Opinion
J-S01013-16 No. 3337 EDA 2014
02-03-2016
COMMONWEALTH OF PENNSYLVANIA, v. GARY WILSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 19, 2013 in the Court of Common Pleas of Philadelphia County, Criminal Division, No: CP-51-CR-0011361-2008 BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Gary Wilson ("Wilson"), pro se, appeals from the judgment of sentence entered after a jury convicted him of persons not to possess firearms. We affirm.
See 18 Pa.C.S.A. § 6105(a)(1) (providing, in relevant part, that "[a] person who has been convicted of an offense enumerated in subsection (b) ... 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."); see also id. § 6105(b).
The trial court set forth the relevant procedural and factual history in its Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, 5/11/15, at 1-3. We incorporate the court's recitation herein by reference. See id.
We additionally note that Wilson's counsel had stipulated that, at the time of the offense, Wilson had a prior conviction for an offense enumerated in 18 Pa.C.S.A. § 6105(b). See N.T., 5/7/13, at 19; see also id. at 101.
On appeal, Wilson presents the following issues for our review:
I. Did the trial judge violate [Wilson's] Fifth and Fourteenth Amendment rights to due process of law when the judge
told the jury, in advocacy for the District Attorney, that [Wilson] had a firearm in his possession[,] and failed to give an on[-]the[-]record colloquy to ascertain whether or not [Wilson] agreed to ... the stipulations and the consequences of introducing drugs and [Wilson's] prior bad acts to the jury?Brief for Appellant at 4 (capitalization omitted).,
II. Did the prosecutor violate [Wilson's] Fifth and Fourteenth Amendment rights to due process of law when the prosecutor expressed h[er] personal belief as to [Wilson's] guilt and introduced drugs to the jury to divert the jury from its duty to decide the case on the evidence, [and] introduced prior bad acts?
In his two issues, Wilson conflates several distinct sub-issues, most of which he preserved in a separate portion of his pro se Pa.R.A.P. 1925(b) Concise Statement. Accordingly, we will address each separately.
We note, with displeasure, that the Commonwealth did not file a brief on appeal, despite having requested, and received, two extensions of time.
Wilson first argues that the trial court committed reversible error by making a comment during its jury instructions that was so prejudicial that it deprived him of a fair trial. See id. at 7. Specifically, Wilson points to the trial court's following remark: "Wilson has been charged with a single offense, and that is a person who is not able to possess, use, manufacture, control, sell, or transfer a firearm, he, nonetheless, had a firearm in his possession." Id. (quoting N.T., 5/7/13, at 168) (emphasis added by Wilson). According to Wilson, the trial court's prejudicial remark "improperly invaded the province of the jury[,]" and entitles him to a new trial. Brief for Appellant at 8 (citing Commonwealth v. Goosby , 301 A.2d 673, 674 (Pa. 1973) (stating that "[a] new trial is required when the remark is prejudicial[,] that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial." (emphasis omitted)).
[W]hen reviewing jury instructions for error, the charge must be read as a whole to determine whether it was fair or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.Commonwealth v. Sepulveda , 55 A.3d 1108, 1141 (Pa. 2012) (citation and internal quotation marks omitted); see also Commonwealth v. Hansley , 24 A.3d 410, 420 (Pa. Super. 2011) (stating that "[a] faulty jury charge will require the grant of a new trial only where the charge permitted a finding of guilt without requiring the Commonwealth to establish the critical elements of the crimes charged beyond a reasonable doubt." (citation omitted)).
In its Opinion, the trial court determined that Wilson's claim lacks merit:
Here, [Wilson] misunderstood the [trial c]ourt and believed that the use of the pronoun "he" was in direct reference to [Wilson,] when[,] in fact[,] the pronoun "he" was in reference to the "person" who, in order to be found guilty and in violation of [18 Pa.C.S.A. § 6105(a)(1)], "... nonetheless, had a firearm in his possession." [N.T., 5/7/13, at 168]. The [trial c]ourt's instructions, when read as a whole, clearly, adequately, and accurately presented to the jury the law concerning [persons not to possess firearms] under 18 Pa.C.S.[A.] § 6105(a)(1). This is all that is required. The mere fact that [Wilson] misunderstood the [c]ourt's language does not render this charge defective. Accordingly, this claim is meritless.Trial Court Opinion, 5/11/15, at 5. We agree with the trial court's rationale, which is supported by the law and the record, and affirm on this basis with regard to Wilson's first issue. See id.
