J-S01013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GARY WILSON, :
:
Appellant : No. 3337 EDA 2014
Appeal from the Judgment of Sentence July 19, 2013
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No: CP-51-CR-0011361-2008
BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 03, 2016
Gary Wilson (“Wilson”), pro se, appeals from the judgment of sentence
entered after a jury convicted him of persons not to possess firearms.1 We
affirm.
The trial court set forth the relevant procedural and factual history in
its Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, 5/11/15, at 1-3.2
We incorporate the court’s recitation herein by reference. See id.
On appeal, Wilson presents the following issues for our review:
I. Did the trial judge violate [Wilson’s] Fifth and Fourteenth
Amendment rights to due process of law when the judge
1
See 18 Pa.C.S.A. § 6105(a)(1) (providing, in relevant part, that “[a]
person who has been convicted of an offense enumerated in subsection (b)
… shall not possess, use, control, sell, transfer or manufacture or obtain a
license to possess, use, control, sell, transfer or manufacture a firearm in
this Commonwealth.”); see also id. § 6105(b).
2
We additionally note that Wilson’s counsel had stipulated that, at the time
of the offense, Wilson had a prior conviction for an offense enumerated in 18
Pa.C.S.A. § 6105(b). See N.T., 5/7/13, at 19; see also id. at 101.
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told the jury, in advocacy for the District Attorney, that
[Wilson] had a firearm in his possession[,] and failed to give
an on[-]the[-]record colloquy to ascertain whether or not
[Wilson] agreed to … the stipulations and the consequences
of introducing drugs and [Wilson’s] prior bad acts to the
jury?
II. Did the prosecutor violate [Wilson’s] Fifth and Fourteenth
Amendment rights to due process of law when the
prosecutor expressed h[er] personal belief as to [Wilson’s]
guilt and introduced drugs to the jury to divert the jury from
its duty to decide the case on the evidence, [and]
introduced prior bad acts?
Brief for Appellant at 4 (capitalization omitted).3, 4
Wilson first argues that the trial court committed reversible error by
making a comment during its jury instructions that was so prejudicial that it
deprived him of a fair trial. See id. at 7. Specifically, Wilson points to the
trial court’s following remark: “Wilson has been charged with a single
offense, and that is a person who is not able to possess, use, manufacture,
control, sell, or transfer a firearm, he, nonetheless, had a firearm in his
possession.” Id. (quoting N.T., 5/7/13, at 168) (emphasis added by
Wilson). According to Wilson, the trial court’s prejudicial remark “improperly
invaded the province of the jury[,]” and entitles him to a new trial. Brief for
Appellant at 8 (citing Commonwealth v. Goosby, 301 A.2d 673, 674 (Pa.
1973) (stating that “[a] new trial is required when the remark is
3
In his two issues, Wilson conflates several distinct sub-issues, most of
which he preserved in a separate portion of his pro se Pa.R.A.P. 1925(b)
Concise Statement. Accordingly, we will address each separately.
4
We note, with displeasure, that the Commonwealth did not file a brief on
appeal, despite having requested, and received, two extensions of time.
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prejudicial[,] that is, when it is of such a nature or substance or delivered in
such a manner that it may reasonably be said to have deprived the
defendant of a fair and impartial trial.” (emphasis omitted)).
[W]hen reviewing jury instructions for error, the charge
must be read as a whole to determine whether it was fair or
prejudicial. The trial court has broad discretion in phrasing its
instructions, and may choose its own wording so long as the law
is clearly, adequately, and accurately presented to the jury for
its consideration.
Commonwealth v. Sepulveda, 55 A.3d 1108, 1141 (Pa. 2012) (citation
and internal quotation marks omitted); see also Commonwealth v.
Hansley, 24 A.3d 410, 420 (Pa. Super. 2011) (stating that “[a] faulty jury
charge will require the grant of a new trial only where the charge permitted
a finding of guilt without requiring the Commonwealth to establish the
critical elements of the crimes charged beyond a reasonable doubt.” (citation
omitted)).
