Com. v. Spuriel, E.

J. A02005/14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERVIN SPURIEL, : No. 603 EDA 2013
:
Appellant :

Appeal from the Judgment of Sentence, January 11, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001983-2011

BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014

Ervin Spuriel appeals from the judgment of sentence entered on

January 11, 2013, in the Court of Common Pleas of Philadelphia County

following his convictions of first-degree murder, criminal conspiracy, and

The facts, as summarized by the trial court, are as follows:

On July 10, 2010, at approximately
10:18 p.m., Jamal Parker was driving down
21st Street towards Mifflin Street in South
Philadelphia. Mr. Parker saw a friend,
Marquis Gilliard, walking down the street, and
stopped his car briefly to talk to him. Mr. Parker
then continued driving down the block and got out of
the car. Mr. Parker approached a group of men that
included defendant and co-defendant [Chaz] Henry,
who had sold drugs for Mr. Parker, along with
Andrew Fairey, Antione Smith, and [co-
brother Devon Henry. [Co-defendant Henry] called
over to Mr. Parker and acted as though he was going

* Retired Senior Judge assigned to the Superior Court.
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to give Mr. Parker money. Co-defendant Henry then
pulled a gun from his waist and began chasing
Mr. Parker, shooting him. Defendant approached
Mr. Parker and also shot him, after which Mr. Parker
collapsed to the ground. Defendant continued to
shoot Mr. Parker in the back after he fell.
Defendant, co-defendant Henry, Mr. Henry,
Mr. Fairey, and Mr. Smith all fled the scene.

Police arrived and transported Mr. Parker to
the University of Pennsylvania Hospital, where he
was pronounced dead at 10:28 p.m. He had been
shot nine times, once each in the head, neck, arm,
hip, buttock, thigh, and leg, and twice in the back.
The police recovered 11 fired cartridge casings from
the scene, eight of which had been fired from the
same .40 caliber handgun and three of which had
been fired from the same .45 caliber handgun. Two
.40 caliber bullets were recovered from
jaw and throat, and one .45 caliber bullet was
recovered from his back. The weapons used in the
shooting were not recovered.

Marquis Gilliard was questioned by homicide
detectives. He identified defendant and
co-defendant Henry, both of whom he knew
personally, as the people who shot and killed
Mr. Parker. Mr. Gilliard told police that the murder
was over money, as both defendant and
co-defendant Henry owed Mr. Parker money for
drugs. Devon Henry was also questioned by the
police and told police that he had witnessed the
shooting. He also told police that defendant and
co-defendant Henry had talked to him about the
shooting after it happened, and that the murder was
committed over drug money that they both owed to
Mr. Parker.[1] Detectives questioned David Marks, a
friend of Mr. Parker, who told them that on the night

1
At trial, Devon claimed that he could not recall giving a statement to the
police and disavowed nearly all of the averments in the statement. (Notes
of testimony, 12/18/12 at 109-
was admitted into evidence at trial through the testimony of
Detective James Crone. (Notes of testimony, 12/19/12 at 7-22.)

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of the shooting, defendant told him that he had killed
Mr. Parker.

Police recovered two cell phones from the
scene of the shooting, both of which belonged to
Mr. Parker. From one of these phones, they
recovered several confrontational text message
exchanges between defendant and Mr. Parker, one of

done. One minute you act like my man then you act

Mr. Parker had also called defendant two times
immediately prior to the shooting, once at
10:13 p.m. and once at 10:14 p.m. Defendant and
co-defendant Henry were arrested.

Trial court opinion, 5/23/13 at 2-4 (citations to the record omitted). The

Commonwealth also introduced the testimony of Officer Margaret McGrory

investigation was still open, and appellant had not been convicted of any

crime. (Notes of testimony, 12/19/12 at 75-87.) She detailed six separate

purchases orchestrated by a confidential informant, which occurred

approximately four months prior to the murder.

C

him to deflect attention from themselves. Appellant testified that he bought

crack in bulk, cooked it, and sold it for profit. (Notes of testimony, 12/20/12

at 141-142.) He denied that he bought crack from Parker and denied that

he was in debt to Parker, with the exception of one point in time when he

owed Parker $175 for a YMCA membership. (Id. at 142-146.) Appellant

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made for

him referred to marijuana business he sent to Parker. (Id. at 146.)

Appellant denied shooting the victim and testified that he was at a cookout a

block away from the murder and could not get any of the approximately

15 people who were with him to testify on his behalf. (Id. at 163-170.) The

parties stipulated that appellant had two prior adjudications of delinquency

for crimen falsi offenses. (Id. at 206.) The parties also stipulated that

neither appellant nor co-defendant Henry was licensed to carry a firearm and

that co-defendant Henry had been convicted for selling drugs.

