J-A07031-20
2020 PA Super 248
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARDELL MATTHEW GROSS :
:
Appellant : No. 576 MDA 2019
Appeal from the Judgment of Sentence Entered November 30, 2018
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001820-2017
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
OPINION BY McLAUGHLIN, J.: FILED OCTOBER 14, 2020
Ardell Matthew Gross appeals from the judgment of sentence entered
for his convictions for first-degree murder and aggravated assault. He
challenges the grant of the Commonwealth’s motion in limine and an
evidentiary ruling. We affirm.
Gross shot and killed his uncle, Richard Smalley, in October 2017, and
Detective Dale Moore responded to the scene. He administered a pre-arrest
breath test (“PBT”) to Gross allegedly showing a blood alcohol content of .213
percent. Gross gave a statement in which he talked not only about the instant
case but also about a sexual assault approximately eight to nine years before
the shooting, in which Gross was the victim. The assailant in the sexual assault
was not the victim of the shooting at issue here, Richard Smalley. However,
Detective Moore – the detective investigating the instant shooting – had
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investigated the sexual assault. Detective Moore did not charge anyone in the
sexual assault.
In the present case, police arrested and charged Gross with first- and
third-degree murder and aggravated assault.1 The Commonwealth filed
motions in limine asking the trial court to preclude any mention of the sexual
assault case and of the PBT. Regarding the sexual assault, the Commonwealth
argued irrelevance. N.T., Motions in Limine Hearing, 11/13/18, at 11.
The Commonwealth believes that this potential evidence, if
they jury were to hear it, is irrelevant. Any alleged prior
victimization is not a factual issue that this jury would need
to find in order to make a determination as to whether or
not Mr. Gross shot Mr. Smalley on that particular date and
time, which was almost ten year [sic] later - - nine years
later.
The only purpose of this would be to attempt to garner
sympathy and to confuse the jury as to what actually was
happening that day. So we do not feel it’s relevant, and we’d
ask that you exclude it.
Id. The Commonwealth also pointed out that the alleged assailant in the
sexual assault was not the murder victim in the instant case. Id. at 13.
Gross responded that the sexual assault investigation was relevant to
respond to Detective Moore’s questioning of Gross during the investigation
about why Gross did not call police if he was afraid of his uncle. Gross
maintained that Detective Moore did a poor job investigating the sexual
assault case and that the prior failure of police to resolve the sexual assault
____________________________________________
1 18 Pa.C.S.A. §§ 2502(a), (c) and 2702.
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case explained Gross’s failure to call police in response to his uncle’s behavior.
He also maintained it was relevant because Detective Moore asked Gross
about the assault while questioning Gross about the instant case, and thus
illuminated Gross’s “mindset” during the questioning:
[Defense Counsel]: I’d point out that it was Detective Moore
that brought up the name of the rapist. It was Detective
Moore that failed to do an investigation of that case, and it’s
Detective Moore that is saying things like, well, why didn’t
you just call the police to help you.
Well, I think that kind of answers the question, why you
don’t call the police to help you when you report a raping, a
drugging and an assault, and Dale Moore basically does
nothing.
Moore brought it up in the interview. Moore has got to live
with the fact that he did nothing in that case to investigate
the savage attack of my client. It’s relevant to his mindset
in terms of what they’re going to argue, he should have
locked the door.
***
It’s relevant to his mindset. It’s relevant to his malice. It’s
relevant to his intent. It’s very relevant. They brought it up.
They’ve got to live with it.
Id. at. 11-12.
Regarding the PBT evidence, the prosecution argued that such evidence
is per se inadmissible at trial. Id. at 14.
[Commonwealth]: Your Honor, the next motion is a motion
to preclude PBT evidence. There is evidence in this case that
Mr. Gross was given a PBT prior to being taken to the Spring
Township police department.
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We have provided the results and we’ve gone through the
case law and the case law that we were able to find dealt
with DUIs and underage drinking, and as this Court is well
aware, the only time that a PBT is admissible to show
probable cause to make an arrest and only at that point to
determine whether or not there’s a presence or absence of
alcohol.
The actual reading of a PBT is inadmissible, and clearly, at
the time of trial, even the indication that a PBT was done is
inadmissible.
The case law goes through and talks about the purpose of
the PBT for purposes of underage drinking, and that is to
show the presence, because one of the elements you have
to show is the presence of alcohol.
Id.
Gross responded that the trial court should allow the evidence because
it was “relevant to Gross’s consent to the interrogation and to his forming
[the] specific intent” required for first-degree murder. Id. at 17. He also cited
Commonwealth v. Ward, 605 A.2d 796, 797 (Pa. 1992), which stated that
“an accused has a fundamental right to present evidence so long as the
evidence is relevant and not excluded by an established evidentiary rule.” Id.
