Com. v. Lark, R.

J-S30028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT LARK, :
:
Appellant. : No. 3856 EDA 2017
Appeal from the Judgment of Sentence, November 9, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0120121-1980.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 19, 2019
Robert Lark appeals from the judgment of sentence imposed following
his conviction of first-degree murder, kidnapping, possession of an instrument
of crime (“PIC”), and terroristic threats.1 We affirm.
The trial court set forth the relevant factual and procedural history
underlying this appeal as follows.
On October 28, 1978, Lark followed [Tae Bong Cho] from a
bank across the street from [Cho’s] restaurant to [Cho’s] home.
. . . As [Cho] was going up the steps of his house while holding
his baby and walking with his other young son, [Lark] exited his
car, went up the steps and pointed a gun at the baby’s head.
[Lark] threatened [Cho] and robbed him of approximately $5,000.
[Police apprehended Lark shortly after the robbery, and
Cho’s money and bank receipts were found in Lark’s vehicle, along
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118 Pa.C.S.A. § 2502(a), 18 Pa.C.S.A. § 2901(a)(4), 18 Pa.C.S.A. § 907(a),
18 Pa.C.S.A. § 907, 18 Pa.C.S.A. § 2706.
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with a BB gun which resembled a .45 caliber pistol.] Lark was
arrested and charged with robbery. [Police brought Lark to the
police station where he encountered Cho, in the process of
rendering a police report; Cho immediately identified Lark as the
robber.] A preliminary hearing was scheduled for February 23,
1979. On the night before the hearing, a masked man entered
the restaurant, and shot [Cho] in the head[, killing him.] The
witnesses were unable to identify the masked man.
While the robbery case was open, [Lark] made repeated
threats to Assistant District Attorney Charles Cunningham, [who
was prosecuting the robbery case against Lark,] both on the
telephone and in the court house [sic] where [Lark] was scheduled
for hearings on the robbery [of Cho] and also a completely
separate [robbery] case. As a result of the threats, 24[-]hour
police protection was provided to Mr. Cunningham and his family.
[Despite Cho’s death, the robbery case proceeded to trial in
1979. After the close of the Commonwealth’s case, Lark failed to
appear for the remainder of trial, and was convicted of robbery
and related offenses in absentia.]
[While a fugitive, Lark] circulated freely and bragged to
acquaintances that he had murdered [Cho]. Law enforcement
authorities considered [Lark] to be a prime suspect for the
murder. [Lark made phone calls to the police homicide unit and
threatened the officers involved in the murder investigation.] On
January 9, 1980, police spotted [Lark] in a car in North
Philadelphia. As police gave chase [Lark] entered the home of
Sheila Morris . . . and held Ms. Morris and her two children
hostage. Following a protracted standoff, [Lark] was arrested at
Ms. Morris’ house[, and charged with murder, terroristic threats,
kidnapping and related offenses. At the time of his arrest, Lark
possessed an address book listing an address and telephone
number for “Cunningham”].
Trial Court Opinion, 7/13/18, at 2-3 (citations to the record omitted); see
also Commonwealth v. Lark, 543 A.2d 491, 492-95 (Pa. 1988).
Lark’s first murder trial ended in a mistrial in 1981. Following a second
trial in 1985, Lark was convicted of first-degree murder and sentenced to
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death. Our Supreme Court affirmed his judgment of sentence. Lark, 543
A.2d at 502. Lark’s petitions for post-conviction collateral relief were
unsuccessful. See Commonwealth v. Lark, 698 A.2d 43 (Pa. 1997), and
Commonwealth v. Lark, 746 a.2d 585 (Pa. 2000). However, in 2012, the
United States District Court for the Eastern District of Pennsylvania ordered a
new trial for Lark pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), on
the grounds of racial discrimination in the jury selection. See Lark v. Beard,
2012 U.S. Dist. LEXIS 105710 (E.D. Pa. July, 30, 2012).
Following a third trial conducted in 2017, a jury convicted Lark of first-
degree murder, kidnapping, PIC, and terroristic threats, as indicated above.
On November 9, 2017, the trial court sentenced him to life imprisonment,
followed by twenty-two and one-half to forty-five years of incarceration. Lark
filed a timely notice of appeal. Both Lark and the trial court complied with
Pa.R.A.P. 1925.
Lark raises the following issues for our review:
1. Did the lower court err in admitting the former testimony of
numerous Commonwealth witnesses where [Lark] had been
deprived of a right to full and fair cross-examination at the prior
proceeding due to the Commonwealth’s failure to disclose
police activity sheets relating to the investigation when they
were requested by [Lark]?
2. Did the lower court err in admitting evidence of threats made
to prosecution witness [ADA] Cunningham on June 11, 1981
when said threats were not listed on the bills of information
and had no relevance with respect to any of the enumerated
charges?
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3. Did the lower court err in permitting the Commonwealth to
introduce [Lark’s] wedding photo and to use the photograph in
closing argument?
4. Did the lower court err in refusing to permit defense counsel to
question potential jurors during voir dire regarding the fact that
the allegations in the case would involve the murder of a
Commonwealth witness?
5. Did the lower court err when it refused to permit the defense
to tell jurors in voir dire that it vigorously contested the
charges?
6. Did the lower court err in precluding [Lark] from cross-
examining the assigned detective, [Lawrence] Gerrard,
regarding a prior incident in which he was found by the
Superior Court to have improperly induced a criminal
defendant into confessing?
7. Did the lower court err in precluding [Lark] from cross-
examining Det. Gerrard as to whether promises had been made
to the Commonwealth witnesses in the instant case?
8. Did the lower court err in denying [Lark’s] request for a mistrial
when the Commonwealth elicited testimony that [Lark’s]
sentencing on June 11, 1981 was for a separate robbery
unrelated to the charges in question?
9. Did the lower court err in denying [Lark’s] request for a mistrial
after Commonwealth witness [ADA] Cunningham informed the
jury that the “prior proceeding” regarding the instant case was
in fact a trial?
10. Did the trial court err in denying [Lark’s] request for a
mistrial after the prosecutor’s closing argument improperly
asked the jury to draw a negative inference against [Lark]
because [Lark] did not present his nephew as a witness?