Following a jury trial, appellant was convicted of the above-stated

charges on December 21, 2012. On January 11, 2013, appellant was

sentenced to a mandatory term of life imprisonment for first-degree murder

and a cumulative concurrent sentence of 21 to 42 years for the other

offenses.2 This timely appeal followed. The following issues have been

presented for our review:

I. Did the trial court erroneously permit the
Commonwealth to introduce extensive
evidence regarding a prior narcotics
investigation which resulted in the arrest of
Appellant for PWID, where this charge
remained open at the time of the instant
proceeding and where the prejudicial impact

2
Co-defendant Henry was convicted of the same crimes and sentenced to a
mandatory term of life imprisonment for first-degree murder and a
cumulative concurrent sentence of 21 to 45 years for the remaining
offenses. A panel of this court affirmed the judgment of sentence on direct
appeal. Commonwealth v. Henry, No. 202 EDA 2013, unpublished
memorandum (Pa.Super. filed May 16, 2014).

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outweighed the probative value of this detailed
description of a month long series of prior bad
acts?

II. Did the trial court erroneously permit the
Commonwealth to question witness
Marquis

from cross-examining Gilliard regarding (1) his
motive to testify falsely to curry favor with the
Commonwealth, (2) whether he sold drugs for
the decedent, and (3) whether he was aware

III. Did the trial court erroneously sustain the

conditions under which the police questioned
witness Fairey, prior to securing a statement
from Mr. Fairey that inculpated Appellant?

IV. Did the C
statements contain unfairly prejudicial

due process right to a fair trial?

discretion

trial-within-a-

described her month-long investigation of appellant, which occurred four

months prior to the murder. Appellant contends that there is no factual

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drug debt

allegedly owed by appellant to the victim. We disagree.3

Admission of evidence rests within the discretion of the trial court, and

we will not reverse absent an abuse of discretion. Commonwealth v.

Washington, 63 A.2d 797, 805 (Pa.Super. 201

when the course pursued represents not merely an error of judgment, but

where the judgment is manifestly unreasonable or where the law is not

applied or where the record shows that the action is a result of partiality,

prejudice, Commonwealth v. Martinez, 917 A.2d 856, 859

(Pa.Super. 2007).

logically tends to establish a material fact in the case, tends to make a fact

at issue more or less probable or supports a reasonable inference or

Commonwealth v. Williams, 896

A.2d 523, 539 (Pa. 2006), cert. denied, 549 U.S. 1213 (2007);

Pa.R.E. 402. It is settled law in this Commonwealth that other bad acts

3
We disagree with the trial court that this claim is waived. (Trial court
opinion, 5/23/13 at 6.) Appellant filed a pre-trial motion in limine and
objected to the introduction of this evidence for the same reasons outlined in
his brief. Further, at the conclusion of his argument, trial counsel specifically
asked the court to note his objection to the admission of the evidence, and
the court stated the issue was preserved. (Notes of testimony, 12/17/12 at
11.)

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Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa.Super. 2010),

appeal denied, 22 A.3d 1033 (Pa. 2011).

Nonetheless, bad acts evidence may be introduced for other limited

purposes. Instantly, the Commonwealth argued, and the trial court agreed,

that the evidence was admissible as evidence of motive under

Pa.R.E.

act and the crime at issue

Commonwealth v. Ross, 57 A.3d 85, 100 (Pa.Super. 2012), appeal

denied, 72 A.3d 603 (Pa. 2013) (citation omitted). This evidence is

admissible only if the probative value of the evidence outweighs its potential

for unfair prejudice. Pa.R.E. Rule 404(b)(3).

It has been succinctly stated that (t)he purpose of
this rule is to prevent the conviction of an accused
for one crime by the use of evidence that he has
committed other unrelated crimes, and to preclude
the inference that because he has committed other
crimes he was more likely to commit that crime for
which he is being tried. The presumed effect of such
evidence is to predispose the minds of the jurors to
believe the accused guilty, and thus effectually to
strip him of the presumption of innocence.

Commonwealth v. Spruill, 391 A.2d 1048, 1049 (Pa. 1978).

At the hearing on appell in limine, the Commonwealth

explained that its theory was the victim was murdered because appellant

and his conspirator owed the victim money for drugs the victim gave them

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to sell. (Notes of testimony, 12/17/12 at 4.) The Commonwealth explained

that in order to corroborate this motive, it wished to present evidence that

for approximately five months prior to the murder, in the same area where

the murder occurred, appellant was seen selling drugs. Additionally, when a

search warrant was exec

packaging materials. The trial court granted the motion and permitted the

evidence to be introduced solely on the issue of motive and found the

probative value of the evidence outweighed its prejudicial effect. (Id. at 8.)

