Com. v. McNeil, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER MCNEIL :
:
Appellant : No. 1577 EDA 2019
Appeal from the Judgment of Sentence Entered May 2, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008397-2016
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 07, 2020
Peter McNeil appeals from the judgment of sentence entered in the
Philadelphia County Court of Common Pleas. McNeil contends the trial court
abused its discretion in admitting evidence of his nickname, “Pistol Pete,” and
in denying his motions for a mistrial. After careful review, we affirm.
Philadelphia Police Officer Ryan McAdams was on routine patrol when
he received a radio call directing him to a shooting on Edgemore Street in
West Philadelphia. Upon his arrival, the officer found Christopher Palmer laying
on the ground – barely conscious – with multiple gunshot wounds. A few
blocks away another officer who was called to the scene found Darius Johnson
fatally shot. Officer McAdams rushed Palmer to Penn Presbyterian Medical
Center where Palmer received emergency life-saving medical treatment.
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After securing the scene, police interviewed Hakeem Jenkins. In
speaking with police, Jenkins explained how a dispute with a neighborhood
acquaintance over a stolen wallet resulted in a fatal shooting.
Jenkins told police that a neighborhood acquaintance had stolen his
wallet and some cash from him a few days before the shooting. That
acquaintance, according to Jenkins, was known in the neighborhood as “Pistol
Pete.” A very short time after the theft Jenkins summoned “Pistol Pete” to
Edgemore Street to settle the dispute. There, Jenkins, along with Palmer and
Johnson, waited to confront “Pistol Pete” about the stolen wallet. However, by
the time “Pistol Pete” arrived on Edgemore Street, Jenkins had gone inside a
neighbor’s home. Shortly thereafter, Jenkins watched from inside the
neighbor’s home as “Pistol Pete” fired several shots at Palmer and Johnson.
Following Jenkins’s interview, the information about “Pistol Pete” was
broadcast to police officers in the area of Edgemore Street. Shortly thereafter,
one of the police officers recognized the nickname “Pistol Pete” and identified
him as Peter McNeil. Police eventually arrested McNeil and charged him with
multiple offenses including murder and attempted murder.1
Before trial, McNeil filed a motion in limine to exclude any reference to
his nickname at trial. In his motion, McNeil averred that this particular
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1 Isiah Bradley was also charged in the case with shooting Palmer and
Johnson. He was tried jointly with McNeil and was found not guilty on all
charges.
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evidence lacked probative value and was unduly prejudicial. The trial court
denied McNeil’s motion in limine, and McNeil proceeded to a jury trial.
At trial, the Commonwealth presented several witnesses, including
Palmer, who testified about the events on Edgemore Street. The
Commonwealth adduced testimony from Palmer about the dispute over
Jenkins’s stolen wallet and the shooting that occurred as a result of the theft.
On cross-examination, McNeil sought to undermine Palmer’s credibility.
Admittedly, Palmer struggled to answer questions that were posed to him by
McNeil on cross-examination. To explain Palmer’s difficulty in answering
questions, the Commonwealth on redirect elicited testimony from Palmer that
he never testified in front of a jury and was a little nervous doing so. McNeil
objected to Palmer’s testimony, and the trial court overruled the objection.
The Commonwealth then called Anthony Williams as a witness. Williams
testified how he was at the scene of the shooting and saw McNeil point a gun
at Palmer and Johnson, but ran away before McNeil pulled the trigger. He also
testified that, despite being at the scene of the shooting, he did not speak with
police until after his grandmother implored him to do so. McNeil cross-
examined Williams on his delay in speaking with police. Notably, McNeil
elicited testimony that Williams was scared to be a witness at trial. On redirect,
the Commonwealth asked Williams why he was scared to be a witness, and
Williams responded he was scared because of the consequences. McNeil
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objected to this line of questioning and ultimately requested a mistrial, which
the trial court denied.
The Commonwealth also adduced testimony from Jenkins, whose stolen
wallet precipitated the shooting. Jenkins testified about the events leading up
to the shooting and specifically mentioned how he sold illegal pills to McNeil
shortly before McNeil stole his wallet. McNeil lodged an immediate objection
and requested a sidebar. At the sidebar, McNeil notified the trial court that the
Commonwealth failed to inform him of Jenkins’s testimony regarding the sale
of narcotics. McNeil requested a mistrial based on Jenkins’s testimony, but
the trial court denied McNeil’s request. Instead, the trial court issued a
cautionary jury instruction directing the jurors to disregard testimony about
McNeil’s drug purchase.
Following deliberations, the jury found McNeil guilty of murder in the
third degree of Johnson, attempted murder and aggravated assault of Palmer,
carrying a concealed firearm without a license, carrying a firearm on city
streets, and possessing an instrument of crime. The trial court imposed
consecutive sentences of incarceration of 20-40 years for murder in the third
degree and 10-20 years for attempted murder. The court also sentenced
McNeil to a concurrent term of 3 ½-7 years for carrying a firearm without a
license. McNeil filed a motion for reconsideration, which the court denied. This
appeal is now properly before us.