11. Did the trial court err in denying [Lark’s] request for a
mistrial after the prosecutor’s closing argument improperly
referred to the inadmissible hearsay of Muriel Jackson?
Lark’s Brief at 2-3.
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Lark’s first three issues implicate the trial court’s authority to admit or
exclude evidence. Our standard of review concerning the admissibility 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. Woodard, 129 A.3d 480, 494 (Pa. 2015).
In his first issue, Lark challenges the admission of the prior testimony
of Commonwealth witnesses who testified at his first or second trial, but were
deceased at the time of his 2017 trial, and hence “unavailable.” Lark’s Brief
at 16. Under Pennsylvania law, the former testimony of a witness in a criminal
proceeding who has since died is competent evidence admissible in a
subsequent trial of the same criminal issue:
Whenever any person has been examined as a witness, either for
the Commonwealth or for the defense, in any criminal proceeding
conducted in or before a court of record, and the defendant has
been present and has had an opportunity to examine or cross-
examine, if such witness afterwards dies, or is out of the
jurisdiction so that he cannot be effectively served with a
subpoena, or if he cannot be found, or if he becomes incompetent
to testify for any legally sufficient reason properly proven, notes
of his examination shall be competent evidence upon a
subsequent trial of the same criminal issue. For the purpose of
contradicting a witness the testimony given by him in another or
in a former proceeding may be orally proved.
42 Pa.C.S.A. § 5917; see also Pa.R.E. 804.1.
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Initially, we observe that Lark has not identified any particular
Commonwealth witness whose prior testimony was introduced at his 2017
trial. Nor has he identified the place in the record where any such testimony
was admitted. See Pa.R.A.P. 2119(c) (providing that “[i]f reference is made
to the pleadings, evidence, charge, opinion or order, or any other matter
appearing in the record, the argument must set forth, in immediate connection
therewith, or in a footnote thereto, a reference to the place in the record where
the matter referred to appears”); see also Pa.R.A.P. 2132. While we could
find waiver on this basis, we decline to do so.
Moreover, Lark’s assertion is at odds with our Supreme Court’s
observation that Lark not only had the opportunity to cross-examine the
Commonwealth’s witnesses at his prior trials, but did, in fact, do so: “the
credibility of most of the Commonwealth’s witnesses was challenged by [Lark]
whose attorney brought out on cross-examination that they were
themselves incarcerated or being prosecuted by the Commonwealth and
expected to receive favorable treatment and/or the Commonwealth’s
cooperation in exchange for their in-court testimony.” Lark, 543 A.2d at 499
(emphasis added).2
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2 In response to Lark’s argument, the Commonwealth points us to the specific
places in the certified record where the prior testimony of certain
Commonwealth witnesses was read into the record at Lark’s 2017 trial, and
to the portions of those transcripts where Lark’s prior counsel cross-examined
those witnesses. See Commonwealth’s Brief at 18-19.
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Nevertheless, Lark maintains that he “was deprived of the potentially
vital impeachment evidence” contained in fourteen boxes of police activity
sheets, and therefore denied a full and fair opportunity to cross-examine the
unavailable witnesses. Lark’s Brief at 17. Lark claims that he requested the
police activity sheets in advance of his 1985 trial, but the Commonwealth
successfully objected to the production of those documents on the basis that
the request was too onerous. Id. On the theory that the now-missing police
activity sheets may have contained summaries of statements made by the
unavailable Commonwealth witnesses, Lark asserts that he is entitled to a new
trial. Id.
Additionally, while Lark characterizes the missing police activity sheets
as containing “potentially vital impeachment evidence,” the record suggests
otherwise. Lieutenant William Shelton testified in connection with Lark’s 1985
trial that the activity sheets were solely for internal police “administrative
purposes” to indicate “where and what . . . detectives did at a certain time
and a certain date” and “ha[d] nothing to do with the statements of any
witnesses.” N.T. Trial, 6/25/85, at 104, 142. Lieutenant Shelton further
testified that the activity sheets are “not part of the case and . . . not submitted
to the district attorney’s office.” Id. at 104.
Moreover, at the October 2, 2017 hearing on the Commonwealth’s
motion to admit the prior testimony of unavailable witnesses, the prosecutor
explained that each of the witnesses was deceased, the defense had been
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provided with their statements prior to the first trial, and that Lark’s counsel
had extensively cross-examined each of the witnesses at trial. N.T. Trial,
10/2/17, at 7-8. The prosecutor further explained that, at the time of the
homicide investigation, records were kept differently, and that the activity
sheets were not limited to one case; rather, “they would keep a running
activity sheet pretty much of homicide.” Id. at 11. Thus, she explained, it
was unclear as to how much of the fourteen boxes of activity sheets would
have been pertinent to Lark’s case.3 Id. Finally, she indicated that Lark’s
prior counsel had been given the opportunity to review the police activity
sheets. Id. at 10.
We find Lark’s argument is specious, at best. The trial court was
presented with evidence that Lark’s prior counsel had viewed at least some of
the police activity reports. The mere possibility that the remaining
administrative police activity reports might have contained summaries of
statements provided by those witnesses which might have differed from their
actual statements is highly speculative, and falls short of demonstrating that
Lark was prejudiced by the absence of those reports.4 Based on the record
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3 Lieutenant Shelton expressed similar concerns when he testified that it would
take him “days” to go through the boxes of police activity sheets and delete
out everything unrelated to Lark’s case. N.T. Trial, 6/25/85, at 142.
4Lark’s reliance on Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992),
and Commonwealth v. Johnson, 758 A.2d 166 (Pa. Super. 2000), is
unavailing, as those cases are factually and legally distinguishable from the
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before us, we discern no abuse of discretion by the trial court in admitting the
prior testimony of Commonwealth witnesses who had died or otherwise
become unavailable in the thirty-year period since Lark’s second trial.
Accordingly, Lark’s first claim merits no relief.
