Com. v. Baker, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY EMANUEL BAKER,
Appellant No. 454 MDA 2016
Appeal from the Judgment of Sentence Entered February 19, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s):
CP-22-CR-0000034-2014
CP-22-CR-0002151-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 01, 2017
Appellant, Troy Emanuel Baker, appeals from the judgment of
sentence of an aggregate term of 6 years' and 8 months' to 15 years'
incarceration, following his conviction for four burglary and conspiracy
counts. After careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
At docket 34-CR-2014, [Appellant] was found not guilty of
Count 1 (Colonial Lounge Burglary), Count 2 (L&N Beverage
Burglary), Count 4 (Colonial Country Club Burglary), Count 5
(Super 7 Mart Burglary),3 and Counts 8, 9, 11, and 12
(Conspiracy counts). In regards to these burglaries, the
Commonwealth introduced evidence that showed how the
burglaries were committed (in order to establish modus
operandi) and what was taken from each location. The
* Former Justice specially assigned to the Superior Court.
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Commonwealth also introduced a PowerPoint presentation that
generally showed the location of each burglary and pictures from
the scene of the incident. As [Appellant] was found not guilty of
the above -mentioned burglaries, this [c]ourt will briefly discuss
those that [Appellant] was found guilty of below.
3[Appellant] was also found not guilty of the conspiracy to
commit burglary in regards to these counts.
Count 3 - Barr's Exxon Interstate (Gas Station) Burglary (Pine
Grove, Pennsylvania):4
[Appellant] was found guilty of the Barr's Exxon Interstate
burglary at docket 34-CR-2014, Count 3. The incident occurred
after the gas station closed on June 7, 2013 (into June 8, 2013).
Larry Barr, owner of Barr's Exxon Interstate, testified that cash
and a DVD player were taken. Trooper Jordan Tuttle, a
Pennsylvania State Trooper who was first to arrive on the scene,
introduced a PowerPoint presentation that described the layout
of the property, the wires that were cut, the window damage,
the door damage, how the ATM looked, the cash register, the
damage to the safe, etc. Trooper Tuttle also testified that this
burglary was very distinct in that it was well -executed and
organized. The Commonwealth's final witness in regards to the
Barr's [Exxon] Interstate burglary was Trooper Robert Kluge who
was asked to follow up on any leads leading from the
investigation. The Commonwealth also presented testimony
from an employee of Barr's Interstate and the owner who
testified to what they saw in regards to the burglary.
4 Barr's Exxon Interstate is located around mile marker
100 on Interstate 81 near the Pine Grove exit in Schuylkill
County. The burglary took place sometime after the gas
station closed on June 7, 2013 into June 8, 2013.
Count 6 - Blue Ridge Country Club (Harrisburg, Pennsylvania):
[Appellant] was found guilty of the Blue Ridge Country
Club burglary at docket 34-CR-2014, Count 6. The incident took
place in August of 2013. Wade Boulder, employed as a
controller at the Blue Ridge Country Club, testified that $3,500 in
cash was taken at the time of the burglary. Officer Bryan Ryder,
of the Lower Paxton Township Police, was the first to arrive on
scene for the Blue Ridge incident and noticed that numerous
wires were cut on an outside pole where the alarm system was
hooked up. Investigator McPhillips discussed the Blue Ridge
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Country Club burglary.5 As later testimony would reveal, the
three (3) defendants, all of whom lived in the Baltimore -
Washington area, were followed into Pennsylvania by detectives
from Maryland on the night of the Blue Ridge caper as part of a
police investigation in that state.
5 TheCommonwealth introduced another PowerPoint
(Commonwealth's Exhibit 426) which showed the scene of
the Blue Ridge Country Club burglary.
Count 7 - Thorndale Exxon Gas Station Burglary (Thorndale,
Chester County, Pennsylvania):
[Appellant] was found guilty of the Thorndale Exxon Gas
Station burglary at docket 34-CR-2014, Count 7. The incident
occurred the night of August 26, 2013 into August 27, 2013.
Rakesh Kumar ("Rocky"), part owner of Thorndale Exxon Gas
Station, testified that a DVR system, cartons of cigarettes,
cigars, and $7,000 to $8,000 in cash was taken during the
burglary. Detective James Lippolis, a Detective in the Cain
Township Police Department, Chester County, processed the
scene and through him, the Commonwealth introduced another
PowerPoint Presentation. 6 This PowerPoint presentation
provided a walk-through of the Thorndale Exxon Gas Station
Burglary and provided photographs of the following: location, the
gas station itself, damaged front door, damaged ATM machine,
ATM Cash Box,' lottery machine register, cash register (with
wires cut), pictures of the safe, the alarm panel systenn,8 and
wires from where the DVR system would have been.
6
The Commonwealth introduced said PowerPoint
presentation as Commonwealth's Exhibit 505.
7 The ATM cash box was admitted into evidence.
8
alarm
The panel system was admitted as
Commonwealth's Exhibit 564.
Count 1 - Shell at Top of the 80s Gas Station and Convenience
Store Burglary (located at 218, Route 93, Hazleton, PA):
[Appellant] was found guilty of the Shell at the Top of the
80s Gas Station burglary at docket 2151-CR-2014, Count 1. The
incident occurred on the night of September 3, 2013 into
September 4, 2013. Jihad Abdulrahman, owner of the gas
station, testified that cigarettes and cigars were taken along with
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an estimated $5,000 to $6,000 in cash on the night of the
burglary.9 The Commonwealth called Corporal Mark Dotter, of
the Pennsylvania State Police, to testify to the investigation and
car chase that took place following the break-in. Corporal Dotter
testified that he activated his emergency lights and sirens to pull
over the Yukon, which was the getaway vehicle used by the
burglars, including ... Appellant. The Commonwealth proceeded
to call Detective Joseph Pugliese, who at the time of the
burglaries was a Detective in the Howard County Police
Department and a member of the ROPE unit. Detective Pugliese
first testified as to the Blue Ridge Country Club incident and his
surveillance and monitoring of a white work van and a Yukon
(known to be driven by [Appellant]) around 2:50 a.m. in the
morning on the night of the incident. Next, Detective Pugliese
testified to the incident that occurred during the Shell at Top of
the 80s Gas Station burglary. Finally, Detective Pugliese
testified that he helped with the stop following the chase.
9 Mr. Abdulrahman also testified that his satellite system
for the credit card machine was taken.
Other evidence was introduced linking the Defendant and
his co-defendants to the charged burglaries.
Cindy Skylight Liquor Store Burglary (Elkridge. Maryland):'°
Police Officer John Mooney of the Howard County Police
Department testified to the burglary that occurred on August 12,
2013 at Cindy Skylight Liquor Store. Officer Mooney was the
first officer to arrive on the scene and made sure the scene was
secure. Officer Mooney discovered a purse'' (inside the purse
was co-defendant[] Cornell Anthony Cole's driver's license)
I[]ying in the grass. Once inside, Officer Mooney noticed that
the alarm keypad was ripped off the wall and the safe was
tampered with and that the outside electrical phone box was
damaged and the wires were cut. Detective Nathan Guilfoyle,
the lead investigator, testified that the proactive enforcement
unit (ROPE)12 got involved and contact was eventually made with
Detective Glucksman. The Commonwealth also introduced
Commonwealth's Exhibit 425 which was a search warrant for the
installation of an electronic tracking devise for a 2003 GMC
Yukon owned by [Appellant]. Detective Guilfoyle also testified
that they had also obtained a search warrant (although never
executed) for a 2009 Ford E350 work van owned by Cornell Cole.
Trooper Christopher Plumadore, employed by the Maryland State
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Police, and Jon Blevit, a Police Officer in Whitpain Township,
Montgomery County, Pa both testified to prior interactions with
the defendant(s). A Stipulation was read to the jury in regards
to the 2009 incident (Trooper Plumadore), the 2010 incident
(Officer Blevit), and Cindy Skylight Liquor Store.13
1° [Appellant] was not charged with this burglary.
11Introduced as Commonwealth's Exhibit 361A.
12 This was a plain -clothes type of unit who drive unmarked
vehicles.
13 This Stipulation included that any charges stemming
from the 2009 incident were dismissed and expunged, no
charges were brought from the 2010 incident, and any
charges from Cindy Skylights were withdrawn and
dismissed.
Cell Phone Records:
The Commonwealth called Special Agent Richard Fennern
to testify in regards to historical cellular technology. Special
Agent Fennern went through his background, described CAST
(cell -phone related analysis), as well as his training and
experience, and gave background on what exactly is historical
cellular technology (can determine a phone's location based on
the cell tower's make-up). Special Agent Fennern can look at
phone records and based on when there is phone activity, can
give a general location of the phone during the call. The
Commonwealth introduced a PowerPoint of Special Agent
Fennern's conclusions in regards to his research. The
PowerPoint presented showed the various locations and times of
the individual phone records of Mr. Cole, [Appellant], and Mr.
