time.
N.T., 7/9/2018, at 72.
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of Trooper [] Ashton showing a missing knife from a set of six
knives that were found in a butcher block at [Ms.] Breakiron’s
residence. The Commonwealth through this photograph and
testimony was attempting to draw the inference that the knife in
the butcher block was used in the robbery. However, the
Commonwealth provided no evidence at trial linking this missing
knife as the weapon allegedly used in the robbery. Without such
evidence there are countless reasons why a knife could be missing
from a butcher block set besides the reason that the knife was
used to commit a robbery. Therefore[, the trial court] erred in
failing to sustain [defense counsel’s] objection that the
photograph showing a knife missing from butcher block as
speculative, because the Commonwealth sought to unfairly
prejudice [Appellant] by suggesting a decision to the jury on an
improper basis–that the missing knife was used in the robbery
when no evidence was provided to link the missing knife to the
weapon used in the robbery.
Appellant’s Brief at 7-8 (citation omitted).
In this case, in its case-in-chief, the Commonwealth, during Ms.
Ramsey’s testimony, attempted to introduce photographs taken by Trooper
Ashton during his search of the apartment Appellant shared with Ms.
Breakiron. N.T., 7/9/2018, at 34. These three pictures included two
photographs of various-sized knives and one photograph of a butcher block
with a missing knife, all which were found in Appellant’s kitchen. See
Commonwealth’s Exhibits 1-3.
Before Ms. Ramsey viewed the photographs, Appellant requested a
sidebar discussion, which the trial court allowed. Appellant explained to the
trial court that the “photographs were taken from [Ms. Breakiron’s] residence.
Th[e Commonwealth] is trying to allege that a knife was missing from the set.
It’s purely speculative … [Ms. Breakiron has not] testified a knife was missing.”
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N.T., 7/9/2018, at 35. Appellant then told the trial court “[m]y objection
would be that there is no foundation,” i.e., the photographs could not be
introduced during Ms. Ramsey’s testimony because a proper foundation had
yet to be established. Id. at 36. The Commonwealth and Appellant set forth
their respective arguments.
Ultimately, the trial court determined that the Commonwealth would not
be allowed to present the photographs through Ms. Ramsey, agreeing with
Appellant that the Commonwealth could not “lay a foundation through [Ms.
Ramsey] as a witness.” Additionally, the trial court determined that it was
“more appropriate to raise [this] circumstantial evidence through” Trooper
Ashton’s testimony. Id. at 37. Appellant did not raise any further objections.
The sidebar conversation concluded with a brief discussion regarding
what Trooper Ashton could testify to with respect to the photographs. Among
other things, the trial court agreed with Appellant that Trooper Ashton was
prohibited from stating definitively that a knife was “missing.” Id. at 38. The
trial court also made it clear that Appellant could cross-examine Trooper
Ashton to “dispel the inference that may be made” from the introduction of
this evidence. Id. Appellant did not object to the trial court’s ruling regarding
the Commonwealth’s ability to introduce the photographs through Trooper
Ashton’s testimony.
Trial continued and upon the conclusion of Ms. Ramsey’s testimony, the
Commonwealth called Trooper Ashton to the stand. The Commonwealth
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questioned Trooper Ashton about the search of Appellant’s apartment and the
discovery he made in the kitchen with respect to the butcher block. Id. at
51-52. Then, the Commonwealth introduced photographs taken by Trooper
Ashton, including one that showed the butcher block with one empty slot and
another that showed several knives, some of which were identical matches to
one another. Id. at 52-53. Trooper Ashton explained that he had searched
the kitchen and was unable to find the knife that fit into the empty slot. Id.
at 51. Regarding this evidence and its purported connection to the robbery,
Trooper Ashton testified, inter alia, that he showed the photographs to Ms.
Ramsey who immediately recognized one of the knives. Id. at 55. The
photographs were later admitted into evidence and published to the jury. Id.
at 56. No objection was made.
Upon review of the transcript from Appellant’s trial, it is clear that
Appellant’s counsel did not object during Trooper Ashton’s testimony nor did
he object to the introduction of any photograph presented to Trooper Ashton
or its subsequent admission into evidence. Id. at 56. “We have long held
that [f]ailure to raise a contemporaneous objection to the evidence at trial
waives that claim on appeal.” Commonwealth v. Thoeun Tha, 64 A.3d 704,
713 (Pa. Super. 2013) (citations and quotation marks omitted). Here, we find
that by failing to lodge contemporaneous objections at the time Trooper
Ashton made the purportedly objectionable statements or at the time the
photographs were introduced through the Trooper’s testimony, Appellant
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waived his claim on appeal. See Commonwealth v. Cornelius, 180 A.3d
1256, 1261–62 (Pa. Super. 2018) (finding claim challenging denial of motion
for mistrial waived where defense counsel failed to object at the time the
alleged prejudicial statement was made); see also Commonwealth v.
Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a timely
and specific objection before the trial court at the appropriate stage of the
proceedings will result in waiver of the issue.”).
Even if we were to reach the merits of Appellant’s claim, he would not
prevail on appeal. Here, the trial court found “[t]he photograph of the knife
set was relevant, was not unduly prejudicial to [] Appellant, and was properly
authenticated.” Trial Court Opinion, 11/13/2018, at 7. In support of its
findings, the trial court set forth the following.
[I]n Commonwealth v. Miller, 897 A.2d 1281, 1287-88
(Pa. Super. [] 2006), th[is Court] upheld the admission of
photographs of a knife set with a knife missing [in Miller’s murder
trial]. In Miller, during the execution of a search warrant, police
discovered a knife set in the trunk of [Miller’s] vehicle; one of the
knives was missing. Police took photographs of the incomplete
knife set. The knife set and the photographs of the knife set were
admitted as exhibit at trial, used as circumstantial evidence that
[Miller] committed [the] murder with the missing knife. In holding
that the evidence was admissible, th[is Court] stated[ the
following.]
Clearly, testimony presented with regard to a knife set,
minus one, found in the trunk of [Miller’s] car, was relevant, to
show that [Miller] was in possession of a knife [that] could have
been one of the murder weapons.
The issue at hand is analogous to that in Miller. Here, Ms.
Ramsey testified to being robbed at knifepoint by [Appellant]. She
described the knife in detail, saying that it was a silver, six-inch
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blade with serrated edges. When Trooper Ashton searched
[Appellant’s] kitchen, the [T]rooper found a knife set and butcher
block for the knives. All of the knives were located expect for one.
Further, the Trooper testified he looked everywhere in the kitchen-
the sink, the drawers- for the missing knife that would have fit
with the knife set. He did not find it. The Trooper also testified
that the knife missing from the set should have been a six-inch
blade.
Like Miller, the absence of one of the knives in [Appellant’s]
kitchen makes it more or less probable that the missing knife was
used in the commission of the robbery. It is up to the jury to
determine the weight and credibility of that evidence.
***
There was also no unfair prejudice to Appellant in the
admission of the photograph of the knife set. There is nothing
inherently disturbing about a kitchen knife set that would inflame
the minds and passions of a jury.
Trial Court Opinion, 11/13/2018, at 6-7 (citations omitted).
Our review of the certified record and applicable case law supports the
trial court’s determination. “Evidence is relevant if: (a) it has any tendency
to make a fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Pa.R.E. 401.
The fact the accused had a weapon or implement suitable to the
commission of the crime charged, such as a knife ... is always a
proper ingredient of the case for the prosecution. [Our Supreme
Court] has repeatedly held that the prosecution need not establish
that a particular weapon was actually used in the commission of a
crime in order for it to be admissible at trial. The only burden on
the prosecution is to lay 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. Moreover, the admission
of such demonstrative evidence is a matter within the discretion
of the trial judge and, absent an abuse of his discretion, his
decision must stand.
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Commonwealth v. Lee, 662 A.2d 645, 652 (Pa. 1995) (citations and
quotation marks omitted).
In this case, the evidence presented at trial established that Ms. Ramsey
was robbed at knifepoint by an assailant she immediately identified as
Appellant, who was wielding a six-inch serrated knife. N.T., 7/9/2018, at 30-
32. While searching the kitchen in Appellant’s apartment shortly after the
robbery, Trooper Ashton found a knife set with one knife unaccounted for. Id.
at 51-53. Trooper Ashton opined that the missing knife would have a six-inch
blade and would match other knives found in the kitchen. Id. at 54. Trooper
Ashton testified that despite his search of Appellant’s kitchen, he was unable
to find the missing knife. Id. Notably, Trooper Ashton testified that after
taking pictures of the knives and the knife set, he showed the photographs to
Ms. Ramsey, who “immediately” pointed to one of the knives. Id. at 55.
In light of the foregoing testimony, we find the Commonwealth laid a
proper foundation to justify the inference that the knife used in the robbery
by Appellant was the missing knife from the set, and as such, determine that
the photographs of the knives and the knife set constituted relevant
circumstantial evidence. Therefore, we conclude that the trial court did not
abuse its discretion in allowing the photographs to be entered into evidence.
Accordingly, Appellant is not entitled to relief from this Court.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2019
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