In his second issue, Lark contends that the trial court abused its
discretion by admitting irrelevant evidence of threats that Lark made to ADA
Cunningham during his June 11, 1981 sentencing hearing. “Relevance is the
threshold for admissibility of evidence.” Commonwealth v. Tyson, 119 A.3d
353, 358 (Pa. Super. 2015); see also Pa.R.E. 402. “Evidence is relevant if it
has any tendency to make a fact more or less probable than it would be
without the evidence[,] and the fact is of consequence in determining the
action.” Pa.R.E. 401; see also Tyson, supra at 358 (stating that “[e]vidence
is relevant if it logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable or supports a reasonable inference
or presumption regarding a material fact.”). “Evidence that is not relevant is
not admissible.” Pa.R.E. 402. In addition, “[t]he court may exclude relevant
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case sub judice. In Bazemore, our Supreme Court held that the defendant
was denied a full and fair opportunity to cross-examine the unavailable
witness at the prior proceeding because the Commonwealth failed to provide
the witness’s prior inconsistent statement to the defense. 614 A.2d at 687.
In Johnson, a panel of this Court concluded that the defendant was denied a
full and fair opportunity to cross-examine an unavailable witness due to the
Commonwealth’s failure to disclose the witness’s prior inconsistent statement.
758 A.2d at 172. Here, there is simply no evidence that the Commonwealth
withheld from Lark any inconsistent statement by any witness.
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evidence if its probative value is outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
Pa.R.E. 403.
Further, Pa.R.E. 404(b) prohibits the admission of prior crimes, wrongs
or acts “to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Pa.R.E.
404(b)(1). However, such evidence may be admissible for other purposes,
“such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2); see
also Commonwealth v. Drumheller, 808 A.2d 893, 905 (Pa. 2002) (holding
that courts will allow evidence of prior bad acts where the distinct crime or
bad act was part of a chain or sequence of events which formed the history of
the case and was part of its natural development). In a criminal case this
evidence is admissible only if the probative value of the evidence outweighs
its potential for unfair prejudice. Pa.R.E. 404(b)(2).
Accordingly to Lark, the criminal information charged him with one count
of terroristic threats based on threats that Lark made to ADA Cunningham via
telephone on November 26, 1979. In light of this single charge, Lark claims
that the threats he later made to ADA Cunningham at his sentencing hearing
on June 11, 1981, were not relevant. Additionally, characterizing the threats
he made at the sentencing hearing as prior bad acts evidence, Lark argues
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that “the prejudice resulting from this testimony clearly outweighed the
negligible value of the evidence.” Lark’s Brief at 18. On this basis, Lark
asserts that he is entitled to a new trial.
In its Pa.R.A.P. 1925(a) opinion, the trial court explained that the
threats Lark made to ADA Cunningham at the sentencing hearing were
admissible to show Lark’s consciousness of guilt and to explain the history of
the case and natural development of facts. Trial Court Opinion, 7/13/18, at
8. We find no abuse of discretion in the trial court’s determination.
At the sentencing hearing conducted on June 11, 1981, Lark made a
gun-shooting gesture at ADA Cunningham and stated, “All I know is I don’t
get mad. I get even.” N.T. Trial, 10/19/17, at 178. Lark additionally stated
aloud, “If anything should happen to Mr. Campolongo [the homicide
prosecutor] or Mr. Cunningham, then try to locate me.” Id. at 179-82. In a
lowered voice, Lark then said to ADA Cunningham, “I hope you’re having fun
now because later I would be having my fun. I’ll get you point[-]blank. No
misery. I will get you point[-]blank.” Id. at 183.
The record further demonstrates that Lark told several individuals that
he murdered Cho because he was going to testify against Lark at the
preliminary hearing for the robbery offense.5 Lark also threatened numerous
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5 See N.T. Trial, 10/24/17, at 22 (establishing that Lark told Michael Johnson
that he killed the Korean shop owner); N.T. Trial, 10/24/17, at 47-48
(establishing that Lark boasted to Benjamin Smith that he “croaked” the
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other individuals connected with his prosecution, or to whom he had admitted
his guilt.6
Notably, on appeal of Lark’s 1985 convictions, our Supreme Court
determined that Lark’s threats to ADA Cunningham were relevant to show
motive, intent, identity, the natural development of the case, and to complete
the story.7 The Court stated:
The circumstantial evidence introduced by the Commonwealth
included admissions of the murder made by [Lark] to various
others and several threats to others to kill them as he did “the
Korean.” Such admissions and threats were strong evidence
against [Lark], but the credibility of most of the Commonwealth’s
witnesses was challenged by [Lark.] . . . Thus, the evidence of
the terroristic threats made to Assistant District Attorney
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Korean who was a witness against him in a case); N.T. Trial, 10/20/17, at 70-
72, 100-102 (establishing that Lark confessed to Nate Smith that he shot the
Korean in the face shortly before closing, and that had to kill him because he
was the only witness against him in a robbery case); N.T. Trial, 10/19/17, at
77-84 (establishing that Lark told Hozell Odom that he was doing “pretty
good” in his robbery case with the Korean, “but I had to kill him”).
6 See N.T. Trial, 10/27/17, at 6-10 (establishing that Lark called the police
homicide unit and threatened to kill the detectives in charge of the murder
investigation, noting “You better keep looking over your shoulder. I can pick
you off at any time I want”); N.T. Trial, 10/24/17, at 47-48 (establishing that
Lark told Benjamin Smith that “from now, anybody a witness against me, I’m
going to kill them”); Id. at 73-74 (establishing that Lark sent a letter to
Benjamin Smith’s common-law wife stating that she should persuade Smith
not to testify against Lark, and that if she was unsuccessful, she should “move
right away,” intimating that he would kill Smith, his children and relatives);
N.T. Trial 10/23/17, at 217-18 (where Lark accused Michael Johnson of theft,
and threatened to “take care of him like he had done the Korean” unless the
items were returned).
7The issue arose in connection with Lark’s challenge to the trial court’s denial
of Lark’s motion to sever the murder, kidnapping and terroristic threats
offenses prior to his 1985 trial.