In its Opinion, the trial court determined that Wilson’s claim lacks
merit:
Here, [Wilson] misunderstood the [trial c]ourt and believed that
the use of the pronoun “he” was in direct reference to [Wilson,]
when[,] in fact[,] the pronoun “he” was in reference to the
“person” who, in order to be found guilty and in violation of [18
Pa.C.S.A. § 6105(a)(1)], “… nonetheless, had a firearm in his
possession.” [N.T., 5/7/13, at 168]. The [trial c]ourt’s
instructions, when read as a whole, clearly, adequately, and
accurately presented to the jury the law concerning [persons not
to possess firearms] under 18 Pa.C.S.[A.] § 6105(a)(1). This is
all that is required. The mere fact that [Wilson] misunderstood
the [c]ourt’s language does not render this charge defective.
Accordingly, this claim is meritless.
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Trial Court Opinion, 5/11/15, at 5. We agree with the trial court’s rationale,
which is supported by the law and the record, and affirm on this basis with
regard to Wilson’s first issue. See id.
As an addendum, we observe that, in response to the trial court’s
foregoing rationale, Wilson asserts that he “does not object to the jury
charge. [Wilson] objects specifically to the tone and delivery of which
the [t]rial [c]ourt specifically stated that ‘[h]e, nonetheless, had a firearm in
his possession[.]’” Brief for Appellant at 9 (quoting N.T., 5/7/13, at 168)
(emphasis supplied by Wilson); see also Brief for Appellant at 9 (citing
Commonwealth v. Trunk, 167 A. 333, 337 (Pa. 1933) (ruling that a new
trial was warranted based upon the Court’s determination that “the [trial]
judge’s attitude throughout the trial was biased and prejudicial to
defendants[,] … [and] [t]he tone and language of the [judge’s jury] charge
in many parts was that of an advocate for the prosecution, and, therefore,
not such a judicial presentation of the case as the defendants were entitled
to[.]”)).
Here, we are clearly unable to assess the trial court’s “tone” and/or
“delivery” during the trial based upon the cold record, and, in any event,
discern no reversible error concerning the trial court’s wording of the jury
charge. See Sepulveda, 55 A.3d at 1141 (observing that a trial court has
broad discretion in phrasing its jury instructions); see also Trial Court
Opinion, 5/11/15, at 5. Moreover, even assuming, arguendo, that the trial
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court’s charge was technically faulty in its use of the pronoun “he,” or that
the court’s “tone” was somehow improper, the charge did not permit “a
finding of guilt without requiring the Commonwealth to establish the critical
elements of the crime[] charged beyond a reasonable doubt.” Hansley, 24
A.3d at 420. Thus, we cannot grant Wilson relief.
Next, Wilson contends that the trial court erred by failing to conduct
an on-the-record colloquy to ascertain whether he fully understood the
consequences of the stipulations made by his defense counsel at trial.5 See
Brief for Appellant at 10-11.
At trial, the prosecutor set forth the stipulations as follows:
[T]he first is the testimony of Officer Andrejczak, who … [would
testify that] the firearm [that Wilson discarded] was tested by
the Firearms Investigation Unit. The officer prepared a report.
The firearm was found to be operable, and [Officer Andrejczak]
determined it to be a firearm for purposes of [18 Pa.C.S.A.
§] 6105. …
The second stipulation is that the narcotics that were recovered
… by Police Officer [Kim] Watts from Karim Buckner [“Buckner”]
from the floor … were submitted to a chemistry lab. They were
tested by a technician, and they were found to be marijuana.
[T]he final stipulation is … that [Wilson] is prohibited by law to
possess a firearm, and that he was convicted of a felony
[enumerated] under [18 Pa.C.S.A. § 6105(b)] ….
5
We observe that Wilson fails to cite the place in the record where the
stipulations appear. See Pa.R.A.P. 2119(c) (stating that “[i]f reference is
made to the pleadings, evidence, charge, opinion or order, or any other
matter appearing in the record, the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the place in the
record where the matter referred to appears[.]”); see also
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en
banc). However, we will overlook this defect.
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N.T., 5/7/13, at 100-01.
According to Wilson, “[t]he stipulations were done unknown to [him,]
and guilt could be inferred from the stipulations in and of themselves.” Brief
for Appellant at 11. Wilson maintains that “[t]he stipulations [] basically
place[] [Wilson] at the scene[,]” and “the stipulations concerning a firearm
and drugs are tantamount to a guilty plea.” Id. Wilson contends that,
pursuant to our Supreme Court’s decision in Commonwealth v. Davis, 322
A.2d 103 (Pa. 1974), the trial court should have colloquied him concerning
whether he understood the consequences of the stipulations. Brief for
Appellant at 10.
