J-S17009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD MARTIN,
Appellant No. 243 EDA 2016
Appeal from the Judgment of Sentence of January 5, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013191-2014
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 12, 2017
Appellant, Edward Martin, appeals from the judgment of sentence
entered on January 5, 2016. We affirm.
The Commonwealth charged Appellant, Shaheed Carroll, and Darnell
Woodson with a multitude of crimes related to the assault, robbery, and
intimidation of the Victim, T.S. (hereinafter “the Victim”). The trial court
ably summarized the underlying facts of this case:1
____________________________________________
1
Appellant, Shaheed Carroll, and Darnell Woodson were tried together and
the underlying facts with respect to all three defendants are identical. The
trial court did not file an opinion in Appellant’s case. We, therefore, quote
the trial court’s factual recitation in its opinion filed in Shaheed Carroll’s
case, as the underlying facts are identical to those in the case at bar. See
Trial Court Opinion at Commonwealth v. Carroll, 1930 EDA 2016,
1/23/17, at 1-9.
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On September 19, 2014, the [Victim] was leaving a friend’s
house on the 6100 block of Frontenac [Street] in
Philadelphia. At that location he was approached by
[Shaheed Carroll], along with co-defendants, Darnell
Woodson and [Appellant]. The co-defendant, Darnell
Woodson[,] made a comment regarding [the Victim]
“snitching” about a previous robbery where [the Victim was
also victimized]. The co-defendant Woodson then
[instigated] a fight between the two. . . . [Appellant then]
joined in the fight and both started punching and kicking
[the Victim] all over his body. [The Victim] fell to the
ground and at that point [Shaheed Carroll] began kicking
him. All three defendants then went through [the Victim’s]
pockets and took from him his cell phone, charger, SEPTA
Transpass, headphones, and [$5.00] before running off.
[The Victim] called 911 and was able to provide the police
information so that his cell phone could be tracked.
Based on the information about [the Victim’s] cell phone,
police officers were able to track the phone to the area of
5300 Darrah Street. At that location, officers stopped the
three co-defendants since they matched the description
given by [the Victim]. [The Victim] positively identified
each co-defendant as being a participant in the robbery.
The items [the Victim] identified as being taken from him by
the co-defendants were recovered from their possession.
Trial Court Opinion at Commonwealth v. Carroll, 1930 EDA 2016,
1/23/17, at 2 (internal citations omitted).
Following trial, the jury found Appellant guilty of receiving stolen
property, simple assault, intimidation of a witness, robbery, and criminal
conspiracy.2 N.T. Trial, 11/2/15, at 24-25. On January 5, 2016, the trial
____________________________________________
2
18 Pa.C.S.A. §§ 3925(a), 2701(a), 4952(a)(1), 3701(a)(1)(iv), and 903,
respectively.
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court sentenced Appellant to serve an aggregate term of three to six years
in prison for his convictions. N.T. Sentencing, 1/5/16, at 60-61.
Appellant filed a timely notice of appeal and now raises four claims to
this Court:3
1) Did the [trial] court commit error when it permitted
Detective Ortiz to give [her] opinion as to the complaining
witness’s mental state despite having no formal medical
training?
2) Did the [trial] court commit error when it permitted
Officer Lewis to read a portion of his written statement
because it was improper bolstering and a prior consistent
statement?
3) Did the [trial] court commit error when it denied the
defense motion for judgment of acquittal on the charge of
intimidation of a witness when the proper charge should
have been retaliation of a witness?
4) Did the [trial] court commit error when it responded to
jury question [number two] [(can you tell us what objects
were recovered from which of the defendants from the
September incident?)] by sending back the property receipt
as opposed to instructing the jury that their recollection
controls?
Appellant’s Brief at 6 (some internal capitalization omitted).4
____________________________________________
3
The trial court granted Appellant permission to file a Pennsylvania Rule of
Appellate Procedure 1925(b) statement nunc pro tunc. Trial Court Order,
7/11/16, at 1. Appellant then filed a timely Rule 1925(b) statement and,
within his statement, Appellant listed the claims he currently raises on
appeal. See Appellant’s Rule 1925(b) Statement, 7/22/16, at 1-2.
4
We note that the Commonwealth failed to file a brief in this case despite
filing an application for extension of time to file a brief which was granted by
order of this Court on November 28, 2016.