Smith. 14
14
In regards to the phone number of Mr. Smith, an
objection was made not to use his name in reference to a
particular phone number. Said objection was overruled as
[Detective] Kreller had discussed the link between the
phone number provided and Mr. Smith.
GPS Tracking:
The Commonwealth called Sergeant Sarah Kayser, a
member of the Howard County Police Department, to testify in
regards to GPS surveillance in this case.15 Court Orders had
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been obtained in order to do a live GPS tracking for the cell
phones of [Appellant], Mr. Cole, and Mr. Smith.
15
Sergeant Kayser was a member on the ROPE team
(previously mentioned above).
Following the testimony of Sergeant Kayser, [Detective]
Kreller was recalled to testify. [Detective] Kreller indicated that
he was the lead investigator with the ROPE team. [Detective]
Kreller went on to testify about the Blue Ridge Country Club
incident.16 In regards to the Thorndale Exxon Burglary,
[Detective] Kreller explained that on the night of August 26,
2013 into August 27, 2013, he followed the suspects up to the
Mason-Dixon Line (but stayed in Maryland). [Detective] Kreller
also testified to the burglary that took place in Hazleton, PA.17
At this point, the ROPE team was working with Detective
Glucksman here in Pennsylvania (it was more of a joint venture
and additional resources were available to the ROPE team).
16[Detective] Kreller was actually on the scene and was
part of the ROPE team maintaining visual surveillance of
the suspects.
17 This occurred on the night of September 3rd, 2013 into
the night of September 4th, 2013 and eventually led to the
arrest of the suspects.
The Commonwealth's final two witnesses were Nicholas
Plumley, a forensic scientist with the Pennsylvania State Police
Bureau of Forensic Sciences, who testified as to evidence
collected and how it related to each burglary and Detective
Glucksman introduced the mobile vehicle report system videos of
the chase and the arrest of the suspects.
Trial Court Opinion (TCO), 9/21/16, at 3-8 (citations to the notes of
testimony omitted).
The trial court also provided the procedural history leading to this
appeal as follows:
Following a jury trial that commenced on January 22, 2016 and
concluded on February 5, 2016, Appellant was found guilty of
burglary and conspiracy for four of the incidents and acquitted of
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the other counts. He was sentenced on the above captioned
dockets as follows:
Docket No. 34-CR-2014: At Count 3 (Barr's Exxon
Burglary), [Appellant] was sentenced to a term of incarceration
of not less than 16 months no[r] more than 36 months. At
Count 6 (Blue Ridge Country Club Burglary), [Appellant] was
sentenced to a term of incarceration of not less than 16 months
nor more than 36 months running consecutively to Count 3. At
Count 7 (Thorndale Exxon Burglary), [Appellant] was sentenced
to a term of incarceration of not less than 16 months nor more
than 36 months running consecutively to Count 6. At Count 10
(Barr's Exxon Burglary - Conspiracy), [Appellant] was sentenced
to a term of incarceration of not less than 16 months nor more
than 36 months running consecutively to Count 7. At Count 13
(Blue Ridge Country Club Burglary - Conspiracy), [Appellant]
was sentenced to a period of incarceration for a term of not less
than 16 months nor more than 36 months running concurrently
to Count 6. At Count 14 (Thorndale Exxon Burglary -
Conspiracy), [Appellant] was sentenced to a term of
incarceration of not less than 16 months nor more than 36
months running concurrently to Count 13.
Docket No. 2151-CR-2014: At Count 1 (Shell Gas Station
Burglary), [Appellant] was sentenced to a term of incarceration
of not less than 16 months nor more than 36 months running
consecutively to Count 10 on Docket No. 34-CR-2014. At Count
2 (Shell Gas Station Burglary - Conspiracy), [Appellant] was
sentenced to a term of incarceration of not less than 16 months
nor more than 36 months to run concurrently with Count 1.
[Appellant] was entitled to time credit from September 14, 2013
to August 17, 2015, 23 months and 13 days.
[Appellant]'s total sentence was a period of incarceration
not less than 80 months['] nor more than 180 months['
incarceration].
A timely notice of appeal was filed on March 17, 2016. In
compliance with this [c]ourt's Order directing Appellant to file a
[Pa.R.A.P. 1925(b) statement], Appellant filed a [Rule 1925(b)
statement] on April 25, 2016.
Id. at 1-2. The trial court issued its Rule 1925(a) opinion on September 21,
2016.
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Appellant now presents the following questions for our review:
I. Did not the court err in denying [Appellant]'s motion to
sever his case from those of his co-defendants pursuant to
Pa.R.Crim.P. 583 when he suffered prejudice as a result of
the consolidation?
II. Did not the court err in denying [Appellant]'s motion to
suppress based on the illegal searches performed by
Maryland Police Officers in the Commonwealth of
Pennsylvania outside of any permissive authority described
in 42 Pa.C.S. §§ 8921-8924 (regarding interstate hot
pursuit) and 42 Pa.C.S. §§ 8951-8954 (regarding
municipal police jurisdiction)?
III. Did not the court err in denying [Appellant]'s motion[,]
based on the standard of Frye v. United States, 298 F.
1013 (1923)[,] to exclude expert testimony of historical
cell tower data acquired from [Appellant]'s cell phone
providers?
IV. Did not the court err in permitting the Commonwealth to
introduce prior -bad -act evidence detailing activities of the
three defendants, or subsets of them, when such activities
were remote from the events on trial and when such
activities did not result in any criminal convictions?
V. Did not the court err in denying [Appellant]'s motion for
mistrial based upon the Commonwealth's exceeding the
bounds of the pretrial ruling permitting it to introduce
prior -bad -act evidence?
Appellant's Brief at 7-8.
Appellant's first claim concerns the issue of severance/joinder.
Appellant was subjected to a joint trial with co-defendants Cole and Smith,
after his pretrial motion to sever was denied. Appellant asserts that joinder
was improper under the governing standard, and/or that his motion for
severance by party should have been granted.
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"We consider the decision of whether to deny a motion to sever under
an abuse of discretion standard." Commonwealth v. O'Neil, 108 A.3d
900, 905 (Pa. Super. 2015). "The court may order separate trials of
offenses or defendants, or provide other appropriate relief, if it appears that
any party may be prejudiced by offenses or defendants being tried
together." Pa.R.Crim.P. 583.
"Under Rule 583, the prejudice the defendant suffers due to the
joinder must be greater than the general prejudice any
defendant suffers when the Commonwealth's evidence links him
to a crime." Commonwealth v. Dozzo, 991 A.2d 898,902 (Pa.
Super. 2010) (citation omitted), appeal denied, 607 Pa. 709, 5
A.3d 818 (2010).
The prejudice of which Rule 583 speaks is, rather, that
which would occur if the evidence tended to convict the
appellant only by showing his propensity to commit crimes,
or because the jury was incapable of separating the
evidence or could not avoid cumulating the evidence.
Additionally, the admission of relevant evidence connecting
a defendant to the crimes charged is a natural
consequence of a criminal trial, and it is not grounds for
severance by itself.
Id. (quoting Commonwealth v. Lauro, 819 A.2d 100,107 (Pa.
Super. 2003), appeal denied, 574 Pa. 752, 830 A.2d 975(2003)).
Commonwealth v. Richard, 150 A.3d 504,509-10 (Pa. Super. 2016)
Moreover, "when a conspiracy is alleged the defendants should usually
be tried together." Commonwealth v. Tolassi, 392 A.2d 750, 753 (Pa.
Super. 1978). As our Supreme Court further explained in Commonwealth
v. Housman, 986 A.2d 822, 834 (Pa. 2009), "joint trials are preferred
where conspiracy is charged. [Nevertheless, s]everance may be proper
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where a party can establish the co-defendants' defenses are so antagonistic
that a joint trial would result in prejudice. ... However, the party seeking
severance must present more than a mere assertion of antagonism[.]" In
determining whether a defendant can overcome preference for joint trials of
co-conspirators, we consider the following three factors:
(1) Whether the number of defendants or the complexity of the
evidence as to the several defendants is such that the trier of
fact probably will be unable to distinguish the evidence and apply
the law intelligently as to the charges against each defendant;
(2) Whether evidence not admissible against all the defendants
probably will be considered against a defendant notwithstanding
admonitory instructions; and (3) Whether there are antagonistic
defenses.
Tolassi, 392 A.2d at 753.
Instantly, Appellant alleges that there was a "danger" that the jury
would be incapable of distinguishing evidence pertaining to the prior -bad -
acts of his co-defendants, "despite any admonitory warnings." Appellant's
Brief at 28. Specifically, Appellant was not involved in a 2010 vehicle stop
involving his co-defendants, Cole and Smith, who were stopped in
Montgomery County, Pennsylvania. During that stop, police discovered
"various tools, clothing[,] and equipment that the Commonwealth
characterized as instruments for committing burglaries." Id. at 18.