In Davis
our Supreme Court recognized that testimony entered by
counsel’s stipulation may be so damaging that admission of the
stipulation at trial must be surrounded by safeguards similar to
those attending the entry of a guilty plea. There, it was
stipulated that the complaining witness, if present at trial, would
have testified that the defendant was one of two men who had
robbed him at gunpoint. The Court concluded that counsel’s
stipulation to this testimony placing his client at the scene of the
crime and naming him as a participant therein was the
equivalent to an admission of guilt by the defendant, despite his
plea of not guilty. By stipulating to the testimony that would
have been offered by the complaining witness, appellant gave up
the opportunity to cross-examine that witness and to attempt to
discredit his incriminating testimony. Under the circumstances
of the case[,] the stipulation made a not guilty verdict highly
unlikely. Therefore, an on-record colloquy, demonstrating
defendant’s understanding of the consequences of the
stipulations, and his consent thereto, was deemed necessary.
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Commonwealth v. Bridell, 384 A.2d 942, 944 (Pa. Super. 1978) (en banc)
(emphasis omitted). Under Davis, the test to be applied, essentially, is
whether the stipulation in question makes the “outcome [of the trial] a
foregone conclusion.” Davis, 322 A.2d at 105.
We determine that Davis is unavailing to Wilson. We disagree with
Wilson’s interpretation of Davis, as such an interpretation would “compel
the trial court to conduct a colloquy each time counsel for the defendant
chooses as a matter of trial strategy to concede a fact which is pertinent to
proof of the offense charged.” Commonwealth v. Overton, 352 A.2d 105,
106 (Pa. Super. 1975) (en banc). Davis, however, does not have such
wide-ranging application. Id. Rather, the Davis decision relates only to a
particular situation in which the stipulation involved is so damaging that it
constitutes an admission of guilt. Such is not the case here. First, the
stipulation concerning Officer Andrejczak merely established that the firearm
recovered was operable. This fact, alone, in no way inculpated Wilson.
Second, the stipulation concerning the marijuana (which police attributed to
Buckner) was merely the evidence found at the bar, and it did not make the
verdict of guilt a foregone conclusion. Indeed, Wilson was not charged in
connection with the marijuana, and it had no bearing upon whether he
unlawfully possessed a firearm. Finally, the trial court correctly determined
in its Opinion that “the stipulation concerning [Wilson’s] prior conviction[,]
for the purpose of [18 Pa.C.S.A.] § 6105, did not implicate [Wilson] in the
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commission of the instant crime; it merely established that an element of
the charge had in fact been satisfied. Since [Wilson’s] guilt could not be
inferred from the stipulation as entered, an on-the-record colloquy was not
required.” Trial Court Opinion, 5/11/15, at 6. Accordingly, this claim does
not entitle Wilson to relief.
Wilson next argues that he was deprived of a fair trial and due process
when the prosecutor, during her opening statement, improperly expressed
her personal opinion as to Wilson’s guilt. Brief for Appellant at 12. Wilson
points to the prosecutor’s following statement: “I’m sure you too will know
why [Wilson] ran into the vestibule of that bar and why he tossed that gun.
It was because he was guilty. And I ask you to return that verdict to him at
the end of this trial.” N.T., 5/7/13, at 25; see also Brief for Appellant at 12.
In its Opinion, the trial court set forth the applicable law and standard
of review concerning claims of prosecutorial misconduct, and determined
that Wilson’s claim lacks merit. See Trial Court Opinion, 5/11/15, at 6-8.
We affirm with regard to this issue based on the trial court’s rationale. See
id.
Next, Wilson avers that the trial court abused its discretion when it
permitted the prosecution to introduce into evidence the marijuana that the
police had recovered from the sidewalk.6 Brief for Appellant at 13. Wilson
points out that the police charged Buckner, not him, with possession of the
6
As noted above, Wilson’s counsel stipulated to the fact that Buckner had
discarded marijuana at the scene. N.T., 5/7/13, at 100.
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marijuana in question. Id. at 14; see also id. at 15 (pointing out that the
sole charge for which Wilson was on trial was persons not to possess
firearms).