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Cunningham provided a critical link in the Commonwealth’s chain
of evidence introduced to establish the identity of the killer. The
fact that [Lark] murdered the principle witness to a robbery, i.e.
the robbery victim himself, and then threatened the
Commonwealth’s prosecutor in the same robbery case (threats
which he was quite capable of, and took steps to carry out), was
more than mere coincidence. It was in fact, a common and a
chronic pattern with [Lark] to threaten to eliminate, and in one
case actually eliminate, those who stood in his way. The murder
of . . . Cho was not an isolated incident but was a critical link in
the chain of evidence, along with the other links of threats,
intimidation and related criminal activity which began with the first
link, the robbery of . . . Cho, and ended with the last link, the
kidnapping wherein [Lark] held a woman and children hostage and
threatened to kill the police as he had “the chinkee m___ f___.”
The four princip[al] crimes (robbery, murder, terroristic threats
and kidnapping) involved in this case were all linked together,
along with the other threats and intimidation, and presented a
clear picture of [Lark’s] pattern of destruction and intimidation of
the participants in the criminal justice system.
The terroristic threats against Mr. Cunningham . . . were clearly
relevant to shed light on [Lark’s] motive and intent in murdering
Mr. Cho, in establishing his identity by showing a logical
connection between the crimes and a common and off-repeated
pattern of [Lark], and, importantly in this unique case, to show
the natural development of the case and to complete the story.
Lark, 543 A.2d at 499.
As indicated by our Supreme Court, Lark’s threats against ADA
Cunningham, including those made at the June 11, 1981 sentencing hearing,
were relevant to show the chain or sequence of events that formed the history
of the case, and demonstrate Lark’s motive, malice, intent, and ill-will toward
ADA Cunningham and other individuals who were involved in his criminal
prosecutions or who possessed incriminating information that could be used
against him, including Cho. Accordingly, as we discern no abuse of discretion
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by the trial court in its implicit finding that the probative value of the June 11,
1981 threats outweighed their prejudicial impact, no relief is due.
In his third issue, Lark contends that the trial court abused its discretion
in admitting Cho’s wedding photograph. The admission of photographs is a
matter vested within the sound discretion of the trial court. Commonwealth
v. Smyrnes, 154 A.3d 741, 754 (Pa. 2017). Nevertheless, our Supreme
Court has disapproved of the use of a live-victim photograph to demonstrate
that a victim was a life in being where such element is uncontested in a murder
case.8 Id. (stating “we caution the Commonwealth concerning the value of
restraint in scenarios involving potential prejudice connected with such non-
essential evidence”). In limited circumstances, such as where the victim’s
character or physical abilities are called into question, or the Commonwealth
has established a plausible basis for relevance, the trial court may act within
its discretion in permitting limited use of such a photograph at trial. Id. at
754-55; see also Commonwealth v. Rivers, 644 A.2d 710, 716 (Pa. 1994).
According to Lark, the trial court erred by allowing the Commonwealth
to introduce Cho’s wedding photograph during the questioning of a witness,
and to display the photograph during the prosecutor’s closing argument. Lark
maintains that the trial court initially admitted the photo to show the likeness
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8 “Life-in-being” evidence is proffered to show that the victim was alive at a
time prior to the murder, and thus is relevant to the first element of a murder,
i.e., that a human being was unlawfully killed. See Commonwealth v.
Miller, 746 A.2d 592, 602 (Pa. 2000)
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of Cho in his lifetime; however, the following day when Lark moved for a
mistrial, the trial court indicated that the photo was admissible to establish
that Cho was Korean, and to show his height and weight. Lark argues that,
while the photo shows an Asian male, there is nothing in the photo to indicate
that Cho was Korean. Lark further argues that there was no way to assess
Cho’s height based on the photograph. Lark additionally claims that Cho’s
height and weight were established by the medical examiner. Finally, he
asserts that Cho’s Korean ethnicity was not in dispute, and was referenced by
several witnesses. On this basis, Lark contends that he is entitled to a new
trial because the admission of the photo was “nothing more than a pretext by
the Commonwealth to play to the sympathy of the jury through the
introduction of irrelevant and highly prejudicial evidence.” Lark’s Brief at 19.
The trial court explained the basis for its evidentiary ruling as follows:
“[t]he use of the wedding photograph was proper to show the identity of the
deceased and that he was a life in being . . . [it] was not unduly prejudicial
and did not deprive [Lark] of his right to a fair trial.” Trial Court Opinion,
7/13/18, at 11.
In our view, it does not appear that there was any question that Cho
was a life in being up until his murder the day before Lark’s preliminary
hearing, at which Cho was scheduled to testify. Moreover, Cho’s existence as
a life in being was established by the medical examiner’s testimony that his
death resulted from a gunshot wound to the head, and that he died
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approximately two hours after he was shot. See N.T. Trial, 10/18/17, at 113,
117. Thus, the Commonwealth did not need Cho’s wedding photograph to
establish this fact. Rivers, 644 A.2d at 716.
Nevertheless, the Commonwealth argues that the photograph was
admissible under Smyrnes because numerous witnesses knew Cho only as
“the Korean,” and the photograph was relevant to show his Korean ethnicity,
as well as his height relative to the height of the shooter. Commonwealth’s
Brief at 28. The Commonwealth also claims that it “did not present testimony
from [Cho’s] wife or children about their lives together or any aspect of [Cho’s]
life,” and made limited use of the photograph “showing it to one witness and
displaying it briefly in closing argument.” Id. at 29, 30.
The Commonwealth’s argument bears some legitimacy, given that
several of the Commonwealth witnesses did, in fact, refer to Cho only as “the
Korean.” However, based on the record before us, it does not appear that
Cho’s Korean heritage was ever questioned during the murder trial. Further,
the medical examiner testified as to Cho’s height. See N.T. Trial, 10/18/17,
at 112. Thus, we are unconvinced that the photograph was necessary to prove
Cho’s height or that Cho was of Korean descent.9
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9 Moreover, had a photograph been necessary, we note that the
Commonwealth should have used a photo of Cho alone, rather than a
sentimental portrait of Cho with his bride, in formal wedding attire, on their
wedding day. See Commonwealth v. Blystone, 549 A.2d 81, 90 (Pa. 1988)
(holding that “[e]vidence which has the effect of arousing sympathy for a
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However, even assuming that the trial court abused its discretion in
admitting the photo, our inquiry does not end here. The question remains as
to whether the error in admitting the photograph was harmless beyond a
reasonable doubt. Story, 383 A.2d at 164. Harmless error exists if the
Commonwealth proves either: (1) the error did not prejudice the defendant
or the prejudice was de minimis; (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was substantially similar
to the erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that the error could not
have contributed to the verdict. Commonwealth v. Fulton, 179 A.3d 475,
493 (Pa. 2018).
