Com. v. Huffman, C.

J-A01031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CALVIN JAY HUFFMAN,
Appellant No. 544 WDA 2014
Appeal from the Judgment of Sentence entered June 11, 2013,
in the Court of Common Pleas of Fayette County,
Criminal Division at No(s): CP-26-CR-0001293-2011
& CP-26-CR-0001329-2011
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 06, 2015
Calvin Jay Huffman (“Appellant”) appeals from the judgment of
sentence imposed after a jury convicted him of aggravated assault and
related charges.1 We affirm.
The trial court summarized the pertinent facts and procedural history
of the case in its opinion and order denying Appellant’s post-sentence
motion:
The main incident giving rise to the charges in this case
occurred in the early morning hours of April 24, 2011.
Detective Donald M. Gmitter of the Uniontown City Police
Department was notified of a shooting at the Splash Bar in
Uniontown. Two people had been shot and transported to
different hospitals. Detective Gmitter observed shell
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18 Pa.C.S.A. § 2702.
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casings and pools of blood throughout the area of the
shooting, including on vehicles and the exterior walls of
neighboring property.
Detective Gmitter collected shell casings and cartridges
from three different types of guns: twenty-two caliber,
twenty-five caliber, and forty caliber. After speaking with
eyewitnesses at the scene, [Appellant] was identified as
one of the shooters. After conducting a lawful search and
seizure of [Appellant’s] ex-girlfriend’s vehicle, law
enforcement officials recovered two deformed bullets, a
brown piece of carpet, and one latent print.
Law enforcement also recovered and searched a second
vehicle owned by [Appellant’s] sister. The officers
observed blood on the right rear seat belt, the middle of
the right rear seat, the rear passenger’s seat, and the rear
passenger headrest. They recovered a cell phone, digital
camera, a letter from [Appellant], a receipt with
[Appellant’s] name on it, a utility bill, a damaged twenty-
two caliber live round, and the blood evidence. Detective
Gmitter testified that one possible reason the live round
was damaged was due to [Appellant’s] gun jamming,
which witnesses testified to observing during the shooting.
The digital camera revealed a photo dated April 19, 2011
of [Appellant] holding a firearm, and the Commonwealth
was able to confirm that date by sequencing other photos
on the camera that were obviously taken on or near
particular holidays, including St. Patrick’s Day and Easter
of that year.
In addition to the photos, there was a video recovered
from the digital camera. [Appellant] was identified in the
video showing off and discharging multiple rounds from a
twenty-two caliber automatic firearm in a rural location
several days prior to the April 24, 2011 shootings at the
Splash Bar. Although there was never a firearm recovered
in this case, [Appellant] was placed at the Splash Bar at
the time in question, he was observed possessing and
discharging a twenty-two caliber automatic firearm, and
there were a number of projectiles consistent with [a]
twenty-two caliber [gun] recovered from the scene and
from inside the two vehicles.
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Monique Curry, one of the shooting victims, knew
[Appellant] and saw him standing behind her vehicle and
saw him pull the trigger. She was shot twice in the
buttocks while she was in her parked vehicle. The other
shooting “victim” did not testify at trial.
The case went to trial three times. The first trial held
on June 6, 2012 resulted in a mistrial due to the
appearance of inappropriate contact with a juror, while the
second trial held on October 5, 2012 before the Honorable
Judge John F. Wagner, Jr. resulted in a mistrial due to a
hung jury. On June 5, 2013, [Appellant] was convicted by
a jury in this Court of one count of Aggravated Assault,
two counts of Simple Assault, and one count each of
Recklessly Endangering Another Person, Prohibited Person
Not to Possess Firearms, and Possession of a Firearm
Without a License. On June 11, 2013 [Appellant] was
sentenced to standard range sentences aggregating to
seven and one-half (7.5) to fifteen (15) years of
incarceration, with time credit from June 9, 2011. A timely
Post-Sentence Motion followed on June 18, 2013. The
transcript [of the jury trial], however, was not ordered
simultaneously, and as a result it was not completed until
September 3, 2013.
Trial Court Opinion, 10/2/13, at 2-4. Following the denial of his post-
sentence motion, Appellant filed this timely appeal.
Appellant raises the following issues:
I. DID THE TRIAL COURT ERR WHEN IT ALLOWED INTO
EVIDENCE PICTURES OF APPELLANT HOLDING AND
SHOOTING A MACHINEGUN LIKE WEAPON AFTER SAID
PHOTOGRAPH HAD BEEN RULED OUT OF EVIDENCE AT A
PREVIOUS TRIAL, ENDING IN MISTRIAL, BY ANOTHER
JUDGE AS BEING TOO PREJUDICIAL VIOLATING THE
COORDINATE JURISDICTION RULE?
