Opinion
J-S10010-16 No. 1299 EDA 2014
02-24-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. CARNELL FRAZIER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011395-2012 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Carnell Frazier, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for carrying firearms on public streets in Philadelphia, possession of a firearm with altered manufacturer's number, possessing instruments of crime, recklessly endangering another person, simple assault, and resisting arrest, and a bench trial conviction of persons not to possess firearms. We affirm.
18 Pa.C.S.A. §§ 6108, 6110.2(a), 907(a), 2705, 2701(a), 5104, and 6105(a)(1), respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises the following issues for our review:
SHOULD THE TRIAL COURT HAVE DECLARED A MISTRIAL AFTER THE PROSECUTOR TWICE MADE WHOLLY IMPROPER REMARKS ABOUT [APPELLANT] DURING HER OPENING STATEMENT?(Appellant's Brief at 4).
DID THE TRIAL COURT ERR BY ALLOWING INADMISSIBLE HEARSAY TESTIMONY TO BE INTRODUCED AT TRIAL WITHOUT OFFERING AN ACCOMPANYING CAUTIONARY INSTRUCTION?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Susan I. Schulman, we conclude Appellant's issues merit no relief. The trial court's opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed January 7, 2015, at 5-7, 12-16) (finding: (1) prosecutor's comments that Appellant "runs his home" and "runs his neighborhood" were entirely fair, given evidence in case; evidence presented at trial supported prosecutor's theory that Appellant repeatedly cursed and yelled at his neighbors to stay out of his business and terrorized his neighbors by pointing and waving gun at them inside and outside Appellant's home; Appellant's actions were so menacing that he caused entire crowd of neighbors to run inside their homes out of fear; prosecutor's comments were fairly based on evidence of record; (2) Appellant concedes that Officer Scott's testimony was admitted to show police course of conduct and what drew officers to 2400 block of Douglas Street, not for truth of matter asserted; Appellant was not prejudiced by Officer Scott's testimony because Officer Scott did not testify that he saw Appellant with gun; Officer Scott testified only that he received dispatch to area of 2400 Douglas Street based on report of black male wearing gray sweatshirt and blue sweatpants waving gun; cautionary instruction was unwarranted where Officer Scott's statements were not offered for truth of matter asserted and did not place gun in Appellant's hands; Sergeant Caputo testified that when he arrived on scene he received tip from two unidentified women who directed him to trash can where he retrieved gun; Sergeant Caputo's testimony showed his course of conduct and what drew him to investigate trash can, and was not offered for truth of matter asserted; jury also heard testimony from witness who saw gun in Appellant's hands, so any prejudice resulting from Sergeant's testimony was outweighed by other properly admitted evidence that supported jury's verdict). The record supports the trial court's decision; therefore, we have no reason to disturb it. Moreover, even if the court erred in not issuing a sua sponte cautionary instruction regarding the officers' testimony, the error was harmless because an eyewitness testified to seeing Appellant brandish his gun. See Commonwealth v. Mitchell , 576 Pa. 258, 280, 839 A.2d 202, 214-15 (2003) (stating: "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"). Accordingly, we affirm on the basis of the trial court's opinion.
Commonwealth v. Bridges , 563 Pa. 1, 33, 757 A.2d 859, 876 (2000), which the court cites on page 6 of its opinion, has been abrogated on other grounds, unrelated to the proposition upon which the court relies.
Judgement of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/24/2016
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