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In his first issue, McNeil argues that evidence of his nickname, “Pistol
Pete,” was not relevant and, even if relevant, its prejudicial effect outweighed
its probative value. He also contends evidence of his nickname suggested he
had a violent character and acted in conformity with that character. He
therefore contends the trial court erred in admitting evidence of this nickname.
The admission of evidence is within the sound discretion of the trial court
and will be reversed only upon an abuse of that discretion. See
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015). An abuse of
discretion is not merely an error of judgment, but a misapplication of the law
or an unreasonable exercise of judgment. See Commonwealth v. Sitler,
144 A.3d 156, 163 (Pa. Super. 2016) (en banc).
The threshold inquiry for the admission of evidence is whether the
evidence is relevant. See Commonwealth v. Cook, 952 A.2d 594, 612 (Pa.
2008). Evidence is relevant if it has any tendency to make a fact of
consequence more or less probable than it would be without the evidence.
See Pa.R.E. 401. However, even if relevant, evidence may be excluded if its
probative value is outweighed by a danger of unfair prejudice. See Pa.R.E.
403. “Unfair prejudice means a tendency to suggest a decision on an improper
basis or to divert the jury’s attention away from its duty of weighing the
evidence impartially.” Commonwealth v. Lynn, 192 A.3d 165, 170 (Pa.
Super. 2018) (citation and internal quotation marks omitted).
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A nickname is relevant evidence and admissible when the
Commonwealth uses it to show that witnesses could identify the defendant as
the perpetrator of the offense at issue. See Commonwealth v. Williams, 58
A.3d 796, 800-801 (Pa. Super. 2012) (holding that the Commonwealth was
allowed to refer to defendant by the nickname, “Killa,” for the purpose of
showing that the witnesses recognized defendant and could identify him as
the perpetrator).
Here, the Commonwealth used McNeil’s nickname to show that the
complaining witness in the case knew McNeil as “Pistol Pete” and identified
him to police as the shooter. At trial, the Commonwealth elicited testimony
from Jenkins that a man he knew as “Pistol Pete” shot Palmer and Johnson on
Edgemore Street. See N.T., Jury Trial, 11/21/18, at 25. With that information,
the Commonwealth established a connection between Jenkins’s identification
of McNeil as the shooter, McNeil’s arrest, and the discovery of the gun used in
the shooting.
McNeil contends on appeal that the Commonwealth should not have
been permitted to use his nickname because identity was not at issue in the
case. See Appellant’s Brief, at 29. This view fails to account for the fact that
McNeil’s defense at trial was that he was not the shooter. See id., at 26. In
fact, the record shows that McNeil’s trial counsel disputed McNeil’s
involvement in the shooting during closing arguments. See N.T., Jury Trial,
11/30/18, at 22-24. Clearly, evidence of McNeil’s nickname was relevant and
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highly probative as to whether McNeil was the perpetrator of the crime. See
Williams, 58 A.3d at 800-801.
Furthermore, our review of the record shows that the Commonwealth
did not use McNeil’s nickname to suggest McNeil had a violent character and
acted in conformity with that character. See Pa.R.E. 404(a)(1) (stating that
character or trait-based evidence cannot be admitted to prove that a person
acted in accordance with either of those dispositions on any particular
occasion). As noted above, the Commonwealth used McNeil’s nickname to
show that the complaining witness knew McNeil as “Pistol Pete” and identified
him to police as such. The Commonwealth never intended to use McNeil’s
nickname to show McNeil had a violent character. See N.T., Jury Trial,
11/15/18, at 12-13. Nor did the Commonwealth introduce evidence of McNeil’s
nickname for that purpose. Therefore, we cannot conclude that the
Commonwealth used McNeil’s nickname to inflame the jury or demonstrate
that McNeil had a violent character.
Next, McNeil argues that the trial court erred in failing to grant a mistrial
based on testimony that he purchased illegal drugs. According to McNeil, the
testimony had no relevance to any issue at trial. Furthermore, McNeil asserts
that the testimony implicated him in unrelated criminal conduct and therefore
warranted the grant of a mistrial.
Our review of a trial court’s denial of a motion for mistrial is limited to
determining whether the trial court abused its discretion. See
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Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011). “A mistrial
is an extreme remedy that is required only where the challenged event
deprived the accused of a fair and impartial trial.” Commonwealth v. Smith,
131 A.3d 467, 475 (Pa. 2015) (citation omitted). A mistrial is not required
where cautionary instructions adequately overcome the alleged prejudice. See
Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016).
On direct examination, Jenkins stated that McNeil bought drugs from
him a few days before the shooting. See N.T., Jury Trial, 11/20/18, at 186.
This fleeting reference prompted McNeil to object and request a sidebar. See
id., at 187. During the sidebar, McNeil asked for a mistrial based on Jenkins’s
testimony. See id. In response, the trial court explained that it indicated to
the jury during voir dire that there would be testimony in the case about drugs
and drug dealing. See id. The trial court further explained that it inquired as
to whether such testimony would affect jurors’ ability to be fair and impartial,
and each juror answered in the negative. See id., at 188. For that reason, the
trial court denied McNeil’s motion for a mistrial.