Our review of the record reflects that the uncontradicted evidence of
Lark’s guilt was so overwhelming, and the prejudicial effect of the photograph
so insignificant by comparison, that it is clear beyond a reasonable doubt that
the error could not have contributed to the verdict. Fulton, supra at 493.
Additionally, the Commonwealth’s use of the photo was limited; the
prosecutor showed the photo to one witness, and briefly displayed it during
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crime victim is prejudicial and inadmissible when otherwise irrelevant”);
Commonwealth v. Story, 383 A.2d 155, 159 (Pa. 1978) (holding that
“evidence of the victim’s family life and the photographs of the victim with his
daughter shed absolutely no light on the criminal episode which resulted in
[the victim’s] death”).
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his closing argument. See Commonwealth’s Brief at 29. Additionally, the
Commonwealth did not present testimony from Cho’s wife or children about
their lives together, or any other aspect of Cho’s life. Id. at 30. Compare
Story, supra (granting a new trial where the prosecution presented extensive
emotional testimony about the victim, his life, professional reputation, family,
disabled daughter, the fact that his widow had to go back to work after his
death, and two photographs of the victim and his daughter on a family
vacation, all of which was irrelevant to the question of guilt, and prejudiced
appellant by creating sympathy for the victim and his family). Accordingly,
we conclude that any error here was harmless beyond a reasonable doubt,
and Lark is not entitled to relief on this claim. See Commonwealth v.
Green, 162 A.2d 509, 519 (Pa. Super. 2017) (en banc) (“Not all errors at trial
. . . entitle an appellant to a new trial, and the harmless error doctrine, as
adopted in Pennsylvania, reflects the reality that an accused is entitled to a
fair trial, not a perfect trial.” (citation omitted)).
Lark’s fourth and fifth issues challenge the trial court’s administration of
voir dire questioning. In assessing these claims, we are guided by the
following standard of review.
The scope of voir dire rests in the sound discretion of the trial
court, whose decision will not be reversed on appeal absent
palpable error. The purpose of voir dire is to ensure the
empaneling of a competent, fair, impartial, and unprejudiced jury.
The scope of voir dire should therefore be limited to questions that
attempt to disclose a potential juror’s lack of qualification or fixed
opinion regarding the defendant’s guilt or innocence. A
prospective juror’s personal views are of no moment absent a
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showing that these opinions are so deeply embedded as to render
that person incapable of accepting and applying the law as given
by the court.
Commonwealth v. Scott, 2019 Pa. Super. LEXIS 573, *11 (Pa. Super. 2019)
(quoting Commonwealth v. Karenbauer, 715 A.2d 1086, 1094 (Pa. 1998)
(internal citations and quotation marks omitted)). While the parties are
permitted to supplement the trial court’s voir dire examination, this grant is
not unrestricted but rather is subject to limitations as the court deems proper.
Commonwealth v. Ellison, 902 A.2d 419, 427 (Pa. 2006).
In his fourth issue, Lark contends that the trial court abused its
discretion by refusing Lark’s request to voir dire potential jurors as to “whether
the fact that the case involved the alleged murder of a Commonwealth witness
would affect their ability to be fair.” Lark’s Brief at 21. While Lark concedes
that the trial court explained Cho’s role as a witness in general voir dire, he
complains that “at no time were jurors asked if they could be fair in a case
involving the alleged killing of a witness.” Id. Lark claims that his request
was not an effort to learn what the prospective jurors’ decisions would be
when confronted with that question. Id. Rather, he maintains, he “merely
sought to identify potential jurors who would fail to keep an open mind or
consider any additional evidence and instead automatically vote for death
upon learning of this fact.” Id.In his argument, Lark relies on the United States Supreme Court’s
decision in Morgan v. Illinois, 504 U.S. 719 (1992), where the High Court
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held that during voir dire in a capital case, a trial court may not, without
violating the Due Process Clause of the 14th Amendment, refuse questioning
regarding whether a juror would automatically impose a death sentence
following a first degree murder conviction. In explaining its rationale, the
Court stated:
[T]he belief that death should be imposed ipso facto upon
conviction of a capital offense reflects directly on that individual’s
inability to follow the law. Any juror who would impose death
regardless of the facts and circumstances of conviction cannot
follow the dictates of law. It may be that a juror could, in good
conscience, swear to uphold the law and yet be unaware that
maintaining such dogmatic beliefs about the death penalty would
prevent him or her from doing so. A defendant on trial for his life
must be permitted on voir dire to ascertain whether his
prospective jurors function under such misconception.
Id. at 735-36 (footnote and internal citations omitted).
Here, the specific voir dire question requested by Lark did not include
any inquiry as to whether a juror would automatically impose a death sentence
following a first degree murder conviction. Instead, the proposed voir dire
question merely sought to ascertain whether the jurors could be fair and
impartial: “It is alleged that the murder victim in this case, . . . Cho, was a
Commonwealth witness in [Lark’s] robbery case. Would the fact that the
allegations concern the alleged killing of a witness prevent you from being a
fair and impartial juror?” N.T. Trial, 10/2/17, at 4. As Lark’s proposed voir
dire question was not designed to identify jurors who would impose death
regardless of the facts and circumstances of conviction, Morgan v. Illinois
does not apply.