II. ID THE PREJUDICIAL EFFECT OF SAID PHOTOGRAPH[S]
CLEARLY OUTWEIGH ANY PROBATIVE VALUE THEY MAY
HAVE HAD?
III. DID THE TRIAL COURT ERR WHEN IT REFUSED TO
ALLOW QUESTIONING ABOUT TWEETING SENT AND
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RECEIVED [REGARDING] MONIQUE CURRY AS
COLLATERAL AFTER THE TRIAL COURT OPENED THE DOOR
AND FIRST DELVED INTO THIS AREA OVER THE
OBJECTION OF THE DEFENSE?
Appellant’s Brief at 3.
In his first issue, Appellant argues that the trial court violated the
“coordinate jurisdiction rule” by admitting photographs into evidence when,
at Appellant’s prior trial, Judge Wagner had determined that the
photographs were inadmissible. Appellant’s Brief at 6. Appellant asserts
Judge Wagner ruled that the photographs were “to [sic] prejudicial at a
previous trial (in front of [Judge Wagner]) which ended in a mistrial.” Id.
Appellant’s claim fails because the coordinate jurisdiction rule is
inapplicable to Appellant’s third trial. In cases involving the same procedural
posture as the instant appeal — a retrial in which the subsequent trial judge
admitted evidence previously ruled inadmissible in the first trial — our
Supreme Court has held:
When a court grants a new trial, the necessary effect
thereof is to set aside the prior judgment and leave the
case as though no trial had been held. . . . By operation of
an order granting a new trial, the [case], in contemplation
of law, is precisely in the same as if no previous trial had
been held.
Commonwealth v. Hart, 387 845, 847 (Pa. 1978) (quoting
Commonwealth ex rel. Wallace v. Burke, 45 A.2d 871, 871 (Pa. Super.
1951). Stated differently, “[b]ecause the grant of a new trial ‘wipes the
slate clean,’” upon retrial, “a previous court’s ruling on the admissibility of
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evidence generally does not bind a new court[.]” Commonwealth v.
Paddy, 800 A.2d 294, 311 (Pa. 2002).
Even if the coordinate jurisdiction applied to Appellant’s retrial and it
was determined that a violation occurred, any error in admitting the
photographs was harmless, because Appellant’s depiction thereon was
cumulative of a video played at Appellant’s third trial. See N.T., 6/4/13, at
70. Within his issues raised on appeal, Appellant does not challenge the
Commonwealth’s use of this video at trial. See e.g., Commonwealth v.
Arrington, 86 A.3d 831, 847 (holding that even if error occurred in
admitting evidence of telephone conversation, it was harmless because it
was “cumulative of other properly-introduced evidence with substantially
similar content”).
In his second issue, Appellant asserts that the trial court erred in
admitting the photographs at issue because “the issue of prejudice of the
pictures clearly outweighed the probative value.” Appellant’s Brief at 6.
According to Appellant, this conclusion “is evidenced by the fact that in the
[second trial] where the jury deliberated and was hung, they did not have
these photos[;] when the instant jury was provided the photos, all else
being the same, they convicted.” Id.
“It is well settled that the admissibility of evidence is a matter
addressed to the sound discretion of the trial court and may be reversed
only upon a showing that the court abused that discretion.”
Commonwealth v. Wynn, 850 A.2d 730, 733 (Pa. Super. 2004) (citations
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omitted). “Evidence is admissible if it is relevant—that is, if it makes a fact
at issue more or less probable, or supports a reasonable inference
supporting a material fact.” Id. Our Supreme Court has summarized:
Appellate courts typically examine a trial court’s decision
concerning the admissibility of evidence for abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
Typically, all relevant evidence, i.e., evidence which tends
to make the existence or non-existence of a material fact
more or less probable, is admissible, subject to the
prejudice/probative value weighing which attends all
decisions upon admissibility. See Pa.R.E. 401; Pa.R.E.
402[.]
Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007).
In rejecting Appellant’s claim, the trial court reasoned in its Pa.R.A.P.
1925(a) opinion:
[Appellant] argued that the admission of the photos
was in violation of Pennsylvania Rule of Evidence 403 since
the prejudicial impact outweighed the probative value.
The Court disagrees and has indirectly addressed this issue
in the Post-Sentence Motion Opinion.