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Appellant’s first two claims on appeal challenge evidentiary rulings
made by the trial court. We have explained:
[Our] standard of review for a trial court’s evidentiary
rulings is narrow. The admissibility of evidence is solely
within the discretion of the trial court and will be reversed
only if the trial court has abused its discretion. 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.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (internal
quotations and citations omitted). “To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.
Super. 2012) (internal quotations and citations omitted). “A party suffers
prejudice when the trial court’s error could have affected the verdict.”
Commonwealth v. Tyack, 123 A.3d 254, 257 (Pa. Super. 2015) (internal
quotations and citations omitted).
Contrariwise, “an erroneous ruling by a trial court on an evidentiary
issue does not require us to grant relief where the error was harmless.”
Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005). Our Supreme
Court has held:
Harmless error exists where: (1) 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
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overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Id. (internal quotations and citations omitted). “An error will be deemed
harmless where the appellate court concludes beyond a reasonable doubt
that the error could not have contributed to the verdict.” Id. at 528. “If
there is a reasonable possibility that the error may have contributed to the
verdict, it is not harmless. The burden of establishing that the error was
harmless rests upon the Commonwealth.” Id. (internal citations omitted).
First, Appellant claims that the trial court erred “when it permitted
Detective Ortiz to give [her] opinion as to [the Victim’s] mental state despite
having no formal medical training.” Appellant’s Brief at 11. This claim fails.
Philadelphia Police Detective Erica Ortiz-Griffin interviewed the Victim
in the early morning of September 20, 2014, within hours after the Victim
was beaten and robbed. During the Commonwealth’s re-direct examination
of Detective Ortiz-Griffin, the following questions, testimony, exchanges, and
objections occurred:
Q: Okay. . . . [D]id you ask [the Victim] about if he had
received prior medical treatment? Is that one of the
statements that you asked him?
A: No, it isn’t. And to be honest, it’s common for
complainants, like, to miss stuff unless you specifically ask
them.
Q: Okay.
A: Actually, in this case, he was a little off, I would say.
Q: What - -
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A: Maybe a little - -
Q: What do you mean by off?
A: Maybe he had a little bit of mental problems.
[Appellant’s Attorney]: I would object to that, Your
Honor. It calls for speculation unless she’s giving a
medical diagnosis.
[Trial Court]: All right. Well - -
[Shaheed Carroll’s Attorney]: Unless she’s an expert in
that field, I would join in the objection.
[Commonwealth]: I’ll ask to - -
[Trial Court]: Sustained in terms of - - you can talk
about specific behavior, but certainly - -
[Commonwealth]: I’ll have - -
[Appellant’s Attorney]: Move to strike.
Q: I will have you clarify. Not mental health issues, but
what was it about it that seemed off?
A: He just seemed, like, maybe he was, like, delayed a little
bit, educationally delayed. I don’t know how to say it.
[Shaheed Carroll’s Attorney]: Once again, I would object
to saying - -
[Trial Court]: Say that again.
[Shaheed Carroll’s Attorney]: The same testimony.
A: He just appeared to be a, like, a little slow. He - -
[Trial Court]: Well, she can describe behaviors, but just
not medical - - I mean, what was he doing specifically?
Q: What was he doing specifically?
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A: It was really just how he acted. Like, he was, like, slow
to respond to stuff, but he was - - I mean, pretty much
everybody knows what - - you can tell when someone has
problems. You could tell he had some problems.
[Appellant’s Attorney]: Again, I would object.
[Shaheed Carroll’s Attorney]: Objection.
A: He was having difficulty.
[Trial Court]: You have to describe the behavior. Like,
what do you mean?
A: He was, like, slow to answer to stuff. He – pretty much
that was it. He just appeared to be slow in answering stuff.
[Commonwealth]: Okay. Thank you.
[Trial Court]: Any recross based on that?
...
[Appellant’s Attorney]: No, Your Honor.
N.T. Trial, 10/27/15, at 34-36.
On appeal, Appellant claims that the trial court erred in “permitting”
Detective Ortiz-Griffin to testify that the Victim “was ‘delayed’ and had
‘mental problems’” because, Appellant claims, such testimony went “beyond
the realm of lay opinion and into expert testimony reserved for one with
proper medical training.” Appellant’s Brief at 11-12. Further, Appellant
claims that the testimony caused him prejudice because “the jury now
viewed [Appellant] and his co-defendant[s] as having attacked someone
who had mental health problems.” Id. at 12.
