Opinion
J. A11008/15 J. A11009/15 No. 2156 EDA 2013 No. 153 EDA 2014
08-05-2015
COMMONWEALTH OF PENNSYLVANIA v. JAMES FULMORE, Appellant COMMONWEALTH OF PENNSYLVANIA v. DESEAN KINGWOOD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence, June 20, 2013, in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0012049-2008, CP-51-CR-0012050-2008, CP-51-CR-0012051-2008
Appeal from the Judgment of Sentence, December 11, 2013, in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012048-2008
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Following a jury trial, James Fulmore ("Fulmore") was convicted of attempted murder, aggravated assault, carrying a firearm without a license, recklessly endangering another person, attempted escape, and three counts of simple assault. On June 20, 2013, Fulmore was sentenced to an aggregate term of 15 to 30 years' imprisonment. Co-defendant DeSean Kingwood ("Kingwood"), No. 153 EDA 2014, was convicted of attempted murder, aggravated assault, carrying a firearm without a license, and recklessly endangering another person relating to the attack. On December 11, 2013, the court sentenced Kingwood to an aggregate term of 15 to 30 years' imprisonment. These timely appeals followed. For the reasons set forth herein, we conclude that the trial court abused its discretion in allowing the Commonwealth to introduce evidence of subsequent bad acts pursuant to Rule 404(b) of the Pennsylvania Rules of Evidence. Accordingly, we vacate and remand.
The charges of attempted escape and three counts of simple assault related to an incident which occurred on August 1, 2008 while in custody.
The facts, as summarized by the trial court, are as follows:
On the night of June 29, 2008, Tiffany Mendez was spending time with Josh Hernandez, as well as other mutual friends Daniel Alvarez, Khayree Fruster, and someone she knew as Dave (later identified as David Reeves). At some point, Reeves and Hernandez went to the corner of Frankford and Orthodox Streets to visit a corner store. While they were away, Mendez was speaking with Alvarez, and she heard five or more gunshots in a cluster. They ran up the street, where Mendez saw Hernandez lying on the ground. Mendez is a certified clinical medical assistant, and she attempted to render first aid. She applied a t-shirt to Hernandez's wound in order to slow the bleeding.
David Reeves walked with Hernandez to the corner store on the night of the shooting. As they
walked, Reeves was on his cell phone and Hernandez was using his phone to send a text message. As he was talking on the phone, Reeves saw [DeSean Kingwood, ("Kingwood")] walk around him and then attack Hernandez, wrestling with him on the ground. Then Reeves saw James Fulmore [("Fulmore")]across the street, standing behind a dark-colored Buick with the trunk open, and he saw Fulmore pull out a gun. Reeves started running, and as he ran away, he heard gunshots. Within minutes, he returned to the scene and saw Hernandez on the street, bleeding, and saw Officer Swierczynski.
Joshua Hernandez testified that as he was walking to the corner store with Reeves just after midnight on the night of the shooting, he saw Reeves begin running and then was grabbed. He prepared to punch his assailant, [Kingwood], who said, "don't do it" and then showed him a gun he was holding near Hernandez's hip. [Kingwood] told him to follow him, but Hernandez decided to try to take the gun from him. After struggling for the gun and seeing it drop to the ground, Hernandez ran from [Kingwood]. He heard the gun cock, and turned to see Fulmore hunched over the trunk of a car. Fulmore shot him. While Hernandez was lying on the ground, [Kingwood] stood over him. He heard Fulmore call out the name "Sean" and then say, "grab the gun, shoot him!" [Kingwood] then aimed the gun he had picked up at Hernandez's face and pulled the trigger several times, but the gun jammed. [Kingwood] and Fulmore got into their car and drove off.
As a result of the shooting, Hernandez has required approximately ten surgeries including skin graft procedures, and had to wear a colostomy bag for a year and seven months. His abdomen remains massively scarred and he is unable to run and engage in sports and to work and support himself.
Khayree Fruster heard the first gunshots and then ran, with his group of friends, toward the intersection. He saw Fulmore standing next to the
trunk of the car, pointing the gun toward the group as they approached the intersection. Fruster shouted to the group to alert them that [Kingwood] had a gun. Then Fruster saw [Kingwood] standing over Hernandez while Fulmore encouraged him to get in the car, and then [Kingwood] did so and they drove away.