In its Opinion, the trial court found that Wilson had waived this claim,
as he had failed to raise any objection at trial to the Commonwealth’s
introduction of the marijuana, or to any reference to Wilson’s possible
involvement in drug activity with Buckner. See Trial Court Opinion,
5/11/15, at 9; see also Commonwealth v. Montalvo, 956 A.2d 926, 936
(Pa. 2008) (stating that in order to preserve a claim on appeal, a party must
lodge a timely objection at trial); see also Pa.R.A.P. 302(a) (stating that an
issue cannot be raised for the first time on appeal). As the trial court’s
analysis is supported by the law and the record, we affirm on this basis
concerning Wilson’s claim. See Trial Court Opinion, 5/11/15, at 9.
As an addendum, we observe that even if Wilson had objected to the
introduction of this evidence, it was relevant and admissible to provide a
complete history of the case to the fact-finder (e.g., to explain why Wilson
evaded the police after they apprehended Buckner). See Commonwealth
v. Dillon, 863 A.2d 597, 601 (Pa. Super. 2004) (en banc) (stating that
Pennsylvania courts “have long recognized the special significance of
evidence which provides [the fact-finder] with the res gestae, or complete
history, of a crime. … The trial court is not required to sanitize the trial to
eliminate all unpleasant facts from consideration where those facts are
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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.”) (citations and some ellipses omitted); see also Commonwealth
v. Lark, 543 A.2d 491, 497 (Pa. 1988) (stating that evidence of other
criminal acts may be relevant and admissible to show “part of the chain or
sequence of events which became part of the history of the case and formed
part of the natural development of the facts.”).
Finally, Wilson contends that that he is entitled to a new trial because
the prosecutor improperly stated, during her opening statement, that Wilson
had a prior felony conviction. Brief for Appellant at 16-17. Specifically,
Wilson points out that the prosecutor made the following statement to the
jury: “[Wilson] was a person prohibited by law to [possess a firearm],
because prior to August 16, 2008, he had been convicted of a felony.” N.T.,
5/7/13, at 19;7 see also Brief for Appellant at 16. Wilson asserts that this
remark was prejudicial and unnecessary (given his stipulation to his prior
convictions for purposes of 18 Pa.C.S.A. § 6105(b)), stating as follows:
“[Wilson’s] charge under [18 Pa.C.S.A. § 6105(a)(1)] was based upon [his]
being a person who has been convicted of an offense enumerated in
subsection [6105](b)[;] therefore it would not [have been] prejudicial to the
Commonwealth … [for it to] merely tell[] the jury that [Wilson] had a
7
Wilson’s counsel objected to the prosecutor’s remark about Wilson’s prior
conviction, and moved for a mistrial. N.T., 5/7/13, at 19. During a sidebar,
the trial court denied the mistrial Motion. Id. at 19-20.
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previous conviction [enumerated in] subsection (b) of the statute.” Brief for
Appellant at 16. Wilson points out that, in the trial court’s Opinion, it
determined that Wilson’s claim lacks merit based upon the Pennsylvania
Supreme Court’s Opinion in Commonwealth v. Stanley, 446 A.2d 583,
588 (Pa. 1982) (holding that the Commonwealth may use any proper
evidence to prove its case, and it does not have to accept a defendant’s
stipulations). See Brief for Appellant at 16 (citing Trial Court Opinion,
5/11/15, at 8). According to Wilson, the Stanley decision is in conflict with
the United States Supreme Court’s decision in Old Chief v. U.S., 519 U.S.
172 (1997), wherein the Court held that a defendant charged under the
federal statute prohibiting convicted felons from possessing a firearm (18
U.S.C.A. § 922(g)(1)) has the right to withhold from the jury the specific
nature of the predicate conviction, provided that the defendant adheres to a
stipulation stating the fact of a qualifying conviction itself without
elaboration. See Brief for Appellant at 16-17.
Initially, we observe that Wilson did not raise this claim, nor his
reliance upon Old Chief, in his court-ordered Pa.R.A.P. 1925(b) Concise
Statement. Accordingly, it is waived. See Pa.R.A.P. 1925(b)(4)(vii)
(providing that “[i]ssues not included in the Statement … are waived.”); see
also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that
“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”).
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Nevertheless, even if this claim was not waived, we would determine that it
does not entitle Wilson to relief.