As an addendum, we observe that, in response to the trial court's foregoing rationale, Wilson asserts that he "does not object to the jury charge. [Wilson] objects specifically to the tone and delivery of which the [t]rial [c]ourt specifically stated that '[h]e, nonetheless, had a firearm in his possession[.]'" Brief for Appellant at 9 (quoting N.T., 5/7/13, at 168) (emphasis supplied by Wilson); see also Brief for Appellant at 9 (citing Commonwealth v. Trunk , 167 A. 333, 337 (Pa. 1933) (ruling that a new trial was warranted based upon the Court's determination that "the [trial] judge's attitude throughout the trial was biased and prejudicial to defendants[,] ... [and] [t]he tone and language of the [judge's jury] charge in many parts was that of an advocate for the prosecution, and, therefore, not such a judicial presentation of the case as the defendants were entitled to[.]")).
Here, we are clearly unable to assess the trial court's "tone" and/or "delivery" during the trial based upon the cold record, and, in any event, discern no reversible error concerning the trial court's wording of the jury charge. See Sepulveda , 55 A.3d at 1141 (observing that a trial court has broad discretion in phrasing its jury instructions); see also Trial Court Opinion, 5/11/15, at 5. Moreover, even assuming, arguendo, that the trial court's charge was technically faulty in its use of the pronoun "he," or that the court's "tone" was somehow improper, the charge did not permit "a finding of guilt without requiring the Commonwealth to establish the critical elements of the crime[] charged beyond a reasonable doubt." Hansley , 24 A.3d at 420. Thus, we cannot grant Wilson relief.
Next, Wilson contends that the trial court erred by failing to conduct an on-the-record colloquy to ascertain whether he fully understood the consequences of the stipulations made by his defense counsel at trial. See Brief for Appellant at 10-11.
We observe that Wilson fails to cite the place in the record where the stipulations appear. See Pa.R.A.P. 2119(c) (stating that "[i]f reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears[.]"); see also Commonwealth v. Beshore , 916 A.2d 1128, 1140 (Pa. Super. 2007) (en banc). However, we will overlook this defect.
At trial, the prosecutor set forth the stipulations as follows:
[T]he first is the testimony of Officer Andrejczak, who ... [would testify that] the firearm [that Wilson discarded] was tested by the Firearms Investigation Unit. The officer prepared a report. The firearm was found to be operable, and [Officer Andrejczak] determined it to be a firearm for purposes of [18 Pa.C.S.A. §] 6105. ...N.T., 5/7/13, at 100-01.
The second stipulation is that the narcotics that were recovered ... by Police Officer [Kim] Watts from Karim Buckner ["Buckner"] from the floor ... were submitted to a chemistry lab. They were tested by a technician, and they were found to be marijuana.
[T]he final stipulation is ... that [Wilson] is prohibited by law to possess a firearm, and that he was convicted of a felony [enumerated] under [18 Pa.C.S.A. § 6105(b)] ....
According to Wilson, "[t]he stipulations were done unknown to [him,] and guilt could be inferred from the stipulations in and of themselves." Brief for Appellant at 11. Wilson maintains that "[t]he stipulations [] basically place[] [Wilson] at the scene[,]" and "the stipulations concerning a firearm and drugs are tantamount to a guilty plea." Id. Wilson contends that, pursuant to our Supreme Court's decision in Commonwealth v. Davis , 322 A.2d 103 (Pa. 1974), the trial court should have colloquied him concerning whether he understood the consequences of the stipulations. Brief for Appellant at 10.
In Davis
our Supreme Court recognized that testimony entered by counsel's stipulation may be so damaging that admission of the stipulation at trial must be surrounded by safeguards similar to those attending the entry of a guilty plea. There, it was stipulated that the complaining witness, if present at trial, would have testified that the defendant was one of two men who had robbed him at gunpoint. The Court concluded that counsel's stipulation to this testimony placing his client at the scene of the crime and naming him as a participant therein was the equivalent to an admission of guilt by the defendant, despite his plea of not guilty. By stipulating to the testimony that would have been offered by the complaining witness, appellant gave up the opportunity to cross-examine that witness and to attempt to discredit his incriminating testimony. Under the circumstances of the case[,] the stipulation made a not guilty verdict highly unlikely. Therefore, an on-record colloquy, demonstrating defendant's understanding of the consequences of the stipulations, and his consent thereto, was deemed necessary.Commonwealth v. Bridell , 384 A.2d 942, 944 (Pa. Super. 1978) (en banc) (emphasis omitted). Under Davis , the test to be applied, essentially, is whether the stipulation in question makes the "outcome [of the trial] a foregone conclusion." Davis , 322 A.2d at 105.