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Appellant’s claim fails because the trial court sustained Appellant’s
objections to the detective’s testimony that characterized the Victim as
having “mental problems” and as having “problems;” further, the trial court
sustained Shaheed Carroll’s objection to the detective’s testimony that
declared the Victim was “educationally delayed.” See N.T. Trial, 10/27/15,
at 34-36. Indeed, the trial court continuously instructed Detective Ortiz-
Griffin to limit her testimony to “specific behavior” she observed in the
Victim and to refrain from testifying as to anything “medical.” See id. On
appeal, Appellant does not claim that the trial court should have done
anything differently; as such, Appellant’s first claim fails.
Second, Appellant claims that the trial court erred when it “permitted
Officer Lewis to read a portion of his written statement because it was
improper bolstering and a prior consistent statement.” Appellant’s Brief at
12. Again, Appellant’s claim on appeal fails because the trial court, in fact,
sustained his objection.
On the night of the robbery, Philadelphia Police Officer Phillip Lewis
encountered Appellant, Shaheed Carroll, and Darnell Woodson and asked the
three to stop; Darnell Woodson stopped for Officer Lewis, while Appellant
and Shaheed Carroll walked away. The three defendants were later arrested
after the Victim arrived on scene and identified the defendants as his
assailants. During Officer Lewis’ direct testimony, Officer Lewis testified as
follows:
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Q: And did you provide a statement to Northeast Detectives
detailing your account of this incident?
A: I did.
Q: Okay.
[Commonwealth]: If I can have the officer shown what I
have marked as Commonwealth Exhibit C-11.
[Trial Court]: C-11.
(Whereupon, Exhibit C-11 was marked for
identification).
[Court Officer]: C-11 to the witness.
Q: Officer Lewis, is this your statement that you made that
night?
A: It is, yes.
Q: And did you sign the statement?
A: I did.
Q: Officer Lewis, can you please read the question and
answer portion of your statement?
[Appellant’s Attorney]: I’m going to object.
[Shaheed Carroll’s Attorney]: I’ll object to that as well.
[Darnell Woodson’s Attorney]: I object, yes. He’s
already testified to the facts, Judge. It just
corroborates.
[Shaheed Carroll’s Attorney]: It’s improper bolstering.
[Trial Court]: For him to just read it, is there something
specific?
[Commonwealth]: I mean, I can lead him towards - - I
mean, he testified generally. There’s more specific
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details with the part of the statement. I mean, I can
refer him specifically to that portion if it’s easier.
[Trial Court]: Was there something, you know - - is he
reading because he can’t remember? I mean, what’s
the basis?
[Commonwealth]: The basis of him reading would be,
number one, he’s indicated the officers that responded
to him. I think at this point, he said the police officers
responded to him. Then he also detailed the other items
that were taken from the specific defendant. He
couldn’t remember what specific defendant.
[Trial Court]: Well, if there are specific things, it’s
different.
[Darnell Woodson’s Attorney]: She can refresh his
recollection.
[Appellant’s Attorney]: Right.
[Trial Court]: There’s a lot of detail.
[Commonwealth]: Well, I mean, I can have him start
with - -
Q: Do you see the first question that you have?
A: The first one?
[Appellant’s Attorney]: Judge, here’s my - -
[Darnell Woodson’s Attorney]: I - -
[Appellant’s Attorney]: I want to state my grounds.
There’s a procedure to be followed. Let’s say this is
trying to be brought in to refresh [a] recollection, all
right? Such as, well, you have to establish certain
things including but not limited to that the person
doesn’t remember. Just to say start reading - - I mean,
he’s never indicated that there’s been any problem with
--
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[Trial Court]: Well, he did refer to his notes before.
[Appellant’s Attorney]: Okay.
[Commonwealth]: And he did say he didn’t remember
specifically.
[Trial Court]: Well, specifically, what things? I mean, he
. . . [w]hat things[?] - - I think you need to establish
what he can’t remember and what he’s - - what detail
he’s looking at.
[Commonwealth]: Okay.
Q: Let me ask you this. I mean, you’ve already testified to
it but they’re not clear. So let me ask you again. You
indicated that officers stopped . . . two of the [defendants]?
