Com. v. Williams, R.

J-A29017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RODNEY ALLEN WILLIAMS,
Appellant No. 1902 WDA 2013
Appeal from the Judgment of Sentence entered August 2, 2013,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-07-CR-0002700-2011
and CP-07-CR-0001025-2012
BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 07, 2014
Rodney Allen Williams (“Appellant”) appeals from the judgment of
sentence imposed after a jury found him guilty at Docket No. 2700-2011 of
possession with intent to deliver cocaine, and at Docket No. 1025-2012 of
three counts of possession with intent to deliver cocaine, and one count each
of dealing in proceeds of unlawful activity, corrupt organizations, criminal
conspiracy to deliver, criminal use of a communication facility, and criminal
attempt. We affirm.
The pertinent facts may be summarized as follows: Between July and
November of 2011, agents from the Pennsylvania Office of Attorney
General’s Bureau of Narcotics Investigation and Drug Control (“NIDC”)
conducted a series of controlled purchases of cocaine and intercepted
* Retired Senior Judge assigned to the Superior Court.
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numerous telephone calls from the telephone of an individual named
Jermaine Samuel, in which Mr. Samuel arranged the purchase, delivery, and
sale of cocaine between Altoona, Pennsylvania and Baltimore, Maryland.
Affidavit of Probable Cause, 11/4/11; N.T., 5/6/13, at 178-205; N.T.,
5/7/13, at 32-161; N.T., 5/8/13, at 1-110. In collaboration with the
Pennsylvania NIDC agents, members of the Baltimore City Police
Department traced the telephone number of one of the recipients of
Jermaine Samuel’s telephone calls to the area of Thornfield Avenue in
Maryland, where they conducted physical and electronic surveillance. N.T.,
5/9/13, at 84-87. By monitoring and tracking telephone records and
telephone signals as well as the suspects’ physical movements, the agents
developed a belief that Appellant, who resided on Thornfield Avenue, was
involved in drug trafficking with Jermaine Samuel. N.T., 5/9/13, at 84-87.
Maryland police officers then subjected Appellant to a traffic stop in an effort
to verify his identity by viewing his driver’s license. N.T., 5/9/13, at 84-87.
Based on the foregoing electronic phone tracking and physical surveillance,
Appellant was arrested and charged with the aforementioned crimes.
Officers additionally identified several other people involved in drug
trafficking with Jermaine Samuel, including Natasha Miller, Shonda Hicks,
Damion Floyd, Brian Stroh, Lieesha Samuel Green, Glenn Piner, Stephen
Piner and Kenneth Piner. Testimony at trial indicated that Jermaine Samuel
distributed cocaine from the Corner Bar in Altoona, Pennsylvania, that
Appellant supplied him with cocaine from Baltimore, and Damion Floyd
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facilitated the purchases of cocaine and its transportation to Altoona, while
Shonda Hicks and Natasha Miller were involved in driving the cocaine and
money between Baltimore and Altoona. N.T., 5/9/13, at 157-159. Steven
and Kenneth Piner participated in distributing the cocaine obtained from
Jermaine Samuel. N.T., 5/6/13, at 112-113.
The jury trial commenced on May 6, 2013, and on May 10, 2013, the
jury rendered its verdicts. The trial court convened a sentencing hearing on
August 2, 2013, when it sentenced Appellant to an aggregate term of
imprisonment of 22 to 44 years. Appellant filed timely post-sentence
motions, which the trial court denied on November 14, 2013. This appeal
followed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant raises the following issues on appeal:
I. WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT RODNEY WILLIAMS’ SEVERAL MOTIONS FOR
MISTRIAL AFTER THE COMMONWEALTH INTENTIONALLY
ELICITED INADMISSIBLE EVIDENCE REGARDING
APPELLANT’S PRIOR CRIMINAL HISTORY THROUGH AGENT
ALBERT ADAMS’ TESTIMONY.
II. WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR A MISTRIAL BASED ON THE
COMMONWEALTH’S IMPROPER STATEMENT DURING
CLOSING ARGUMENT THAT THE JURY SHOULD “SEND A
MESSAGE” BY RETURNING A GUILTY VERDICT.
III. WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION TO SUPPRESS ALL THE EVIDENCE
OBTAINED FROM THE TRAFFIC STOP OF APPELLANT THAT
WAS CONDUCTED AS PART OF A MANUFACTURED RUSE
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AND UNDER FALSE PRETENSES FOR THE SOLE PURPOSE
OF ASCERTAINING HIS IDENTIFICATION IN ORDER TO
UNDERTAKE THE INVESTIGATION THAT ULTIMATELY LED
TO THE CRIMINAL CHARGES FILED AGAINST APPELLANT.