The trial court granted the Commonwealth’s motion to preclude any
mention of the sexual assault case, finding that “[a]ny evidence or testimony
of the assault would have been confusing or misleading to the jury.” Trial Ct.
Op., filed, 4/8/19 at 3. It found that “Detective Moore’s failure to investigate
the alleged sexual assault of [Gross] was slightly probative of the intent
element of first[-]degree murder.” Id. However, it nonetheless concluded that
it was properly excluded because “the assault was not alleged to have been
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perpetrated by the victim in this case and the alleged assault was reported
eight years before the events leading to [Gross’s] convictions in this case
occurred.” Id.
The trial court also precluded the PBT results. It noted that the case law
regarding the exclusion of PBT results did not directly address “a defendant’s
use of PBT results as evidence of voluntary intoxication.” Id. at 4. It
nevertheless excluded them, finding the case law to be controlling. It
explained, “Given the unreliable nature of PBT results, introducing them would
not only have been in contravention of settled case law, it was likely to have
misled the jury into believing the results of PBTs are definitive evidence of
intoxication, even if the results were used only as impeachment evidence.”
Id. The court also concluded that excluding this evidence did not interfere
with Gross’s presentation of his voluntary intoxication defense because
“[Gross] could have mounted this defense by other means through the trial.”
Id. at 5.
At trial, Detective Moore testified that when he responded to the scene
of the shooting, Gross told him that the night beforehand, he had been at the
hospital with his dying grandfather when his uncle “showed up” and “said I’m
coming over tomorrow and I’m going to take everything.” N.T., Trial,
11/27/2018, at 208. The detective said that Gross explained that when his
uncle showed up the next day, “I told him to leave. He didn’t. I shot him. I
shot him twice. The first time I tried to shoot him in the leg.” Id. at 209.
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Detective Moore then testified that while he did believe Gross was
intoxicated when he was talking to him at the scene, he was “not overly
concerned about his alcohol use”:
Q: During that period of time, did you make any
observations about the defendant’s level of intoxication?
A: I did believe he was drinking, but I talked to him. He was
able to answer questions. He seemed to answer them in the
correct context, the right order, like having memory recall.
So while I did believe I wouldn’t ride in a car with him, I
did believe – he wasn’t swaying. He was able to walk. So
while I did believe he was intoxicated for driving a car
purposes, I did not – I was not overly concerned about his
alcohol use.
Id. at 213.
Defense counsel objected at sidebar that Detective Moore’s testimony
about Gross’s degree of intoxication “opened the door” to the PBT evidence.
Id. at 218.
Your Honor, I believe they opened the door to the PBT
evidence by the examination of this witness as to his level
of intoxication as to why – I’ve never been given an answer
as to why this witness would give him a PBT but I think his
testimony today opened the door to the fact that he gave it
to him, what the result was and why he hid it, recorded on
– and never turned it over until we demanded the party turn
it over in January.
Id. at 218-19. The Commonwealth responded that it questioned Detective
Moore about his observations of Gross’s intoxication because it anticipated
that Gross might present a voluntary intoxication defense. Id. at 219. The
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trial court concluded that the Commonwealth had not opened the door for the
admission of the PBT. Id. at 220.
The jury convicted Gross of the above offenses and the trial court
sentenced Gross to life imprisonment for the murder charge and imposed no
further penalty for aggravated assault. Gross filed a post-sentence motion
challenging the preclusion of evidence of the sexual assault case and the PBT,
as well as the ruling that the Commonwealth did not open the door to the
admission of the PBT. The trial court denied the motion and this timely appeal
followed.
Gross raises the following issues before this Court:
I. Did the lower court abuse its discretion in excluding
evidence that [] the arresting officer gave [Gross] a
Portable [sic] Breath Test during questioning, that the
result of that test was .213 blood alcohol content, that
the officer did not include the testing or the result in
any report, and kept the result hidden on his personal
phone until the District Attorney directed him to turn
it over?
II. Did the lower court abuse its discretion when it found
that the Commonwealth did not open the door to the
admission to this evidence when it solicited testimony
from the detective about his observations of [Gross’s]
level of intoxication and that he “was not overly
concerned about it”?
III. Did the lower court abuse its discretion in granting a
Commonwealth Motion in Limine excluding evidence
that [Gross] had been raped years earlier and the
arresting officer in the instant matter, refused to
investigate?
Gross’s Br. at 4 (suggested answers omitted).
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We address Gross’s first and third issues together as they both deal with
the trial court’s granting of the Commonwealth’s motions in limine. We review
the grant of a motion in limine for an abuse of discretion. Commonwealth v.