We determine that Davis is unavailing to Wilson. We disagree with Wilson's interpretation of Davis , as such an interpretation would "compel the trial court to conduct a colloquy each time counsel for the defendant chooses as a matter of trial strategy to concede a fact which is pertinent to proof of the offense charged." Commonwealth v. Overton , 352 A.2d 105, 106 (Pa. Super. 1975) (en banc). Davis , however, does not have such wide-ranging application. Id. Rather, the Davis decision relates only to a particular situation in which the stipulation involved is so damaging that it constitutes an admission of guilt. Such is not the case here. First, the stipulation concerning Officer Andrejczak merely established that the firearm recovered was operable. This fact, alone, in no way inculpated Wilson. Second, the stipulation concerning the marijuana (which police attributed to Buckner) was merely the evidence found at the bar, and it did not make the verdict of guilt a foregone conclusion. Indeed, Wilson was not charged in connection with the marijuana, and it had no bearing upon whether he unlawfully possessed a firearm. Finally, the trial court correctly determined in its Opinion that "the stipulation concerning [Wilson's] prior conviction[,] for the purpose of [18 Pa.C.S.A.] § 6105, did not implicate [Wilson] in the commission of the instant crime; it merely established that an element of the charge had in fact been satisfied. Since [Wilson's] guilt could not be inferred from the stipulation as entered, an on-the-record colloquy was not required." Trial Court Opinion, 5/11/15, at 6. Accordingly, this claim does not entitle Wilson to relief.
Wilson next argues that he was deprived of a fair trial and due process when the prosecutor, during her opening statement, improperly expressed her personal opinion as to Wilson's guilt. Brief for Appellant at 12. Wilson points to the prosecutor's following statement: "I'm sure you too will know why [Wilson] ran into the vestibule of that bar and why he tossed that gun. It was because he was guilty. And I ask you to return that verdict to him at the end of this trial." N.T., 5/7/13, at 25; see also Brief for Appellant at 12.
In its Opinion, the trial court set forth the applicable law and standard of review concerning claims of prosecutorial misconduct, and determined that Wilson's claim lacks merit. See Trial Court Opinion, 5/11/15, at 6-8. We affirm with regard to this issue based on the trial court's rationale. See id.
Next, Wilson avers that the trial court abused its discretion when it permitted the prosecution to introduce into evidence the marijuana that the police had recovered from the sidewalk. Brief for Appellant at 13. Wilson points out that the police charged Buckner, not him, with possession of the marijuana in question. Id. at 14; see also id. at 15 (pointing out that the sole charge for which Wilson was on trial was persons not to possess firearms).
As noted above, Wilson's counsel stipulated to the fact that Buckner had discarded marijuana at the scene. N.T., 5/7/13, at 100.
In its Opinion, the trial court found that Wilson had waived this claim, as he had failed to raise any objection at trial to the Commonwealth's introduction of the marijuana, or to any reference to Wilson's possible involvement in drug activity with Buckner. See Trial Court Opinion, 5/11/15, at 9; see also Commonwealth v. Montalvo , 956 A.2d 926, 936 (Pa. 2008) (stating that in order to preserve a claim on appeal, a party must lodge a timely objection at trial); see also Pa.R.A.P. 302(a) (stating that an issue cannot be raised for the first time on appeal). As the trial court's analysis is supported by the law and the record, we affirm on this basis concerning Wilson's claim. See Trial Court Opinion, 5/11/15, at 9.
As an addendum, we observe that even if Wilson had objected to the introduction of this evidence, it was relevant and admissible to provide a complete history of the case to the fact-finder (e.g., to explain why Wilson evaded the police after they apprehended Buckner). See Commonwealth v. Dillon , 863 A.2d 597, 601 (Pa. Super. 2004) (en banc) (stating that Pennsylvania courts "have long recognized the special significance of evidence which provides [the fact-finder] with the res gestae, or complete history, of a crime. ... The trial court is not required to sanitize the trial to eliminate all unpleasant facts from consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged.") (citations and some ellipses omitted); see also Commonwealth v. Lark , 543 A.2d 491, 497 (Pa. 1988) (stating that evidence of other criminal acts may be relevant and admissible to show "part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts.").
