J-A09044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DWANE HANDY
Appellant No. 1656 EDA 2013
Appeal from the Judgment of Sentence entered June 5, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: 51-CR-0013034-2011
BEFORE: BOWES, DONOHUE, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 14, 2015
Appellant, Dwane Handy, appeals from the judgment of sentence the
Court of Common Pleas of Philadelphia County entered June 5, 2013. Upon
review, we affirm.
The relevant facts and procedural history can be summarized as
follows:
[O]n April 2, 2011, at approximately 4:40 P.M., [Police Officer
Candice McCoy] went to the Busti Housing Project at 46 th and
Market Streets in Philadelphia in response to a radio call. A
black Pontiac Bonneville was in the eastbound lane with the
engine running. The driver’s side door was slightly open and the
front passenger’s side window was shattered. Two (2) black
males discovered in the vehicle had been shot multiple times.
The male sitting in the front passenger’s seat was unresponsive.
The male sitting in the driver’s seat was complaining of pain in
his legs. The medic unit arrived and transported the males to
the hospital. The male [who] had been sitting in the passenger’s
seat, later identified as Quince Morant [(Morant)] . . ., was
pronounced dead on arrival. The other male, later identified as
Sharad DuBose [(DuBose)], received treatment for his injuries.
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Trial Court Opinion, 5/29/14, at 2.
Following the shooting, the police interviewed several individuals,
including DuBose, Consuelo Matthews, Jerome Boyd, John Ashmore, and
Ivory Matthews, who provided written statements incriminating Appellant as
involved in the shooting. In essence, these witnesses stated that Appellant,
along with codefendant, robbed Morant and DuBose, and, in the course of
the robbery, killed Morant and injured DuBose. At trial, however, with one
exception (Consuelo Matthews),1 all of the witnesses distanced themselves
from the prior statements they gave to the police, denying making any
statement to the police (DuBose), not recalling signing any statement
(Boyd), not recalling what information was provided to the police (Ashmore),
disputing the accuracy of the statement (Ivory Matthew), or claiming not to
have signed all pages of the statement (Ivory Matthew).
On May 31, 2013, [Appellant] was found guilty by a jury of
[m]urder of the [second] [d]egree; [a]ggravated [a]ssault; two
(2) counts of [r]obbery; [c]onspiracy to [c]omit [r]obbery and,
[p]ossession of an [i]nstrument of [c]rime. He was sentenced
that same day to [l]ife without possibility of parole for the
[m]urder conviction; five (5) to ten (10) years for the
[a]ggravated [a]assault conviction; five (5) to ten (10) years for
each [r]obbery conviction; and, . . . five (5) to ten (10) years for
the [c]onspiracy to commit [r]obbery conviction; all sentences to
run concurrently.
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1
At trial, Consuelo Matthews, “confirmed that most of the statement was
accurate. However, she testified that she did not tell [detectives] that
[Appellant] took Ebony into the bathroom with him.” Id. at 4.
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On June 5, 2013, the court amended its sentencing order and
vacated the sentence imposed on the two (2) counts of
[r]obbery since they were lesser included offenses of [second]
[d]egree [m]urder.
Trial Court Opinion, 5/29/14, at 1 (footnote omitted). This appeal followed.
On appeal, Appellant raises the following issues:
1. Did not the trial court err in denying [A]ppellant’s motion to
suppress inculpatory statements, where the statements were
the product of an unlawful arrest unsupported by probable
cause?
2. Did not the trial court err in refusing to permit to question co-
defendant . . . regarding his prior arrest with Elante
Outterbridge, where such questioning was relevant to
[A]ppellant’s defense at trial and where [codefendant] opened
the door by testifying to his own character?
3. Did not the trial court err in denying repeated defense
motions for a mistrial, where the Commonwealth engaged in
an ongoing course of prejudicial conduct that included open
references to the fact that documents had been redacted;
improper comments in denigration of defense counsel; and
improper burden-shifting, misstatement of evidence, and
appeals to community sympathy and outrage?
4. Did not the trial court err in failing either to grant a mistrial or
to conduct further investigation after it became apparent that
specific information regarding the jury’s deliberations had
been leaked?
Appellant’s Brief at 3.