After review, we find the court did not err in admitting the other acts

evidence, that appellant had been investigated for selling drugs to a

confidential informant on six separate occasions prior to the murder, as it

was relevant to show motive. This evidence was probative of his status as a

victim over a drug debt. Thus, the evidence of drug-related activity was

properly admitted to show that the killing did not occur in a vacuum. See,

e.g., Commonwealth v. Hall, 565 A.2d 144, 149 (Pa. 1989) (evidence of

past drug dealings admissible to demonstrate motive for murder). We

conclude that the trial court did not abuse its discretion in determining that

the probative value of the evidence outweighed any prospect for prejudice

and was integral to the case.

objections to questions asked of Marquis Gilliard. Appellant claims that it

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nce to the defense to question Gilliard regarding the

details of his relationship to [the victim] and his subjective fears regarding

Appellant first claims that the court abused its discretion in preventing

him from questioning Gilliard about his possible connection to the

subsequent murders of two prospective witnesses, Eric Whittaker and

Stephen Hamilton. Appellant sought to question Gilliard about whether he

was afraid that he would be charged with murder and whether, as a result of

this fear, he was tailoring his testimony to gain favorable treatment by the

No relief is due.

As a general rule, the scope and manner of
cross-examination are within the sound discretion of
the trial court. Absent a finding that the court
abused its discretion, this Court will not disturb the

Commonwealth v. Rickabaugh, 706 A.2d 826, 839 (Pa.Super. 1997),

appeal denied, 736 A.2d 604 (Pa. 1999).

Counsel may cross-examine a witness subject to the usual limitations:

-examination may be employed to test a

Commonwealth v. Robinson, 507 Pa. 522, 526,

cross-examined as to any matter tending to show

Commonwealth v. Nolen, 535 Pa. 77, 83, 634

tha

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or innocence is dependent upon the credibility of a
prosecution witness, an adequate opportunity [must]
be afforded to demonstrate through
cross-
Commonwealth v. Birch, 532 Pa. 563, 566, 616
A.2d 977, 978 (1992).

Commonwealth v. Hyland, 875 A.2d 1175, 1186 (Pa.Super. 2005),

appeal denied

allow cross-examination to become a fishing expedition, where the examiner

may ask questions based on a subjective hunch, or worse, based on nothing

In interest of M.M., 653 A.2d 1271, 1277 (Pa.Super. 1995).

-examination, the trial

court relies upon our supreme Commonwealth v. Evans,

512 A.2d 626 (Pa. 1986). In Evans

prosecution witness may be biased in favor of the prosecution because of

outstanding criminal charges or because of any non-final criminal disposition

against him within the same jurisdiction, that possible bias, in fairness, must

Id. at 631. The Evans court also explained

that even if the prosecution has made no direct promises, the witness might

hope for favorable treatment in lieu of his testimony. Id. at 631-632.

Mr. Gilliard, and no information in the police paperwork that Mr. Gilliard was

arguing for permission to cross-examine Mr. Gilliard about being a suspect in

various homicides, defense counsel merely offered his unsupported

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believe [Mr.

Id., citing notes of testimony, 12/20/12 at

7.)

Appellant cites no supporting case law and we know of no such

statement of the law which would permit the cross-examination of a witness

as to his perceived bias when based on unsupported assertions that the

witness was suspected of being involved in a crime. Appellant, however,

attempts to persuade us that the principle enunciated in Commonwealth v.

Nolen, 634 A.2d 192 (Pa. 1993), should be applied.

In Nolen, our supreme court held it was error to preclude defense

counsel from cross-examining a witness about the fact that various charges

were pending against him both in Pennsylvania and Virginia at the time he

agreed to testify for the Commonwealth, although not at the time of trial.

when he was called to testify at trial was that they had been resolved in the

charges by dismissal and the Pennsylvania

charges by payment of a fine to a reduced offense. The Nolen panel held

the potential for bias continued beyond the closure of those cases, and thus

remained a proper subject of cross-examination, since the favorable

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he might be charged, in the future with two murders, might tailor his

testimony for the identical rea

trial court properly concluded that questioning Gilliard about unrelated

be prejudicial.

See Commonwealth v. Whiting, 668 A.2d 151 (Pa.Super. 1995) (when

defense counsel attempted to cross-examine witness regarding her being

inadmissible as she was never convicted of a crime); Commonwealth v.

Fuller

not be impeached by prior acts of misconduct which have not led to

convictions). Clearly, as there were no open criminal charges filed against

cross-examination.

testimony concern whether the trial court abused its discretion in precluding

the defense from questioning Gilliard about whether he worked as a drug

violence. (See

entitled to probe the relationship Gilliard had with Parker, especially in light

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to fabricate.

employed violence in the past to collect drug debts . . . this information

Id. at

43.)

