J-A08038-17
2017 PA Super 119
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARIQ RASHID :
:
Appellant : No. 121 EDA 2016
Appeal from the Judgment of Sentence December 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000494-2015
BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 21, 2017
Appellant Tariq Rashid appeals from the judgment of sentence of life in
prison entered in the Court of Common Pleas of Philadelphia County on
December 15, 2015, following his jury trial convictions of one count each of
First Degree Murder, Possession of an Instrument of Crime and Firearms not
to be carried without a license.1 We affirm.
The trial court aptly set forth the relevant facts herein as follows:
FACTS
Around 3:00 A.M. on May 23, 1999, the decedent, Warner
Freeman ("Freeman") also known as “Hip hop” was playing a
dice game on Landsdowne Avenue between 55th and Allison
Streets in the City and County of Philadelphia. (N.T. 12/9/15 at
71-76) Rashawn Holmes ("Holmes") also known as "Shawn" and
Appellant's cousin, Harvey Meyers ("Meyers") joined the game.
Id.; N.T 12/14/15 at 16. An argument ensued between Freeman
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa. C.S.A. §§ 2502(a), 907, 6106(a)(1), respectively.
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and Meyers, and Freeman got into a car and drove away. (N.T.
12/9/15 at 76-88) The group was still playing dice when
Freeman returned shortly thereafter, exited the car, resumed his
argument with Meyers and shot him three to four (3-4) times in
the upper body with a handgun. Id. Meyers died as a result of
his wounds. Holmes made a statement to police and identified
Freeman, who was unknown to him, as the shooter. Id.
On June 13, 1999, Antonio Connor ("Connor") also known
as "Tone" was double-parked in his Oldsmobile Cutlass at the
1400 block of Redfield and Master Streets in the City and County
of Philadelphia. Id. at 196-213. Freeman, seated in the
passenger seat of the Cutlass, was to meet Kareem McBride
("McBride") at that location. (N.T. 2/11/15 at 103-110). Both
Connor and Freeman lived in the area. (N.T. 12/9/15 at 191).
Freeman had the passenger side window rolled down and was
talking to various people he knew from the neighborhood.
Darnell Jones ("Jones") spoke to the men briefly and walked
southbound. (N.T. 12/1/15 at 146-147). Jones saw the Appellant
at the end of the block and Appellant asked who was in the
Cutlass. Id. Jones indicated it was Freeman and Connor and
Jones watched Appellant get into his car and drive in the
direction of the double-parked Cutlass. Id. Freeman was talking
to his friend William Cummings ("Cummings"), a pedestrian who
was also from the neighborhood, when Appellant pulled up
behind Connor's Cutlass and exited his own vehicle. (N.T.
12/9/15 at 128-129, 132-148). Cummings observed Appellant,
who was known to him, walking towards Freeman's side of the
car. Id. Jones could also see Appellant from his vantage point.
Cummings saw Appellant reaching for his waistband and
Cummings ran. (N.T. 12/9/15 at 142-144). Appellant fired three
to four (3-4) shots at Freeman, striking him. McBride, who was
on the 1300 Block of Redfield Street, also saw the incident. (N.T.
12/9/15 at 108-122). Connor transported Freeman to Lankenau
Hospital, where he was pronounced dead at 10:35 P.M. Id. at
197.
An autopsy was performed by Deputy Medical Examiner
Dr. Ian Hood. (12/11/15 at 252-276). Upon reviewing the case
file and photos of Freeman's autopsy, Chief Medical Examiner Dr.
Sam Gulino testified as Dr. Hood was no longer with the
Philadelphia Medical Examiner's Office. Id. Dr. Gulino determined
the cause of death was a gunshot wound to the torso. Id. The
manner of death was found to be homicide. Id. Freeman was
shot approximately two (2) times, one (1) bullet went through
the right forearm exited, and entered Freeman's right chest,
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where the bullet passed through Freeman's right and left lungs,
aorta and liver. Id. The other bullet entered the left forearm. Id.
Three (3) bullets were recovered from Freeman's body, one (1)
was a bullet from a prior shooting. Id. Through ballistics analysis
the bullets from the fresh wounds were found to be of .38
caliber, and fired from the same gun. (N.T. 12/14/15 at 45, 53).