Appellant claims "[t]here is no better proof of that fact tha[n] the comments
of the attorney during his closing argument. Despite his long-term
familiarity with the evidence, he grouped all three defendants together in his
references to the ... 2010[] incident." Id. at 38-39.
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The trial court justified its joinder/severance decision, stating:
In the instant case, the burglaries took place over an
approximately five (5) month period within and around central
Pennsylvania. There are numerous factors weighed in favor of
joinder, including the fact that the charges against the multiple
defendants arose from the same course of events. In addition,
relevant evidence (i.e. the surveillance and tracking of the
multiple defendants, the way each burglary was carried out, the
time of occurrence of each burglary, etc.) of each crime would
be admissible as relevant evidence of the other charged crimes.
Furthermore, the evidence against the multiple defendants
(including Appellant) formed part of the "natural development"
of the facts and history of Appellant's case. Commonwealth v.
Childress, 452 Pa.Super. 37, 680 A.2d 1184, 1188 (1996)
(evidence of crimes other than the one in question may be
admitted where such evidence is part of the history of the case
and forms part of the natural development of the facts).
With respect to considering any potential prejudice, this [c]ourt
finds that the jury was capable of separation of the individual
defendants/crimes because the victims and witnesses for each
were different and presented that way during the trial. The
Commonwealth's testimony on the cellular phone data and other
relevant evidence was presented separately by date and location
of each incident. Finally, it is clear that the jury appropriately
received and parsed the evidence as it rendered guilty and not
guilty verdicts accordingly at the end of the trial. In this
[c]ourt's weighing of the probative value of the common
evidence, the possible prejudicial value of permitting the joinder
of several defendants and trials of the individual offenses as
against the interests of judicial economy, it properly exercised its
discretion by denying Appellant's motion for severance on the
issues presented at trial and ... Appellant's motion to sever the
defendant from trial with his co-defendants.
TCO at 10-11 (footnote omitted).
We agree with the court's analysis, especially in light of the
presumption that co-conspirators should be tried together. See
Houseman, supra. Furthermore, we are wholly unconvinced that the
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inclusion of evidence regarding a single prior bad act by Appellant's co-
conspirators, which did not involve Appellant, could not be easily separated
by the jury, merely because of an isolated error by a prosecutor. Moreover,
in his brief, Appellant provides no authority which supports that view.
Indeed, we agree with the Commonwealth that Appellant has simply failed to
demonstrate that the prejudice arising from Appellant's joinder with his co-
conspirators, under these circumstances, "presents substantially more
prejudice than exist[s] in any joinder case...." Commonwealth's Brief at 11.
Accordingly, we conclude that Appellant's first claim lacks merit.
Next, Appellant presents a two-part claim that the trial court erred in
denying his motion to suppress evidence presented by the Maryland police
officers, evidence which he asserts was collected without any permissible
authority under either 1) the statutes governing interstate hot pursuit, 42
Pa.C.S. § 8922 et. seq.; or 2) the Municipal Police Jurisdiction Act (MPJA), 42
Pa.C.S. § 8953 et. seq.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court's factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court's legal conclusions are erroneous.
Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court's legal conclusions are not binding on an
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appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our plenary
review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)
(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super.
2012)).
Some factual background is necessary to understand the nature of the
evidence sought to be suppressed, as well as the manner in which it was
obtained. Co-defendant Cole's driver's license and debit card were found at
the scene of a burglary of Cindy Skylight Liquors in Elkridge, Maryland, on
August 12, 2013. N.T. Suppression Hearing, 8/26/14, at 16-18. Officers
responding to the burglary collected these items from the scene of the
burglary, processed them into evidence, where they were reviewed by
Officer Nathan Guilfoyle, who initially led the investigation. Officer Guilfoyle
took this evidence to the Repeat Offender Proactive Enforcement (ROPE)
Division of the Criminal Investigations Bureau of the Howard County Police
Department.
Detective Kreller was a supervising member of the ROPE team, and
the ROPE team's primary purpose was to assist other criminal investigation
divisions by providing covert surveillance of individuals suspected of
committing crimes in or around Howard County. Id. at 55. Essentially,
Detective Kreller was assigned to follow Cole and his suspected cohorts and
report on any suspicious or criminal activity observed.
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Initially, Detective Kreller obtained historical cell phone tracking data
which indicated the presence of the suspects' cell phones near the Cindy
Skylight Liquors at the time that business was burglarized.' Id. at 62-64.
Detective Kreller stated that Cole and his cohorts were already on the ROPE
team's radar due to prior investigations, and that the police had been aware
of their "unique MO." Id. at 93. Cole and his co-defendants were previously
suspected in multiple prior burglaries. Id. Detective Kreller began to focus
on Cole because of the ID evidence obtained at the Cindy Skylight Liquors
burglary. Id. at 95. On one occasion prior to his foray into Pennsylvania
while tracking Appellant, Detective Kreller observed him, in his white van,
meet up with co-defendant Smith, in his Yukon. Id. at 96. Officer Kreller
followed them to a gas station in Woodbine, Maryland, where a burglary of a
gas station occurred that same evening. Id. Detective Kreller also observed
Appellant and another individual ostensibly casing a gas station in
Bartonsville, Maryland. Id. Appellant and his cohort were seen "on the
roof" of the business at 2:30 a.m., inexplicably but for nefarious motives,
although it appears as if they did not attempt to gain entry at that time. Id.
On August 26, 2013, the evening of the Blue Ridge Country Club
burglary, Detective Kreller was in Howard County when he was alerted that
the suspects were moving north on Interstate 83 in Maryland. Detective
' The Commonwealth sought to admit this historical cell phone tracking data
under Pa.R.E. 404(b).
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Kreller followed them all the way to Harrisburg, Pennsylvania. Id. at 98.
Eventually, he tracked them to the Blue Ridge Country Club, where he first
observed Cole and Appellant circling the surrounding area in Appellant's
vehicle. Id. at 97-99. Subsequently, Detective Kreller observed the
following:
So we heard an audible alarm from the Blue Ridge and we
knew they were in that area. And at this point it's really tough
on us trying to get in as close as we can without being
compromised. So basically myself and another detective were
laying in a fairway of the golf course where we watched suspects
walk across the fairway to the direction of what I would refer to
as the clubhouse, or the pro shop where they were there for an
extended period of time.
And then we observed two suspects walk back across the
fairway. I don't know of the time, five, ten minutes. I would
have to review my report how long it was, where they were at
the direction of the pro shop. But once they walked back across
the fairway there was then four suspects that came into our view
as they walked along Route 39 dressed in all black clothing, ski
masks, and items in their hand.
As cars came on along Route 39 the suspects would go to
the guardrail. They would go to the wood side of the guardrail.
They would hunch down where it looks thick. They were trying
to hide themselves from traffic. And they would then walk back
and continue along Route 39.
Id. at 100. Detective Kreller did not enter Pennsylvania in response to a
request from any Pennsylvania police department. However, neither
Detective Kreller nor his ROPE team members attempted to effectuate an
arrest of any of the individuals they observed at that time. Id. at 103.
Appellant sought to suppress these observations, as well as the cell
phone tracking evidence that led Detective Kreller to follow the defendants
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to the Blue Ridge Country Club, based on the claim that Detective Kreller
and his fellow Maryland officers made these observations without any
authority under, or in contravention to, Pennsylvania law.
Appellant first asserts that the Maryland officers were conducting a
search within the meaning of the Fourth Amendment of the U.S.
Constitution, and Article I, Section 8, of the Pennsylvania Constitution, thus
requiring a warrant or a showing of probable cause and exigency in the
absence of a warrant, when they tracked Appellant's and his cohort's cell
phones using real-time, GPS data provided by their phone carriers. We
agree with this aspect of Appellant's argument. See Commonwealth v.
Rushing, 71 A.3d 939, 961-64 (Pa. Super. 2013) (holding the "[a]ppellant
did have a legitimate expectation of privacy that the government could not
surreptitiously track his real time location via his cell phone signal" and that
the "police were required to make a showing of probable cause in order to
obtain real time cell site information data," and to demonstrate "exigent
circumstances" in the absence of a warrant), rev'd on other grounds, 99
A.3d 416 (Pa. 2014).
However, Appellant's argument then immediately proceeds to consider
whether "the exclusionary rule applies," after summarily concluding that
"[i]nasmuch as their activities are not embraced by the statutory exceptions
set forth in 42 Pa.C.S. §§ 8921-8924 and 42 Pa.C.S. §§ 8951-8954...."
