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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARSEILLE WILSON
Appellant No. 3593 EDA 2013
Appeal from the Judgment of Sentence July 11, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013135-2011
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 15, 2015
Appellant, Marseille Wilson, appeals from the July 11, 2013 aggregate
judgment of sentence of five to ten years’ imprisonment, plus ten years’
probation, imposed after he was found guilty of two counts of indecent
assault and one count each of rape and sexual assault.1 After careful
review, we affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
[The victim,] McNeil[,] testified she was 23 years old
and had lived in West Philadelphia her entire life.
She testified that in October 2011 she was living on
63rd Street with her sister Talia McNeil (“Talia”) and
her friend Shaneia Jenkins (“Shaneia”). She stated
that on the night of October 14, 2011, she and
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1
18 Pa.C.S.A. §§ 3126(a), 3121(a)(3), and 3124.1, respectively.
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Shaneia went to a neighborhood bar, Connections,
which was three blocks from her apartment. She
testified that at the bar she had a few drinks and
eventually Shaneia left. She testified that she drank
two glasses of wine, some vodka, and some
Hennessey. She stated that after Shaneia left, she
spent time with Thomas, Temple, Razul and
[Appellant]. She stated that she knew Thomas,
Temple and Razul from elementary and/or high
school, but that she had never met [Appellant]
before.
McNeil testified that she eventually got a ride
from Razul to her apartment and in the car were
Thomas, Temple and [Appellant]. She testified that
they were all coming back to her place to spend time
with Talia’s boyfriend who was at their apartment.
She testified that on the way to the apartment the
car stopped at a gas station. She stated that in the
three to four hours she was at the bar she had about
four drinks and in the car she started to feel sick.
She testified that she did not vomit in the car and
she did not talk to the others who were in the car.
She stated that when they got to her house she went
straight to the bathroom to vomit. She testified that
after throwing up she went in the bathtub to cool off
in the water.
She testified that while she was in the bathtub
she took off her shirt and was wearing a bra, and her
tights. She testified that eventually Talia and
Thomas helped her out of the tub and brought her
into the bedroom. She stated that after getting into
bed she started vomiting again and Talia brought her
a black bucket to vomit in. She testified that after
vomiting, Talia closed the door and turned the lights
off and she went to sleep. She testified that the next
thing she remembered was waking up to [Appellant]
in her bed with his penis inside her vagina. She
testified that she said “get off me, stop[,] and help
me.” She stated that Talia came into her room and
said to [Appellant], “What are you doing to my
sister.” To which [Appellant] responded, “My name
is Cell. Your sister knows me,” before he ran out of
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the room. McNeil testified that she did not know
[Appellant] and that she saw him earlier in the night,
but did not have any conversations with him.
McNeil testified that [Appellant]’s body was
positioned behind hers and she was on her side
when she woke up. She stated that [Appellant]’s
hands were on her side and her panties were down
towards her knees. She stated that she had her
panties on when she went to sleep. She testified
that when she told [Appellant] to stop, he kept
having sex with her. After [Appellant] ran out, she
testified that Shaneia and Thomas came in the room
and they tried to call her a cab to the hospital
because she felt pain from her tampon that was
inside of her still. She testified that she was on her
period that night and intentionally left the tampon
inside her when she went to sleep. McNeil testified
that she went to the hospital in an ambulance with
Talia and her father. After the hospital, McNeil
testified that she went to the Special Victims Unit
where a nurse performed an examination and she
gave a statement to Detective Jenkins.
McNeil testified that after the incident on
October 15, 2011, she did not see [Appellant] again
until November 4, 2011. She testified that she saw
[Appellant] at Connections and that it was the first
time she returned to the bar since the assault. She
testified that she called the police and [Appellant]
was arrested in the bar that night. Following the
night in October 2011, McNeil testified that she had
been back to Connections only three times. She
testified that one of those times she saw Temple and
Thomas. She testified that Temple said, “I ain’t
f[**]king with you. My man was drunk. You should
just let him go.” She testified that she started crying
and then approached them and Temple repeated
himself. McNeil testified that she had only been back
to Connections once since then because she felt
uncomfortable being there and that something might
happen to her. She testified that the others who
were with [Appellant] had been at her apartment
before October 14, 2011, but that [Appellant] had
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never been there before and she did not think
anything would happen that night since he was with
her other friends.
McNeil identified different photographs showing
her bedroom and her apartment. She testified that
she had four drinks on the night of the … incident
and that she was intoxicated, but that there were no
moments which she did not remember. She testified
that she did not invite [Appellant] to come back to
her house, into her bedroom nor did she tell him that
he could have sex with her.
Trial Court Opinion, 5/30/14, at 5-7.