In conducting our review, we find that the Honorable Glenn B. Bronson

concerning these claims in his Pa.R.A.P. 1925(a) opinion. We, therefore,

adopt and incorporate this portion of Judge Bron

(See trial court opinion, 5/23/13 at 9-10.) Moreover, we note that before

violence, defense counsel had already asked several questions concerning

the victi

pursue money that was owed to him for drug sales. (See notes of

testimony, 12/20/12 at 92-93.)

Appellant also argues that during the direct examination of Gilliard, the

Commonwealth aske

He argues that there was no evidence to suggest appellant had tried to

Id. at 44.) Again, we find that

Judge

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concerning these claim in his Pa.R.A.P. 1925(a) opinion. We incorporate this

See trial court opinion,

5/23/13 at 8-9.)

We now turn to the issue concerning whether the trial court

-statement

custody. Appellant claims potentially coercive conditions were employed

prior to securing a statement from Fairey that inculpated appellant.

duplicative and cumulative of questions asked of Detective Charles Grebloski

Detective Grebloski had been extensively cross-examined concerning the

conditions under which Fairey gave his statement to the police. (Notes of

testimony, 12/18/12 at 257-260.) Thus, we agree that the trial court

properly sustained the objection.

The final question presented is whether

and closing statements contained unfairly prejudicial arguments, which

compromise

The standard for granting a new trial because of the
comments of a prosecutor is a high one. Generally,

for the granting of a new trial unless the unavoidable
effect of such comments would be to prejudice the
jury, forming in their minds fixed bias and hostility

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towards the accused which would prevent them from
properly weighing the evidence and rendering a true
verdict. This standard permits us to grant a new
trial based on the comments of a prosecutor only if
the unavoidable effect of the comments prevented
the jury from considering the evidence. A prosecutor
must have reasonable latitude in fairly presenting a
case to the jury and must be free to present his or
her arguments with logical force and vigor.

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citation omitted). See also Commonwealth v. Hood, 872 A.2d 175, 185

(Pa.Super. 2005).

Appellant raises a series of assertions of prosecutorial misconduct.

First, he claims that the prosecutor committed misconduct by referring to

the fact that the victim had family and that his mother had to identify his

-49.) We cannot find that the trial court erred

in finding that the prosecution was attempting to avoid jury nullification

-dealing activities. The prosecutor was

reminding the jury that the victim was human and such fell within the

reference to irrelevant matters should

be avoided, we note that murder victims are not simply props or

irrelevancies in a murder prosecution, and innocuous references to victims

Commonwealth v.

Freeman, 827 A.2d 385, 415 (Pa. 2003). See also Commonwealth v.

Rios

have the right to have all evidence presented against him at trial sanitized of

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anything that could cause jurors to sympathize with the victim or his

4
Gilliard during his testimony constituted

brief at 49-51.) We cannot find that this single

remark deprived the jury of its ability to return a fair verdict. As the trial

court notes in its opinion, it did not appear that the jurors understood what

, 5/23/13 at 12.) The jury

evidence. (Notes of testimony, 12/17/12 at 32, 34.) See Commonwealth

v. Simmons, 662 A.2d 621, 639-640 (Pa. 1995), cert. denied, 516 U.S.

1128 (1996) (where jury is cautioned that arguments are not evidence and

that their recollection of the facts controls, any alleged prejudice from the

been hoping that Gilliard was not going to come to court was groundless and

51.)5 No relief is due; this remark was a fair inference that appellant could

4

scare, or confront.
5
We disagree with the Commonwealth that defense counsel did not object to
this remark; the record demonstrates an objection was lodged and
overruled. (Notes of testimony, 12/21/12 at 68.)

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not have been pleased by the appearance of Gilliard, who identified him as a

murderer.

Appellant also claims that misconduct occurred when the prosecutor

say -- rectly

counsel objected before the prosecutor was even able to state her

unwarranted.

Finally, appellant avers that the trial court erred in failing to provide

-54.) Appellant does not direct

us to the place in the record where such a request can be found, and the

Commonwealth asserts that appellant did not request specific curative

instructions. Indeed, our review of the record indicates that trial counsel

never requested such a remedy, and thus, this assertion is waived. See

Pa.R.A.P. 2119(e) (statement of place of raising or preservation of issues);

Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot

be raised for the first time on appeal); Commonwealth v. Johnson,

42 A.3d 1017, 1026 (Pa. 2012), cert. denied, 133 S.Ct. 1795 (2013)

emporaneous

limiting instruction. Insofar as appellant complains about the lack of a

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contemporaneous instruction, he waived this claim by failing to request a

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2014

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