In his first argument, Appellant claims the trial court erred in finding
the officers had probable cause to arrest Appellant. Specifically, Appellant
argues the Commonwealth failed to make out a prima facie case Appellant
committed the crimes ascribed to him. Appellant’s Brief at 33 (quoting
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Commonwealth v. Weigle, 997 A.2d 306 (Pa. Super. 2010)). Appellant
also added that
Pennsylvania courts have thus held that the question of probable
cause is closely related to the issue of legal sufficiency: would
the evidence possessed by the police at the time they arrested
appellant, assuming it were true, have been sufficient to allow a
judge or magistrate to find probable cause to bind him over for
trial?
Id. (relying, presumably, on Weigle).
Appellant misunderstands the law. Weigle deals with the
Commonwealth’s burden at a preliminary hearing, not with the
Commonwealth’s burden at a suppression hearing. At a preliminary hearing,
the Commonwealth must provide (i) evidence of each of the material
elements of the crime charged and (ii) and establish probable cause to
warrant belief that the accused committed the crime.2 At a suppression
____________________________________________
2
In Commonwealth v. Lacey, 496 A.2d 1256, 1260-61 (Pa. Super. 1985),
this Court noted:
A creature of statute, the preliminary hearing is intended to
protect the accused from unlawful detention. To that end, the
prosecution must establish at least a prima facie case that a
crime has been committed and that the accused is the one who
committed it. The Commonwealth’s burden at this stage falls
short of proof beyond a reasonable doubt. The proof need only
be such that, if the evidence were presented at trial and
accepted as true, the trial judge would be warranted in allowing
the case to go to the jury.
Id. at 1260 (citations omitted). We also explained our standard of review as
follows:
(Footnote Continued Next Page)
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hearing where a defendant challenges the arrest, however, the
Commonwealth must produce only evidence of the propriety of the arrest,
i.e., probable cause to arrest, not evidence sufficient to make a prima facie
case of guilt. Commonwealth v. Holloway, 323 A.2d 216, 217 (Pa. Super.
1974). “It is only probability, and not a prima facie showing of criminal
activity[,] that is the standard of probable cause for arrest[.] If the officer
had known of a complaint when he took the appellant into custody, he would
have had all the evidence presented at trial, i.e. prima facie evidence of guilt
beyond a reasonable doubt.” Id.; see also Commonwealth v.
Thompson, 985 A.2d 931 (Pa. 2009) (“probability, and not a prima facie
showing, of criminal activity” necessary for search and seizure) (emphasis in
original) (citing Illinois v. Gates, 462 U.S. 213, 235 (1983)). Thus,
reliance on Weigle is misplaced.
_______________________
(Footnote Continued)
Our function is to take the facts proven by the
Commonwealth at the preliminary hearing and to
determine whether the sum of those facts fits within
the statutory definition of the types of conduct
declared by the Pennsylvania legislature in the
Crimes Code to be illegal conduct. If the proven
facts fit the definition of the offenses with which the
appellees are charged, then a prima facie case was
made out as to such offense or offenses. If the facts
do not fit the statutory definitions of the offenses
charged against the appellees, then the appellees
are entitled to be discharged.
Id. at 1260-61 (citation omitted).
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Applying the proper standard, the trial court concluded the officer had
probable cause to arrest Appellant. Specifically, at the suppression hearing,
the investigating detective testified that he spoke, inter alia, to Ebony
Matthews, Ivory Matthews, and the mother of eyewitness John Ashmore, all
of whom knew Appellant and codefendant. Ebony told the detective that,
“just” after the shooting, then 11-year-old John Ashmore told Ebony that he
saw codefendant shooting someone inside a car. N.T. Suppression, 2/14/13,
at 12. Ebony told the detective that Ashmore was shaking with fear because
he had seen everything and “he was afraid that they were going to come get
him.” Id. at 13.
Ivory Matthews reported that Ashmore, upon entering the Matthews’
apartment after the shooting, told Ivory that Appellant was in the backseat
of the car when codefendant approached Morant and DuBose and said, “Y’ all
got to . . . the count of five to give it up.” Id. at 23. Ashmore saw
Appellant get out the car’s back seat and walk away from codefendant
before codefendant began firing the gun. Id.; see also id. at 36-37.
