Opinion
J-S63043-15 No. 2690 EDA 2014
11-20-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. FERNANDO REAL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered on May 1, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0008511-2008; CP-51-CR-0008526-2008 BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Fernando Real ("Real"), pro se, appeals from the judgment of sentence imposed after a jury convicted him of two counts each of first-degree murder and robbery, and one count each of criminal conspiracy and firearms not to be carried without a license. We affirm.
After a hearing pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998), the trial court permitted Real to proceed pro se on appeal.
The relevant factual background underlying this appeal is thoroughly set forth in the trial court's Pa.R.A.P. 1925(a) Opinion, which we adopt and incorporate herein by reference. See Trial Court Opinion, 12/9/14, at 2-6.
At the close of Real's trial, the jury found him guilty of the above-mentioned offenses. The trial court subsequently imposed two consecutive terms of life in prison on the first-degree murder convictions, plus an aggregate consecutive sentence of 21 to 67 years in prison. Real filed a post-sentence Motion, which the trial court denied. Real then filed a timely pro se Notice of Appeal, followed by a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
On appeal, Real presents the following issues for our review:
A. Whether the trial court committed error[,] and thereby deprived [Real] of his due process right to a fair trial under the Pennsylvania and United States Constitutions[,] by admitting evidence that [Real] was seen shooting the murder weapon on an occasion separate from the crime[s] charged?Brief for Appellant at 2.
B. Whether the trial court committed error and thereby violated [Real's] right to a fair trial under the Pennsylvania and United States Constitutions, when the trial court denied [Real's] request for a mistrial after the [C]ommonwealth elicited evidence that it stipulated it would not introduce - [i.e.,] that [Real] shot someone on an occasion separate from the crime[s] charged?
C. Whether the trial court committed error and thereby violated [Real's] right to confrontation under the Pennsylvania and United States Constitutions by permitting the [C]ommonwealth to introduce the preliminary hearing testimony of [C]ommonwealth witness Ronald Milburn?
Real first argues that the trial court erred, and deprived him of a fair trial, by improperly permitting the Commonwealth to introduce testimony, over defense counsel's objection, that, two nights after the murders involved in this case, Real had fired a handgun, which was later determined to match the murder weapon used in this case. See id. at 8.
This incident occurred on September 11, 2002, and is hereinafter referred to as "the September 11 incident."
The trial court overruled the defense's objection to the admissibility of this evidence, stating that "the only issue that's relevant - and I'll make it very clear to the jury - is the issue of identification, and the only reason this [evidence] comes in is to show whether or not there was a connection between ballistics evidence seized from the [September 11] incident ... and ballistics evidence seized from the [murders in this case on September] 9th[.]" N.T., 10/12/12, at 27; see also id. at 31 (wherein the court stated that "to connect it[, i.e., the gun used during both the September 11 incident and the murders two days prior,] with [Real], you have to have the eyewitnesses [who saw Real shooting the gun at the September 11 incident], ... [who] can only say they saw where he was shooting it; and when they went there, there were casings ... for the gun.").
Our standard of review concerning a challenge to the admissibility of evidence is as follows:
The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.Commonwealth v. Johnson , 42 A.3d 1017, 1027 (Pa. 2012) (citations and quotation marks omitted).
In support of his claim, Real relies on Commonwealth v. LeGares , 709 A.2d 922 (Pa. Super. 1998). In LeGares , we held that the trial court had erroneously admitted testimony (hereinafter "the challenged testimony") that the appellant had, prior to the murder for which he was charged, fired a sawed-off shotgun that was similar in appearance to the one used in the murder. Id. at 926. In so holding, we stated as follows:
The Commonwealth argues that the [challenged testimony] was probative of the fact that appellant possessed and controlled the sawed-off shotgun. However, we disagree. First, [the challenged] testimony was not necessary to prove that appellant had access to the alleged murder weapon since the weapon was seized from appellant's apartment. More importantly, the Commonwealth's proof of appellant's prior use of the shotgun could only have established that appellant was criminally violent, that he was inclined to use the shotgun, and, inferentially, that appellant murdered [the victim].Id.
According to Real, evidence that he had fired the murder weapon after the murders involved in this case could "only have established that [he] was criminally violent [and] inclined to use the [gun.]" Brief for Appellant at 8 (quoting LeGares , 709 A.2d at 926). According to Real, the trial court's "[a]dmitting this evidence prevent[ed] the jury from objectively considering [Real's] guilt or innocence for [the] crime charged, thus, requiring a new trial." Brief for Appellant at 8.
In its Pa.R.A.P. 1925(a) Opinion, the trial court concisely addressed Real's claim, discussed the applicable law, and determined that the court properly admitted the evidence that Real had fired the murder weapon during the September 11 incident. See Trial Court Opinion, 12/9/14, at 11-12; see also N.T., 10/12/12, at 27-31. We agree with the trial court's analysis and determination, and therefore affirm on this basis with regard to Real's first issue. See Trial Court Opinion, 12/9/14, at 11-12.