A: Two of the [defendants], yes.
...
Q: Okay. . . . And then you also indicated that . . . the
items were recovered from one of the defendants, but you
couldn’t remember which one?
A: That’s correct.
Q: Okay. Would it help to refresh your recollection to look
at your statement to see who, if anybody, had the items on
him?
A: Just give me a minute, please.
Q: No problem.
A: Yes. So that defendant was [Appellant].
Q: It was [Appellant]?
A: Yes.
N.T. Trial, 10/27/15, at 86-90.
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Appellant did not object further.
Therefore, in this case, the trial court sustained Appellant’s original
objection to Officer Lewis “read[ing] a portion of his written statement.”
Appellant’s Brief at 12. Further, in the ensuing argument, Appellant
acknowledged that Officer Lewis would be permitted to read the statement if
a foundation were laid, establishing that Officer Lewis could not remember a
detail and that the written statement would refresh his recollection. Id. at
87-88 and 89. The Commonwealth then followed the correct procedure and,
when Officer Lewis later read from his written statement, Appellant did not
object. Id. at 89-90. As such, Appellant’s claim of error fails.
Third, Appellant claims that the evidence was insufficient to support
his conviction for intimidation of a witness or victim. This claim fails.
We review Appellant’s sufficiency of the evidence claim under the
following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for [that of] the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter of
law no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
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Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc) (internal quotations and citations omitted). Further, as our Supreme
Court has held, a claim that “the testimony presented to the [fact-finder]
was so unreliable and contradictory that the[] verdict could only have been
arrived at through speculation and conjecture . . . [is] a challenge to the
sufficiency [of the evidence].” Commonwealth v. Brown, 52 A.3d 1139,
1156 n.18 (Pa. 2012).
Appellant was convicted of the crime of “intimidation of witnesses or
victims” under 18 Pa.C.S.A. § 4952(a)(1). N.T. Trial, 10/28/15, at 142-143;
Commonwealth’s Information, 12/2/14, at 2. This subsection reads:
A person commits an offense if, with the intent to or with
the knowledge that his conduct will obstruct, impede,
impair, prevent or interfere with the administration of
criminal justice, he intimidates or attempts to intimidate
any witness or victim to: (1) Refrain from informing or
reporting to any law enforcement officer, prosecuting official
or judge concerning any information, document or thing
relating to the commission of a crime.
18 Pa.C.S.A. § 4952(a)(1); see also N.T. Trial, 10/28/15, at 142-143;
Commonwealth’s Information, 12/2/14, at 2.
Within Appellant’s brief to this Court, Appellant does not claim that the
evidence was insufficient to support his conviction under Section 4952(a)(1).
Instead, Appellant claims that the evidence was insufficient to support his
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conviction under 18 Pa.C.S.A. § 4952(a)(3) because “[t]here was no
evidence that [Appellant] or any co-defendant attacked [the Victim] with the
intent to prevent him from testifying in court or providing information to law
enforcement.” Appellant’s Brief at 13-14; see also 18 Pa.C.S.A.
§ 4952(a)(3) (“A person commits an offense if, with the intent to or with the
knowledge that his conduct will obstruct, impede, impair, prevent or
interfere with the administration of criminal justice, he intimidates or
attempts to intimidate any witness or victim to: . . . (3) Withhold any
testimony, information, document or thing relating to the commission of a
crime from any law enforcement officer, prosecuting official or judge”).
Given that Appellant was convicted of “intimidation of witnesses or
victims” under 18 Pa.C.S.A. § 4952(a)(1), Appellant’s claim on appeal
immediately fails. Moreover, and regardless, the evidence was clearly
sufficient to support Appellant’s conviction under Section 4952(a)(1), as the
Victim testified that Appellant and the co-defendants beat and robbed him
for “snitching” about a prior time that the Victim was robbed. N.T. Trial,
10/26/15, at 108-109. This testimony is clearly sufficient to support a
finding that Appellant “intimidate[d] or attempt[ed] to intimidate [the
Victim]” from “[r]efrain[ing] from informing or reporting to any law
enforcement officer, prosecuting official or judge concerning any
information, document or thing relating to the commission of” both the
prior crime and the current crime. 18 Pa.C.S.A. § 4952(a)(1).
Appellant’s claim on appeal fails.
