J-S40026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRAHIM SMITH :
:
Appellant : No. 1028 EDA 2017
Appeal from the Judgment of Sentence February 2, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0006922-2014
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED AUGUST 28, 2018
Appellant, Brahim Smith, appeals from the judgment of sentence
imposed following his conviction of firearms not to be carried without a license
and persons not to possess firearms.1 We affirm.
The trial court aptly set forth the factual history of this case as follows:
On April 21, 2014, at approximately 1:10pm, Officers
Alberto Ortiz and his partner, Michael Edwards, received a radio
call for a crime in progress in the area of 12th Street and
Glenwood Avenue, in Philadelphia. They arrived on the scene
within two minutes of the radio call. The flash description provided
over police radio was of a black male, wearing a black hat, black
polo shirt, and tan cargo pants. When Officers Ortiz and Edwards
arrived, Sergeant Michael Soto and his partner, Police Officer
Sylvester White, were already on location also in response to the
radio call for a crime in progress. While on location speaking to
the [c]omplainant[,] Sergeant Soto observed a pair of feet
hanging out of the passenger side of a green minivan that was
____________________________________________
1 18 Pa.C.S.A. §§ 6106 and 6105(c)(1), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40026-18
parked on 12th Street approximately halfway down the block from
him. Within seconds of their arrival, Sergeant Soto, Officer White,
and the complainant directed Officers Ortiz and Edwards to this
green minivan. Police Officers Ortiz and Edwards were told
[Appellant] was sitting in the van and matched the flash
information.
As a result of this information, Officers Ortiz and Edwards
pulled up to the van in their patrol car. Officer Ortiz observed
[Appellant] sitting on the floor in the rear sliding door well of the
passenger side of the van with his feet hanging onto the
sidewalk[.] He also saw that [Appellant] was the only person
inside of the van. As Officer Ortiz exited his vehicle and
approached the van, [Appellant] immediately stood up from where
he was sitting on the floor of the van and walked toward the
officer. [Appellant] was stopped in front of the van and a frisk of
his person was conducted. [Appellant’s] clothing did indeed
match the flash description from the radio call. Only three
minutes passed from the time Sargent Soto first observed
[Appellant’s] feet sticking out of the sliding door to when Officers
Ortiz and Edwards approached the van. During this time,
Sergeant Soto saw no other individuals walk up to or exit the van.
Officer Edwards testified that he was parking his vehicle when
Officer Ortiz initially stopped [Appellant] for investigation. He also
testified that [Appellant] was the only person who he saw standing
in front of and next to the van.
Officers Brittany Kelly and Alicea[2] arrived at 12th Street
and Glenwood Avenue approximately five minutes after Officers
Ortiz and Edwards. They too had received the identical flash
information as the other officers. As Officer Kelly approached the
open van door, she saw Officer Ortiz speaking with [Appellant]
outside the vehicle. As Officer Kelly stood next to the van, she
looked into the vehicle and saw a firearm. From her position, she
observed that the firearm was in a cardboard box located in the
interior of the vehicle. The box was between the second and third
rows and was approximately one foot away from the van door.
Further, the lid to that box was open. The box was approximately
two inches high and twelve inches long with auto parts in it.
Nothing in the box covered the weapon or obstructed the officer’s
view of it. Police Officer Kelly alerted Officer Ortiz of her finding.
____________________________________________
2 Officer Alicea’s first name is not included in the record.
-2-
J-S40026-18
Officer Kelly then held the scene. The firearm was observed
until Officer Ortiz returned to the minivan approximately thirty
minutes later. During that time, no one approached or acquired
access to the van, nor did any person move the gun. Police Officer
Ortiz testified that the box containing the gun was within arm’s
reach of where he initially observed [Appellant] sitting in the van.
The firearm was eventually recovered and placed on Philadelphia
Police Department property receipt 3141781. It was later
determined to be a Bryco Arms 38 automatic silver and black
handgun, with one live round in the chamber and six rounds in the
magazine.
