J-S71036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ANTWINE REID,
Appellant No. 3869 EDA 2016
Appeal from the Judgment of Sentence September 20, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007342-2015
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 04, 2018
Appellant, Antwine Reid, appeals from the judgment of sentence
imposed after his jury conviction of first-degree murder, firearms not to be
carried without a license, carrying firearms on a public street in Philadelphia,
and possession of an instrument of crime.1 We affirm.
We take the following pertinent facts and procedural background from
our independent review of the certified record. On August 9, 2013, at
approximately 2:00 A.M., Appellant argued with, and punched, the victim,
before fatally shooting him thirteen times, at close range, in his head, back,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a), 6106, 6108, and 907, respectively.
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abdomen, thigh, arms, and hand. Police recovered fired cartridge casings
from the crime scene and obtained video surveillance footage of the victim
and his friends at a nearby bar before the murder.
On September 20, 2013, Officer Earl Tilghman and his partner, Officer
Terrell Greene, of the Philadelphia Police 19th District, were uniformed and
patrolling on foot when an unidentified male approached them, and told them
that an individual who was involved in a recent homicide was standing up the
street. (See N.T. Trial, 9/15/16, at 222-27). Based on the information
provided by the informant, the officers stopped Appellant, and, because they
were on foot, arranged for him to be transported to the police station.
Homicide Detective John Harkins spoke with Appellant the next morning,
September 21, 2013, at the police station. (See id. at 235). He collected
Appellant’s basic biographical information, including his address and phone
number, as was his usual practice. (See id. at 237-38). Thereafter, Appellant
left the station. (See id. at 239).
Two eyewitnesses provided statements to the police identifying
Appellant, whom they knew from the neighborhood, as the person who shot
the victim multiple times in retaliation for a recent robbery. (See N.T. Trial,
9/14/16, at 9, 17, 24, 36-45 (Jerome Brundridge testifying, consistent with
his statement to police, that Appellant argued with victim and shot him));
(N.T. Trial, 9/16/16, at 10-12, 17, 20, 33 (Gary Kenan identifying Appellant
as shooter and explaining it was in retaliation for a robbery in his statement
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to police)).2 Additionally, witness Raheen Bullock told police and the jury that
he had conversed with Appellant about his intent to retaliate against the
victim, and then, minutes later, he heard multiple shots fired. (See N.T. Trial,
9/16/16, at 63, 66-68, 88-96).
Police executed an arrest warrant for Appellant on May 23, 2015. (See
id. at 48-51, 180-82). The police also obtained a search warrant for
Appellant’s cell phone records and compared them to those of the victim.
(See N.T. Trial, 9/13/16, at 97-98). The records confirmed that Appellant had
used his cell phone near the time of the murder within a sixteen to seventeen
block radius of the crime scene. (See N.T. Trial, 9/16/16, at 152). One hour
before the shooting, Appellant and the victim had engaged in two short phone
calls, and there were forty-eight text messages between them in the preceding
two weeks. (See id. at 160, 164).
On August 31, 2016, Appellant filed a motion to suppress his cell phone
records, arguing that police obtained his phone number during the illegal
search of his phone and Detective Harkins failed to give him his Miranda3
warnings. (See Motion to Suppress Physical Evidence, 8/31/16, at
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2 At trial, Kenan admitted that he initialed and signed his statement to police,
but he testified that his statement to them that he witnessed Appellant shoot
the victim was false. (See N.T. Trial, 9/15/16, at 95). The jury, as fact-finder
was free to decide which version of Kenan’s story to believe. See
Commonwealth v Brown, 52 A.3d 1139, 1168 (Pa. 2012) (jury is free to
credit prior inconsistent statement over recantation).
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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unnumbered page 2 ¶¶ 5-6; see also N.T. Trial, 9/13/16, at 2-3, 54-55, 57-
59, 83-84). At a hearing held outside the presence of the jury at the start of
trial, Detective Harkins testified that he takes the biographical information of
people who entered Homicide as a “general practice.” (N.T. Trial, 9/13/16, at
35). He also stated that he gave Appellant his warnings at 6:10 A.M., as
memorialized on the biographical information report. (See id. at 30-31). The
trial court denied Appellant’s motion, finding his testimony that he did not give
the police his cell phone number and that the police failed to provide him with
his Miranda warnings to be incredible. (See id. at 100-02).
On September 20, 2016, the jury convicted Appellant of the
aforementioned crimes and the court sentenced him, that same day, to a
mandatory sentence of life without parole, and a concurrent term of not less
than five nor more than ten years’ incarceration. The trial court denied
Appellant’s post-sentence motions on November 28, 2016. Appellant timely
appealed.4
Appellant raises two questions for our review.
1. Did the trial court err and cause irreparable harm to
Appellant when the court ruled that, despite being pulled off the
street, handcuffed, and transported to police headquarters based
on a purported tip from an anonymous informant, Appellant was
not arrested and that the subsequent eliciting of biographical
information, including a cell phone number, was not fruit of an
illegal seizure?
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4Pursuant to the trial court’s order, Appellant filed a timely statement of errors
complained of on appeal on January 12, 2017. The court filed an opinion on
April 12, 2017. See Pa.R.A.P. 1925.
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2. Did the trial court err and cause irreparable harm to
Appellant when the trial court denied Appellant’s motion for a
mistrial when one of the jurors stated that she was approached
during the luncheon break by a man from the defense side of the
courtroom, when the juror said that she was scared and concerned
for her safety, and when the juror shared with the rest of the jury
panel the details of the contact and her fears for her safety?