Appellant's Brief at 44. Appellant overlooks, or simply fails to develop, any
argument that these searches were, in fact, unconstitutional or otherwise
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illegal under Pennsylvania law. Although it is apparent that Appellant
believes the MPJA and hot pursuit statute were violated, there is virtually no
explanation beyond a bald assertion as to why that was the case. Moreover,
we find Appellant's argument to be unresponsive to the trial court's analysis
in its opinion. Regarding Appellant's claim(s), the trial court stated:
[Appellant], in essence, is contending that the
observations, cellular phone records and "pings" obtained by
Maryland law enforcement officers should be suppressed. The
Maryland law enforcement officers merely observed what
occurred at the Blue Ridge Country Club. After observing the
burglary at Blue Ridge, Detective Guilfoyle reached out to
Detective Glucksman. Additionally, for the Thorndale Exxon
incident, [Detective] Kreller testified that he followed the
suspects up to the Mason-Dixon Line (but stayed in Maryland).
We are unable to ascertain how the Maryland Officers "illegally"
entered the Commonwealth of Pennsylvania thus causing their
visual observations to be suppressed. The ROPE team was
operating and investigating suspects that were believed to be in
their own jurisdiction. After tracking the suspects to
Pennsylvania, they observed them at the golf course and did not
attempt to make an arrest. Instead, they followed the proper
channels and made contact with detectives from Pennsylvania.
We further note that Detective Glucksman and the Maryland
Officers entered a joint operation in an attempt to stop this
string of burglaries. The Howard County Police officers were
doing their job in an attempt to stop a string of burglaries that
had been occurring in their jurisdiction. [Appellant] was
ultimately arrested by Pennsylvania State Troopers and
Detective Glucksman was the affiant in this case. Accordingly, it
is clear that this Court did not err in denying the [Appellant]'s
pretrial motion to suppress any and all evidence observed by the
Howard County Police Officers.
TCO at 12.
First, we agree with the trial court's implying that the Maryland
officers' observations at Blue Ridge Country Club did not constitute a
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constitutionally regulated search or seizure. Among other things, Appellant
had no legitimate expectation of privacy with regard to observations of his
conduct while he trespassed on a golf course in the middle of the night. See
generally Commonwealth v. Russo, 934 A.2d 1199, 1213 (Pa. 2007)
(holding "that the guarantees of Article I, Section 8 of the Pennsylvania
Constitution do not extend to open fields; federal and state law, in this area,
are coextensive"). Appellant provides no argument to the contrary.
Second, with regard to the live -tracking of Appellant's cell phone into
Pennsylvania, and the obtaining of his historical cell phone records (which
included data showing Appellant's presence and movement in Pennsylvania),
Appellant does not dispute that these 'searches' were the subject of lawfully
obtained court orders in Maryland. Thus, while the circumstances of this
case might present the novel issue of whether continuous searches of this
nature, although authorized by lawful court orders in Maryland, nevertheless
cease being lawful when they cross an interstate border, Appellant provides
no discussion, whatsoever, as to why that is the case, other than to baldly
invoke the MPJA and hot pursuit statutes.2 In his brief, Appellant sidesteps
2
Indeed, that such searches are illegal, or become illegal once they cross
state lines, is far from obvious. We note that the MPJA provides that a
police officer has the power to act outside of his primary territorial
jurisdiction when "the officer is acting pursuant to an order issued by a court
of record or an order issued by a district magistrate whose magisterial
district is located within the judicial district wherein the officer's primary
jurisdiction is situated ... except that the service of an arrest or search
warrant shall require the consent of the chief law enforcement officer, or a
(Footnote Continued Next Page)
- 18 -
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this issue entirely and merely presumes the searches' illegality, and then
argues, extensively, as to why the exclusionary rule should apply. This is
putting the proverbial cart before the horse. Consequently, we are
constrained to conclude that Appellant has waived his suppression claim in
its entirety due to his failure to adequately develop an argument on appeal.
See Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (holding
claims waived for failure to develop them).
Next, Appellant claims that the trial court erred by denying his
challenge to exclude evidence pursuant to Frye; specifically, Appellant
sought to exclude testimony which interpreted the historical cell phone
records in order to determine Appellant's and his co-defendants' locations at
the time of the robberies.3 "Under Frye, novel scientific evidence is
admissible if the methodology that underlies the evidence has general
acceptance in the relevant scientific community." Grady v. Frito-Lay, Inc.,
839 A.2d 1038, 1043-44 (Pa. 2003).
(Footnote Continued)
person authorized by him to give consent, of the organized law enforcement
agency which regularly provides primary police services in the municipality
wherein the warrant is to be served." 42 Pa.C.S. § 8953(a)(1). Appellant
does not explain why this provision did not apply to the Maryland officers,
considering they obtained court orders for the live -tracking of Appellant's cell
phone, and for his historical cell phone records, in their primary jurisdiction,
and no arrest or search warrants were "served" outside of that jurisdiction.
3
Appellant does not challenge any evidence concerning the real-time
tracking of his cell phone under Frye.
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As a general rule, this Court's standard of review of a trial
court's evidentiary ruling, including a ruling whether expert
scientific evidence is admissible against a Frye challenge, is
limited to determining whether the trial court abused its
discretion. Grady[], ... 839 A.2d [at] 1046[]; Zieber v. Bogert,
565 Pa. 376, 773 A.2d 758, 760 n. 3 (2001) (citing
Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2000)).
"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." Grady, 839 A.2d at 1046 (citing Paden v.
Baker Concrete Constr., Inc., 540 Pa. 409, 658 A.2d 341, 343
(1995)).
Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005).
The admissibility of expert scientific testimony is governed by Pa.R.E.
702, which reads:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
Our Supreme Court has explained:
This Court has noted that the Frye test, which was adopted in
Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369
A.2d 1277 (1977), "is part of Rule 702." Grady, 839 A.2d at
1042. In Frye, the Court of Appeals of the District of Columbia
considered whether expert evidence concerning a blood pressure
"deception test," which supposedly determined whether a test
- 20 -
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subject was being truthful based on changes in blood pressure,
was admissible against a criminal defendant. In rejecting the
evidence, the court opined that, to be admissible, the evidence
must be sufficiently established and accepted in the relevant
scientific community:
Just when a scientific principle or discovery crosses the line
between the experimental and demonstrable stages is
difficult to define. Somewhere in this twilight zone the
evidential force of the principle must be recognized, and
while courts will go a long way in admitting expert
testimony deduced from a well -recognized scientific
principle or discovery, the thing from which the deduction
is made must be sufficiently established to have gained
general acceptance in the particular field in which it
belongs.
Frye, 293 at 1014. This passage sets forth the core of what
F.
has come to be known as the "Frye test."
In Topa, where this Court considered spectrographic voice
print identification evidence, we described the Frye standard as
follows: "Admissibility of the [scientific] evidence depends upon
the general acceptance of its validity by those scientists active in
the field to which the evidence belongs." Id. at 1281. In finding
that the proffered scientific evidence was inadmissible in Topa,
the Court quoted the rationale set forth by the Court of Appeals
of the District of Columbia in United States v. Addison, 498
F.2d 741, 744 (D.C. Cir. 1974):
"The requirement of general acceptance in the scientific
community assures that those most qualified to assess the
general validity of a scientific method will have the
determinative voice. Additionally, the Frye test protects
prosecution and defense alike by assuring that a minimal
reserve of experts exists who can critically examine the
validity of a scientific determination in a particular case.
Since scientific proof may in some instances assume a
posture of mystic infallibility in the eyes of a jury of
laymen, the ability to produce rebuttal experts, equally
conversant with the mechanics and methods of a particular
technique, may prove to be essential."
Topa, 369 A.2d at 1282.
- 21 -
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This Court has consistently followed this manner of
approach when confronted with novel scientific evidence in the
three decades since our adoption of Frye. See
Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170(1981) (process of refreshing recollection by hypnosis not yet
accepted); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d
830 (1992) ("Sexually Abused Child Syndrome" evidence not
admissible); Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1(1992) (electrophoresis test of dried blood stains deemed
admissible); Commonwealth v. Crews, 536 Pa. 508, 640 A.2d
395 (1994) (certain DNA evidence deemed inadmissible);
Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997)
(repressed memory theory deemed inadmissible);
Commonwealth v. Crawford, 553 Pa. 195, 718 A.2d 768(1998) (revived repressed memory testimony rejected); Blum
ex rel. Blum v. Merrell Dow Pharmaceuticals, Inc., 564 Pa.
3, 764 A.2d 1 (2000) (expert testimony regarding causal link
between mother's ingestion of drug and child's birth defect
deemed too unreliable to be admitted where it involved
recalculation of data used in other studies); Grady, supra
(expert witness's conclusion concerning safety of food product
inadmissible because expert's methodology lacked general
acceptance in relevant scientific community for purposes of
reaching such conclusion). In addition, in Grady, this Court
recently made clear that Frye would remain the governing
Pennsylvania standard, and not the newer federal standard
represented by Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Grady, 839 A.2d at 1044-45.