On March 1, 2000, Jones was in federal custody and
engaged in a proffer discussion wherein he outlined his
knowledge of Freeman's death. (12/10/15 at 134-140). Jones
alleged that Connor was a "drug mule" for Michael Gaffney
("Gaffney") also known as Mikael.4 Id. at 97-101. Jones also
alleged that he knew Appellant to carry a .25 caliber handgun.
Id. at 148.
The homicide of Freeman remained stagnant for
approximately thirteen (13) years until November 19, 2014
when Cummings, in custody, made a statement to police
outlining the incident. (N.T. 12/9/15 at 146-I47). It was
stipulated by and between counsel that at the time of the
shooting, Appellant did not have a permit to carry a firearm, and
he had been arrested December 2, 2014. (N.T. 12/14/15 at 57-
58).
____
4
Gaffney’s alleged drug involvement with others is what defense
counsel refers to as the “Gaffney Organization.”
Trial Court Opinion, filed 7/14/16, at 3-5.
Appellant filed a timely notice of appeal on December 31, 2015. On
February 24, 2016, the trial court issued its Order to File Statement of Errors
Complained of on Appeal. Appellant complied and filed the same on March
16, 2016 wherein he raised six issues. In his appellate brief, Appellant
presents the following five questions for our review:
1. Did the trial court err and violate [Appellant’s] right to
present a defense by precluding evidence that tended to prove
that someone other than [Appellant] had a motive for
committing the murder?
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2. Did the lower court err when it precluded the defense from
impeaching a witness by concluding that the witness’ Fifth
Amendment privilege applied when it clearly did not?
3. Did the lower court err when it precluded the defense from
impeaching an alleged eyewitness with his testimony from
another matter?
4. Did the trial court err by allowing the Commonwealth to
introduce evidence that [Appellant] possessed a handgun, where
it was physically impossible for that gun to be involved in the
crime?
5. Did the trial court err in refusing to grant a mistrial after
the prosecutor improperly attacked the defense’s character
witnesses with irrelevant and prejudicial questions and behavior?
Brief for Appellant at 4-5.
Appellant’s first four issues challenge the trial court’s decisions
pertaining to the admission of evidence at trial. Our standard of review for
evidentiary matters is well-established:
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. In
determining whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the evidence
against the prejudicial impact of the evidence. Evidence is
relevant if it logically tends to establish a material fact in the
case or tends to support a reasonable inference regarding a
material fact. Although a court may find that evidence is
relevant, the court may nevertheless conclude that such
evidence is inadmissible on account of its prejudicial impact.
Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)
(citation omitted).
Initially, Appellant avers that at numerous times throughout trial he
sought to introduce testimonial evidence that Connor had a motive to kill
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Freeman based upon the men’s involvement in the “Gaffney Organization.”
Appellant reasons that “if the Commonwealth was allowed to argue that
[Appellant] had a motive to kill Freeman, there is no reason why [Appellant]
should not have been allowed to do the same thing about somebody else.”
Brief for Appellant at 12. Appellant posits our Supreme Court’s decision in
Commonwealth v. Ward, 529 Pa. 506, 605 A.2d 796 (1992) is instructive
herein. In that case, the Court held it was prejudicial error for the trial court
to exclude testimony of a police detective and a Red Cross worker which
would have supported the defense theory that other individuals had a motive
to commit the crimes of which the defendant had been convicted and
contradicted the Commonwealth’s evidence of the defendant’s own motive.
Herein, the trial court ruled evidence regarding the operations of the
“Gaffney Organization” was inadmissible and explained its rationale in doing
so as follows:
[ ] Appellant was not precluded from introducing an
alternative theory or arguing motive, he was however precluded
from introducing irrelevant evidence. In his opening statement,
defense counsel presented the theory that the “Gaffney
Organization[,]” a purported drug operation from the
neighborhood, was responsible for Freeman’s murder in 1999
and that Connor, a mule for Gaffney, had motive to kill Freeman.