Appellant’s Brief at 4.
In his first issue, Appellant argues that the trial court erred in denying
his motion for a mistrial after the Commonwealth intentionally elicited
inadmissible testimony regarding Appellant’s prior criminal history.
Appellant’s Brief at 15-16. Our Supreme Court recently explained:
A trial court is required to grant a mistrial only where the alleged
prejudicial event may reasonably be said to have deprived the
defendant of a fair and impartial trial. It 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.
A mistrial is not necessary where cautionary instructions are
adequate to overcome prejudice.
Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (internal
quotation marks and citations omitted).
Appellant takes issue with the testimony elicited by the
Commonwealth from NIDC Agent Albert Adams, when questioned about
Appellant’s interaction with Damion Floyd, who was incarcerated at SCI
Camp Hill. Specifically, Appellant challenges the following testimony:
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Deputy Attorney General: With regards to these various
individuals, as far as Shawn and
Rocco, [Appellant] and Jermaine
Samuel, would they, quote, have
been allowed to visit Mr. Floyd in
prison?
Agent Adams: They wouldn’t have been able to.
If you’re a prisoner ... Some of the
restrictions in place as a state
prisoner, if you have criminal
histories or prior felony arrests,
etc., they restrict you from
visiting people in there.
N.T., 5/6/13, at 188 (emphasis added).
Appellant’s counsel objected and requested a mistrial, asserting that a
curative instruction would serve only to highlight the statement, that the
prejudice was incurable, and that a mistrial was the only remedy. N.T.,
5/7/13, at 2-20. The trial court denied Appellant’s motion for a mistrial,
explaining that it “believe[d] the jury can follow a curative instruction” and
that “the more specific the curative instruction the more likely that the jury
will understand the instruction ... and follow it correctly.” Id. at 27. The
trial court then issued the following curative instruction:
Ladies and gentlemen, let me be clear to you. Yesterday, [the
Commonwealth] asked this question: with regards to these
various individuals as far as Shawn and Rocco, [Appellant] and
Jermaine Samuel, would they, quote, have been allowed to visit
Mr. Floyd in prison. The response by Agent Adams was: They
wouldn’t have been able to. If you are a prisoner, some of the
restrictions in place as a state prisoner, you have a criminal
history or prior felony arrest, etc. they restrict you from visiting
people in there. Ladies and gentlemen, both the question and
the answer were improper and yesterday I should not have
allowed them to be entered into the record. You may not
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consider either the question or the response at all from this point
forward.
N.T, 5/7/13, at 31-32.
Appellant argues that Agent Adams’ statement directly and
unmistakably informed the jury that Appellant had a criminal history, and
was therefore highly prejudicial and warranted a mistrial. Appellant’s Brief
at 17-20. Appellant maintains that the prejudice could not be cured by the
trial court’s curative instruction, and asserts that Appellant thus was
deprived of a fair trial. Id. In rebutting this assertion, the trial court
offered the following rationale:
Agent Adams’ testimony was ... a passing reference
to Appellant’s criminal activity. A mere passing reference
to [Appellant] having “some dealings” with the police
department does not necessarily indicate a prior criminal
record. Commonwealth v. Banks, 521 A.2d 1 (1987).
As such, Agent Adams’ statement was not so prejudicial
that a curative instruction could not remove the taint of
such reference.
[The trial court] chose the route of a curative
instruction to cure any lingering prejudice. A mistrial is
not automatically required if the inference of prior
criminality was innocuous and an effective curative
instruction was immediately given. Commonwealth v.
Bruner, 564 A.2d 1277 (Pa. Super. 1989). All the
circumstances must be considered in determining whether
an instruction can cure the exposure of improper evidence
to the jury. Commonwealth v. Richardson, 437 A.2d
1162, 165 (1981). This includes examining whether the
Commonwealth intentionally elicited the remark and
exploited the reference, whether a responsive answer was
given, and whether significant curative instructions were
given. Commonwealth v. Gaerttner, 484 A.2d 92 (Pa.
Super. 1984). The curative instructions must be clear and
specific and instruct the jury to disregard the improper
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evidence. Commonwealth v. Hudson, 955 A.2d 1031,
1034 (Pa. Super. 2008).
... The Commonwealth did not exploit the reference
to Appellant’s prior criminal history throughout the
remainder of trial.