Valcarel, 94 A.3d 397, 398 (Pa.Super. 2014). An abuse of discretion exists
where there is an “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.
Santos, 176 A.3d 877, 882 (Pa.Super. 2017).
Gross first maintains that the trial court should have denied the
Commonwealth’s motion in limine regarding Gross’s sexual assault. He argues
that the evidence was relevant to show Detective Moore’s alleged bias against
Gross. Gross’s Br. at 22-23. He further argues that evidence about Detective
Moore’s alleged “failure to investigate” the sexual assault was relevant to
refute any testimony or argument that the reasonable response to his uncle’s
behavior would have been to call the police. Id. at 24. He further argues that
such evidence would have explained Detective Moore’s testimony that Gross
appeared angry during his interview with police. Id. at 23-24.
The Commonwealth responds that although evidence of bias, interest,
or corrupt motive is relevant to impeach a witness’s testimony, Gross has not
explained how Detective Moore’s involvement in the prior case evidenced any
such bias, interest, or corrupt motive. The Commonwealth further points to
the limitation on impeaching testimony with evidence of a collateral matter.
See Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004);
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Commonwealth v. Guilford, 861 A.2d 365, 369 (Pa.Super. 2004) (“[A]
witness may not be contradicted on ‘collateral’ matters . . . and a collateral
matter is one which has no relationship to the case at trial”) (citation omitted).
The trial court determined that although the evidence was, at best,
“slightly probative,” it was nonetheless properly precluded because it risked
confusing the jury. Trial Ct. Op. at 3. The court pointed out that the victim in
the shooting was not Gross’s attacker in the sexual assault case, the attack
occurred eight to nine years before the shooting, and thus concluded that the
evidence would thus be confusing or misleading to the jury.
“All relevant evidence is admissible, except as otherwise provided by
law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. 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.” Commonwealth
v. Antidormi, 84 A.3d. 736, 749 (Pa.Super. 2014) (quoting Commonwealth
v. Weakley, 972 A.2d 1182, 1188 (Pa.Super.2009)). Even if evidence is
relevant, the court may nonetheless exclude it if its probative value is
outweighed by a danger of “unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Pa.R.E. 403.
The trial court’s preclusion of evidence of the sexual assault was not an
abuse of discretion. While Gross’s prior sexual assault may have been
somewhat probative as a response to some aspects of the Commonwealth’s
case, on balance, it was a collateral issue and would easily have confused the
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issues for the jury. It was not directly relevant to any element of the murder
charges and would not have refuted proof that Gross possessed the mens rea
for those charges. Gross’s uncle was undisputedly not Gross’s attacker in the
sexual assault, nothing here suggests that on the night of the shooting his
uncle attempted to sexually assault him, and we do not see how the prior
sexual assault would otherwise explain away his reaction to his uncle. As for
Gross’s bid to use the evidence to respond to the Commonwealth’s case,
allowing the sexual assault investigation into evidence would have created a
significant danger of distracting the jury into a collateral issue. Admitting the
evidence risked the jury focusing on Detective Moore’s actions in the prior
investigation, rather than the evidence for and against the present charges.
The trial court did not abuse its discretion in granting the Commonwealth’s
motion to preclude this evidence.
Next, Gross challenges the preclusion of the PBT results. According to
Gross, “Evidence of a defendant’s intoxication is relevant in a first[-]degree
murder case because such intoxication speaks to the defendant’s capacity for
possessing the requisite intent to kill.” Gross’s Br. at 14. He does acknowledge
that courts have held PBT results inadmissible at trial in a DUI prosecution.
Id. However, he argues that precluding them in a first-degree murder
prosecution on the ground that they are not reliable is misguided. He asserts
that “the exclusion of the evidence on that basis ignores . . . that Detective
Moore had every opportunity to ask [Gross] to go to the hospital for a blood
draw to obtain a definitive blood alcohol reading and did not do so.” Id. at 16.
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He further contends that Detective Moore “hid” the PBT results by only
recording the results on his cell phone in a screenshot of the readout and not
mentioning the PBT in any police report. Gross states he only received a copy
of the screenshot after the preliminary hearing, and it indicated a blood alcohol
content of .213 percent. Id. at 9. Gross maintains that the evidence was
substantively relevant to support his intoxication defense and the court
therefore should have denied the motion in limine. Id. at 16-17.
For its part, the Commonwealth asserts that the trial court properly
precluded the PBT results. It states that “our Courts have continually
prohibited the admission of PBTs due to the lack of reliability.”
Commonwealth’s Br. at 10.