John Ashmore’s mother reported to the detectives that she saw
Appellant with codefendant on the elevator “right after” the shooting. N.T.
Suppression, 2/15/13, at 51-52. She heard Ebony warning codefendant
about the police in the courtyard. Id.
The trial court summarized this evidence as follows:
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There [are] three really strong statements that indicate that
[Appellant] more likely than not had involvement in this murder.
...
So [codefendant] comes up to commit a murder,
robbery/murder, [Appellant] gets to leave the car unscathed and
[codefendant] and [Appellant] are together within a few minutes
after the homicide. If that is not probable cause, I don’t know
what is.
Id., at 63-64.
The trial court also properly noted: “There is a difference between
probable cause to arrest and whether the detectives believed they had
enough evidence to hold and whether they want to bring their case at that
time or gather more information.” Id. at 66.
In light of the foregoing, we conclude the trial court did not err in
denying Appellant’s motion to suppress the statements.3
In his second claim, Appellant argues the trial court erred in not
allowing him to question codefendant about codefendant’s prior arrests to
show that Elante Outterbridge, who had been arrested with codefendant in
the past in connection with another robbery, was involved in the crimes at
issue here.
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3
To the extent Appellant argues the Commonwealth failed to make a prima
facie case at the preliminary hearing because the officer did not have
probable cause to arrest, we find the claim meritless. It is well known that
any defect in the preliminary hearing is cured by subsequent trial. “Once a
defendant has gone to trial and has been found guilty of the crime or crimes
charged, however, any defect in the preliminary hearing is rendered
immaterial.” Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014)
(citation omitted).
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In his argument, Appellant mentions Pa.R.E. 404(b) as controlling the
issue, but fails to provide the pertinent analysis (i.e., why the evidence
sought was permissible as opposed to impermissible and whether its
probative value outweighed its potential for prejudice).4 Appellant merely
argues that he should have been allowed to question codefendant because
codefendant opened the door by testifying about his character for being a
law-abiding citizen, i.e., on two occasions, codefendant commented about
the tone or content of the questions from the Commonwealth that,
according to the codefendant, made him look like something he was not.
____________________________________________
4
Rule 404(b) reads as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b).
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Appellant’s representation of the testimony above as “character
evidence” is a stretch. However, even if codefendant “opened the door”5 to
questions about his character, Appellant fails to provide any explanation why
he wanted to question codefendant on a prior arrest for robbery—assuming
he could have impeached him with evidence of prior arrests—if he merely
intended to show that he was not a law-abiding citizen.6 We see no other
reason for the proposed line of questions than Appellant’s attempt to
establish that codefendant acted in conformity with the prior robbery. Such
evidence, however, is expressly prohibited under Pa.R.E. 404(b)(1). “A
defendant has a fundamental right to present evidence, so long as the
evidence is relevant and not subject to exclusion under our Rules of
Evidence.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014). In
the instant matter, Appellant essentially claims the trial court should have
allowed him to show that Elante Outterbridge was involved in the instant
robbery/murder, not Appellant, because codefendant and Elante
____________________________________________
5
“A litigant opens the door to inadmissible evidence by presenting proof that
creates a false impression refuted by the otherwise prohibited evidence.”
Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013)
(citations omitted).
6
Codefendant had seven arrests, mostly for felonies, including an arrest in
connection with a robbery that took place in the neighborhood of the Busti
Projects (West Philadelphia) on September 6, 2008. See N.T. Suppression,
2/14/13, at 27; N.T. Suppression, 2/15/13, at 60.
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Outterbridge were arrested in connection with the 2008 robbery.7 “Reverse
Rule 404(b) evidence” refers to a defendant’s use of other acts evidence
under Pa.R.E. 404(b) to show that a third party had committed the crime at
issue. See United States v. Stevens, 935 F.3d 1380, 1404 (3d Cir. 2001)
(construing the materially similar Fed.R.Evid. 404(b)). No Pennsylvania
court has squarely addressed the use of reverse Rule 404(b) evidence, but
some have mentioned the concept obliquely. See, e.g., Commonwealth v.