(Appellant’s Brief, at 4) (unnecessary capitalization omitted).
In his first issue, Appellant argues that the trial court erred in denying
his motion to suppress because police seized him illegally prior to his
interrogation on September 21, 2013, and any information obtained as a
result thereof was fruit of the poisonous tree. (See id. at 8-10). This issue
is waived.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). “This requirement bars an
appellant from raising a new and different theory of relief for the first time on
appeal.” Commonwealth v. Baez, 169 A.3d 35, 41 (Pa. Super. 2017)
(citation omitted); see also Commonwealth v. Thur, 906 A.2d 552, 566
(Pa. Super. 2006), appeal denied, 946 A.2d 687 (Pa. 2008) (“When a
defendant raises a suppression claim to the trial court and supports that claim
with a particular argument or arguments, the defendant cannot then raise for
the first time on appeal different arguments supporting suppression.”)
(citations omitted).
In the case sub judice, in moving to suppress the cell phone records,
Appellant’s counsel argued that “[Appellant’s] position is, Your Honor, that the
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[cell] phone was seized without either [his] permission and without a search
warrant.” (N.T. Trial, 9/13/16, at 2-3; see id. at 85-86; Motion to Suppress
Physical Evidence, at unnumbered pages 1-2 ¶ 3 (“During the interrogation,
homicide detectives confiscated [Appellant’s] cellular telephone and reviewed
its contents.”). At no time did Appellant challenge the police’s seizure of him
from the street on September 20, 2013. (See N.T. Trial, 9/13/16, at 2-91).
Therefore, Appellant’s first issue is waived. See Baez, supra at 41; Thur,
supra at 566.5
In his second claim, Appellant contends that the trial court erred in
denying his motion for a mistrial. (See Appellant’s Brief, at 10-12).
Specifically, he maintains that the court should have granted a mistrial
because a juror polluted the jury pool when she told them that a man from
the defense side of the courtroom scared her by approaching her during a
lunch break. (See id. at 10). This issue lacks merit.
The following standards apply to our review of a trial court’s
denial of a motion for a mistrial:
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5 Moreover, even assuming arguendo that the trial court erred in denying
Appellant’s motion to suppress, any such error would be harmless where there
was sufficient independent evidence to support his convictions, including video
surveillance and witnesses who identified Appellant as the perpetrator of the
homicide and explained his motive. See Commonwealth v. Rose, ___ A.3d
___, 2017 WL 4324738, at *7 (Pa. Super. filed Sept. 29, 2017) (“Harmless
error exists if . . . the properly admitted and uncontradicted evidence of guilt
was so overwhelming and the prejudicial effect of the error so insignificant by
comparison that the error could not have contributed to the verdict.”) (citation
omitted). Therefore, Appellant’s issue, even if not waived, would lack merit.
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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.
The remedy of a mistrial is an extreme remedy required only
when an incident is of such a nature that its unavoidable effect is
to deprive the appellant of a fair and impartial tribunal.
Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010), appeal
denied, 4 A.3d 1053 (Pa. 2010) (citations and quotation marks omitted).
Further,
The decision to discharge a juror is within the sound
discretion of the trial court and will not be disturbed absent an
abuse of that discretion. This discretion exists even after the jury
has been [e]mpanelled and the juror sworn. Our Supreme Court
explained that a finding regarding a venireman’s impartiality is
based upon determinations of demeanor and credibility that are
peculiarly within a trial [court]’s province. . . . [Its] predominant
function in determining juror bias involves credibility findings
whose basis cannot be easily discerned from an appellate record.
It is the appellant’s burden to show that the jury was not impartial.
Further, this Court has found that per se prejudice does not result
where a juror becomes upset during the trial.
Commonwealth v. Rush, 162 A.3d 530, 537 (Pa. Super. 2017), appeal
denied, 170 A.3d 1049 (Pa. 2017) (citations, emphasis, and quotation marks
omitted).
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Instantly, on the second day of trial, a spectator seated on Appellant’s
side of the courtroom approached Juror 13 during the lunch break. (See N.T.
Trial, 9/14/16, at 128, 130-31). The juror was entering the courthouse when
the man approached her, telling her that she was not supposed to be on her
phone. The juror reminded him that she could use the phone during lunch,
and the man said, “[Y]ou can be talking about the case[.] . . . [W]hy don’t
you put my number in there while you are at it[?]” (Id. at 132). The juror
walked away, and reported the incident to the court, after talking with her
fellow jurors. (See id. at 132-33). She assured the court that she believed
the man only was flirting, and that it would not affect her ability to decide the
case. (See id. at 134-35). In an abundance of caution, the court excused
Juror 13 and individually interviewed the remaining members of the panel, all
of whom assured it that the incident would have no effect on their ability to
decide the case. (See id. at 136-66, 171). As an additional precaution, the
jury was sequestered during lunch for the remainder of the trial and three
males that fit the description of the individual who had approached Juror 13
were removed from the gallery. (See id. at 170-71).
Based on our independent review of the record, we discern no abuse of
discretion by the trial court in denying Appellant’s motion for a new trial where
“the alleged prejudicial event [could not] reasonably be said to [have]
deprive[d Appellant] of a fair and impartial trial.” Ragland, supra at 340
(citation omitted). Indeed, the trial court questioned each juror individually
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and made the credibility determination that they could be fair and impartial,
before dismissing Juror 13 in an abundance of caution. We will not disturb
the trial court’s decision. See Rush, supra at 537. Appellant’s second issue
does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2018
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