[Appellant] was charged with and ultimately convicted
of several crimes, including Prohibited Person not to
Possess a Firearm and Possessing a Firearm without a
License. The photos, which were authenticated by the
Commonwealth, were taken between St Patrick’s Day and
Easter of 2011. The record reflects that [Appellant] has
been prohibited from possessing a firearm since 2007 due
to his status as a convicted felon. See [N.T., 6/3/13, at
32]. Since the photos depict [Appellant] possessing a
firearm four (4) years after his felony conviction, and it is
accordingly implied that he could not have had a license to
possess the firearm, the probative value of the
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photographic evidence substantially outweighs its
prejudicial impact.
Trial Court Opinion, 6/10/14, at 2-3.
Once again, our review of the record supports the trial court’s
conclusion. In addition, we note that Appellant’s argument regarding
prejudice is specious. A review of the 2013 trial transcript reveals that “all
else” was not “the same” in the evidence presented by the Commonwealth.
As noted above, the Commonwealth, over Appellant’s objection based upon
an alleged discovery violation, played a video of Appellant handling and
firing a weapon similar to one possessed by Appellant on the night of the
incident. See N.T., 6/4/13, at 66-70. As acknowledged by Appellant during
his testimony at the 2013 trial, this video was not played at Appellant’s
second trial in 2012. See N.T., 6/5/13, at 51. Appellant’s second issue
fails.
In his final issue, Appellant contends, “the trial court erred when it
refused to allow questioning about Tweets sent and received by Monique
Curry who claimed that she was harassed and intimidated by Autume [sic]
Close, sister of [Appellant].” Appellant’s Brief at 6. Appellant argues that
the questioning involved relative evidence and was not merely collateral to
his trial. According to Appellant:
In fact, it was the trial court who first delved into this
area and questioned Ms. Curry regarding the subject. [A]s
Curry was the main witness against [Appellant,] [h]er
credibility was paramount. The defense should have been
permitted to inquire about this matter especially after the
court opened the door to this inquiry.
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Id.
In its Pa.R.A.P. 1925(a) opinion, the trial court explained why
Appellant’s claim had no merit:
Next, [Appellant] argues that he should have been
given the opportunity to question Commonwealth witness
Monique Curry regarding social media correspondence,
namely Twitter, between her and [Appellant’s] sister,
Autum[e] Close. The Court sustained the Commonwealth
objection because it was a collateral issue to the case at
bar. See [N.T., 6/5/13, at 24-27].
Ms. Curry testified that Ms. Close was allegedly
“tweeting to people” about Ms. Curry’s testimony. See
[N.T., 6/4/13, at 20]. Ms. Close allegedly wrote that Ms.
Curry “was on the stand lying on her brother.” Id. [at 21].
Ms. Curry testified that she has “been harassed [over the
case] for two years. Id. [at 22]. This testimony was
elicited by [Appellant on cross-examination].
Following that testimony, [Appellant] called Ms. Close in
an attempt to rebut Ms. Curry’s testimony and accuse Ms.
Curry of witness intimidation. The Court agreed with the
Commonwealth that this was a collateral issue. See
Pa.R.E. 403.
Whatever occurred between Ms. Curry and Ms. Close
after the shooting could only have marginal relevance, and
it was already clear that they did not like each other.
Moreover, the best evidence of the Twitter “conversations”
was never presented. See, Pa.R.E. 1002. Diverting the
trial into an oral discussion of what two witnesses did or
did not say on Twitter after the incident was a pointless
waste of time. If the evidence could have helped the
defense, an “authenticable” printout should have been
proffered. See, Pa.R.E. 1001(d).
Trial Court Opinion, 6/10/14, at 3.
We discern no abuse of discretion. Rule 611(a) of the Pennsylvania
Rules of Evidence provides:
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Rule 611. Mode and Order of Examining Witnesses
and Presenting Evidence
(a) Control by the Court; Purposes. The court should
exercise reasonable control over the mode and order of
examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the
truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue
embarrassment.
Pa.R.E. 611(a). At trial, Appellant’s counsel fully cross-examined Ms. Curry
with regard to the “tweets,” and, as stated by the trial court, during such
questioning elicited via Curry’s testimony that she had been harassed for
being a “snitch.” See N.T., 6/4/13, at 20-22. Given this examination by
Appellant’s counsel, we agree with trial court’s assessment that the proffered
testimony from Ms. Close would be collateral. See, e.g., Commonwealth
v. Dowling, 778 A.2d 683, 687 (Pa. Super. 2001) (explaining that, “[i]n
exercising its discretion, a trial court may properly precluded cross-
examination on collateral matters that are unrelated to the issues at trial”).
In sum, because Appellant’s claims of trial court error lack merit, we
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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