Our Pennsylvania Supreme Court, in Commonwealth v. Jemison, 98
A.3d 1254 (Pa. 2013), addressed the exact issue posed by Wilson herein,
and the matter of whether Pennsylvania should follow the holding of Old
Chief and overturn Stanley. The Jemison Court declined to overturn
Stanley, distinguishing Old Chief based on certain “highly relevant”
differences between the state and federal firearms statutes, and holding that
under 18 Pa.C.S.[A.] § 6105, one element of persons not to
possess firearms is a prior conviction of a specific, enumerated
offense, and this fact strongly supports the [] view, as well as
our precedent in Stanley, that the prosecution should not be
required to accept a stipulation which acknowledges that a prior
conviction satisfies the element, but does not name or identify
the specific prior offense.
Jemison, 98 A.3d at 1260, 1261.8 Accordingly, Wilson’s reliance upon Old
Chief is unavailing.
Judgment of sentence affirmed.
8
Additionally, the Jemison Court held that any possibility of unfair prejudice
to the defendant was mitigated by the use of proper cautionary instructions
to the jury, directing them to consider the defendant’s prior conviction as
evidence to establish the prior conviction element of the charge under
section 6105(a), not as evidence of the defendant’s bad character or
propensity to commit crime. Jemison, 98 A.3d at 1262. While, in the
instant case, the trial court did not issue such a cautionary instruction,
Wilson testified, on direct examination, that he had prior convictions for
robbery and burglary. See N.T., 5/7/13, at 117.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2016
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Circulated 01/15/2016 11:12 AM
IN THE COURT OF COMMON PLEAS
FIRST J11JDICIALDISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
i
l
COMMONWEALTH bF i
CP-51-CR-0011361-2008
PENNSYLVANIA , ·
6P-51-CR-001136 •
, 1-2008 Comm v w,1
i Opinion - - 'son, Gary
vs.
Ill/I I/II I /Ill/II/I II I Ill
7292672221
NO. 333Pf reo
SUPERIOR COURT
GARY WILSON MAY 11 2015
_ Criminal Appeals Unit
OPINION
First Judicial District of PA
BUTCHART, J. May 11, 2015
i
\
i
I. PROCEDURAL HISTORY
Gary Wilson ("Defendint") was charged with Possession of a Firearm Prohibited under
18 Pa.C.S. § 6105(a)(l), a felony of the second degree. On May 8, 2013, a jury found Defendant
guilty and the Court deferred sentencing for completion of a Presentence Investigation Report.
On July 19, 2013, Defendant was sentenced to two and one half to five years, plus five years
reporting probation to run consecutively,
On July 24, 2013, and October 15, 2013, Defendant filed post-sentence motions. On
November 22, 2013, Defendant's post-sentence motions were denied. On March 17, 2014,
Defendant filed a Post-Convict~on Relief Act ("PCRA") petition. On June 6, 2014, the Court
received Defendant's motion to proceed prose. On July 21, 2014, a Grazier hearing was held
where Defendant waived his right to counsel on direct appeal and for purposes of the PCRA. On
June 23, 2014, Defendant filed.an amended PCRA petition requesting his appeal rights be
reinstated. On July 28, 2014 the Court received Defendant's prose correspondence asking to
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waive the sixty days that was granted to amend his PCRA petition. On October 30, 2014, a
video hearing was held and the Court reinstated Defendant's direct appeal rights nunc pro tune.
On November 6, 2014,\ Defendant filed a Notice of Appeal. On December 1, 2014,
Defendant filed a Statement of Errors Complained of on Appeal ("Statement") in which he
argues:
1. The Trial Judge violated [Defendant's] Fifth and Fourteenth Amendment
rights to due process oflaw when the Judge told the jury, in advocacy for
the District Attorney, that [Defendant] had a firearm in his possession;
[sic] and failed to give an on the record colloquy to ascertain whether or
not if [sic] [Defendant] agree [sic] to, or disagree to, [sic] the stipulations
and the consequences of introducing drugs and prior bad acts to the jury.
2. The Prosecutor ~iolated [Defendant's] Fifth and Fourteenth Amendment
rights to due process of law when the prosecutor expressed his personal
belief as to [Defendant's] guilt; [sic] and introduced drugs to the jury to
divert the jury fr6m its duty to decide the case on the evidence, introduced
[sic] prior bad acts.
See Statement at~ 1-2.