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Finally, Appellant claims that the trial court erred in its response to
Jury Question Number Two. This claim is waived.
During jury deliberation, the jury submitted the following question to
the trial court: “Can you tell us what objects were recovered from which of
the defendants from the September incident?” N.T. Trial, 10/29/15, at 4.
The trial court responded to the question by permitting the jury to have
possession of the Commonwealth’s Exhibit C-12 – which had been admitted
into evidence at trial. The exhibit is not included in the certified record.
However, from the trial testimony, the exhibit was apparently a property
receipt that was prepared by Philadelphia Police Officer Christopher Lewis.
N.T. Trial, 10/27/15, at 113. The only evidence in the certified record that
Appellant points us to regarding Exhibit C-12 is at pages 112 to 114 of the
October 27, 2015 trial transcript. The testimony was as follows:
Q: Okay. And once [the Victim] positively identified the
three defendants at the bar of the Court, did you, in fact,
then search the males?
A: That is correct.
Q: And can you tell the ladies and gentlemen of the jury
what happened when you searched the males?
A: From [Appellant], we recovered - - well, we took out a
charger, a headset, a transpass, a cell phone, and an iPhone
and one [$5.00] bill, at which time [the Victim] IDed as
being the stuff that was stolen from him.
...
Q: Okay. And what, if anything, did you do with those
items?
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A: I - - after the defendant was arrested, I placed the
property receipt - - I put it on a property receipt. I’m sorry.
I have to look at my notes. The property receipt was
3165281.
Q: Now, at that point, were all three defendants arrested?
A: That’s correct.
Q: Okay.
[Commonwealth]: If I can show Officer Lewis what has
been previously marked Commonwealth Exhibit C-12.
[Trial Court]: C-12.
(Whereupon, Exhibit C-12 was marked for
identification).
[Court Officer]: C-12 to the witness.
A: Yes, ma’am. This is the property receipt.
Q: And, Officer Lewis, please explain to the ladies and
gentlemen of the jury what exactly a property receipt is and
why you would [] create a property receipt.
A: A property receipt is when police collect evidence, we
have to put it on some type of paper so a trace - - a paper
trace. If I recover anything - - if something gets stolen
from you and the police recover it, we have some way of
showing that we did recover the items. At times, we would
give them back or it would be held for evidence. So a
property receipt is . . . an inventory of what was taken from
the complainant and what we recover sometimes from a
defendant.
Q: And, Officer Lewis, what, if anything did you do with the
property that you placed on a property receipt?
A: After we placed it on the property receipt, I got the
defendant to sign that everything I took from him was on
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this property receipt, which he did, and then we returned it
to the owner.
...
Q: Okay. And do you see [the Victim’s] signature on this
property receipt?
A: Yes.
Q: Okay.
A: He signed it saying that that was his property.
N.T. Trial, 10/27/15, at 112-114.
Within Appellant’s brief to this Court, Appellant claims that the trial
court should not have permitted the jury to have possession of Exhibit C-12
and should have simply responded to the jury’s question by “instruct[ing
them] that their memory of the evidence controls and they should rely on
[that] in making their determination.” Appellant’s Brief at 15. Appellant
claims that “[t]he prejudice [that he] suffered was that it was his name
listed at the top of property receipt #3165281 under the caption ‘From
Whom Taken.’” Id.
Yet, since Appellant has failed to include Exhibit C-12 in the certified
record and since the trial testimony does not give this Court a clear
understanding of the exhibit, this Court cannot properly analyze Appellant’s
claim of error. Therefore, Appellant’s final claim on appeal is waived. Smith
v. Smith, 637 A.2d 622, 623-624 (Pa. Super. 1993) (“First, it is black letter
law in this jurisdiction that an appellate court cannot consider anything
which is not a part of the record in the case. Second, it is the responsibility
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of the Appellant to supply this Court with a complete record for purposes of
review. Third, although no reproduced record has been offered by the
Appellant to remedy the deficiency in the official record, we would note that
reproduction of the record is not an acceptable substitute for the original,
certified record. Fourth, a failure by an Appellant to [e]nsure that the
original record certified for appeal contains sufficient information to conduct
a proper review constitutes a waiver of the issue(s) sought to be examined”)
(internal citations and italics omitted).
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2017
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Com. v. Martin, E.
Combined Opinion