As an addendum, we conclude that Real's reliance upon LeGares is misplaced, as that case is distinguishable. The challenged testimony in LeGares was less probative than the evidence in the instant case. In LeGares , the shotgun was recovered in the defendant's apartment, which rendered the prior bad act testimony unnecessary to explain the shotgun's recovery or to create a nexus between the shotgun and the defendant. See LeGares , supra. Such circumstances are readily distinguishable from the instant case, wherein (1) evidence of Real's shooting the firearm after the murders in this case was necessary to show his access to the murder weapon; (2) the firearm's recovery by police was necessary to the unfolding of events; and (3) the potential for undue prejudice was minimal.
Next, Real contends that the trial court committed reversible error by denying Real's Motion for a mistrial. See Brief for Appellant at 10-11. Specifically, Real argues that the court should have granted a mistrial after a Commonwealth witness, Officer Christine Hilbert ("Hilbert"), improperly testified that a person had been shot during the September 11 incident, despite the Commonwealth's prior agreement that such evidence would not be introduced. See id.
The Commonwealth had stipulated, prior to Hilbert's testimony, that it would not introduce evidence that a person had been shot and killed during the September 11 incident. See N.T., 2/19/14, at 137-40, 182-87, 285, 287. However, the stipulation did not preclude the Commonwealth from introducing evidence that the ballistics evidence from the September 11 incident matched the firearm that had been used in the murders two days earlier. Id. at 137, 184.
"A mistrial is an 'extreme remedy' that is only required where the challenged event deprived the accused of a fair and impartial trial. The denial of a mistrial motion is reviewed for an abuse of discretion." Commonwealth v. Laird , 988 A.2d 618, 638 (Pa. 2010) (citations omitted). "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." Commonwealth v. Chamberlain , 30 A.3d 381, 422 (Pa. 2011) (citation and quotation marks omitted).
[o]rdinarily, admission of testimony which describes, or from which the jury may infer, past criminal conduct by a defendant constitutes reversible error. However, not all such references warrant reversal. An isolated[,] passing reference to prior criminal activity will not warrant reversal unless the record indicates that prejudice resulted from the remark. There is no per se rule which requires a new trial for every passing reference to prior criminal conduct. Additionally, the possible prejudicial effect of a reference to prior criminal conduct may, under certain circumstances, be removed by a cautionary instruction.Commonwealth v. Fletcher , 41 A.3d 892, 895 (Pa. Super. 2012) (emphasis in original, citation and ellipses omitted); see also Chamberlain , 30 A.3d at 422 (stating that a mistrial is not necessary where curative instructions are adequate to overcome prejudice; Commonwealth v. Manley , 985 A.2d 256, 266 (Pa. Super. 2009) (stating that "[a] trial court may remove taint caused by improper testimony through curative instructions."). Moreover, it is well settled that "[a] jury is presumed to follow a trial court's instructions[.]" Commonwealth v. Reid , 99 A.3d 470, 501 (Pa. 2014).
Courts must consider all surrounding circumstances before finding that curative instructions were insufficient and the extreme remedy of a mistrial is required. The circumstances which the court must consider include whether the improper remark was intentionally elicited by the Commonwealth, whether the answer was responsive to the question posed, whether the Commonwealth exploited the reference, and whether the curative instruction was appropriate.Manley , 985 A.2d at 266-67 (internal citations omitted).
Though the Fletcher Court's holding concerns references to prior criminal activity, this same analysis applies here, where the improper remark concerned criminal conduct that occurred two days after the murders for which Real was on trial.
Real points out that Hilbert, who had responded to the scene of the September 11 incident and observed a man running from the scene, testified that "[w]hen I arrived[,] ... [t]here was a male lying on the ground bleeding." N.T., 2/19/14, at 181; see also Brief for Appellant at 10. According to Real, Hilbert's improper statement "undoubtedly aroused prejudice in the minds of the jurors by implying that [Real] had the propensity to [shoot people]." Brief for Appellant at 11 (quoting Commonwealth v. Ford , 607 A.2d 764, 766 (Pa. Super. 1992) (where a Commonwealth witness improperly testified, at the appellant's jury trial on arson charges, that the appellant had been previously charged with arson, holding that the trial court should have granted a mistrial because the prejudicial statement "unnecessarily conveyed to the jury that appellant had a prior criminal record[,]" and the trial court did not issue a cautionary instruction)).
Hilbert's challenged testimony, when placed in context, is as follows:
Q. [The Commonwealth]: And what did you do once you lost that person, the person you were chasing[, i.e., concerning the shots fired at the September 11 incident], what did you do then?N.T., 2/19/14, at 180-81 (emphasis added). Real's counsel requested a sidebar, and moved for a mistrial, after the jury had been excused. Id. at 181-82. The trial court then heard extensive argument from both counsel concerning the mistrial Motion. Id. at 181-98.
A. [Hilbert]: I started to search for the male and as I was searching for the male[,] I heard a lot of screaming coming about maybe like a quarter of a city block down from me. I actually ran to that area to help control. This is where the shooting actually was.
Q. [The Commonwealth]: Now --
[Defense counsel]: Objection.
THE COURT: As to that's where the shooting actually was?
[Defense counsel]: Yes.