On December 8, 2011, the Commonwealth filed an information,
charging Appellant with the above-mentioned offense, plus one additional
count of rape and one count of simple assault.2 Appellant proceeded to a
jury trial on February 26, 2013, at the conclusion of which, Appellant was
found guilty of two counts of indecent assault and one count each of rape
and sexual assault. The simple assault charge and the second rape count
were nolle prossed. On July 11, 2013, the trial court imposed a sentence of
five to ten years’ imprisonment, plus ten years’ probation, for rape but no
further penalty on the remaining charges. On July 19, 2013, Appellant filed
a timely post-sentence motion. The trial court entered an order on
November 19, 2013 denying Appellant’s post-sentence motion by operation
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2
18 Pa.C.S.A. §§ 3121(a)(1) and 2701(a), respectively.
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of law. See generally Pa.R.Crim.P. 720(B)(3)(c). On November 20, 2013,
Appellant filed a timely notice of appeal.3
On appeal, Appellant raises one issue for our review.
Did not the trial court err when it admitted an out-
of-court statement in evidence for its effect on the
listener where the listener’s reaction to the
statement was irrelevant to the case and the trial
court’s refusal to give a limiting instruction
restricting the jury from considering the evidence for
its truth unfairly prejudiced … [A]ppellant?
Appellant’s Brief at 4.
Although presented as a single issue, Appellant’s argument on appeal
contains two sub-issues. First, Appellant avers the trial court abused its
discretion in allowing McNeil to testify to a statement made by Temple, “I
ain’t f[**]king with you. My man was drunk. You should just let him go.”
N.T., 2/27/13, at 39. Specifically, Appellant argues that statement was
irrelevant under Pennsylvania Rule of Evidence 401 and its probative value
was outweighed by its prejudicial effect under Rule 403. Appellant’s Brief at
13, 22. In his second sub-issue, Appellant argues the trial court erred in not
instructing the jury that it may not consider said statement for its truth. Id.
at 19.
We begin by noting our well-settled standard of review regarding these
issues.
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Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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The admissibility of evidence is at the discretion of
the trial court and only a showing of an abuse of that
discretion, and resulting prejudice, constitutes
reversible error. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en
banc) (internal quotation marks and citations omitted), appeal denied, 83
A.3d 167 (Pa. 2013). Likewise, “[i]n deciding whether a trial court erred in
refusing to give a jury instruction, we must determine whether the court
abused its discretion or committed an error of law.” Commonwealth v.
Clouser, 998 A.2d 656, 658 (Pa. Super. 2010) (citation omitted), appeal
denied, 26 A.3d 1100 (Pa. 2011).
Assuming, arguendo, that the trial court erred by allowing Temple’s
statement and in not giving the requested limiting instruction to the jury, we
nevertheless conclude that its errors were harmless.
[A]n error will be deemed harmless where the
appellate court is convinced beyond a reasonable
doubt that the error could not have contributed to
the verdict. Guidelines for determining whether an
error is harmless include: (1) whether the error was
prejudicial to the defendant or if prejudicial, whether
the prejudice was de minimis; (2) whether the
erroneously admitted evidence was merely
cumulative of other, untainted evidence which was
substantially similar to the erroneously admitted
evidence; or (3) whether the evidence of guilt was so
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overwhelming as established by properly admitted
and uncontradicted evidence that the prejudicial
effect of the error was so insignificant by comparison
to the verdict.
Commonwealth v. Molina, 33 A.3d 51, 67 (Pa. Super. 2011) (en banc)
(citation omitted), affirmed, 104 A.3d 430 (Pa. 2014).
As part of his defense, Appellant called Miguel Thomas who testified
that Temple told McNeil the following.
Like, I don’t want to speak to you because you got
one of my friends locked up and you know that’s not
what happened. You know that’s not how it went
down. Like, he didn’t rape you. He didn’t hold you
down and rape you or anything like that. It was just
like we were drunk and we tried -- he tried to do it to
you. Now, that’s how you should put it. Don’t try to
put it like he raped you because that’s not how it
went down.
N.T., 2/28/13, at 26-27. Here, because Temple’s statements came in as
part of Appellant’s own defense, they were introduced to establish the
substance of Temple’s statements, not for the limited purpose of their effect
on the listener such as during the Commonwealth’s case-in-chief. Cf. N.T.,
2/26/13, at 5-9. Since Appellant’s own defense witness testified to the
same statements as those Appellant complains of on appeal, but in greater
detail, which were admitted for their substance, any potential prejudice was
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de minimis, rendering any potential errors by the trial court harmless. 4 See
Molina, supra.
Based on the foregoing, we conclude Appellant’s issue is devoid of
merit. Accordingly, the trial court’s July 11, 2013 judgment of sentence is
affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
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4
Appellant acknowledges his eliciting of Temple’s statements from his own
witness, but blames the trial court for not giving the limiting instruction.
Appellant’s Brief at 25. Appellant argues that he was “trying to make the
best of a bad situation.” Id. However, in our view, it appears odd that
Appellant would wish for the jury to hear testimony, that according to
Appellant undermines his own credibility, for a second time. Further, we
agree with the Commonwealth that Appellant’s intentional elicitation of
Temple statements reflects a belief that the statement could have been
beneficial to him, such as to undermine Temple or the victim’s credibility by
suggesting to the jury that they were all intoxicated and could not remember
the events correctly. See generally Commonwealth’s Brief at 9 n.3.
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