J-A24037-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STORM E. MASON, :
:
Appellant : No. 137 EDA 2015
Appeal from the Judgment of Sentence Entered August 14, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0000681-2013
BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 13, 2015
Storm E. Mason (Appellant) appeals from the judgment of sentence
entered following his convictions for one count of third-degree murder, one
count of carrying a firearm without a license, one count of carrying a firearm
on public streets in Philadelphia, and one count of possessing instruments of
a crime. We affirm.
The trial court set forth the relevant factual history of this case as
follows.
On the night of October 15, 2012, [Appellant] and his
girlfriend, Deborah Reed, went to Big Fella’s Bar located at 1348
South 33rd Street in Philadelphia, Pennsylvania. When
[Appellant] entered Big Fella’s Bar, he saw a woman [whom] he
knew and greeted the woman with a hug. Matthew Smith, the
nephew of the woman [Appellant] hugged, pushed [Appellant]
and told him not to hug Smith’s aunt. This upset [Appellant] and
made him angry.
* Retired Senior Judge assigned to the Superior Court.
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Shortly thereafter, [Appellant], Reed, and [Appellant’s]
friend Kylif, left the bar. Smith and his cousin, Lamont Griffin,
then left the bar as well. While everyone was gathered outside,
[Appellant] and Kylif started to “play fight” with each other.
[Appellant] then attempted to get Smith to “play fight” as well.
[Appellant] continued to provoke Smith until Smith punched
[Appellant] and [Appellant] fell into the street.
[Appellant] then picked himself up off the ground and told
Smith, “Give me a fair one, a fair one.” Smith replied, “Alright,
alright,” and started to walk towards [Appellant] in the street.
[Appellant] then reached into his jacket and pulled out a gun and
started to fire at Smith. Smith turned around and attempted to
run after [Appellant] opened fire. Smith was hit by three bullets
and fell to the ground. [Appellant] started to run away after
Smith fell. However, [Appellant] stopped, turned back, and
returned towards Smith, firing two more bullets at Smith’s body.
[Appellant] shot Smith a total of five times. Smith was shot on
the outside of his left shoulder, on the left side of his abdomen,
on the inside of his calf, and twice on the left side of his back.
Police officers responded to the scene and observed Smith
on the ground, bleeding and unresponsive. Smith was
transported to the University of Pennsylvania Hospital where he
was ultimately pronounced dead. Police officers recovered [five]
fired .380 cartridge cases from the scene of the shooting.
Trial Court Opinion, 2/20/2015, at 2-3 (citations and footnotes omitted).
Appellant was arrested four days after the shooting. N.T., 6/17/2014,
at 220. During that four-day timeframe, Reed stayed with Appellant at
various locations. Id. at 221-235. Following Appellant’s arrest, she gave a
statement to police implicating Appellant. Id. at 237.
Prior to trial, the Commonwealth filed a motion in limine, pursuant to
Pa.R.E. 404(b), seeking to introduce evidence of a 2007 incident, in which
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Appellant pistol whipped Reed.1 The Commonwealth argued that this
evidence was relevant to explain Reed’s state of mind following the homicide
and her delay in reporting to authorities Appellant’s involvement in Smith’s
death. Following a hearing on the issue, the trial court ruled in Appellant’s
favor, excluding the evidence of Appellant’s prior bad acts unless defense
counsel “open[ed] the door by referencing or trying to create an inference in
[his] argument or [his] cross-examination that this was a delayed reporting
and therefore [Reed] shouldn’t be believed.” N.T., 6/16/2014, at 20.
On direct examination, Reed testified to her observations,
whereabouts, and interactions with Appellant before, during, and after the
shooting. N.T., 6/17/2014, at 212-238. Because Appellant had threatened
her and her family following the shooting, Reed testified that she only spoke
to police after Appellant’s arrest. Id. at 230.
During Reed’s cross-examination, defense counsel questioned her at
length regarding whether there was an operating telephone, landline or
mobile, available to her at each location she traveled to after the shooting;
whether she had used any of the available phones in the days after the
shooting; and, if so, whom she had called. N.T., 6/18/2014, at 36-37, 39-
40, 41, and 49.
1
Appellant was arrested for this offense, but the charges were later
withdrawn.