At the conclusion of the sidebar, the trial court gave a cautionary jury
instruction regarding Jenkins’s testimony, which McNeil agreed was necessary.
In doing so, the trial court told the jury that McNeil “is not on trial for any
crime relating to drug use.” See id., at 193. The trial court then ordered the
jury “not to use this testimony in any manner against Mr. McNeil in your
consideration of the charges in this case.” See id. The trial court also allowed
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the Commonwealth to advise Jenkins against referring to other instances of
criminal conduct by McNeil. See id., at 190-192.
Although the reference to McNeil’s drug purchase was singular and
fleeting, it was not directly relevant to any issue in the case. As our Supreme
Court stated, “evidence of drug use, like evidence of any other bad habit of a
defendant, should be avoided except when directly relevant to an issue before
the fact-finder.” Commonwealth v. Rivera, 367 A.2d 719, 722 (Pa. 1976).
Thus, the jury was exposed to improper testimony about McNeil’s illegal drug
use.
However, we cannot conclude that the trial court abused its discretion
in refusing to grant McNeil’s motion for a mistrial. The trial court’s curative
instruction informed jurors to disregard Jenkins’s fleeting reference to McNeil’s
purchase of illegal drugs. While McNeil claims the instruction failed to cure the
harm of the drug reference, McNeil provides no evidence or rationale to
overcome the strong presumption that jurors in this case followed the trial
court’s curative instruction. See Commonwealth v. Reid, 99 A.3d 470, 501
(Pa. 2014). Nor is there any evidence that a juror indicated he or she was
incapable of disregarding the reference to McNeil’s drug purchase. Instead,
each juror stated during voir dire that testimony about drugs and drug dealing
would not affect their ability to be fair and impartial. Hence, McNeil’s second
issue merits no relief.
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In his final issue, McNeil argues the trial court erred by not granting a
mistrial after two witnesses, Palmer and Williams, stated they were scared to
testify at trial. He claims that Williams and Palmer provided testimony that
was highly prejudicial because it permitted the jury to infer that McNeil had
engaged in criminal conduct to influence or coerce their testimony. As such,
McNeil asserts that he was deprived of a fair and impartial trial.
As an initial matter, we must determine whether McNeil properly
preserved this challenge for our review. To preserve a challenge to the denial
of a motion for mistrial, a defendant, like McNeil, must object to specific
conduct at trial and move for a mistrial. See Commonwealth v. Sandusky,
77 A.3d 663, 670 (Pa. Super. 2013). However, where a defendant objects to
specific conduct, the failure to request a mistrial is sufficient to constitute
waiver. See Commonwealth v. Strunk, 953 A.2d 577, 579-580 (Pa. Super.
2008) (citation omitted).
On redirect, the Commonwealth asked Palmer whether he was scared
to testify as a witness. See N.T., Jury Trial, 11/19/18, at 93. McNeil objected
to the Commonwealth’s question, and the trial court overruled the objection;
however, McNeil did not request a mistrial. See id. Because McNeil did not
move for a mistrial, he waived his claim regarding Palmer’s testimony. See
Strunk, 953 A.2d at 579-580.
However, with respect to Williams’s testimony, our review of the record
shows that McNeil preserved this claim. McNeil lodged numerous objections to
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the testimony adduced on redirect that explained why Williams was scared to
testify as a witness. See N.T., Jury Trial, 11/20/18, at 146. The trial court
overruled these objections, and McNeil moved for a mistrial, which the trial
court denied. See id., at 148-149. Therefore, we will address the merits of
McNeil’s claim regarding Williams’s testimony. See Sandusky, 77 A.3d at
670.
Because a mistrial is an extreme remedy, Williams’s testimony must
have had the unavoidable effect of depriving McNeil of a fair and impartial
trial. See Smith, 131 A.3d at 475. The record does not contain such proof.
As noted above, McNeil elicited testimony from Williams on cross-
examination that Williams was scared to testify as a witness. On redirect, the
Commonwealth sought to clarify why Williams was scared to be a witness, and
Williams did in fact illuminate the reasons for his apprehension. Williams
simply stated that, “[n]obody want[s] to sit up here and tell the truth . . .
because something might happen to them, I guess.” N.T., Jury Trial,
11/20/18, at 148-149.
Contrary to McNeil’s assertion, there is nothing in Williams’s testimony
on redirect to suggest that McNeil had threatened Williams or influenced his
testimony at trial. The Commonwealth’s redirect examination of Williams
followed up on McNeil’s cross-examination of Williams in which Williams
testified he was scared to be a witness. Nowhere in his testimony did Williams
indicate his fear stemmed from McNeil. As such, we conclude the trial court
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did not abuse its discretion in concluding that the testimony did not deprive
McNeil of a fair and impartial trial.
McNeil’s issues lack merit. Therefore, we affirm his judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/20
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