Chmiel, 889 A.2d 501, 534-35 (Pa. 2005) (holding that trial court properly
precluded defendant from questioning witness concerning prior burglary
which did not fall within permitted purposes of Rule 404(b) but merely
tended to establish action in conformity with the prior act). To the extent a
defendant’s reverse Rule 404(b) evidence is admissible, it certainly does not
permit a defendant to seek admission of “propensity evidence in violation of
the prohibition of Rule 404(b).” United States v. Williams, 458 F.3d 312,
314 (3d Cir. 2006). The claim is therefore without merit.
Appellant next argues the trial court erred in denying Appellant’s
motions for mistrial due to the Commonwealth’s misconduct. 8 Appellant,
____________________________________________
7
As noted, Appellant does not argue the questioning was intended to show
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of incident.” Pa.R.E. 404(b).
8
Appellant sought a mistrial following the Commonwealth’s reference to
documents and/or photographs being redacted and following a comment,
directed to the jury, “that they would be serving until Memorial Day.”
(Footnote Continued Next Page)
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however, does not challenge any specific ruling made by the trial court as
improper or incorrect. In fact, Appellant conceded the rulings were proper.
Appellant’s Brief at 52. Appellant merely states the cumulative impact of the
Commonwealth’s actions amounted to prosecutorial misconduct even if the
instances themselves, considered separately, did not rise to the level of
prosecutorial misconduct. Id. In support, Appellant cites Commonwealth
v. Bricker, 487 A.2d 346 (Pa. 1985), for the proposition a mistrial should be
granted if the Commonwealth has engaged in a pattern of misconduct
throughout the trial.
The claim fails for several reasons. Preliminarily, we note that Bricker
is a plurality opinion, which means it is not binding authority.
Commonwealth v. Antoszyk, 985 A.2d 975, 981 (Pa. Super. 2009). In
any case, in Commonwealth v. Miles, 681 A.2d 1295 (Pa. 1996), the
Supreme Court acknowledged that “if the prosecutor has engaged in a
pattern of misconduct throughout the trial then there is reason to grant a
new trial.” Id. at 1303 (citing Bricker). However, the Supreme Court also
noted that “[n]o number of failed claims may collectively attain merit if they
could not do so individually.” Id. (citation omitted) (emphasis in original).
_______________________
(Footnote Continued)
Appellant also brought another motion for mistrial following
Commonwealth’s closing argument. Appellant argued that the
Commonwealth improperly cited DuBose’s statements for their content,
whereas they were admitted for impeachment purposes only; improperly
shifted the burden to the defense to produce evidence; improperly misstated
the evidence; and improperly appealed to community sympathy or outrage.
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Here, as in Miles, all claims for prosecutorial misconduct failed, and
Appellant did not challenge their disposition. Thus, as in Miles, we conclude
Appellant is not entitled to relief based on his claim.
Additionally, the claim fails on its merits.
The denial of a motion for a mistrial is assessed on appellate
review according to an abuse of discretion standard. See
Commonwealth v. Savage, 529 Pa. 108, 116, 602 A.2d 309,
312 (1992). The central tasks confronting the trial court upon
the making of the motion were to determine whether misconduct
or prejudicial error actually occurred, and if so, to assess the
degree of any resulting prejudice. See generally
Commonwealth v. Boczkowski, 577 Pa. 421, 454, 846 A.2d
75, 94 (2004) (characterizing a mistrial as an extreme remedy
that needs only be granted where a prejudicial event may
reasonably be said to have deprived the defendant of a fair
trial).
Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa. 2006).
Here, the trial court found the challenged comments regarding the
redacted photos and the pace of the trial were in fact intemperate and
improper, but did not deprive Appellant of a fair trial. Similarly, the trial
court found two comments (use of DuBose’s statements and appeal to the
community outrage) made during the closing argument required a curative
instruction, but none of the claims warranted granting Appellant’s motion for
mistrial. On appeal, as noted, Appellant does not challenge any of these
rulings, and does not argue—except for bald allegations—he suffered
prejudice. As such, Appellant is entitled to no relief on this claim.
Appellant next argues the trial court erred in failing either to grant a
mistrial or to conduct further investigation after it became apparent that
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specific information about the jury’s deliberations had been leaked.