II. FACTUAL BACKGROUND
This case arises out of a surveillance conducted by the Narcotics Task Force of the
Philadelphia Police Department on August 16, 2008, _at approximately 12: 15 a.m., in the area of
Circles Bar located on the 4800 block of North Broad Street in Philadelphia. Notes of
'
Testimony ("N.T."), May 7, 20\13 at 33-35. Philadelphia Police Officer Chris Hulmes ("Officer
Hulmes"), testified that he observed Defendant and another male identified as Karim Buckner
("Buckner") on the southwest corner of Broad and Louden Streets. Id. at 36-37. Officer Hulmes
was conducting his surveillance from the second floor porch of Circles Bar on the northwest
comer of Broad and Louden Streets. Id. at 37. Officer Hulmes testified that Defendant
approached Buckner and engaged in a conversation. Id. Defendant and Buckner were each
2
holding a marijuana blunt and [emptying the cigars' contents. Id. at 37-38. Buckner went to a
gray Jeep Cherokee that was parked nearby, retrieved a white napkin and returned to engage
Defendant in a conversation. Id. at 38. Defendant and Buckner were taking marijuana from the
napkin and placing it into the marijuana blunt. Id. at 38-39. At 12:25 a.m., Officer Hulmes
radioed for backup officers. Id. at 39. When the police arrived, Buckner was stopped without
incident and Defendant started to walk towards Circles Bar. Id. at 40. From his vantage point,
Officer Hulmes lost sight of Defendant because a crowd in front of the bar obscured his view.
Id. at 41.
Philadelphia Police Officer Mark Bates ("Officer Bates") was one of the backup officers
who responded to Officer Hulmes' call. Officer Bates testified that as he arrived he saw a black
male, later identified as Defendant, matching the description given by Officer Hulmes. Id. at 61-
62. Officer Bates observed Defendant walking quickly towards Circles Bar as Defendant
dropped "a brown cigarette." Id. at 63. Officer Bates exited the passenger side of his patrol car,
followed Defendant, and observed Defendant remove a black handgun from his pocket. Id.
Defendant ran towards the bar as Officer Bates followed. Id. As Defendant ran into the bar,
Officer Bates saw him pull a gun from his right front pants pocket and throw it in the direction of
the bar. Id. at 63-64. Officer Bates apprehended Defendant, handed him over to his partner, and
then recovered the discarded handgun. Id. at 65, 68. Philadelphia Police Officer Kim Watts
("Officer Watts") also responded to the scene and recovered drugs from the sidewalk. Id. at 93-
94.
III. DISCUSSION
Defendant argues that Court, while advocating for the Commonwealth, told the jury
that Defendant was in possession of a firearm; that Defendant was not consulted about the
3
stipulations at trial and that there was no colloquy about those stipulations; that the ADA
improperly expressed her personal belief as to Defendant's guilt; and that the ADA improperly
introduced prior bad act and drugs into evidence. See Statement at ,r,r 1-2. For the following
reasons, Defendant's claims are without merit.
A. The Court did not tell the jury that Defendant was in possession of a
firearm
"The trial court has discretion in phrasing its instructions to the jury, and is not limited to
particular language, provided the law is clearly, adequately, and accurately presented to the
jury." Commonwealth v. Blount, 647 A.2d 199, 209 (Pa. 1994); Commonwealth v. Prosdocimo,
578 A.2d 1273 (Pa. 1990).
In his Statement, Defendant objects to the following statements of the Court made while
charging the jury.1
The Court: Mr. Wilson has been charged with a single offense,
and that is that a person who is not able to possess,
use, manufacture, control, sell, or transfer a firearm,
he, nonetheless, had a firearm in his possession ...
. .. To find the [D]efendant guilty of this offense, you
must find that the following elements have been
proven beyond a reasonable doubt: [f]irst, that the
defendant was a person prohibited by law from
possessing a firearm. To be prohibited, the
Commonwealth must show that the defendant, at the
time of this conduct, had been convicted of a specific
offense. And you know that he was previously
convicted of the specific offense of burglary-- I think
robbery as well.
N.T., May 7, 2013 at 168 (emphasis added); also see Statement at page 2.
I
Defendant incorrectly identifies the page numbers 352-353, from N.T., May 7, 2013.
4
(
I,
Here, Defendant misunderstood the Court and believed that the use of the pronoun "he"
was in direct reference to Defendant when in fact the pronoun "he" was in reference to the
"person" who, in order to be found guilty and in violation of the statute, " ... nonetheless, had a
firearm in his possession." Id. i The Court's instructions, when read as a whole, clearly,
adequately, and accurately presented to the jury the law concerning Possession of a Firearm
Prohibited under 18 Pa.C.S. § 6105(a)(l). This is all that is required. The mere fact that
Defendant misunderstood the Court's language does not render this charge defective.