(Trial Court Opinion, 10/05/17, at 1-4) (record citations and footnotes
omitted).
Appellant proceeded to a bifurcated trial on October 12, 2016. During
trial, the Commonwealth twice mistakenly played a portion of a recorded
prison phone call between Appellant and a female who was not identified for
the jury, in which the female states: “You never slip up like that[.]” (N.T.
Trial, 10/12/16, at 13; see Trial Ct. Op., at 4).3 The court sustained defense
counsel’s objection, and instructed the jurors “to disregard the last portion of
the conversation that was just played by the Commonwealth. You are not to
consider it in your deliberations at all. That will be stricken from the record.”
(N.T. Trial, 10/12/16, at 147; see id. at 148). Defense counsel moved for a
mistrial, arguing that the statement was prejudicial, and implied that
Appellant was involved in prior criminal activity that “he has gotten away
____________________________________________
3The court had excluded this portion of the call from evidence. However, the
court permitted the sentence on the call immediately before this statement to
come into evidence, and it was difficult to isolate the statements. (See N.T.
Trial, 10/12/16, at 13-14, 149; Trial Ct. Op., at 4, 9).
-3-
J-S40026-18
with.” (Id. at 150). The court denied the motion, explaining that although it
had precluded the statement, the statement itself was subject to multiple
interpretations. (See id. at 152-53). The court had instructed the jury to
disregard it, and also advised defense counsel that it was willing to issue
another curative instruction to the jury in the final charge, but counsel
declined, electing not to bring attention to the statement. (See id.).
On October 14, 2016, the jury found Appellant guilty of firearms not to
be carried without a license, and the trial court found him guilty of persons
not to possess firearms.4 On February 2, 2017, the court sentenced Appellant
to an aggregate term of not less than three nor more than six years’
incarceration, followed by four years of probation. It denied Appellant’s timely
post-sentence motion on February 17, 2017. This timely appeal followed.5
Appellant raises two questions for our review:
1. Did not the court err in denying Appellant’s motion for a mistrial
where the prosecutor, several times, played to the jury a highly
prejudicial portion of prison tapes containing a statement by a
non-testifying declarant, to wit: “You never slip up like that,” by a
non-testifying declarant [sic], that had previously been excluded
by the court after a pre-trial hearing?
____________________________________________
4Relevant to this appeal, the parties stipulated at trial that, at the time of his
offense on April 21, 2014, Appellant had an active bench warrant for a
probation violation. (See Trial Ct. Op., at 5-6, 11-12; see also N.T. Trial,
10/14/16, at 20-22).
5Appellant timely filed a concise statement of errors complained of on appeal
on May 18, 2017. The trial court entered an opinion on October 5, 2017. See
Pa.R.A.P. 1925.
-4-
J-S40026-18
2. Was not the evidence insufficient to convict Appellant for
violating 18 Pa.C.S.A. § 6105 because he was specifically
convicted under § 6105 (c), and the Commonwealth failed to
prove that he was a “fugitive from justice” as that term is meant
in § 6105(c)?
(Appellant’s Brief, at 4).
Appellant first challenges the trial court’s denial of his motion for a
mistrial, made after the prosecutor inadvertently played a portion of a
recorded prison phone call that the court had previously excluded from
evidence. (See id. at 11-14; see also this Memorandum, supra at *3; N.T.
Trial, 10/12/16, at 13-14, 147; Trial Ct. Op., at 4). This issue lacks merit.
It is well–settled that the review of a trial court’s
denial of a motion for a mistrial is limited to
determining whether the trial court abused its
discretion. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will . . . discretion is
abused. A trial court may grant a mistrial only where
the incident upon which the motion is based is of such
a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from
weighing and rendering a true verdict. A mistrial is
not necessary where cautionary instructions are
adequate to overcome prejudice.