As an initial matter, determining whether Connor or other
individuals had been involved with the Gaffney Organization in
selling or moving illicit substances was of no moment in
Freeman’s death as that information would not have made it less
probable that Appellant shot Freeman. Cummings, McBride, and
Jones identified Appellant as the shooter. (N.T. 12/9/15 at 150-
151; 12/11/15 at 105; 12/10/15 at 143). Appellant was
permitted to question Connor and Cummings on cross-
examination about their knowledge of individuals with the last
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name Gaffney who were from the neighborhood. (N.T. 12/9/15
at 167-169, 254; 12/10/15 at 85-[86]). Connor confirmed
knowing Mikael Gaffney and Andre Gaffney. (N.T. 12/9/15 at
167-169. Connor testified he had no business interests with
[the] aforementioned people. Id. at 255. Trial counsel was free
to ask Connor if he wanted Freeman dead or had any prior
knowledge about an attempt on Freeman’s life, however counsel
failed to do so. Any evidence Appellant wished to introduce to
support an alternative theory was subject to the Pennsylvania
Rules of Evidence, as such no relief is due.
Trial Court Opinion, field 7/14/16, at 6-7.
Following a careful review of the certified record, the parties’
submissions and the trial court’s Rule 1925(a) Opinion, we find no error. A
trial court does not abuse its discretion when it precludes cross-examination
based upon inadmissible evidence. Commonwealth v. Hyland, 875 A.2d
1175, 1187 (Pa.Super. 2005). Appellant sought to introduce evidence
pertaining to a written summary of Jones’ proffer to federal authorities in
2000. Known as a 302, the typewritten document had been prepared by the
FBI and consisted of a “little summary that they write for themselves as to
what the witness says and the information that the witness gives.” N.T.,
12/10/15, at 97. When the trial court questioned him whether the 302
would constitute hearsay, defense counsel responded that he was not
offering it for the truth of the matter, but rather “offering it for is this is what
they do.” Id. at 106.
Counsel clarified that the document was necessary to develop his
defense in that it would allow Jones to testify regarding information he
learned while in jail or personally saw about the Gaffney Organization which
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he had shared in an effort to receive a reduced sentence on pending
charges. Id. at 108-100. Ultimately, the trial court determined that
defense counsel “will be permitted to ask some limited questions along the
line that [he] did this morning with the statement from Mr. Cummings[]”
and clarified that “[i]f at some point the Commonwealth begins to feel that it
is delving, they can raise an objection and I will rule on it as we get to it.”
Id. at 110-11.
As the trial court observed in its Rule 1925(a) Opinion, it permitted
Appellant to cross-examine Connor based upon his alleged business dealings
with the Gaffneys, and Connor admitted to knowing some of the Gaffneys.
N.T., 12/9/15, 254-58, 261, 268. In addition, Appellant cross-examined
Jones and Cummings regarding the drug-related activities in which the
Gaffneys and Connor had engaged. N.T., 12/9/15, 167-69; N.T., 12/10/15,
21-13, 180-84. Moreover, during closing argument defense counsel stated
Connor had been involved in a drug organization and suggested he had a
motion to kill Freeman. See N.T., 12/14/15, 135-36, 150-53. As such,
Appellant’s claim the trial court’s evidentiary rulings prevented him from
introducing to the jury his theory that someone else had a motive to kill
Freeman is meritless.
Appellant next argues the trial court erred when it precluded him from
questioning Connor regarding whether he had sold drugs for the Gaffney
Organization in 1999 on the basis that the witness’s Fifth Amendment
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privilege applied to his response. Appellant reasons that because the statute
of limitations for prosecuting an offense under the Controlled Substance,
Drug, Device and Cosmetic Act is five years under 42 Pa.C.S.A. § 5552(b)(2)
and had expired in 2004, Connor could no longer assert the Fifth
Amendment privilege at Appellant’s trial. Brief for Appellant at 13, citing
Brown v. Walker, 161 U.S. 591[, 16 S.Ct. 644] (1896); Stogner v.
California, 539 U.S. 607, 620[, 123 S.Ct. 2446, 2455] (2003).
Although Appellant represents in his appellate brief that Connor was
asked on cross-examination whether he ever had sold drugs for the Gaffney
Organization in 1999, the exchange at issue was as follows:
[Defense counsel]: You never sold kilos or delivered kilos of
cocaine for the Gaffney Family?
[The Prosecutor]: Objection.
The Court: Sustained.
[Connor]: If so. That ain’t what we’re here for today.
The Court: He does not have to answer that. That is a Fifth
Amendment question. He does not have to answer.
[Defense Counsel]: Judge, can I approach?
The Court: No, sir.
[Defense Counsel]: There’s no Fifth Amendment on a statute
that expired in 1999.
