J-S36001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EUGENE MCMILLER
Appellant No. 352 WDA 2013
Appeal from the Judgment of Sentence January 23, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013606-2011
BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 30, 2015
Appellant, Eugene McMiller, appeals from the judgment of sentence
entered on January 23, 2013, after a jury convicted him of second degree
murder, robbery, and three counts of recklessly endangering another
person. McMiller contends that the trial court erred in overruling his
objection to the admission of evidence of prior bad acts. We affirm.
McMiller and his co-defendant, Gary Smith, were accused of killing
Justin Charles during a robbery on October 14, 2011. On that day, Michael
Elko and Charles Coddington, both admitted heroin users, were at Elko’s
home. A friend of the pair, Charles, came to the home with two African-
American males, one of whom was later identified as McMiller. Charles, also
a heroin user, was trying to arrange a drug deal with the two men. An
*
Retired Senior Judge assigned to the Superior Court.
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altercation ensued. According to Elko, during the altercation, McMiller had
pulled out a gun and demanded money from Charles several times, with
Charles refusing each time. Elko further testified that McMiller had
threatened that, if Charles did not give him the money, he would give the
gun to the other man who would use it. The robbery culminated in the death
of Charles. When shown a photo array by police, Elko identified McMiller as
one of the men who came into his house, and as the man who demanded
money from him.
At trial, McMiller chose to testify on his own behalf. Prior to that
testimony, McMiller was informed of his rights with regard to testifying or
remaining silent, as well as any potential ramifications from testifying.
Specifically, McMiller was informed that his own answers to questions could
subject him to additional questions on items that would not normally be
admissible. Along with other examples, it was mentioned if McMiller testified
that he did not know Gary Smith, the Commonwealth could cross-examine
him on the fact that he had recently been arrested with Smith. McMiller
indicated that he understood all of the potential ramifications and
consequences of his testimony.
During McMiller’s testimony, he indicated that he was afraid when
Smith pulled a gun on Charles, and he indicated that it “was the first time I
was in a situation like that.” N.T., Trial, 10/24-25/12, at 77. On cross-
examination, McMiller recommitted to his statement that he had never been
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in a situation like that, where a gun was pulled on a person. See id., at 86.
After a defense objection, the court permitted the Commonwealth to explore
the subject of an incident that occurred at a convenience store two days
prior to the murder of Charles. McMiller had been arrested on charges that
he committed an armed robbery with Smith on October 12. It was alleged
that the two were at a convenience store and Smith put a gun in the back of
the clerk and demanded money. See id.
Following a jury trial, McMiller was convicted of second degree
murder,1 robbery,2 and three counts of recklessly endangering another
person.3 The trial court later sentenced McMiller to life in prison without
parole for the murder conviction and to a concurrent term of 5 to 10 years
for robbery. This timely appeal followed.
McMiller’s sole claim raised on appeal is that the trial court denied him
a fair trial by permitting the introduction into evidence of allegedly unrelated
and unproven criminal activity. Specifically, he claims the trial court erred in
admitting, over defense counsel’s objection, evidence of McMiller’s alleged
involvement in criminal activity that occurred two days prior to the instant
murder. See Appellant’s Brief, at 20-25.
The applicable standard of review for a challenge to the admissibility of
evidence is well settled.
1
18 Pa. C.S.A. §2502(b)
2
18 Pa. C.S.A. §3701(a)(1)
3
18 Pa. C.S.A. §2705
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The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of its
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)
(citation and quotation marks omitted)
McMiller testified on his own behalf and therefore cross examination of
him was limited by rules pertaining to witnesses generally. “The credibility of
a witness may be impeached by any evidence relevant to that issue, except
as otherwise provided by statute or these rules.” Pa.R.E. 607(b). If a
defendant offers himself as a person worthy of belief, the jury has the right
to know what kind of man he is and thus his previous record is admissible to
aid in assessing his credibility. See Commonwealth v. Butler, 173 A.2d
468, 474 (Pa. 1961).
Evidence implying other crimes may be introduced when the evidence
has a proper evidentiary purpose and is not used merely to demonstrate
that the defendant is a person of bad character with a propensity to commit
crime. See Commonwealth v. Hood, 872 A.2d 175, 185 (Pa. Super.
2005). When the defense opens the door it is well established that the
Commonwealth may impeach a defendants’ credibility with reference to prior
crimes. See id. “[The defendant] is not insulated from being discredited
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about the factual accuracy simply because that proof involves other crimes.”
Id. (brackets in original; citation omitted).
In his own testimony McMiller ardently told the jury – twice – that he
had never before been in a situation like the one at issue, in which Smith
pulled a gun on a victim. Understandably, this opened the door for the
Commonwealth to attempt to impeach McMiller’s credibility, as he had been
charged as a co-defendant in the same type of robbery at a convenience
store merely two days prior to the robbery and murder at issue. This cross-
examination clearly attacked McMiller’s credibility. It was thus permissible
because it was not offered to show McMiller’s bad character or propensity for
this particular crime, but rather, to prove that the testimony he offered was
not truthful. Admission of such evidence is within the sound discretion of the
trial court and where, as here, there is a legitimate purpose for allowing
such evidence to come in, no abuse of discretion is found.
While the evidence of the prior robbery was prejudicial, the trial court
used its discretion in admitting the evidence after weighing the prejudicial
impact against its probative value. The trial court provided the jury with a
cautionary instruction during its closing charge to ensure that it was clear
that the prior robbery charge was only a pending criminal case and to ensure
the bad acts testimony would not be misused by the jurors.
There was evidence admitted showing that the Defendant has a
pending criminal case for which he is not on trial at this
point…This evidence is not evidence of the Defendant’s guilt. You
must not infer guilt from the evidence of the pending case. This
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evidence may be considered by you for one purpose only. That is
to help you judge the credibility and weight of the testimony
given by the Defendant as a witness in this trial. This evidence
must not be considered by you in a way other than for the
purpose that I just stated. You must not regard this evidence as
showing that the Defendant is a person of bad character or
criminal tendencies from which you might be inclined to infer
guilt.
N.T., Trial, 10/24-25/12, at 162-163. A jury is presumed to follow the
court’s instructions. See Hood, 872 A.2d at 185. Thus, the trial court
properly limited the purpose for which the evidence of the prior arrest could
be used.
McMiller agrees that the alleged event that occurred two days prior
was analogous to the present crime, but suggests that the evidence should
not have been permitted because he was only alleged to have been involved
in the previous robbery with Smith and had not yet been convicted of it. See
Brief for Appellant, at 22-23. However, a prosecutor may only not malign an
accused with irrelevant evidence of prior crimes. See Commonwealth v.
Days, 784 A.2d 817, 821 (Pa. Super. 2001). “When prior crimes or arrests
are made relevant by the accused’s own testimony, cross-examination on
these points is entirely proper.” Id. (emphasis supplied).
We conclude the trial court did not commit an abuse of discretion in
admitting the evidence of prior bad acts to impeach McMillers’ credibility on
the stand during his own testimony. We therefore conclude that McMiller is
due no relief on his sole claim on appeal.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
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Com. v. McMiller, E.
Combined Opinion