See Commonwealth v. Jemison, 98 A.3d 1254, 1263 (Pa.
2014) (observing that “the jury is presumed to follow the court’s
instructions.”) (citation omitted).
Commonwealth v. Rayner, 153 A.3d 1049, 1056-57 (Pa. Super. 2016),
appeal denied, 169 A.3d 1046 (Pa. 2017), cert. denied sub nom. Rayner v.
-5-
J-S40026-18
Pennsylvania, 138 S.Ct. 976 (2018) (one citation omitted; citation
formatting provided).
Here, as discussed above, the trial court sustained defense counsel’s
objection to the playing of the portion of the phone call, and instructed the
jury not to consider the statement at all in its deliberations. After review, we
conclude that the cautionary instruction provided by the trial court was
sufficient to overcome any potential prejudice caused by the Commonwealth’s
inadvertent playing of the ambiguous statement. See Rayner, supra at
1056-57. Therefore, the court did not abuse its discretion in denying
Appellant’s motion for a mistrial. See id. Appellant’s first issue merits no
relief.
Appellant next challenges the sufficiency of the evidence supporting his
conviction of persons not to possess firearms. (See Appellant’s Brief, at 14-
17). He maintains that the Commonwealth failed to prove that he was a
“fugitive from justice” as required for conviction under section 6105(c)(1),
where the outstanding warrant was for a probation violation. (Id. at 14-15;
see id. at 17; see also this Memorandum supra, at *4 n.4). We disagree.
When reviewing sufficiency claims:
Our standard of review is whether the evidence admitted at
trial, and all reasonable inferences drawn from that evidence,
when viewed in the light most favorable to the Commonwealth as
verdict winner, were sufficient to enable the fact[-]finder to
conclude that the Commonwealth established all of the elements
of the offense beyond a reasonable doubt.
-6-
J-S40026-18
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. . . . Furthermore, when reviewing a sufficiency claim,
our Court is required to give the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
Finally, the finder 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. Crosley, 180 A.3d 761, 767 (Pa. Super. 2018) (citations
and quotation marks omitted).
Here, Appellant was found guilty of section 6105(c)(1), which provides,
in pertinent part:
(a) Offense defined.—
(1) A person . . . whose conduct meets the criteria in subsection
(c) 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.
* * *
(c) Other persons.—In addition to any person who has been
convicted of any offense listed under subsection (b), the following
persons shall be subject to the prohibition of subsection (a):
(1) A person who is a fugitive from justice. This
paragraph does not apply to an individual whose
fugitive status is based upon a nonmoving or moving
summary offense under Title 75 (relating to vehicles).
18 Pa.C.S.A. § 6105(a)(1), (c)(1).
-7-
J-S40026-18
Thus, as the trial court and the Commonwealth point out, the statute
specifically carves out from fugitive status only those individuals charged with
summary traffic offenses. (See Trial Ct. Op., at 12; Commonwealth’s Brief,
at 23). It is undisputed that, at the time of his offense in this case, Appellant
had an outstanding bench warrant for a probation violation in a separate
matter. (See this Memorandum, supra, at *4 n.4). Under these
circumstances, we agree with the trial court’s conclusion that “[Appellant] who
had a violation of probation that led to a bench warrant being issued by his
supervising judge was a fugitive from justice.” (Trial Ct. Op., at 12). 6
Therefore, Appellant’s sufficiency claim merits no relief. Accordingly, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/18
____________________________________________
6 We note that we find Appellant’s discussion of the phrase “fugitive from
justice” as used in caselaw and statutory authority relating to extradition
legally unpersuasive, because this case does not involve extradition. (See
Appellant’s Brief, at 16). We further note that Black’s Law Dictionary defines
the term “fugitive” broadly, in pertinent part as: “A criminal suspect . . . in a
criminal case who flees, evades, or escapes arrest[.]” Black’s Law Dictionary
(10th ed. 2014).
-8-