Finally, Wilson contends that that he is entitled to a new trial because the prosecutor improperly stated, during her opening statement, that Wilson had a prior felony conviction. Brief for Appellant at 16-17. Specifically, Wilson points out that the prosecutor made the following statement to the jury: "[Wilson] was a person prohibited by law to [possess a firearm], because prior to August 16, 2008, he had been convicted of a felony." N.T., 5/7/13, at 19; see also Brief for Appellant at 16. Wilson asserts that this remark was prejudicial and unnecessary (given his stipulation to his prior convictions for purposes of 18 Pa.C.S.A. § 6105(b)), stating as follows: "[Wilson's] charge under [18 Pa.C.S.A. § 6105(a)(1)] was based upon [his] being a person who has been convicted of an offense enumerated in subsection [6105](b)[;] therefore it would not [have been] prejudicial to the Commonwealth ... [for it to] merely tell[] the jury that [Wilson] had a previous conviction [enumerated in] subsection (b) of the statute." Brief for Appellant at 16. Wilson points out that, in the trial court's Opinion, it determined that Wilson's claim lacks merit based upon the Pennsylvania Supreme Court's Opinion in Commonwealth v. Stanley , 446 A.2d 583, 588 (Pa. 1982) (holding that the Commonwealth may use any proper evidence to prove its case, and it does not have to accept a defendant's stipulations). See Brief for Appellant at 16 (citing Trial Court Opinion, 5/11/15, at 8). According to Wilson, the Stanley decision is in conflict with the United States Supreme Court's decision in Old Chief v. U.S., 519 U.S. 172 (1997), wherein the Court held that a defendant charged under the federal statute prohibiting convicted felons from possessing a firearm (18 U.S.C.A. § 922(g)(1)) has the right to withhold from the jury the specific nature of the predicate conviction, provided that the defendant adheres to a stipulation stating the fact of a qualifying conviction itself without elaboration. See Brief for Appellant at 16-17.
Wilson's counsel objected to the prosecutor's remark about Wilson's prior conviction, and moved for a mistrial. N.T., 5/7/13, at 19. During a sidebar, the trial court denied the mistrial Motion. Id. at 19-20.
Initially, we observe that Wilson did not raise this claim, nor his reliance upon Old Chief , in his court-ordered Pa.R.A.P. 1925(b) Concise Statement. Accordingly, it is waived. See Pa.R.A.P. 1925(b)(4)(vii) (providing that "[i]ssues not included in the Statement ... are waived."); see also Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that "[a]ny issues not raised in a 1925(b) statement will be deemed waived."). Nevertheless, even if this claim was not waived, we would determine that it does not entitle Wilson to relief.
Our Pennsylvania Supreme Court, in Commonwealth v. Jemison , 98 A.3d 1254 (Pa. 2013), addressed the exact issue posed by Wilson herein, and the matter of whether Pennsylvania should follow the holding of Old Chief and overturn Stanley. The Jemison Court declined to overturn Stanley , distinguishing Old Chief based on certain "highly relevant" differences between the state and federal firearms statutes, and holding that
under 18 Pa.C.S.[A.] § 6105, one element of persons not to possess firearms is a prior conviction of a specific, enumerated offense, and this fact strongly supports the [] view, as well as our precedent in Stanley , that the prosecution should not be required to accept a stipulation which acknowledges that a prior conviction satisfies the element, but does not name or identify the specific prior offense.Jemison , 98 A.3d at 1260, 1261. Accordingly, Wilson's reliance upon Old Chief is unavailing.
Additionally, the Jemison Court held that any possibility of unfair prejudice to the defendant was mitigated by the use of proper cautionary instructions to the jury, directing them to consider the defendant's prior conviction as evidence to establish the prior conviction element of the charge under section 6105(a), not as evidence of the defendant's bad character or propensity to commit crime. Jemison , 98 A.3d at 1262. While, in the instant case, the trial court did not issue such a cautionary instruction, Wilson testified, on direct examination, that he had prior convictions for robbery and burglary. See N.T., 5/7/13, at 117.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/3/2016
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