The Court: I’m not going to argue that with you. I’m not going
to argue with you at all. I have sustained the objection.
N.T., 12/9/15, at 255-56 (emphasis added).
Defense counsel’s initial question did not reference a specific point in
time, and it was only after the trial court sustained the Commonwealth’s
general objection on the ground that Connor’s response could implicate his
Fifth Amendment rights did defense counsel reference alleged drug-related
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activity that had occurred in 1999. It would appear, then, that the question
originally was posed for the broader purpose of suggesting that Connor’s
involvement in drug trafficking with the Gaffneys might have provided him
with a motive to kill Freeman.
Indeed, Appellant admits that “[t]he whole thrust of the defense
theory in this case was that Connor was a drug dealer for the Gaffney
Organization, and thus had a motive to kill Freeman. . . . Of course, the
threshold item of proof to make this point was to show that Connor was in
fact a drug dealer.” Brief for Appellant at 13-14. Thus, Connor’s privilege
against self-incrimination was implicated by counsel’s question, for Appellant
sought to reveal a motive for Connor to kill Freeman, and there is no statute
of limitations for the crime of murder. “The [Fifth Amendment] privilege
extends not only to statements that by themselves would be evidence that
the declarant has committed a crime, but also to assertions that would be ‘a
link in the chain’ of evidence needed to convict.” Commonwealth v. Treat,
848 A.2d 147, 148 (Pa.Super. 2004) (citation omitted). Consequently, the
trial court’s ruling was not in error.
Appellant further avers he should have been permitted to impeach
Cummings with statements the latter had made during his sentencing
hearing in Delaware County following his conviction of second-degree
murder, Carrying a Firearm without a License, and Criminal Conspiracy to
Commit Robbery. Presumably, at that time Cummings had denied
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committing the homicide, although at Appellant’s trial he stated that the one
mistake he had made in life was “committing murder.” N.T., 12/10/15, at
43. The trial court sustained the Commonwealth’s repeated objections to
defense counsel’s questions regarding whether Cummings at any point in
time had represented in a court of law that he was not guilty of the murder.
Id. at 46.
In claiming that this was in error, Appellant reasons that this Court’s
decision in Commonwealth v. Hensley, 441 A.2d 431 (Pa.Super. 1982) is
controlling. Therein, we reiterated the long-settled principle that a prior
inconsistent statement may be used to impeach a witness. In a split
decision, we ultimately found that the defendant was entitled to a new trial
as he had been denied the opportunity to impeach an important witness at
his second murder trial concerning prior inconsistent testimony from that
witness at the first trial regarding the location of shotgun shells recovered
near the victim’s body. Id. at 434-35.
Clearly, Appellant’s reliance upon Hensley is misplaced. Herein,
Appellant sought to impeach Cummings regarding Cummings’ own criminal
history, whereas the defendant in Hensley was prohibited from presenting
evidence directly connected to the murder for which he was on trial. “[A]
defendant's right of confrontation includes the right to cross-examine
witnesses about possible motives to testify. However, a witness may not be
contradicted on ‘collateral’ matters, ... and a collateral matter is one which
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has no relationship to the case at trial. The scope of cross-examination is a
matter within the discretion of the trial court and will not be reversed absent
an abuse of that discretion.” Commonwealth v. Saunders, 946 A.2d 776,
786 (Pa.Super. 2008) (citations omitted).
Herein, the trial court determined that Cummings’ convictions were not
the result of crimes of dishonesty, and, therefore, the admission of the notes
of testimony from the sentencing hearing therein was within its discretion.
The trial court further found the “[a]dmission of these notes would have
diverted the jury’s attention away from its duty of weighing the evidence
impartially by emphasizing the fact that Cummings had been convicted of
these crimes and delving into the circumstances under which he was found
guilty.” Trial Court Opinion, filed 7/14/16, at 10.
In addition, our review of the trial transcript reveals defense counsel
repeatedly attacked Cummings’ veracity and character and highlighted his
crime-ridden past on cross-examination. N.T., 12/9/15, at 159-180;
12/10/15, at 9-44, 78-91. Again, during closing argument, defense counsel
referred to Cummings as a “serial manipulator” and “serial fabricator of
information and evidence,” N.T., 12/14/15, at 136, and reiterated
information elicited on cross-examination to illustrate this point as well as
Cummings’ motive for working with authorities. Id. at 136-145. As such,
even had Appellant been permitted to impeach Cummings’ credibility with
his prior, sworn inconsistent statement from his sentencing hearing, such
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impeachment testimony would have been cumulative of the multitude of
inconsistencies previously revealed. No relief is due.