The [trial court] determined that a curative
instruction was appropriate [and] on the morning of the
second day of trial, the [trial court] instructed the jury –
not once but twice – not to consider either the question or
answer regarding Appellant’s visiting privileges.
***
The [trial court] emphasizes that although the
Commonwealth elicited the testimony on direct
examination at the end of the first day of the trial,
Appellant’s counsel reiterated this information in his
closing argument. You’ve got the Attorney General who
knowingly asked the question that you were told to
disregard in violation of just about everything we stand
for. [N.T., 5/10/13 at 32-33]. In response, the [trial
court] issued an additional curative instruction during
closing jury instructions:
Ladies and gentlemen, I was not going to
bring this back up, but because [Appellant’s
counsel] included it in his closing, I am
repeating what I told you Tuesday morning ...
You may not consider that question. You may
not consider the answer. It was inappropriate
evidence to be put before you. You cannot do
that. You just simply can’t. If you would do
that, it would be improper and you would not
be doing your responsibilities correctly. Ladies
and gentlemen, if there is any juror that
cannot follow that instruction, I need you to
tell me right now. Is there anybody who
cannot follow it? Again, you cannot consider
the question or answer of that at all.
[N.T., 5/10/13, at 81-82.]
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Appellant should not benefit from the acts of his counsel in
reviving Agent Adams’ prejudicial remark. The [trial court]
issued several clear and specific curative instructions to disregard
both [the Commonwealth’s] question and Agent Albert Adams’
prejudicial answer; these multiple curative instructions were
capable of removing any taint caused by the passing reference to
Appellant’s prior criminal history. Furthermore, the law presumes
that the jury will follow the [trial court’s] curative instructions;
consequently, a mistrial was not warranted. Commonwealth v.
Spotz, 896 A.2d 1191, 1224 (Pa. 2006).
Trial Court Opinion, 11/14/13, at 5-11.
We have explained that a mistrial may be warranted when a juror
could reasonably infer from the facts presented that the accused had
engaged in prior criminal activity. Commonwealth v. Parker, 957 A.2d
311, 319 (Pa. Super. 2008) (citations and internal quotations omitted).
“When the statement at issue relates to a reference to past criminal
behavior, [t]he nature of the reference and whether the remark was
intentionally elicited by the Commonwealth are considerations relevant to
the determination of whether a mistrial is required.” Id. “A singular,
passing reference to prior criminal activity is usually not sufficient to show
that the trial court abused its discretion in denying the defendant's motion
for a mistrial. When the trial court provides cautionary instructions to the
jury in the event the defense raises a motion for mistrial, [t]he law
presumes that the jury will follow the instructions of the court.” Id. Thus,
“[i]n a criminal case, the possible prejudicial effect of a witness's reference
to prior criminal conduct of the defendant may, under certain circumstances,
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be removed by an immediate cautionary instruction to the jury.”
Commonwealth v. Richardson, 437 A.2d 1162, 1164 (Pa. 1981).
Here, Appellant argues that the challenged statement by Agent Adams
was deliberately elicited and unmistakably informed the jury about
Appellant’s criminal history. Appellant challenges the Commonwealth’s
question to Agent Adams as to “[whether] Shawn and Rocco, [Appellant]
and Jermaine Samuel would ... have been allowed to visit Mr. Floyd in
prison?” to which Agent Adams responded: “They wouldn’t be able to. ... [I]f
you have criminal histories or prior felony arrests ... they restrict you from
visiting people in there.” N.T., 5/6/13, at 188. Although the reference to
Appellant’s prior criminal history was made in response to a question by the
Commonwealth, the record does not indicate that the reference was
deliberately elicited to establish Appellant’s prior record. Additionally, the
agent’s comment that in general individuals with criminal histories cannot
visit prisons did not implicate Appellant alone as having a criminal record,
and the Commonwealth did not thereafter attempt to exploit the single
reference to highlight Appellant’s criminal history.1
More importantly, the curative instructions issued by the trial court –
both at the time the challenged statements were made and again during
____________________________________________
1
As the trial court observed, it is significant that Appellant’s counsel, during
closing arguments, emphasized to the jury that the Commonwealth
“knowingly asked [a] question that you were told to disregard in violation of
just about everything we stand for”, and that in so doing, Appellant sought
to capitalize on the statement he now challenges. N.T., 5/10/13, at 32-33.
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closing arguments – were direct, unequivocal, and strong, informing the jury
that they were not to consider Agent Adams’ statement, and were sufficient
to expunge any taint and assure Appellant a fair trial. Under the
circumstances of this case, and for the above reasons, we find no abuse of
discretion in the trial court's determination that Agent Adams’ testimony did
not warrant a mistrial.