Dengler, 890 A.2d at 380-81.
Instantly, Appellant argues that the trial court erred by admitting
evidence concerning his location, or the location of his co-defendants, which
was derived from the historical data obtained from their cell phones.
Appellant explains:
Historical cell tower records, also known as call detail records,
are the billing records that the cell companies use to keep track
of their customers' calls. They show the date and time of all
calls made or received, the numbers called, the duration of each
call, and the cell towers used to begin and end a call.
- 22 -
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By comparison, it is a more established procedure for a cell
company - after being served with a court order or search
warrant - to perform a real-time, live "ping" of a cell phone
equipped with GPS technology. GPS "pinging" in many cases
can assign a caller's location down to a radius of 20 meters.
At trial, the Commonwealth produced expert testimony
that, inter alia[,] had these components: (a) [Appellant]'s cell
phone utilized a particular 120 degree "sector" of a particular cell
phone tower at a time relevant to the prosecution; and (b) the
cell phone was located at that time in a quantifiable distance -
the so-called "footprint" - from the relevant sector of that
particular cell tower. The first conclusion is based on the
premise that a cell phone will always connect to the tower with
the strongest signal, usually the one closest to the phone when
the call is made. The so-called "footprint" in the context of the
second conclusion is actually a quantification of the radio range
of the particular cell tower.
At the pretrial Frye hearing on August 24, 2014, the
Commonwealth presented no expert testimony. The employee of
Sprint was admittedly not an expert. Neither was Detective
Glucksman. He merely stated that he was trained to plot the
historical cell tower information on a map pursuant to
instructions that he received at certain courses. Accordingly, the
Commonwealth produced no expert testimony at the pretrial
hearing detailing the scientific basis behind the two components
of cell tower analysis.
In point of fact, the Commonwealth at the time of the
pretrial hearing did not even believe that it was necessary to
present an expert witness at trial. That belief changed by the
time of trial, and the Commonwealth produced expert testimony
from FBI Special Agent Richard Fennern. However, even if one
bootstraps Richard Fennern's trial testimony onto the evidence
adduced at the pretrial Frye hearing, there is still no expert
testimony explaining the scientific basis of historical cell tower
analysis, especially the method by which the FBI is able to
calculate a quantifiable "footprint" of the cell tower at the
relevant time.
Appellant's Brief at 49-51 (citations to record omitted).
- 23 -
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The trial court determined that the contested testimony was not
"novel" under the Frye test. TCO at 14. The court's conclusion was based
on Special Agent Fennern's testimony that
with his ample education and experience, [he] credibly
confirmed that historical cellular data analysis is not novel
science. There was nothing presented in the testimony to
dispute that the functioning of the cell phone in relation to the
cell tower and the resulting data recorded is [not] novel in the
cellular service provider community or the electronics community
generally.
TCO at 14-15.
Thus, the Commonwealth put forward evidence through Special Agent
Fennern that the science at issue is not novel. In his brief, Appellant fails to
point to any evidence or testimony that contradicts this conclusion. Indeed,
our review of the record indicates that Appellant did not offer testimony by
any expert, in any field, to contradict the Commonwealth's evidence that the
science at issue is not novel. It is not apparent, therefore, under our abuse -
of-discretion standard of review, that the court's decision in this regard was
contrary to any evidence or testimony of record. In fact, it was consistent
with the only evidence of record presented on the topic.
Nevertheless, Appellant's argument suggests that the court's decision
was contrary to existing law, or should be determined to be, despite the
evidentiary record in this case. In this regard, Appellant relies on a federal
district court case, U.S. v. Evans, 892 F.Supp.2d 949, 951 (N.D. III. 2012),
in which similar evidence was rejected by the federal district court. Initially,
the Commonwealth objects to this authority on the basis that it is not
- 24 -
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precedential, and applied the Daubert standard, not the Frye standard as is
applicable in this Commonwealth. While we recognize that Evans is not
precedential, we may look to it as persuasive authority. See Martin v. Hale
Products, Inc., 699 A.2d 1283, 1287 (Pa. Super. 1997) ("Decisions of the
federal courts lower than the United States Supreme Court possess a
persuasive authority."). And while we agree with the Commonwealth that
the applicable standard differs, this Court is not categorically barred from
considering the reasoning behind that decision in coming to our own
conclusion.
In Evans, a kidnapping case, the prosecution proposed to call
Special Agent Raschke to testify about the operation of cellular
networks and how to use historical cell site data to determine
the general location of a cell phone at the time of a particular
call. Applying a theory called "granulization," Special Agent
Raschke proposes to testify that calls placed from Evans's cell
phone during the course of the conspiracy could have come from
the building where the victim was held for ransom.
Evans, 892 F.Supp.2d at 951.
Evans challenged Agent Raschke's testimony under the F.R.E. 702,
i.e., the Daubert test. The court first determined that Agent Raschke was
qualified "to testify as an expert concerning the operation of cellular
networks and granulization theory." Id. at 955. The court also determined
that Agent Raschke's testimony regarding how the cellular networks operate,
without applying that knowledge to the facts of the case, was admissible.
Id. However, the court ultimately determined that Agent Raschke could not
testify regarding the application of the granulization theory to the facts of
- 25 -
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the case, that is, he could not testify regarding a prediction as to a specific
location for the Evans' cellphone, "[Oven that multiple factors can affect the
signal strength of a tower and that Special Agent Raschke's chosen
methodology has received no scrutiny outside the law enforcement
community, the court concludes that the government has not demonstrated
that testimony related to the granulization theory is reliable." Id. at 957
(emphasis added). This was despite Agent Raschke's testimony that "he has
used this theory numerous times in the field to locate individuals in other
cases with a zero percent rate of error. He also testified that other agents
have successfully used this same method without error." Id. at 956.
In our view, the federal court's decision in Evans is distinguishable
from the instant matter on both the facts and the law. First, as a factual
matter, the Evans case involved pinpointing Evans' cell phone at a particular
location at a particular time. As noted by Appellant here, and the Evans
court, this can be problematic because the presumption that a cell phone
connects to the closest cell phone tower may sometimes be incorrect.
Obstructions could cause a phone to connect to a different tower, or a
particular call could be rerouted due to network traffic. Thus, pinpointing a
cell phone's location at one moment in time is potentially unreliable.
However, the nature of the evidence in this case was not nearly as
unreliable. Agent Fennern did not testify as to precise locations for the
defendants' phones. Agent Fennern demonstrated that the defendants' cell
phones showed activity in Maryland before the burglaries, activity in the
- 26 -
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vicinity of the burglaries in various locations in Pennsylvania at the same
time as the burglaries, and then more activity back in Maryland following the
burglaries. N.T., 1/29/16, at 1030-63. Most importantly, this information
was consistent for each of the defendants' phones. At no point did Agent
Fennern testify that any of the defendants were at the scene of a particular
burglary at a particular time. Nevertheless, in aggregate, this was powerful
circumstantial evidence of the defendants' involvement and coordination in
the burglaries. Although it may not have been 100% clear which specific
tower a specific cell phone was communicating with at a specific time, the
defendants' cell phones were not communicating with a tower in central
Pennsylvania when the data indicated apparent activity in the Baltimore
area, and vice versa, given the inherent limitations of the range limits of the
cell phones and cell phone towers. Accordingly, we find the concerns of the
Evans court were relatively minimal in the instant case.
Second, it appears as if the basis for the Evans court's decision was,
at least in part, based on a Daubert factor that is not required under the
Frye standard. Under Frye, the test is whether "novel scientific evidence is
admissible if the methodology that underlies the evidence has general
acceptance in the relevant scientific community." Grady, 839 A.2d at 1043-
44 (emphasis added). Under Daubert, "the trial judge evaluates whether
the evidence will assist the trier of fact, and whether the evidence is reliable
and scientifically valid." Id. at 1044. Thus, under the federal Daubert
standard, reliability is determined by the court. Under Frye, reliability is
- 27 -
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evaluated by the jury. In Evans, the court determined that the assumptions
about which towers were used, assumptions necessary to pinpoint a cell
phone's location, were unreliable in light of the specific purpose for which
the scientific theory in question was being used. Not only are such concerns
not nearly as impactful on the evidence in the instance case, but it was for
the jury to determine the reliability of the expert's opinion. Moreover, the
Evans court's decision on this matter does not represent any sort of
consensus in the federal courts. At least two other federal district courts
have reached the opposite conclusion regarding identical objections to the
same technology concerning general acceptance and reliability. See U.S. v.
Banks, 93 F.Supp.3d 1237, 1252 (D. Kan. 2015) ("The [c]ourt finds
Benford's analysis persuasive and reaches the same conclusion as it did.");
U.S. v. Benford, 2010 WL 2346305, at *3 (N.D. Ind. 2010) (holding
witness qualified to provide expert opinion about the defendant's
approximate location based on cell -site data) (unreported).