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Moreover, the trial court determined that the requested voir dire
question was unnecessary, and explained its reasoning as follows:
Prior to the submission of the juror questionnaire forms and the
individual questioning of the prospective jurors, the court advised
the jury venire that the “Commonwealth alleges that [Cho] was
scheduled to testify the next morning at a preliminary hearing in
a case wherein [Lark] is alleged to have robbed [Cho] on an earlier
occasion.” Through the jury questionnaire forms and the
individual questioning, each prospective juror was repeatedly
asked whether she or he could be fair and impartial.
Trial Court Opinion, 7/13/18, at 7 (citations to the record omitted).
Given that the trial court had already explained Cho’s role as a witness
and questioned each juror as to his or her ability to be fair and impartial, we
discern no abuse of discretion in its decision to disallow Lark’s proposed voir
dire question. Accordingly, his fourth issue entitles him to no relief.
In his fifth issue, Lark contends that the trial court abused its discretion
by sustaining the Commonwealth’s objection to the following comment by
defense counsel to the first venireperson: “let me say we vigorously contest
these allegations, but the law requires me to ask some questions about [the
penalty] phase of the case.” N.T. Trial, 10/2/17, at 60. Lark intended to
make the same statement to the remaining venirepersons, and claims that
the trial court’s ruling “deprived [him] of the ability to explain to prospective
jurors that although [Lark’s counsel] was asking questions regarding the
penalty phase, he was in no way conceding the Commonwealth’s allegations
in the guilt phase.” Lark’s Brief at 22. Lark argues that he was prejudiced by
the trial court’s ruling “since it, in essence, left prospective jurors with the
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impression that the Commonwealth had already met their burden with respect
to the charges in question. Id.Here, the trial court specifically instructed the first venire panel not to
infer guilt on the basis that penalty phase issues were being discussed: “I
need you to understand that just because I am discussing the death penalty
and that I soon will be asking you questions about the sentence of death or
the sentence of life in prison without parole, that does not mean that [Lark]
is guilty of first-degree murder.” N.T. Trial, 10/2/17, at 47; see also id. at
62. The trial court similarly instructed the ensuing four venire panels. See
N.T. Trial, 10/3/17, at 22; N.T. Trial, 10/4/17, at 23-24; N.T. Trial, 10/10/17,
at 23; N.T. Trial, 10/11/17, at 19-20. Moreover, the trial court determined
that defense counsel’s comment was irrelevant, since “[w]hether or not an
accused vigorously contends a case is not relevant to the selection of a jury.”
Trial Court Opinion, 7/13/18, at 7. Under these circumstances, no discretion
was abused.
As we previously explained, the purpose of voir dire is to ensure the
empaneling of a competent, fair, impartial, and unprejudiced jury. Scott,
2019 Pa. Super. LEXIS 573, at *11. Accordingly, the scope of voir dire is
limited to questions that attempt to disclose a potential juror’s lack of
qualification or fixed opinion regarding the defendant’s guilt or innocence. Id.To this end, questions on voir dire encompassing legal principles such as the
presumption of innocence are improper. Commonwealth v. Bethea, 185
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A.3d 364, 372 (Pa. Super. 2018) (holding that counsel’s reminder to the jury
during voir dire that the defendant is an innocent man was beyond the scope
and purpose of voir dire). As defense counsel’s comment was unrelated to
the discrete purpose of voir dire, we discern no abuse of discretion by the trial
court in sustaining the Commonwealth’s objection. Accordingly, his fifth issue
merits no relief.
As Lark’s sixth and seventh issues are interrelated, we will address them
together. These issues concern the trial court’s authority to limit the scope of
cross-examination of witnesses at trial. The scope of cross-examination is a
matter within the discretion of the trial court and will not be reversed absent
an abuse of that discretion. Commonwealth v. Ballard, 80 A.3d 380, 394
(Pa. 2013).
Lark asserts that the trial court abused its discretion by prohibiting the
defense from cross-examining Detective Gerrard regarding his actions in the
unrelated case of Commonwealth v. Lester, 572 A.2d 694 (Pa. Super.
1990). That case involved a “sex for lies” scandal where police allegedly
promised Lester, a prisoner, sexual encounters with his wife and his lovers in
exchange for his cooperation and confession in a murder investigation. At a
hearing on post-verdict motions, three women testified that that they went to
the police administration building, met with Detective Gerrard and/or another
detective, signed the log book, and were escorted to Lester’s room, where
they had sexual intercourse with him. Id. at 697. Although Detective Gerard
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testified somewhat differently, the Commonwealth conceded that the sexual
encounters had occurred. Id. This Court ruled that Lester was coerced into
giving his confession by the police’s offer of future sexual gratification, and
that he was denied effective assistance because his counsel failed to introduce
evidence of the sexual conduct at the suppression hearing. Notably, the
Lester Court made no finding of wrongdoing on the part of Detective Gerrard,
nor did it indicate whether his actions resulted in charges or disciplinary
proceedings.
Lark wanted to cross-examine Detective Gerrard regarding the “sex for
lies” scandal at issue in Lester. Lark maintains that several Commonwealth
witnesses indicated on cross–examination that they had agreed to police
questioning out of fear, or that they were either on parole, had open charges
pending at the time police questioned them, or had prior crimen falsi
convictions. Lark’s Brief at 24-26. Lark demonstrated that three of those
witnesses were shown leniency in their own criminal cases after providing
statements implicating Lark in Cho’s murder or testifying against him. Id. at
25-26. Lark asserts that he should have been permitted to cross-examine
Detective Gerrard, as the lead detective in the homicide investigation,
regarding any promises that were made to these witnesses. Id. at 26. Lark
believes his inability to pursue this “vital line of impeachment” warrants a new
trial. Id. at 24.
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The trial court explained the basis for its decision to deny cross-
examination of Detective Gerrard regarding his involvement in Lester, as
follows:
The alleged sexual misconduct by police in Lester occurred after
the instant case. In the instant case, the murder occurred in
1979. [Lark] was arrested in 1980. His first trial occurred in
1981. In Lester, the defendant was transferred from [f]ederal
custody to the Philadelphia police in 1983. The Lester matter was
not relevant in testing the credibility of Detective Gerrard in the
instant matter. In the instant case, Detective Gerrard obtained
statements from witnesses. Lester involved a confession by the
accused. The Lester allegations are of no consequence in
determining the instant case. Whatever relevance the Lester
allegations might have had was outweighed by the danger of
confusing the issues and misleading the jury.