In his second issue, Appellant argues that the trial court erred in
denying his motion for a mistrial based on the Commonwealth’s statement
during closing argument that the jury should “send a message” by returning
a guilty verdict. Appellant’s Brief at 26-29. In considering such a claim of
prosecutorial misconduct, once again, our standard of review is limited to
whether the trial court abused its discretion. “It is within the discretion of
the trial court to determine whether a defendant has been prejudiced by
misconduct or impropriety to the extent that a mistrial is warranted.”
Commonwealth v. Baez, 720 A.2d 711, 729 (1998). “Not every unwise
remark on a prosecutor’s part constitutes reversible error. Indeed, the test
is a relatively stringent one. Generally speaking, a prosecutor’s comments
do not constitute reversible error unless the unavoidable effect of such
comments would be to prejudice the jury, forming in their minds fixed bias
and hostility toward appellant so that they could not [weigh] the evidence
objectively and render a true verdict.” Commonwealth v. Harris, 884
A.2d 920, 927 (Pa. Super. 2005). “Prosecutorial misconduct ... will not be
found where the comments were based on evidence or proper inferences
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therefrom or were only oratorical flair.” Id. “[O]ur attention is focused on
whether the defendant was deprived of a fair trial, not a perfect one. ... A
prosecutor's statements to a jury do not occur in a vacuum, and we must
view them in context.” Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa.
Super. 2012) (citations and internal quotations omitted).
Appellant challenges the following statement by the Commonwealth:
By your verdict today you can tell [Appellant] that no matter if
you’re in Baltimore, sitting in your house providing drugs or
Shonda Hicks transporting the drugs or Jermaine Samuel selling
the drugs out of the Corner Bar or Steve and Kenny Piner, we
will find you. We will investigate --
N.T., 5/10/13, at 75.
Appellant’s counsel objected to this comment and moved for a mistrial,
or in the alterative, a curative instruction. Id. at 76. The trial court then
permitted the Commonwealth to conclude its closing statement, and the
Commonwealth clarified its statement as follows:
Assistant District Attorney: Ladies and gentlemen of the jury,
we’re only talking about
[Appellant] here and he’s the only
one before you today. I ask you to
tell him that his business is closed
and you tell him that by finding
him guilty of each and every
charge.
N.T., 5/10/13, at 76-77.
The trial court then issued the following curative instruction:
Ladies and gentlemen, before I give you a break, I need to tell
you something. What [the Commonwealth] said there about
sending a message is not appropriate. This is not about sending
the message on other issues. ... That cannot be part of any
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consideration of what you’re doing. We’re here for this trial, for
the trial of [Appellant] only. Your deliberations have to be just
about the facts that have been presented to you over the last
four or five days. You cannot have any consideration beyond
what you have heard here. So for [the Commonwealth] to tell
you that you need to send a message to anyone other than
[Appellant] is inappropriate and wrong and you should not
consider it.
Id. at 77.
Our courts have explained that while a prosecutor’s invitation to the
jury to “send a message” to others through its verdict is not per se
prejudicial in non-capital cases, such statements are nevertheless
“inherently dangerous” in a criminal case because “the jury's role is to
render a verdict based on the evidence, not based on the effect of that
verdict.” Commonwealth v. Patton, 985 A.2d 1283, 1288 (Pa. 2009).
“[The Pennsylvania Supreme Court] has stridently condemned prosecutorial
statements urging a criminal jury to ‘send a message’ to the community or
the criminal justice system. ... [and] [e]ven when [it has] found such
remarks to be harmless, [it has] admonished all parties in criminal matters
before any court in the Commonwealth to refrain from such exhortation in
the future.” Id., at 1287.
Here, the prosecutor invited the jury to “tell [Appellant] that no matter
if you’re in Baltimore sitting in your house providing drugs or Shonda Hicks
transporting the drugs or Jermaine Samuel selling the drugs out of the
Corner Bar or Steve and Kenny Piner, we will find you ... [w]e will
investigate.” N.T., 5/10/13, at 76-77. Immediately thereafter, though, the
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Commonwealth modified its statement, clarifying to the jury that “we’re only
talking about [Appellant] here and he’s the only one before you today.” Id.
The trial court then promptly issued a curative instruction, directing the jury
to disregard the Commonwealth’s invitation to send a message of any sort.