Specifically, Appellant argues that during the deliberations the trial court
learned that a juror, Juror No. 7, had participated in conversations with
outside parties regarding the jury’s deliberations.
A close reading of Appellant’s argument reveals that Appellant does
not challenge the trial court’s denial of his motion for mistrial. Indeed,
Appellant concedes the trial court’s determination in this regard was correct.
Appellant’s Brief at 54. Appellant, rather, argues, for the first time on
appeal, that the trial court should have engaged in “further inquiries to trace
the leak,” Appellant’s Brief at 58, and that questioning only one juror, the
juror allegedly involved in the leak, was not enough to assess whether
Appellant was prejudiced by the leak. Id. In support, Appellant cites
Commonwealth v. Price, 344 A.2d 493 (Pa. 1975) for the proposition that
“where the juror visited the scene of the crime, but that juror was not
identified or questioned by the court, likelihood of prejudice could not be
discounted and new trial was required[.]” Appellant’s Brief at 56.
Appellant never requested or even alluded to the necessity of
conducting further investigation until this appeal. As per defendants’
request, the trial court questioned the only juror who could have been the
source of the potential leak (Juror No. 7). Appellant did not complain at any
time before now about the adequacy of the inquiry. The trial court was not
made aware of the necessity of conducting further inquiry at any time.
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Appellant raises the issue for the first time on appeal. The claim is therefore
waived. See Pa.R.A.P. 302(a).
Additionally, had the claim been preserved, we would have found it
meritless.
Once the trial court is made aware that a juror has been exposed
to extraneous information [. . .] that was not provided in open
court or vocalized by the trial court via instructions which may
have affected the juror’s deliberation, the trial court must assess
the prejudicial effect of the extraneous influence. In so doing,
the trial court should consider: (1) whether the extraneous
influence relates to a central issue in the case or merely involves
a collateral issue; (2) whether the extraneous influence provided
the jury with information they did not have before them at trial;
and (3) whether the extraneous influence was emotional or
inflammatory in nature.
Commonwealth v. Pope, 14 A.3d 139, 145 (Pa. Super. 2011) (citing
Commonwealth v. Messersmith, 860 A.2d 1078, 1085 (Pa. Super.
2004)).
Here, the claim again would fail for several reasons. First, Appellant
presumes prejudice from the trial court’s failure to conduct further inquiries
into the leak. However, this is not the test. The burden is on the moving
party, here Appellant, to prove he suffered prejudice. Id. Second, once the
moving party shows prejudice, the trial court must assess the extent of the
prejudice of the extraneous influence. Appellant never made this showing
because he never raised the issue before the trial court. To this end the trial
court noted that Appellant “has failed to provide an argument as to how this
extraneous information may have affected the juror’s deliberation such that
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it may have prejudiced [Appellant] or Co-Defendant. There was no
argument made by [Appellant] as to what impact, if any, this extraneous
information had on Juror No. 7.” Trial Court Opinion, 5/29/14, at 22.
Finally, Price is distinguishable. In Price, the trial court never conducted
any inquiry into the alleged misconduct resulting in the trial court’s failure to
assess whether any prejudice occurred. Here, however, the trial court fully
examined—to Appellant’s satisfaction—Juror No. 7, and concluded that
Appellant did not suffer prejudice from the extraneous influence. In this
regard, the trial court noted:
[T]he trial court conducted a meaningful colloquy with Juror No.
7[.] . . . Juror No. 7, a corrections officer at the House of
Corrections, has a daughter who is a Corrections Officer at
[Philadelphia Industrial Corrections Center]. Juror [No.7] denied
speaking to anyone[,] including her daughter[,] about the
deliberations in the case. [Juror No. 7] acknowledged that her
daughter did tell her that [Appellant] knew her mother was
sitting as a juror in his trial and asked her to put in a word with
her mother. Juror No. 7’s daughter told her that she ignored
[Appellant] and acted like nothing happened.
Trial Court Opinion, 5/29/14, at 21.
Thus, the instant matter is distinguishable from Price. As a result,
Appellant’s reliance on Price is misplaced.
In light of the foregoing, we conclude Appellant is not entitled to relief
on any of his claims.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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