If an officer has reasonable suspicion to believe a person is driving “or
in actual physical control” of a motor vehicle while under the influence of
alcohol, the Vehicle Code authorizes a police officer before arresting the
person to administer a PBT “on a device approved by the Department of Health
for this purpose.” 75 Pa.C.S.A. § 1547(k). However, “[t]he sole purpose of
this [PBT] is to assist the officer in determining whether or not the person
should be placed under arrest.” Id.
“PBT results are not admissible at trial.” Commonwealth v. Marshall,
824 A.2d 323, 328 (Pa.Super. 2003). In Marshall, we rejected the
Commonwealth’s attempt to introduce PBT results at trial, explaining that the
statute authorizing PBTs, 75 Pa.C.S.A. § 1547, explicitly limits their use to
“assist[ing] the officer in determining whether or not the person [suspected
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of DUI] should be placed under arrest.” Id. (quoting 75 Pa.C.S.A. § 1547(k)).
We further pointed out that the administrative approval of PBT devices is
limited to “field screening only,” because “PBT results are not sufficiently
reliable to establish at trial the requisite elements of a DUI offense.” Id.
The admissibility of PBT results in cases under the Crimes Code, rather
than the Vehicle Code, was at issue in Commonwealth v. Brigidi, 6 A.3d
995, 996 (Pa. 2010). There, the defendant was convicted of the summary
offense of underage drinking. See 18 Pa.C.S.A. § 6308. The Commonwealth
had admitted into evidence at trial the results of PBT, over a defense objection.
The Pennsylvania Supreme Court concluded the trial court had
improperly admitted the PBT results. The Court explained that the
administrative approval under subsection 1547(k) was limited to “field use of
the pre-arrest breath testing unit to assist in determining probable cause.” Id.
at 1000. The Court thus held that the Commonwealth could not “rely on
statutory and administrative approvals of pre-arrest breath testing devices
pursuant to Section 1547 of the Vehicle Code to justify the admission of test
results into evidence in prosecutions under the Crimes Code.” Id. at 1001.
The Court stated that the Commonwealth could in another case under the
Crimes Code obtain admission of such evidence through established judicial
means, i.e., with evidence and argument sufficient to establish admissibility.
Id. However, the Court disallowed the evidence there because the
Commonwealth had failed to avail itself of such established means.
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Guided by Marshall and Brigidi, we conclude that the trial court did
not abuse its discretion in precluding the PBT results from the trial of this case.
Like the Commonwealth in Brigidi, he has not presented evidence and
argument sufficient to establish their admissibility. Gross’s claim that the
results were relevant to his defense does not change that, or override the text
of subsection 1547(k) or the holdings of Brigidi and Marshall. The trial court
properly precluded the PBT results.
In his last issue, Gross contends that the trial court erred in concluding
that the Commonwealth did not open the door to the admission of the
previously precluded PBT evidence. He maintains that the Commonwealth did
so by eliciting Detective Moore’s testimony that he was not “overly concerned”
about Gross’s intoxication. Gross argues that he should have been able to
cross-examine Detective Moore as follows:
“If you were not overly concerned why did you give him the
PBT?” “Did your level of concern change when you saw that
the result of that PBT was a .213 percent blood alcohol[?]”
“If you were not overly concerned about that level why did
you hide it on your cell phone instead of noting it in a police
report?”
Gross’s Br. at 19-20.
“A litigant opens the door to inadmissible evidence by presenting proof
that creates a false impression refuted by the otherwise prohibited evidence.”
Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa.Super. 2013). We review
rulings on the scope of cross-examination for abuse of discretion.
Commonwealth v. Murphy, 182 A.3d 1002, 1006 (Pa.Super. 2018).
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Gross is not entitled to relief on this issue. If, as Gross contends,
Detective Moore harbored some concern about Gross’s drinking, the
detective’s testimony that he was not “overly concerned” was not misleading,
as he also testified that Gross had been drinking to a point that he “wouldn’t
ride in a car with him.” Moreover, the PBT results would not have allayed any
misimpression about the degree of Detective Moore’s “concern.” Such
evidence related strictly to the test results, not to Detective Moore’s “concern.”
Furthermore, even assuming that Detective Moore’s testimony created a false
impression that he was in fact not concerned about Gross’s alcohol use, and
thus “opened the door,” any error in precluding the PBT results at that point
was harmless beyond a reasonable doubt. See Commonwealth v. Koch, 39
A.3d 996, 1003 (Pa.Super. 2011). The jury heard significant testimony that
Gross was under the influence at the time of the crime, in addition to Detective
Moore’s testimony on the subject. The trial court did not abuse its discretion.
Judgment of sentence affirmed.
Judge Dubow joins the opinion.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2020
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