Appellant next contends the trial court erroneously had permitted the
Commonwealth to introduce testimony from Jones that Appellant typically
carried a .25 caliber handgun, despite uncontradicted evidence that the
murder weapon was a .38 or a .380. Brief for Appellant at 16 citing N.T.,
12/10/15, at 148. Appellant maintains that any probative value arising from
the trial court’s decision to allow such testimony was outweighed by its
“crippling” prejudicial effect as “the Commonwealth used the evidence to
portray [Appellant] as someone who wields firearms.” Id. at 19.2
Initially, we note that “for a ruling on evidence to constitute reversible
error, it must have been harmful or prejudicial to the complaining party. A
party suffers prejudice when the trial court's error could have affected the
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2
The Commonwealth avers Appellant has waived this claim for his failure to
place a contemporaneous objection on the record because he neither asked
that Jones’ statement be redacted nor objected to it at the time it was
introduced as a prior inconsistent statement through the testimony of
Special Agent Vito Roselli of the FBI. In addition, the Commonwealth states
Appellant “did not object at all” when Jones indicated he did not remember
saying that Appellant shot the victim with a .25-caliber shotgun. Brief for
the Commonwealth as Appellee at 27-29. However, Appellant stated
“Objection. Objection to the answer” to the prior query at which time the
prosecution asked Jones, apparently incorrectly, whether he remembered
“the detective asking, ‘How did you know that [Appellant] has a .45
caliber?’” See N.T., 12/10/15, at 147-48. For this reason, we decline to
find Appellant did not raise this issue in a timely fashion before the trial
court.
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verdict.” Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa.Super. 2015)
(citation omitted).
A review of the relevant exchange at trial reveals that despite
Appellant’s argument, Jones never told the jury that Appellant carried a .25
caliber handgun. In fact, he testified that he did not remember ever making
such a statement.
[The prosecutor]: Do you remember the detective asking,
How did you know that [Appellant] has a .45-caliber?
[Defense counsel]: Objection. Objection to the answer.
[The Court]: Overruled.
[The prosecutor]: Do you remember answering that
question?
[Jones]: No.
[The prosecutor]: I want you to look at page four for me.
Are you at the top?
Q: “How do you know [Appellant] had a .25-cal?
A: That was the gun he carried.”
Do you see that answer?
[Jones]: Yes.
[The prosecutor]: Do you remember giving that answer?
[Jones]: No.
N.T. 12/10/15, 147-48.
Clearly, Jones’ testifying as to his inability to recall having said
Appellant possessed a .25-caliber handgun was not harmful to Appellant. To
the contrary, Jones’ memory lapse worked to Appellant’s advantage as it
called into question whether Appellant possessed a firearm at all and
suggested to the jury the murder weapon was not his. This is especially true
in light of the fact the Commonwealth did not introduce a .25 caliber
handgun into evidence and ballistic evidence revealed the bullets recovered
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from the crime scene could have been expelled from either a .380 caliber or
a nine-millimeter. N.T., 12/14/15, at 54. In addition, Appellant questioned
Jones’ credibility during closing argument. Id. at 153-162, 163-170. In light
of the foregoing, Appellant’s claim Jones’ perceived testimony in this regard
was “crippling” in its prejudicial effect is without merit.
Lastly, Appellant maintains the trial court abused its discretion in
denying his motion for a mistrial following the Commonwealth’s alleged
improper questioning of Appellant’s character witnesses regarding his prior
drug activity. Appellant asserts that “drug dealing in and of itself is not
pertinent to the issue of whether someone is peaceful and non-violent” and
that such queries violated the trial court’s pretrial order specifically excluding
any mention of these alleged activities. Brief for Appellant at 21. In support
of his claim the questions deprived him of a fair trial, Appellant states “[t]he
prosecutor’s smear of [Appellant] was bolstered by her tactics of waving her
file around and asking questions about specific dates, locations and aliases
so as to allow the jury to infer that she was reading from [Appellant’s] rap
sheet.” Appellant concludes that a mistrial was the sole remedy for such
“outrageous conduct.” Id. at 22.