THE COURT: All right. I will strike that reference since she didn't - unless you can establish she had personal knowledge where the shooting actually was.
Q. [The Commonwealth]: When you got to that location[,] did you observe ballistics evidence at the location you went to?
A. [Hilbert]: When I arrived at where the screaming was, there was a large crowd. There was a male lying on the floor bleeding.
[Defense counsel]: Objection.
The trial court denied the mistrial Motion, finding that the prosecutor did not intentionally elicit Hilbert's testimony that she saw a man on the ground bleeding. See N.T., 2/19/14, at 195, 198-99; see also Manley , 985 A.2d at 267. Rather, the court found that the prosecutor had sought to question Hilbert as to whether she saw ballistics evidence at the scene, which was a proper line of inquiry. See N.T., 2/19/14, at 194-95. The trial court additionally stated that the prosecutor would not be exploiting Hilbert's improper comment to argue that a person had been shot and killed during the September 11 incident. See id. at 195-96; see also Manley , 985 A.2d at 267. Upon the jury's return to the courtroom, the trial court gave the following curative instruction:
THE COURT: All right. Ladies and gentlemen, I am going to sustain that last objection and I'm going to instruct you folks to disregard the last answer that was given by the witness, okay. What I mean by that is you are not to consider it in any way when you are making your decision in this case. It's as if you had never heard it, put it out of your heads.N.T., 2/19/14, at 199.
Though Hilbert's improper remark, arguably, could have prejudiced Real, the remark was passing, and we determine that the trial court's curative instruction was appropriate and adequate to overcome any undue prejudice to Real. See Fletcher , supra (stating that the possible prejudicial effect of a reference to prior criminal conduct may, under certain circumstances, be removed by a cautionary instruction); see also Chamberlain , supra. Furthermore, any potential prejudice from Hilbert's remark did not rise to the level of preventing the jury from weighing and rendering a true verdict. See Chamberlain , supra. This case involved a lengthy jury trial, with myriad Commonwealth witnesses, including testimony that Real had admitted to shooting the two victims, as well as evidence linking Real to the murder weapon. Overall, the evidence presented at trial overwhelmingly established Real's guilt, and significantly outweighed any prejudice resulting from Hilbert's isolated remark. See Fletcher , 41 A.3d at 896 (holding that even if the passing remark concerning the defendant's prior criminal activity was prejudicial, any prejudice did not warrant the grant of a mistrial, since (1) there was uncontradicted eyewitness testimony detailing the defendant's involvement in the crime; (2) "the evidence presented at trial overwhelmingly established [the defendant's] guilt and significantly outweighed any prejudice resulting from the reference to [the defendant's] prior criminal activity"; and (3) the trial court issued a curative instruction after the improper reference).
Moreover, the record supports the trial court's findings that the prosecutor did not intentionally elicit Hilbert's improper remark, and that the Commonwealth did not, and would not, exploit the remark. See Manley , supra. Finally, we determine that Real's reliance upon Ford is misplaced, as the trial court in Ford , unlike here, did not give the jury a curative instruction after the improper testimony. See Ford , 607 A.2d at 767. We therefore discern no abuse of discretion by the trial court in denying Real's Motion for a mistrial.
Finally, Real argues that the trial court violated his constitutional right to confront his accusers when it admitted into evidence, over the defense's objection, the preliminary hearing testimony of Commonwealth witness Ronald Milburn ("Milburn"), whom the trial court deemed to be unavailable at trial. See Brief for Appellant at 12-13. According to Real, he never had a chance to adequately cross-examine Milburn as to (1) "Milburn's statement to police where he misidentifies the murder weapon"; and (2) the fact that "Milburn's own mother says Milburn lied during his preliminary hearing testimony." Id. at 12.
Milburn testified at the preliminary hearing that he was present at the craps game on September 11, 2002, and he saw Real fire a nine-millimeter handgun multiple times, and run from the scene. N.T., 2/24/14, at 129-31.
In its Opinion, the trial court thoroughly addressed Real's claim, discussed the applicable law, and determined that the court did not err in admitting Milburn's preliminary hearing testimony, since it was admissible under an exception to the rule against hearsay, and Real's defense counsel had a full and fair opportunity to cross-examine Milburn at the preliminary hearing. See Trial Court Opinion, 12/9/14, at 8-11. We agree with the trial court's analysis and determination, and affirm on this basis with regard to Real's final issue. See id.
As an addendum, we observe that Real proffers no evidence in support of his assertion that Milburn's mother stated that Milburn had lied during his preliminary hearing testimony. Moreover, Real failed to preserve this claim in the trial court, prior to the filing of his Pa.R.A.P. 1925(b) Concise Statement, and it is therefore waived on appeal. See Pa.R.A.P. 302(a) (stating that an issue cannot be raised for the first time on appeal); see also Commonwealth v. Melendez-Rodriguez , 856 A.2d 1278, 1288 (Pa. Super. 2004) (holding that "[a] party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order.") (citation omitted). Real did not object to the trial court's ruling admitting Milburn's preliminary hearing testimony on the basis that Milburn's mother allegedly would have refuted such testimony, nor did Real seek to present Milburn's mother as a witness at trial.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/20/2015
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