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At the end of cross-examination, the trial court revisited the ruling
made in limine, and determined that defense counsel had opened the door
to Reed’s delay in reporting; therefore, extrinsic evidence of the prior assault
was admissible to rebut such an inference. Id. at 56-58. (“I did say if you
raised an inference that [Reed] delayed [in] reporting, that I would allow
that [incident] to come in as an explanation, if in fact that was the
explanation. I don’t know if it is or it isn’t. But you went over chronologically
… each place that she was, how many days transpired in great detail, the
availability of a telephone, was there a telephone there, did you have access
to a cellphone, was there a land line phone. You didn’t ask the question did
you call the police, but we know she didn’t call the police because that came
out already that she didn’t contact the police until after his arrest. I can’t
think of any reason that you would have covered in great detail her activities
or access to a telephone on all those different days, when she got up, when
she went to sleep, without trying to create an inference in the jury’s mind as
to if she believed that [Appellant] acted in the manner in which she testified,
why didn’t she call the police. That is the only possible reason, and so I
expressed my opinion that I would allow [the ADA] on redirect to come back
now and ask [Reed].”)
In response, counsel argued that his cross-examination was designed
to point out inconsistencies in Reed’s prior statements in order to impeach
her credibility. Id. at 58-63. The trial court gave counsel the benefit of the
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doubt as “an officer of the court” and accepted as true his assertions
regarding the purpose of his detailed cross-examination, but concluded that
the door had been opened and permitted the Commonwealth to introduce
the evidence of Appellant’s prior bad acts.
Thus, on re-direct examination, Reed testified to various violent
interactions with Appellant, including the 2007 pistol whipping incident. Id.
at 86-87. During and immediately following this testimony, the trial court
issued two limiting instructions to the jury, directing them to consider Reed’s
testimony about Appellant’s prior violent acts for the limited purpose of its
bearing on her credibility and her conduct following the shooting. Id. at 86-
88. The trial court specifically instructed the jury that it could not consider
this testimony to be probative of whether Appellant was a violent person.
Id. at 86. In the final charge to the jury, the trial court issued a third
limiting instruction regarding this testimony. N.T., 6/19/2014, at 190-91.
On June 20, 2014, at the completion of the jury trial, Appellant was
convicted of the aforementioned offenses.2 On August 14, 2014, Appellant
was sentenced to an aggregate term of 24 to 48 years of incarceration.
Appellant filed timely post-sentence motions, which were denied on
December 9, 2014. This timely-filed appeal followed. Both Appellant and
the trial court complied with the mandates of Pa.R.A.P. 1925.
2
The charge of carrying a firearm without a license was severed. The trial
court found Appellant guilty of that charge immediately following the jury
trial.
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Appellant raises one issue for this Court’s review.
Did the lower court err when it allowed the prosecutor[,] on
redirect examination of a non-party witness, to elicit extrinsic
evidence on a collateral matter, regarding a prior bad act, to
bolster the witness’s believability, and explain her behavior,
where the prior bad act was too remote in time and was a single
isolated incident, to be relevant on any issue at trial?
Appellant’s Brief at 7 (unnecessary capitalization and trial court’s answer
omitted).
Appellant’s claim is multifold. First, he claims that “defense counsel,
having moved in limine to exclude the prejudicial testimony concerning the
alleged prior crime and having obtained a favorable ruling, was entitled to
rely upon that determination.” Appellant’s Brief at 37. Next, Appellant
contends that it was the Commonwealth that opened the door to the prior
bad acts testimony, and he was unfairly punished as a result. Appellant’s
Brief at 38-45. Specifically, Appellant maintains his cross-examination of
Reed was designed to respond to the Commonwealth’s direct examination,
which placed in issue “the matter of [Reed’s access to and use of]
telephones” in the days following the shooting. Id. Finally, Appellant
contends that the trial court’s limiting instruction was insufficient to cure the
prejudice suffered by Appellant. Id. at 46-51.
We address Appellant’s claims mindful of the following. “[T]he
admissibility of evidence is a matter addressed to the sound discretion of the
trial court and ... an appellate court may only reverse upon a showing that
the trial court abused its discretion. An abuse of discretion is not a mere
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error in judgment but, rather, involves bias, ill will, partiality, prejudice,
manifest unreasonableness, or misapplication of law.” Commonwealth v.
Collins, 70 A.3d 1245, 1251-52 (Pa. Super. 2013) (citations omitted).
Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Evidence is
relevant if: “(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Pa.R.E. 401. “All relevant evidence is admissible,
except as otherwise provided by law. Evidence that is not relevant is not
admissible.” Pa.R.E. 402. “The court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
It is well-established that “evidence of prior crimes is not admissible
for the sole purpose of demonstrating a criminal defendant’s propensity to
commit crimes.” Commonwealth v. Melendez–Rodriguez, 856 A.2d
1278, 1283 (Pa. Super. 2004). However, “[t]his 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.” Pa.R.E.
404(b)(1)-(2).
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Appellant’s first contention, that he was entitled to rely upon the
“favorable ruling” in limine, is a mischaracterization of the trial court’s
determination and does not entitle Appellant to relief. The record reveals
that, contrary to Appellant’s argument, the court’s ruling could be revisited if
Appellant opened the door to such testimony on cross-examination.
Citing to nine places in the record where Reed discussed telephones on
direct examination, Appellant next claims that it was the Commonwealth
that opened the door to the prior bad acts testimony. Appellant’s Brief at 38-
43. However, a fair reading of Reed’s testimony on direct examination does
not create an inference of delayed reporting: three of Reed’s statements
refer to Appellant’s calling a gypsy cab at some point following the shooting,
N.T., 6/17/2014, at 224, 225; two refer to when and if Reed spoke to her
mother following the shooting, id. at 226, 232; and the rest reference
Appellant’s use of phones in the days following the shooting. Id. at 226-27,
228, 232. Moreover, only two of these comments, those related to Reed’s
conversations with her mother, were made in response to the
Commonwealth’s direct questions about telephone use. By contrast,
counsel’s cross-examination focused on Reed’s access to and use of
telephones in the days following the shooting.
Based on a fair reading of the notes of testimony, we find no abuse of
discretion in the trial court’s determination that Appellant’s detailed cross-
examination, and not the Commonwealth’s limited questioning regarding
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telephones, created an inference of delayed reporting. Appellant had been
warned prior to trial that creating such an inference would result in the
admission of Appellant’s prior bad acts. Nonetheless, he questioned Reed at
length regarding her access to and usage of telephones in the days following
the shooting. Under these circumstances, we discern no error in the trial
court’s decision to admit Reed’s testimony, as it was admissible to counter
the inference that she delayed in reporting, as well as to explain Reed’s fear
of Appellant and her conduct following Smith’s death.3
Moreover, we agree with the Commonwealth that the probative value
of this evidence did not outweigh its prejudicial effect. The trial court is not
“required to sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at hand and form
part of the history and natural development of the events and offenses for
which the defendant is charged.” Commonwealth v. Lark, 543 A.2d 491,
501 (Pa. 1988). See also Commonwealth v. Dillon, 5925 A.2d 131, 141
(Pa. 2007) (“Evidence will not be prohibited merely because it is harmful to
the defendant.”). The evidence of Appellant’s prior violent interactions with
3
Indeed, evidence of Appellant’s prior bad acts was arguably admissible
following Reed’s testimony on direct examination wherein she stated that,
following the shooting, Appellant stabbed her on the head, hand, and ear
with a fork, and threatened to kill her and her family if they spoke to police.
N.T., 6/17/2014, at 228-231.
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Reed, introduced for legitimate purposes, was not unduly prejudicial, nor
was it likely to have an undue influence on the jury.
Additionally, we are cognizant that, when examining the potential for
undue prejudice, a limiting instruction may ameliorate the prejudicial effect
of the proffered evidence. See e.g. Commonwealth v. Hutchinson, 811
A.2d 556 (Pa. 2002). As discussed above, during and immediately following
Reed’s testimony, the trial court gave a limiting instruction to the jury,
informing them that they were to consider her statements not as evidence of
Appellant’s guilt, but for the limited effect the prior incidents had on Reed’s
state of mind. In the final charge, the trial court reiterated this ruling. Jurors
are presumed to follow the trial court’s instructions. Commonwealth v.
Baker, 614 A.2d 663, 672 (Pa. 1992). The trial court’s instructions to the
jury in this case properly limited the use of the prior bad acts testimony.
Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014) (holding that
the trial court’s limiting instructions were sufficient to overcome the
prejudicial effect of prior bad acts evidence). As discussed above, the prior
bad acts evidence in the instant case was properly admitted, albeit for a
limited purpose. Thus, we are unconvinced that the trial court’s three
limiting instructions were somehow deficient.
For all of the foregoing reasons, we conclude that the trial court did
not commit error in admitting Reed’s testimony. Accordingly, we affirm
Appellant’s judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2015
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