Accordingly, this claim is meritless.
B. Stipulations by counsel
"In Commonwealth v. Davis, 457 Pa. 194, 322 A.2d 103 (Pa. 1974), our Supreme Court
recognized that testimony entered by counsel's stipulation may be so damaging that admission of
the stipulation at trial must be surrounded by safeguards similar to those attending the entry of a
guilty plea." Commonwealth v. Bridell, 384 A.2d 942, 944 (Pa. Super Ct. 1978). In Bridell, it
was stipulated that the complaining witness, if present at trial, would have testified that the
defendant was one of two men who had robbed him at gunpoint. Id. "Davis, however, does not
require a trial court to conduct an on-record colloquy whenever defense counsel stipulates to
evidence which is potentially damaging to his client. .. The Davis decision relates only to a
particular situation in which the stipulation involved is so damaging that it constitutes an
admission of guilt." Id. (quoting Commonwealth v. Overton, 352 A.2d 106 (1975)). Essentially,
the test is whether the stipulation in question makes "the outcome of the trial a foregone
conclusion." Id. (quoting Davis, 322 A.2d at 105).
In the present case, Defendant objects to the following statements made by the Assistant
District Attorney ("ADA"), Ms. Gopal.
5
('·, {.·
I ,'
Ms. Gopal: The judge is going to instruct you on the law. She is
going to say that there are three elements that the
Commonwealth needs to prove in order for you to
find the defendant guilty. Well, two of those
elements have been met. They've been stipulated to
by counsel, so they are evidence. They don't even
need to be debated. The first is that the defendant
was convicted of the robbery and burglary.
N.T., May 7, 2013 at 23; also see Statement at page 2.
Here, the stipulation concerning Defendant's prior conviction for the purpose of§ 6105,
did not implicate Defendant in the commission of the instant crime; it merely established that an
element of the charge had in fact been satisfied. Since Defendant's guilt could not be inferred
from the stipulation as entered, an on-record colloquy was not required.
C. The prosecutor's expression ofpersonal beliefin Defendant's guilt
The standard of review for a claim of prosecutorial misconduct is limited to whether the
trial court abused its discretion. Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. Ct.
2008). The question is whether Defendant was deprived of a fair trial, although Defendant is not
entitled to a perfect one. Id. In order to evaluate whether a prosecutor's comments "were
improper, we do not look at the comments in a vacuum; rather we must look at them in the
context in which they were made." Id. (quoting Commonwealth v. May, 898 A.2d 559, 567
(2006)). A prosecutor's arguments to a jury "are not a basis 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 towards the accused which would prevent [the jurors] from properly
weighing the evidence and rendering a true verdict." Id. Prosecutors are entitled to reasonable
latitude in presenting a case to the jury "and must be free to present ... arguments with logical
force and vigor." Id. Although a prosecutor may argue to the jury that the evidence establishes
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the defendant's guilt, arguments from personal opinion as to the guilt of the accused are not
proper. Commonwealth v. Chamberlain, 30 A.3d 381, 408 (Pa. 2011); Commonwealth v.
D 'Amato, 526 A.2d 300, 309 (Pa. 1987).
Where evidence is improperly admitted, the result may be a harmless error. A harmless
error occurs where: "(l) the error did not prejudice the defendant or the prejudice was de
minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that the error could not have contributed to
the verdict." Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008); Commonwealth v. Young,
748 A.2d 166, 193 (Pa. 1999).
In the instant case, Defendant objects to this excerpt from the ADA's opening statement.2
Ms. Gopal: I'm sure you too will know why the [D]efendant ran
into the vestibule of that bar and why he tossed that
gun. It was because he was guilty. And I ask you to
return that verdict to him at the end of this trial.
N.T., May 7, 2013 at 25; also see Statement at page 3.
Here, when the ADA's comments are considered within the proper context and not in a
vacuum, it is clear that the ADA asked the jury to find Defendant guilty after applying their
common sense and evaluating the evidence. Just prior to the ADA's excerpted statement, the
ADA stated: "I'm asking you to evaluate what (the witnesses] say on the stand. To what extent
does their testimony match the physical evidence that the Commonwealth provides you?
And ... to use your common sense." Id.