Finally, here, the trial court determined that the science involved was
"not novel science[,]" based on its determination that Agent Fennern
testified credibly to that effect. TCO at 14-15. While the Evans court
reached a different determination, its factual conclusions were not binding
on the trial court in this case, and given the opposite conclusions reached in
Benford and Banks, we ascertain no abuse of discretion on that basis.
Accordingly, we conclude that Appellant's third claim lacks merit.
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Next, Appellant asserts that the trial court abused its discretion when
it admitted prior -bad -acts evidence concerning the three defendants,
regarding
(1) the August 13, 2013, burglary of Cindy's Skylight in Howard
County, Maryland; (2) a search of a vehicle in Montgomery
County, Pennsylvania, on May 10, 2010, said vehicle being
occupied by [Appellant]; and (3) a search of a vehicle in
Walkersville, Maryland, in July 2009, said vehicle being occupied
by [Appellant] and Cornell Smith.
Appellant's Brief at 54. Specifically, Appellant argues that, contrary to the
ruling of the trial court, this evidence did not constitute "identity" or "res
gestae" evidence within the meaning of Pa.R.E. 404(b)(2).
The admission of evidence is solely within the province of
the trial court, and a decision thereto will not be disturbed
absent a showing of an abuse of 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."
Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal
citations omitted).
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419
(2008).
- 29 -
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Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009). Another
exception to the prior -bad -acts -evidence ban set forth in Rule 404(b)(1) has
been recognized by our courts, although not explicitly mentioned in Rule
404(b)(2),4 is one "that permits the admission of evidence where it became
part of the history of the case and formed part of the natural development of
facts. This exception is commonly referred to as the res gestae exception."
Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016) (citation
omitted).
With regard to the identity exception set forth in Rule 404(b)(2), this
Court has previously stated:
Identity as to the charged crime may be proven with
evidence of another crime where the separate crimes share a
method so distinctive and circumstances so nearly identical as to
constitute the virtual signature of the defendant. Required,
therefore, is such a high correlation in the details of the crimes
that proof that a person committed one of them makes it very
unlikely that anyone else committed the others.
Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009)
(citations and quotation marks omitted). However, "[a] review of Rule
404(b)(1) and relevant jurisprudence shows the other crime need not match
every fact and circumstance of the charged crime before it may be used to
prove identity." Id. at 1190.
4
As the comment to Rule 404 notes, "Pa.R.E. 404(b)(2)
contains a non -
...
exhaustive list of purposes, other than proving character, for which a
person's other crimes wrongs or acts may be admissible." Pa.R.E. 404
(comment) (emphasis added).
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The trial court determined that the instant case was substantially
similar to what had occurred in Weakley. TCO at 21. In Weakley, a
robbery/murder case involving victims Kerkowski and Fassett, the
Commonwealth sought to introduce evidence against Weakly and his co-
conspirator regarding a subsequent robbery of Samuel Goosay, due to the
following similarities between the two cases:
(1) Both crimes were allegedly committed by Selenski and co-
defendant Weakley; (2) Flex ties found on the bodies of the
homicide victims were visually, instrumentally, and
steromicroscopically similar to those removed from Samuel
Goosay, the victim of the subsequent robbery; (3) Flex ties were
used to bind the hands of Kerkowski and Fassett in the
homicides, and used to bind the hands of Goosay in the robbery.
(4) Duct tape found on the body of the homicide victim
Kerkowski was visually, instrumentally and stereomicroscopically
similar to the tape removed from Goosay, the robbery victim;
(5) Duct tape was used to cover the eyes of Kerkowski and
Goosay; (6) Flex ties were used in conjunction with duct tape as
a distinct method of restraint of the victims in the two incidents;
(7) The two crimes or incidents occurred in or involved the
victims' residences, as opposed to their businesses; (8)
Kerkowski and Goosay were both small business owners; (9)
Goosay's jewelry store and Kerkowski's pharmacy both dealt in
large sums of cash; (10) Jewelry and prescription drugs have
independent street value; (11) The victims of the two matters
were left bound as the assailants fled; (12) Flex ties and duct
tape were found or seen at both defendant's properties and/or in
their vehicles.
Weakley, 972 A.2d at 1192.
The trial court granted the defendants' motions in limine to exclude
this evidence pursuant to Rule 404(b)(1). This Court reversed, holding that:
While this list requires pruning of conclusory and repetitive
entries, what remains nevertheless describes a crime so
distinctive in method and so similar to the charged crime that
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proof appellees committed one tends to prove they committed
the other. The evidence thus goes beyond showing mere
conformity with a propensity to commit a class of crime, to wit,
violent robbery-a purpose prohibited under Pa.R.E. 404(b)(2).
Instead, the evidence shows identity-a purpose permitted under
Pa.R.E. 404(b)(3)-through selection of a particular class of
victim and use of idiosyncratic methods to carry out the crimes.
The probative value of this strong identity evidence, moreover,
outweighs its presumed potential for prejudice.
Weakley, 972 A.2d at 1188.
Instantly, in his brief, Appellant provides no response to the trial
court's reliance on Weakley. Instead, he relies on boilerplate statements of
the law concerning the identity exception, from which he conducts his own
analysis. Although Appellant's analysis is not trivial, we are constrained by
our reading of Weakley to conclude that that the trial court did not abuse
its discretion by permitting the at -issue prior bad acts to be admitted under
the identity exception. Although the identity -based justification for the
admission of this evidence appears somewhat or marginally less "unique"
than the evidence involved in Weakley, this matter is not so distinguishable
from that case such that it would compel us to conclude that the trial court's
decision was an abuse of discretion. To be clear, we hold that while the trial
may very well have committed "an error in judgment" in admitting this
evidence under the identity exception to Rule 404(b)(1), that error was
neither "manifestly unreasonable," nor a clear misapplication of the law.
Murray, 83 A.3d at 156. Rather, we deem the trial court's decision to be
within a range wherein reasonable minds can disagree whether the evidence
was sufficiently unique to constitute "identity" evidence. See Grady, 39
- 32 -
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A.2d at 1046 ("An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion....").
Nevertheless, even if is was a clearly erroneous or manifestly
unreasonable determination that the three contested incidents were
admissible under the identity exception, we would nevertheless decide, sua
sponte, that admission of that evidence constituted harmless error in this
case, for a multiplicity of reasons. "The standard for determining harmless
error was firmly established in Commonwealth v. Story, 476 Pa. 391, 383
A.2d 155 (1978). An error will be deemed harmless where the appellate
court concludes beyond a reasonable doubt that the error could not have
contributed to the verdict. If there is a reasonable possibility that the error
may have contributed to the verdict, it is not harmless." Commonwealth
v. Mitchell, 839 A.2d 202, 214 (Pa. 2003).
First, with regard to all the co-conspirators, this evidence might have
been admissible to show opportunity and/or absence of mistake, especially
the two incidents involving traffic stops where burglary tools were
discovered. Here, a large volume of historical cell phone evidence
demonstrated that Appellant and his cohorts were repeatedly and
consistently in the vicinity of each of the burglaries for which they were
tried, but no evidence could put them precisely inside the businesses which
had been burglarized. Thus, it could be argued, albeit somewhat
unreasonably, that the historical cell phone evidence was merely
coincidental. However, when the same co-conspirators had been previously
- 33 -
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found traveling together with burglary tools, such evidence tends to strongly
show that the historical cell phone evidence did not falsely implicate them by
mere "accident." Their collective possession of burglary tools at earlier
times, whether or not they were arrested during those traffic stops, also
demonstrated, to some extent, the "opportunity" to commit the subsequent
burglaries. Thus, while it may have been difficult to specifically characterize
this prior -bad -acts evidence as precisely falling into one category set forth in
Pa.R.E. 404(b)(2), it did tend to loosely fit the purpose of many of the
enumerated categories of prior -bad -acts exceptions. In this regard, we
reiterate that the list of enumerated exceptions set forth in Pa.R.E.
404(b)(2) is non -exhaustive. See footnote 4, supra.
Second, the evidence in this case was, in fact, overwhelming, albeit
circumstantial, and the potential prejudice deriving from the disputed
evidence was minimal in comparison. Simply put, in aggregate, the
historical cell phone data placing each co-defendant in the vicinity of each
robbery at the time of those robberies was overwhelming evidence of guilt,
especially in light of the fact that Appellant and his co-defendants were
caught fleeing the final burglary (Shell at Top of the 80s Gas Station) in
Appellant's vehicle, which was found to contain burglary tools required for
the manner in which the burglary occurred, as well as some of the items
reported stolen from that location.
Third, with regard to Appellant's specific objections that he was not
directly involved in two of the prior incidents, Appellant is correct that such a
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fact makes that evidence less probative with respect to his own guilt.