In considering this argument, we are governed by the following well-
settled standard:
In criminal trials, declaration of a mistrial serves to eliminate the
negative effect wrought upon a defendant when prejudicial
elements are injected into the case or otherwise discovered at
trial. By nullifying the tainted process of the former trial and
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allowing a new trial to convene, declaration of a mistrial serves
not only the defendant's interest but, equally important, the
public's interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to grant a
mistrial whenever the alleged prejudicial event may reasonably
be said to deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern whether
misconduct or prejudicial error actually occurred, and if so, ...
assess the degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether the court
abused its discretion. Judicial discretion requires action in
conformity with [the] law on facts and circumstances before the
trial court after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for decision,
it misapplies the law or exercises its discretion in a manner
lacking reason.
Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa.Super. 2009) (citation
omitted). The remedy of a mistrial is an extreme one and is required only
when an incident is of such a nature that its unavoidable effect deprives a
defendant of a fair and impartial tribunal. Id.
Pa.R.E. 405, entitled “Methods of Proving Character,” provides, in
relevant part:
(a) By Reputation. When evidence of a person's character or
character trait is admissible, it may be proved by testimony
about the person's reputation. Testimony about the witness's
opinion as to the character or character trait of the person is not
admissible.
(1) On cross-examination of the character witness, the court
may allow an inquiry into relevant specific instances of the
person's conduct probative of the character trait in question.
(2) In a criminal case, on cross-examination of a character
witness, inquiry into allegations of other criminal conduct by the
defendant, not resulting in conviction, is not permissible.
Pa.R.E. 405(a).
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Appellant’s sister Sharon Woods-Ruffin testified that Appellant had a
reputation of “being a peaceful and respectable individual.” N.T. 12/14/15,
at 62. On cross-examination, the Commonwealth asked Ms. Woods-Ruffin
whether “as far as [her] understanding of peacefulness, would [she]
consider a person who deals crack-cocaine to be peaceful?” Appellant’s
objection to the query was sustained, and the Commonwealth next inquired
as to whether Ms. Woods-Ruffin would “consider a drug dealer to be
peaceful?” Id. at 66. Appellant’s objection was overruled, and Ms. Woods-
Ruffin responded in the negative. Id. at 67, 68. Next, Tracy Lamont Ruffin,
Appellant’s brother-in-law, testified he was familiar with Appellant’s
reputation as a peaceful person. Id. at 75-76. When questioned as to
whether he believed a drug dealer to be a peaceful person, Mr. Ruffin replied
“No.” Id. at 81-82.3 Similarly, Shaheedah Tinsley, a family friend,
explained that Appellant had “an excellent reputation” for peacefulness. Id.
at 86-87. On cross-examination, the Commonwealth asked Ms. Tinsley if a
drug dealer in her view is a peaceful person,4 to which Ms. Tinsley replied,
“It depends on the person. In my opinion just from what I grew up around,
I’ve seen peaceful drug dealers and I’ve seen violent ones.” Id. at 93-94.
Initially, we note that Appellant seems to have misconstrued the trial
court’s pretrial order as specifically excluding any mention of Appellant’s
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3
Defense counsel noted his objection. Id. at 81.
4
No objection was noted. Id.
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prior drug dealing. In its Rule 1925(a) Opinion, the trial court cites to the
notes of testimony from November 9, 2015, wherein it apparently denied
Appellant’s motion in limine pertaining to the ability of the Commonwealth to
cross-examine character witnesses about drug dealing. See Trial Court
Opinion, filed 7/16/16, at 14 citing N.T., 11/9/15, at 10-14. However, a
copy of the transcript of the pre-trial hearing held on November 9, 2015,
does not appear in the certified record. “It is an appellant's duty to ensure
that the certified record is complete for purposes of review.”
Commonwealth v. Reed, 601 Pa. 257, 263, 971 A.2d 1216, 1219 (2009)
(citation omitted). “[A]n appellate court cannot consider anything which is
not part of the record in the case ... because for purposes of appellate
review, what is not of record does not exist.” Commonwealth v. Johnson,
33 A.3d 122, 126 n. 6 (Pa.Super. 2011), appeal denied, 47 A.3d 845 (Pa.
2012) (citations and internal quotation marks omitted). Accordingly,
Appellant waived this basis for challenging the trial court’s denial of his
motion for a mistrial.