Trial Court Opinion, 7/13/18, at 14-15 (internal citations omitted).
We discern no abuse of discretion in the trial court’s ruling. The Lester
matter occurred two years after Lark’s first trial. There is no indication in the
record that any of the Commonwealth witnesses were offered sex by Detective
Gerrard in exchange for testimony against Lark. Thus, the Lester matter was
of limited relevance, and cross-examination of Detective Gerrard as to the
sex-for-lies scandal presented the danger of confusing the issues and
misleading the jury. Moreover, Lark was permitted to, and did, cross examine
each of the Commonwealth witnesses regarding his or her motives to provide
false testimony in exchange for leniency from the Commonwealth. See Lark,
543 A.2d at 499. Accordingly, no relief is due on Lark’s sixth and seventh
issues.
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Lark’s remaining claims pertain to the trial court’s denial of his requests
for a mistrial. Our standard of review in assessing the denial of a mistrial is
as follows:
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. A mistrial may be granted 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. Johnson, 107 A.3d 52, 77 (Pa. 2014).
In his eighth issue, Lark contends that the trial court abused its
discretion by denying his request for a mistrial when the Commonwealth
elicited testimony that Lark’s sentencing on June 11, 1981, was for a separate
robbery unrelated to the charges in question. Lark’s Brief at 27. Lark
concedes that “[the defense] and the Commonwealth had agreed that the
June 11, 1981 sentencing would be referred to as a sentencing on an unrelated
robbery in order to minimize any prejudice from this evidence of other crime.”
Id. at 28. However, he claims that the Commonwealth violated the
agreement, thereby warranting a new trial.
Here, the parties endeavored to minimize the prejudice associated with
the anticipated disclosure to the jury that, when Lark made the additional
threats to ADA Cunningham, he was being sentenced for a second robbery
conviction (unrelated to his conviction for robbing Cho). They agreed that
when referencing the threats that Lark’s made to ADA Cunningham at the
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June 11, 1981 sentencing hearing, they would refer to that proceeding as
Lark’s sentencing on “an unrelated robbery conviction.” N.T. 10/19/17, at
121. The jury subsequently heard testimony that Lark had been convicted of
robbing Cho. N.T. Trial, 10/19/17, at 146. Without objection, the prosecutor
thereafter referred to the June 11, 1981 sentencing hearing as “an-unrelated–
to-this-robbery sentencing proceeding.” Id. at 171. However, when the
prosecutor later stated “[t]his proceeding, so there is no confusion, this was
not a sentencing on the robbery of . . . Cho[,]” Lark’s counsel objected and
moved for a mistrial. Id. at 173, 175.
We discern no abuse of discretion by the trial court in denying the
request for a mistrial. Implicit in the parties’ agreement that they would refer
to the June 11, 1981 sentencing hearing as sentencing for “an unrelated
robbery conviction” is the notion that Lark had been convicted of a separate
robbery that was unrelated to his conviction for the robbery of Cho. While the
prosecutor used words that differed from the precise language agreed to by
the parties, the difference was immaterial, since no additional crimes were
conveyed to the jury. Accordingly, Lark’s eighth issue lacks merit.
In his ninth issue, Lark contends that the trial court abused its discretion
when it denied his request for a mistrial following ADA Cunningham’s
inadvertent reference, when testifying as a witness at the 2017 trial, to Lark’s
prior homicide “trial.” The reference was made during defense counsel’s
questioning of ADA Cunningham regarding the Cho homicide case. ADA
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Cunningham explained that the homicide unit of the District Attorney’s office
handled the Cho homicide case, and that he was not in the homicide unit. N.T.
10/19/17, at 189-90. The questioning proceeded as follows:
[Defense Counsel]: However, Mr. Campolongo, who we saw referenced
there a couple times, was in fact a homicide DA that handled the
homicide case. Is that fair to say?
[The Witness]: I don’t think Campolongo was in homicide when he
handled the homicide case. I don’t know what unit he was in.
[Defense Counsel]: Did he handle the homicide case?
[The Witness]: He handled the trial. He handled the trial in front of –
THE COURT: Let’s move on.
Id. at 190. Lark claims that he is entitled to a new trial because ADA
Cunningham’s response “was grossly prejudicial since it clearly informed the
jury that a prior trial had taken place and hence that a prior jury had found
[Lark] guilty.” Lark’s Brief at 29.
The trial court determined that ADA Cunningham’s use of the word
“trial” in his answer was insignificant. The court reasoned that:
Since events discussed in the present trial occurred more than
three decades earlier, the jury would have understood that the
instant proceeding was a retrial. Given the overwhelming
evidence against [Lark], the mention of the term “trial” could not
have contributed to the verdict. Accordingly, the use of the term
“trial” was harmless error if, it was error at all.
Trial Court Opinion, 7/13/18, at 10.
We discern no abuse of discretion by the trial court in denying Lark’s
motion for a mistrial based on the ADA Cunningham’s brief reference to Lark’s
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prior homicide trial. Further, we disagree that Lark’s contention that the
mention of the word “trial” necessarily conveyed to the jury that Lark was
found guilty at the prior proceeding. Indeed, Lark’s first trial ended in a
mistrial. Moreover, Lark’s counsel, rather than the prosecutor, elicited the
objectionable testimony when he questioned ADA Cunningham regarding ADA
Campolongo’s role in the “homicide case.” The question confused the witness,
who asked for clarification of the word “case” when he mentioned the word
“trial.”
In any event, even if ADA Cunningham’s reference to Lark’s prior
homicide trial was an error, we agree with the trial court’s determination that
the error was harmless and could not have contributed to the verdict. See
id. As indicated previously, our review of the record reflects that the
uncontradicted evidence of Lark’s guilt was so overwhelming, and the
prejudicial effect of a solitary reference to a prior “trial” was insignificant by
comparison, that beyond a reasonable doubt the error could not have
contributed to the verdict. See Fulton, supra at 493. Accordingly, Lark’s
ninth issue entitles him to no relief.