However, for the very same reason, that fact also tends to make the
evidence far less prejudicial to him within the context of Rule 404(b). Prior
bad acts are inadmissible "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)(2). Evidence of Appellant's co-conspirators' prior
bad acts does not tend to prove or risk adverse jury inferences regarding
Appellant's character, because he was not involved in those incidents.
Appellant does not dispute that the jury was accurately instructed with
regard to the participants of each of those prior events. It appears to this
Court to be quite unlikely that the jury would draw an adverse, illogical
inference regarding Appellant's character from the prior conduct of others.
Accordingly, we hold that the trial court did not abuse its discretion in
admitting the prior -bad -acts evidence in question under the identity
exception because, although we might have arrived at a different conclusion,
the trial court's decision was neither manifestly unreasonable nor a clear
misapplication of the law. In any event, we would conclude that the
admission of this evidence constituted harmless error, beyond a reasonable
doubt, even if it was erroneously admitted.
Finally, Appellant asserts that the trial court abused its discretion by
overruling two separate motions for a mistrial, 1) when the prosecutor,
during his opening statement, referred to prior unlawful activity by Appellant
and his co-conspirators in Maryland; and 2) when a Commonwealth witness,
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J -S19020-17
Detective Kreller, alluded to prior unlawful activity by Appellant and his co-
conspirators in Maryland. Appellant asserts that, on both occasions, the
Commonwealth exceeded the bounds set by the trial court in its pretrial
rulings on the motions in limine filed by the parties.
"The grant of a mistrial is within the sound discretion of the trial judge.
A mistrial is required only when an incident is of such a nature that its
unavoidable effect is to deprive appellant of a fair trial." Commonwealth v.
Crawley, 526 A.2d 334, 342 (Pa. 1987) (internal citations and quotation
marks omitted). Even assuming these two events exceed the bounds of the
pretrial orders,5 the Commonwealth argues that any such error was
5
Appellant does not direct this Court's attention to where in the record such
pretrial rulings or restrictions can be found. While it is apparent that the
trial court granted the Commonwealth's motion in limine, thereby permitting
evidence regarding the prior -bad -acts evidence discussed above, this Court
could not locate the order in question in the certified record. However, the
basic nature of that order in not in dispute. By inference, therefore, the
Commonwealth was not permitted to admit evidence of other prior bad acts.
Moreover, immediately prior to trial, Appellant and his co-defendants raised
an oral motion in limine regarding the ROPE team's acronym moniker, which
means "Repeat Offender Proactive Enforcement." The defendants objected
"because of the prejudice it would call into the jury's mind regarding our
clients and their prior criminal histories." N.T., 1/22/16, at 7. In response,
the prosecutor stated that, "[a]bsent any door opening on the defense's
side, the only plans for introducing prior bad acts or prior history would be
the information that we've already moved for 404(b) admission, those things
that were included in the ROPE [team's] dossier and those would be the
things that we would be seeking to enter into evidence at trial." Id. at 9.
The trial court responded, e[v]ery well," indicating that it was granting the
oral motion in limine. Thus, any other prior -bad -acts evidence other than
the three events discussed above were effectively precluded as a result of
the court's granting of these two motions in limine.
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J -S19020-17
harmless, in both instances, and did not amount to prejudice "of such a
nature that its unavoidable effect is to deprive appellant of a fair trial."
Crawley, 526 A.2d at 342. For the reasons that follow, we agree with the
Commonwealth.
The first ostensible breach of the motions in limine occurred during the
Commonwealth's opening statement to the jury. At that time, the
prosecutor described the ROPE team as follows:
It's a proactive enforcement team funded by the county
down there who keeps dossiers of people who may have prior
circumstances that might mirror these situations.
And what you'll hear from them is that they had dossiers
on at least two of these individuals having substantially similar
tools to the type that would have committed these types of
burglaries in 2009 and 2010.
[The prosecutor then describes two of the prior -bad -act events
that were deemed admissible by the trial court.]
As you'll hear, the ROPE team, the other jobthat they do
on top of keeping dossiers is to surveil. They are a proactive
team. They're not somebody who looks at crimes that have
happened like most law enforcement. No, they're active.
N.T., 1/22/16, at 49-50.
Appellant and his co-defendants objected and requested a mistrial
following the prosecutor's opening statement, on the basis that the
prosecutor had made multiple references to "dossiers" on the defendants.
The prosecutor argued that the term "dossiers" was only referring to the two
prior -bad -act events which had been deemed admissible by the trial court,
explaining, "I didn't make any reference to any prior burglaries that would
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J -S19020-17
have been conducted or criminal history...." Id. at 57. The defendants
countered that "calling them dossiers that they have on the individuals, that
is highly inflammatory and would lead the jury to believe that they have
records and other backgrounds beyond the limited items that this Honorable
Court allowed to come in under 404(b)." Id. The trial court denied the
defendants' motion for mistrial. Id. at 58.
While the prosecutor's reference to "dossiers" was somewhat
ambiguous, he did not explicitly refer to any prior bad acts beyond those
deemed admissible. Appellant would have this Court conclude that such
ambiguity necessarily infected the jury with the worst possible inference,
that the "dossiers" in question involved evidence of criminal activity beyond
what was directly suggested in his remarks. However, we are under no
obligation to assume that was the case. As the United States Supreme
Court has stated with regard to an ambiguous statement during a
prosecutor's closing remarks:
The 'consistent and repeated misrepresentation' of a dramatic
exhibit in evidence may profoundly impress a jury and may have
a significant impact on the jury's deliberations. Isolated
passages of a prosecutor's argument, billed in advance to the
jury as a matter of opinion not of evidence, do not reach the
same proportions. Such arguments, like all closing arguments of
counsel, are seldom carefully constructed in toto before the
event; improvisation frequently results in syntax left imperfect
and meaning less than crystal clear. While these general
observations in no way justify prosecutorial misconduct, they do
suggest that a court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhortation, will
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J -S19020-17
draw that meaning from the plethora of less damaging
interpretations.
Donnelly v. DeChristoforo, 416 U.S. 637,646-47 (1974).
Here, while it may have constituted misconduct for the prosecutor to
carelessly use the term "dossiers," it is clear in this context that he intended
to refer to the already -deemed admissible, prior -bad -acts evidence, and no
more. That clarity arises not just from the prosecutor's subsequent defense
of his statement, but also flows from the statement itself. Most importantly,
we do not view that statement as inflammatory to such an extent that
Appellant was deprived of a fair trial because of it. Therefore, we conclude
that the trial court did not abuse its discretion when it declined to grant a
mistrial on that basis.
The second ostensible breach of the motions in limine occurred during
the testimony of Detective Kreller. In his brief, Appellant states that
Detective Kreller "revealed that his unit was investigating the defendants for
activities in addition to the instances that were the subject of the [c]ourt's
pretrial ruling." Appellant's Brief at 64. Appellant also provides a page
number for the apparent offense. Id. (citing N.T., 1/28/16, at 941-42).
However, nowhere in Appellant's brief does he explain how Kreller's
testimony breached the pretrial rulings, nor is such a breach immediately
apparent to this Court from our reading of the cited pages, as no objection
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J -S19020-17
was lodged immediately.6 Presumably, Appellant takes issue with Detective
Kreller's statement that there was "probable cause that dates back a long
time prior to this actual case ... from prior cases dating back to 2009 [and]
2010." N.T., 1/28/16, at 941. Detective Kreller then identifies those "cases"
as being from Walkersville, Maryland, in 2010, and Frederick County, in
2009. Id. at 942. Those dates correspond with the admissible prior -bad -
acts evidence, but not with the locations of those events. The trial court
denied Appellant's motion for a mistrial, but stated:
I'll deny the motion for now. However, 404(b) has gone far
beyond what I thought it was going to be.
I just want -- the only testimony I want to hear these guys
is
following this crew from Maryland up here and that's it. Nothing
else.
Id. at 957.
This breach appears somewhat more egregious than the prosecutor's
statement during his opening argument. While the term "dossiers' was
patently ambiguous with respect to whether it implied prior criminal conduct,
Detective Kreller's use of the term, "probable cause" in this instance, was far
less so. The use of that term certainly indicated that some sort of prior
criminal investigation was being referenced, as "probable cause" is not a
term typically used outside of the criminal context.
6 Several questions later, Appellant's trial counsel objected, but the basis for
the objection does not appear on the record. Id. at 943. Indeed, the
request for a mistrial did not occur until direct examination of Detective
Kreller ended. Id. at 956.
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J -S19020-17
However, we observe that no details of any sort regarding those
investigations, beyond a general date and general location, were mentioned
by Detective Kreller. There was no mention of who, specifically, was the
target of the prior investigation(s), what specific or general type of crime(s)
had been involved, what facts led to a finding of probable cause, nor
whether those investigations bore any fruit in terms of an arrest or
conviction. Thus, we agree with Appellant that Detective Kreller's testimony
was clearly outside the scope permitted by the trial court's pretrial orders.