N.T., 5/10/13, at 76-77. As the trial court explained, “[the] curative
instruction was clear and specific in ordering the jury to disregard [the
Commonwealth’s] entreaty to send a message and [instead] consider only
the evidence that had been presented to them.” Trial Court Opinion,
11/14/13, at 13. We agree with the trial court that again, under the
circumstances of this case, the curative instruction, which Appellant himself
requested as an alternative to a mistrial and to which he did not object, was
sufficient to mitigate any prejudice to Appellant resulting from the
Commonwealth’s closing statement.
Furthermore, the challenged statement did not invite the jury to send
a message to the public at large, but rather to Appellant and those involved
in Appellant’s crime syndicate. In Commonwealth v. Patton, 985 A.2d at
1289, our Supreme Court reasoned that “[p]rosecutorial remarks
encouraging a jury to ‘send a message’ to the defendant or a witness, rather
than the community or criminal justice system at large, do not invite
consideration of extraneous matters and are not misconduct.” Here, the
prosecutor’s remark asking the jury to “tell Appellant” that his crimes and
those of his associates would be investigated, did not invite the jury to send
a message to the wider community or to the judicial system, and did not
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incite such a degree of prejudice against Appellant as to deny him a fair trial.
See also Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997) (Where
prosecutor, during closing arguments asked the jury “to send a message,
[that if] you come out here [to Coatesville] from Philadelphia... and shoot
someone like the defendant did ... you are guilty of first degree murder”,
such prosecutorial remarks provided a short synopsis of the crime which
originated in Philadelphia and ended with a shooting in Coatesville, and the
prosecutor’s exhortations were an accurate summary of the facts and were
proper since they neither caused the jury to form a fixed bias or hostility
towards appellant, nor did they ask the jury to send a message to the
judicial system or the residents of Philadelphia who commit crimes in a
surrounding county).
In his third and final issue, Appellant asserts that the trial court erred
in denying his motion to suppress evidence obtained from the traffic stop of
Appellant in Maryland. Appellant’s Brief at 30-32. Appellant argues that the
traffic stop was conducted as part of a manufactured “ruse” and under false
pretense and was therefore unconstitutional. Id. Appellant contends that
Detective Vigue of the Baltimore City Police testified that, in an effort to
verify Appellant’s identity after determining through surveillance and
communication with the NIDC agents that Appellant was involved in drug
trafficking, Maryland police officers used the pretext of there being
unsecured debris on the bed of Appellant’s truck as a “ruse” to conduct a
traffic stop of Appellant’s vehicle and obtain his driver’s license to verify his
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name. N.T., 5/9/13, at 107-113. Appellant claims that because the officers
employed a “ruse” to stop him and obtain his identity, the traffic stop was
illegal. Id. This claim is meritless.
First, it is unclear from our review of Appellant’s brief, precisely what
evidence Appellant is seeking to suppress as a result of the allegedly illegal
traffic stop. “The remedy for an illegal arrest in Pennsylvania is suppression
of the fruits of the illegal arrest.” Commonwealth v. Shaffer, 710 A.2d 89
(Pa. Super. 1998). In his brief, however, while Appellant asserts that the
motion to suppress the illegal stop should have been granted, Appellant fails
to articulate what evidence, other than his name, was obtained as a result of
the search, and what precisely he seeks to suppress. See Appellant’s Brief
at 30-32; N.T., 5/9/13, at 104-113.
Moreover, our review of the record contradicts Appellant’s assertion
that the traffic stop in Maryland was “a ruse.” Rather, testimony elicited by
the Commonwealth over five days of trial (which included voluminous
telephone surveillance records and testimony of numerous law enforcement
officers involved in the investigation) indicates that the traffic stop of
Appellant was the result of the joint efforts of the officers from the
Pennsylvania Office of Attorney General’s Bureau of Narcotics Investigation
and Drug Control, and the Baltimore City Police Department who, prior to
the traffic stop, together conducted extensive electronic and geographical
surveillance of Appellant’s telephone calls and Appellant’s physical location,
leading them to believe that Appellant was involved in drug trafficking.
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Thus, to the extent that Appellant argues that the officers lacked reasonable
suspicion to stop his vehicle, and that the stop was based on a “ruse” that
Appellant had an unsecured load in his truck, this claim is meritless.
Finally, our review of the notes of testimony reveals that the law
enforcement officers did in fact observe debris fall from Appellant’s vehicle
prior to the traffic stop. See N.T., 5/9/13, at 108. Thus, Appellant’s claim
that the officers fabricated the falling debris is belied by the record and
meritless.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2014
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