In his tenth issue, Lark contends that the trial court abused its discretion
by denying his request for mistrial following the prosecutor’s reference, during
closing argument, to Lark’s failure to call his nephew, Abdul Razak, as a
witness. Lark maintains that because the Commonwealth bore the burden of
proving his guilt, he was not required to present any evidence at trial “either
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through his own mouth or through the mouths of others, and he is not required
to prove anything or explain anything whatsoever in his defense.” Lark’s Brief
at 29. He argues that, because the prosecutor’s comments amounted to a
claim that Lark should have proved his innocence, a new trial is warranted.
Id. at 30-31.
A prosecutor has reasonable latitude during his closing argument to
advocate his case, respond to arguments of opposing counsel, and fairly
present the Commonwealth’s version of the evidence to the jury.
Commonwealth v. Cooper, 941 A.2d 655, 668 (Pa. 2007). While a
prosecutor may comment on the credibility of the defendant or other
witnesses, it is improper for a prosecutor to express a personal belief as to
their credibility. Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013).
Nevertheless, even an otherwise improper comment may be appropriate if it
is in fair response to defense counsel’s remarks. Commonwealth v. Spotz,
47 A.3d 63, 97 (Pa. 2012). Any challenge to a prosecutor’s comment must
be evaluated in the context in which the comment was made. Id. (stating
that the effect of the prosecutor’s remarks must be evaluated in the context
and atmosphere of the entire trial).
By way of background, James Spencer, an acquaintance of Lark’s, gave
two detailed statements to police that Lark confessed to robbing Cho, and
then murdering him to prevent him from testifying about the robbery.
However, when Spencer was brought to the courthouse for the 1985 trial,
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police inadvertently placed him in the same holding cell as Lark. Lark then
threatened Spencer and his family, and instructed Spencer how to lie and to
wear his prison uniform while testifying so that would appear less credible.
When Spencer took the witness stand a few hours later at Lark’s 1985 trial,
he recanted his prior statements to police, and claimed that they were lies.
At the 2017 trial, the Commonwealth called Spencer as a witness. On cross-
examination, the defense elicited testimony from Spencer that he had met
Lark’s nephew, Razak, while in prison, and told Razak that he and the other
witnesses against Lark had lied. N.T. Trail, 10/25/17, at 102, 107. On
redirect, Spencer admitted that he did not know the other witnesses against
Lark, or whether any of them had lied. Id. at 103-04.
In his closing argument, defense counsel suggested that Spencer
provided false statements to police in order to get a favorable deal for himself
on his then-pending criminal matters. The prosecutor thereafter addressed
the credibility of Spencer’s recantation testimony in his closing argument.
Referring to Spencer’s purported statements to Razak, the prosecutor asked
the jury, “Did you see them call the nephew to the stand to corroborate what
James Spencer said? . . . Maybe [Razak] wouldn’t have corroborated it
because you can’t keep your lies straight, just like Mr. Spencer couldn’t keep
his lies straight for his reasoning for going south, for his recantation.” N.T.
Trial 11/1/17, at 75.
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The trial court addressed Lark’s challenge as follows: “[The
prosecutor’s] comment was directed at the lack of corroboration of Mr.
Spencer’s claim that he had lied. In careful fashion, the prosecutor did not
comment on [Lark’s] failure to present witnesses. That reference to the
nephew did not deprive [Lark] of a fair trial.” Trial Court Opinion, 7/13/18, at
16.
We discern no abuse of discretion by the trial court in denying Lark’s
request for a mistrial. The prosecutor’s comments focused on the credibility
of Spencer’s recantation testimony, given that Spencer provided statements
to police that Lark confessed to Cho’s murder before Lark threatened Spencer
and his family. When viewed in the context and atmosphere of the entire trial,
it is clear that the prosecutor’s attack upon Spencer’s credibility was in
response to, and was commensurate with, the preceding defense claim that
Spencer fabricated his statements to police. Accordingly, the prosecutor could
permissibly refer to such inconsistent testimony, and that fact that it was not
corroborated by Lark’s nephew. That being the case, and given that the
prosecutor did not characterize his attack on Spencer’s credibility as reflecting
his own personal opinion, the trial court acted within its discretion in denying
Lark’s mistrial motion. Thus, no relief is due on Lark’s tenth issue.
In his final issue, Lark contends that the trial court abused its discretion
in denying his request for a mistrial after the prosecutor referenced the
hearsay statement of Muriel Jackson that Lark was Cho’s killer. Ms. Jackson’s
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out-of-court statement was elicited by defense counsel on cross-examination
of Carolyn Purvis during the 1985 trial. Ms. Purvis was deceased at the time
of Lark’s 2017 trial; hence, because she was unavailable, her prior testimony,
including Ms. Jackson’s hearsay statement, was read into the evidentiary
record. According to Lark, the prosecutor’s reference to the hearsay
statement in his closing argument entitles him to a new trial.
While Lark claims that he objected to Ms. Jackson’s hearsay statement,
the record indicates otherwise. Lark’s prior counsel did not object to that
statement during his cross-examination of Ms. Purvis at the 1985 trial.
Additionally, when Ms. Purvis’s prior testimony was read into the record at the
2017 trial, defense counsel made no objection to the out-of-court statement.
Although defense counsel objected to the prosecutor’s reference to the
statement seven days later during the prosecutor’s closing argument, this
objection was too late. Because no objection was contemporaneously made
at the time Ms. Jackson’s hearsay statement was read into the evidentiary
record, the issue is waived. See Commonwealth v. Baumhammers, 960
A.2d 59, 73 (Pa. 2008) (holding that objections not contemporaneously raised
were waived despite having been subsequently raised before the trial court in
post-sentence motions); see also Commonwealth v. Rosser, 135 A.3d
1077, 1086 (Pa. Super. 2016) (en banc) (holding that, in order to provide trial
courts with an opportunity to correct errors at the time they are made, one
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must object to errors, improprieties or irregularities at the earliest possible
stage of the criminal adjudicatory process). Accordingly, no relief is due.
Having concluded that Lark is not entitled to relief on any of his issues,
we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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