Nevertheless, "[t]here is no per se rule requiring a new trial every time
there is a reference to prior criminal activity." Commonwealth v.
Sanchez, 595 A.2d 617, 620 (Pa. Super. 1991). For instance, in Sanchez,
the prosecutor made repeated references to the defendant's status as an
illegal alien in his trial on drug charges. We held that "the jury could
reasonably infer that Sanchez had engaged in illegal conduct in the past"
from those statements, and thus Sanchez's objection was warranted. Id.Nevertheless, we found that the error was harmless, because "the evidence
of guilt [was] overwhelming[,]" and "the isolated reference to Sanchez as an
illegal alien [was] totally inconsequential." Id. at 622.
Here, Appellant contends that Detective Kreller's referencing of a prior
criminal investigation was reversible error, and should have resulted in a
mistrial, particularly since the matter had been the subject of multiple
pretrial rulings on both the defense's and prosecution's motions in limine.
Appellant's Brief at 65-67. Appellant analyzes only one case in support of
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J -S19020-17
his argument, Commonwealth v. Padilla, 923 A.2d 1189 (Pa. Super.
2007).
In Padilla, the defendant, 21 years old at the time of his crime, was
convicted of committing sexual offenses against a 15-year-old.7 Prior to
trial, Padilla filed a motion in limine "to preclude evidence of his prior
incarceration and parole status, the issuance of a PFA order against him, and
his use of marijuana." Id. at 1192. Nevertheless, "in response to an open-
ended question about what he found when he arrived at the scene[,]" a
police officer testified as follows:
When I got there I found-I was met at the door by the mother
who was very upset, yelling and carrying on, practically mad at
me, but she started to tell me how everybody was downstairs.
She went and picked up this guy [Appellant]. He's a family
friend. Apparently he just got out of jail, and so she was doing
him a favor.
Id.The defense immediately objected and requested a mistrial, and
although the trial court initially appeared inclined to grant it, it instead
issued a curative instruction and put off declaring a mistrial until the
following day, affording the parties the opportunity to seek case authority
supporting their positions. After arguments were heard the following
morning, the trial court ultimately denied the motion for a mistrial.
The victim admitted that the sexual relations were consensual; however,
the age gap between the two did not permit legal recognition of her consent.
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J -S19020-17
On appeal, we reversed, determining that the officer's statement was
clearly prejudicial because the trial court had entered an "explicit order that
no reference whatsoever must be made to [Appellant's] time in jail." Id. at
1193. The Padilla Court went on to determine whether that prejudice was
cured by the instruction, and determined that it was not:
Based on our review of the trial transcript, we find the
circumstances surrounding the court's ruling to be troubling and
the instruction itself too vague to have cured the prejudice. The
trial court had granted [Padilla's] motion in limine and, upon
violation of its order, agreed to a mistrial. Pressed by the
prosecutor, however, the trial court instead opted to give a
cautionary instruction and await further argument. The record
suggests that the jury may have heard the side bar conference
during which the trial court reversed itself. Moreover, the trial
court's instruction did not specifically direct the jury to disregard
Officer Bealer's remark, "Apparently he just got out of jail."
Then, despite the instruction, the prosecutor resumed his
examination of Officer Bealer by repeating the officer's testimony
that "Mom was upset," thereby allowing the jury to hear again
testimony the trial court had just instructed them to disregard.
The purpose of a pretrial motion in limine is to prevent
prejudicial evidence from reaching the jury, based on the theory
that "once the 'skunk is in the box,' the odor is ineradicable."
Given the circumstances in this case, we conclude that the
only remedy available to remove the prejudice to [Padilla] was
for the trial court to declare a mistrial and to relist the case for
trial before a different jury. Because the trial court failed to
employ this remedy to dissipate the prejudice that accrued to
[Padilla] as a result of the trial court's ruling regarding Officer
Bealer's testimony, [Padilla] is entitled to a new trial.
Id. at 1196 (emphasis added).
As noted above, Appellant focuses his argument on the fact that the
motions in limine in this case had precluded any other prior -bad -acts
evidence. To the extent that Appellant contends the existence of those
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J -S19020-17
pretrial rulings is a significant factor in our analysis of the resulting prejudice
from Detective Kreller's testimony, we agree that Padilla stands for that
proposition. However, to the extent he implies by his argument that it is the
only factor we should or can consider, we disagree.
The Padilla Court's prejudice analysis was not limited to the fact that
a pretrial ruling had precluded the at -issue testimony. The Court also
considered that the jury had overheard the side bar conference addressing
the matter, the inadequacy of the curative instruction issued, and the
subsequent questioning by the prosecutor. As such, while important, the
existence of a relevant pretrial order prohibiting the prejudicial remarks
which subsequently occurred at trial does not automatically preclude a
determination that the error was harmless.
Indeed, in Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.
Super. 2008), the defendant filed, and the trial court granted, "a motion in
limine seeking the preclusion of any evidence of [his] prior convictions."
Nevertheless, at trial, a witness testified that the defendant "had to go see
his parole officer or probation officer." Id. Following an objection, the trial
court immediately issued a curative instruction. On appeal, this Court held
that:
Based upon this record, we conclude that [the] testimony
regarding Hudson's probation or parole officer was
inadvertent, even when viewed in light of Hudson's motion
in limine. The prosecutor did not ask a question that could
have been reasonably foreseen to elicit evidence of
Hudson's prior criminal activities. Furthermore, [the]
testimony constituted a mere passing reference to
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J -S19020-17
Hudson's prior criminal activity that the trial court's
cautionary instruction adequately cured. Judge Johnson
not only clearly instructed the jury to disregard the
testimony when deliberating on the verdict, he also
expressly instructed them that they had no basis upon
which to determine whether the testimony itself was true.
When viewed in light of the substantial circumstantial
evidence presented by the Commonwealth at trial
indicating Hudson's guilt, we conclude that Hudson did not
suffer improper prejudice from this reference to his prior
criminal activity.
Id. at 1035.
We find that this case is distinguishable from Padilla on the facts, and
more in line with our decision in Hudson. The pretrial motions in this case
did not constitute an absolute ban on prior -bad -acts evidence, unlike in
Padilla, where there was an absolute and specific bar to any mention of
Padilla's prior incarceration. Here, the pretrial motions permitted some, but
not all, of the defendants' prior bad acts. In Padilla, the officer directly
mentioned Padilla's prior incarceration. In this case, however, Detective
Kreller mentioned "probable cause," thus alluding to a prior investigation,
but not necessarily a prior conviction, or even charges for prior criminal
misconduct, and none of the defendants were specified in Detective Kreller's
remarks.
Furthermore, because other prior -bad -acts evidence was deemed
admissible in this case, any additional prejudice resulting from Detective
Kreller's remarks was necessarily minimal in comparison. See
Commonwealth v. Fell, 309 A.2d 417, 420 (Pa. 1973) (holding prejudice
from erroneously admitted evidence was harmless where it was cumulative
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J -S19020-17
of properly admitted evidence). While substantial evidence and testimony
was heard regarding the other prior -bad -acts evidence in this case over the
course of a two-week trial, Detective Kreller's objectionable remarks were
relatively brief and inconsequential. No comparable circumstances existed in
Padilla.
Moreover, unlike what occurred in Padilla, there is no indication that
the jury in this case overheard counsel's arguments regarding Detective
Kreller's statements. While the trial court in this case did admonish the
prosecutor for failing to adhere to the terms of the pretrial orders, the court
did not vacillate between granting and denying the motion for a mistrial.
Here, as in Hudson, there does not appear to be any deliberate
attempt by the prosecutor to elicit the at -issue remarks by Detective Kreller.
Indeed, in Appellant's brief, he makes no attempt to claim the remarks were
elicited. Moreover, because neither Appellant nor his co-defendants
immediately objected to Detective Kreller's remarks, but instead at the end
of his testimony (which did occur soon thereafter), the jury's attention was
unlikely to have been drawn to them.
Finally, the evidence presented by the Commonwealth in this case was
overwhelming and uncontroverted. The GPS and historical cell phone data
evidence, alone, was compelling evidence of the defendants' guilt. The
prior -bad -acts evidence, in conjunction with the evidence demonstrating a
common modus operandi for each burglary, demonstrated that Appellant
and his cohorts engaged in a long-term, sophisticated conspiracy to
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J -S19020-17
burglarize multiple gas stations and similar establishments. Accordingly, for
these reasons, we conclude that Detective Kreller's remarks were also
harmless error, and/or that they were not "of such a nature that [their]
unavoidable effect [was] to deprive [A]ppellant of a fair trial." Crawley,
526 A.2d at 342.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/1/2017
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