2 Defendant incorrectly identifies the page numbers 52-53, from N.T., May 7, 2013.
7
Alternatively, it the AD A's statements are seen as an improper expression of her personal
opinion concerning Defendant's guilt, this amount to a harmless error in light of the
overwhelming evidence of Defendant's guilt presented at trial including eyewitness accounts
from the Philadelphia Police.
D. The prosecutor's introduction of prior bad acts
Introducing "[ e ]vidence of a prior conviction ... is both proper and necessary when a
defendant is tried on charges stemming from an alleged violation of§ 6105." Commonwealth v.
Payne, 463 A.2d 45, 456 (Pa. Super. Ct. 1983). The Commonwealth may use any proper
evidence to prove its case, and does not have to accept Defendant's stipulations. Commonwealth
v. Stanley. 446 A.2d 583, 588 (Pa. 1982). The admissibility of evidence is entrusted to the
discretion of the trial judge, and will not be disturbed on appeal unless an abuse of discretion is
shown. Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998). An abuse of discretion is
not merely an error of judgment it is overriding or misapplying the law; manifest
unreasonableness; the result of bias, prejudice, ill-will or partiality. Commonwealth v. Stollar, 84
A.3d 635, 650 (Pa. 2014).
Here, the ADA was permitted to tell the jury that Defendant had been convicted of a
felony, which was stipulated to by and between counsel. See N.T., May 7, 2013 at 19-20; 167-
168. As such, there was no prosecutorial misconduct on the part of the ADA in this case.
Moreover, on direct examination by his own counsel, Defendant admitted to his prior
convictions for robbery and burglary. See N.T., May 7, 2013 at 117.
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E. The prosecutor's introduction of drugs to the jury
Finally, Defendant argues that the jury was diverted from its duty to decide the case on
the evidence when the ADA questioned Officer Watts about recovering drugs form the scene.
In his Statement, Defendant objects to the following exchange between the ADA and
Philadelphia Police Officer Watts.3
Ms. Gopal: Did you place the narcotics on the property receipt
yourself?
Officer Watts: Yes.
Ms. Gopal: And if you could just read to the jury, one, and
description of evidence?
Officer Watts: Okay. Description of evidence: [o]ne brown colored
blunt cigarette containing a green weed and seedy
substance, alleged marijuana, in a white colored
napkin.
N.T., May 7, 2013 at 94; also see Statement at page 3.
Here, Defendant did not object to the above testimony of Officer Watts during trial. See
N.T., May 7, 2013 at 90. Further, Defendant did not object to any previous evidence of
Defendant's involvement with drugs brought to the jury's attention through the
Commonwealth's witnesses. First, Officer Hulmes testified that Defendant emptied the contents
of a marijuana blunt and then filled it with marijuana. N.T., May 7, 2013 at 37-38. Second,
Officer Bates testified that Defendant discarded a "brown cigarette" after he saw Philadelphia
Police approaching. Id. At 63. And finally, Officer Watts testified to recovering drugs from the
sidewalk, which Defendant now objects on appeal. Id. at 93-94.
Accordingly, the Court does not discern an appealable because Defendant's counsel did
not object at trial, and so this argument is waived for purposes of direct appeal
3 Defendant incorrectly identifies the page number 197, from N.T., May 7, 2013.
9
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IV. Conclusion
For all of the above reasons, the Court's judgment of sentence should be affirmed.
BY THE COURT:
{),~)h~
BUTCHART, J.
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IN THE COURT OF COMMON PLEAS
FIRSTJUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF CP-51-CR-0011361-2008
PENNSYLVANIA
SUPERIOR COURT
vs. NO. 3337 EDA 2014
GARY WILSON
PROOFOF SERVICE
I certify that I am this 11th day of May, 2015, serving the forgoing Opinion on the persons
indicated below, by first class and/or certified mail.
Appellant: Gary Wilson, BE-9008
SCI Houtzdale
P.O. Box 1000
Houtzdale, PA 16698-1000
Type of Service: () Personal () First Class Mail (X) Other, please specify: Certified Mail
District Attorney: Hugh Burns, Assistant District Attorney
Chief, Appeals Unit
Three South Penn Square
Philadelphia, PA 19107
Type of Service: () Personal (X) First Class Mail () Other, please specify:
D. Gar Bogdan, Esquire
Law Clerk to the Honorable
Ann M. Butchart
Com. v. Wilson, G.
Combined Opinion