With regard to Appellant’s position that drug dealing is irrelevant to a
consideration of the whether one is peaceful and nonviolent, we note that:
[t]his Court has consistently repeated the principle that although
evidence of good character may not be rebutted by evidence of
specific acts of misconduct, a character witness may be cross-
examined regarding his or her knowledge of particular acts of
misconduct by the defendant to test the accuracy of his or her
testimony and the standard by which he or she measures
reputation.
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Commonwealth v. Kouma, 53 A.3d 760, 769 (Pa.Super. 2012) (citation
omitted).
Herein, Appellant presented reputation evidence from three witnesses
each of whom made a blanket assertion he had a reputation for being
peaceful. In doing so, Appellant “opened the door” for the Commonwealth
to cross-examine those character witnesses regarding specific instances of
conduct which are probative of the peacefulness trait in question. Kouma,
supra; Pa.R.E. 405(a). The prosecutor did not inquire as to whether the
witnesses knew Appellant to be a drug dealer or whether they were aware of
any specific, prior drug-related conviction he might have had. Therefore, we
must determine whether the Commonwealth’s general inquiries as to
whether the witnesses deemed a drug dealer to be a peaceful person were
probative as they relate to the witnesses’ standard by which they measure
peacefulness.
Clearly, one involved in drug trafficking is in violation of the laws of
this Commonwealth, yet the manner in which each of Appellant’s character
witnesses perceived an individual involved in illicit drug trade varied. While
Ms. Woods-Ruffin and Mr. Ruffin indicated they did not view a drug dealer as
a peaceful person, Ms. Tinsley’s response was more cryptic and had been
preceded by a statement that, in her view, only the Pope and Mother
Theresa were peaceful individuals. N.T., 12/14/15, at 92. She also
indicated that she believed “a crack dealer” and “a college dorm marijuana
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dealer” are on the same level. Id. at 93. Thus, with these questions, the
prosecutor properly probed the standard by which the witnesses evaluated
the peacefulness of a drug dealer generally which shed light upon Appellant's
character trait which he, himself, had put at issue. Such cross-examination
is permissible under Pa.R.E. 405(a) and the trial court properly permitted it.
Furthermore, when considering whether the prosecutor’s comments
along with her manipulation of files and paperwork during her cross-
examination of the character witnesses amounted to prosecutorial
misconduct, the trial court noted that in trying to determine Ms. Tinsley’s
standard of what constitutes peacefulness, the prosecutor inquired about
drug dealing at a specific location only in direct response to defense
counsel’s statement following his objection that: “She may need some more
facts. I know I would.” Trial Court Opinion, 7/14/16, at 15 citing N.T.,
12/14/15, at 94. The trial court opined that:
The prosecutor’s gestures and statements in tandem with
questioning character witnesses constituted a proper use of
oratorical flair and “vigorous prosecutorial advocacy.”
Commonwealth v. Miles, 681 A.2d 1295, 1302 (Pa. 1996).
Moreover, the jury was instructed on at least two (2) occasions
that the statements of counsel do not constitute evidence. (N.T.
12/9/15 at 19; N.T. 12/15/15 at 38). The extreme remedy of a
mistrial was not warranted.
Id. at 15.
Upon a review of the trial transcripts and defense counsel’s own
description of the prosecutor’s behavior, we agree with the trial court that
the prosecutor’s actions and comments did not amount to prosecutorial
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misconduct when viewed in proper context. Counsel stated the prosecutor:
“pulled out her file and looked at it. At the time she talked about the dates
of arrests. And she also looked at the file when she described drug activity
not just generally but at a specific location, your Honor.” Defense counsel
also complained the prosecutor: “march[ed] in front of a jury and [ ]
[looked] at it and [ ] [pointed] out dates of birth and then [ ] [talked] about
drug dealing as [she was] talking about specific locations[.]” N.T.,
12/14/15, at 100-01. We find the prosecutor acted well within the bounds
of proper advocacy in so questioning Ms. Tinsley. See Miles, 545 Pa. at
514, 681 A.2d at 1302. In light of the foregoing, the trial court’s denial of
Appellant’s motion for a mistrial was not an abuse of discretion.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2017
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