Officer Mark Swierczynski of the Philadelphia Police Department was assigned to a tactical unit in the Frankford section of the City, responding to priority calls and patrolling high-crime areas. On June 29, 2008 at approximately midnight, he responded to a report of a shooting at Frankford and Orthodox Streets, and when he arrived he saw Hernandez lying on his back in the street with a gunshot wound to his stomach. Hernandez was in and out of consciousness, and was being held by a woman. Officer Swierczynski stayed with the shooting victim until an ambulance arrived. David Reeves approached him and gave a description of the culprits, two black males, both approximately six feet and two inches tall, one hundred and sixty pounds, and wearing white tank tops and black hats. Reeves also said that one of them was slightly shorter than the other.
Philadelphia Police Officer Norman DeFields from the Firearms Identification Unit gave expert testimony that the fired cartridge casings recovered at the scene of the shooting matched two distinct weapons. One casing was from a Remington .40 caliber S&W cartridge, and the other was from a PMC nine millimeter Luger cartridge.
Officer David Zarko of the SEPTA Transit Police testified that on the evening of July 11, 2008, just after midnight, he and his partner were driving in the area of Frankford and Orthodox Street[s] in Philadelphia and they encountered Keisha Neal, who motioned at them, toward a Burgundy Buick Roadmaster. They then followed the Buick, but when they turned on their vehicle's lightbar, the Buick took off at a high rate of speed. Zarko lost
sight of the Buick for a few seconds, but then sighted it and resumed pursuit. Although the SEPTA cruiser followed the Buick through several turns, the Buick did not stop until it was boxed in by another police cruiser. At one point, the speed of the chase was such that the SEPTA cruiser was travelling at eighty miles per hour in pursuit of the Buick, over residential streets.
[Kingwood] and his co-defendant, Fulmore, were arrested on the scene. Fulmore had been driving the Buick, and police recovered eighty-one United States dollars from him. The Philadelphia Police Department, who had assisted in the chase, held the Buick for investigation.
During trial, this Court held a hearing as to whether the Commonwealth would be permitted to play a 911 call recording as an excited utterance where the caller was not available as a witness. Officer David Zarko of the SEPTA Transit Police testified that on July 11, 2008, he and his partner were approaching the intersection of Frankford and Orthodox Streets when he saw a woman, later identified as Keisha Neal, screaming for police aid. She told them that she had just been robbed, that the assailant had used a gun, that she called 911, and that the assailant's burgundy Buick was right around the corner. She saw the assailant's car and said "that's the car!" Zarko and his partner pursued the vehicle she identified, which sped up in an apparent attempt to evade capture. This Court ultimately ruled that the 911 tape would be admissible but that Officer Zarko and his partner would not be permitted to testify as to what Neal had said to them.[Footnote 2]
[Footnote 2] The Honorable Earl Trent heard the Commonwealth's Prior Bad Acts motion and [the defendants'] Motion in Limine to preclude such evidence and on January 11, 2013, ruled the evidence as to the Neal incident admissible,
finding that its probative value outweighed its prejudicial impact.
Trial court opinion at 153 EDA 2014, 9/10/13 at 2-6 (citations to the record omitted, footnote 1 omitted).
Philadelphia Police Officer Russ Capaccio and his partner, Officer Scott Brouse, spoke to Keisha Neal at the intersection of Frankford and Orthodox Streets after Officer Zarko had encountered her, and based on that interaction, he broadcast certain "flash" information. Shortly thereafter, he heard via the police radio that some SEPTA officers had stopped a vehicle that matched the description that he had broadcast. He then took Ms. Neal in his patrol vehicle to the site where the Buick was stopped, and [Kingwood] and Fulmore were being held.
Detective William Fiala of the Philadelphia Police Department and his partner, Detective McReynolds, investigated the Buick, which was registered to Fulmore. After obtaining a warrant, Fiala searched the vehicle. He found a receipt for ammunition from a gun shop, a partially-filled-out application in Fulmore's name for a license to carry a firearm, two traffic tickets made out to Fulmore, and an empty envelope with Fulmore's name on it. He also delivered the eighty-one dollars recovered from [Fulmore] to Ms. Neal.
The Court allowed the jury to hear the 911 recording from the Keisha Neal incident, but instructed the jury at the time that [Kingwood] and Fulmore were not on trial for that incident, and that the jury was to consider this information only inasmuch as it is relevant to establish the identity of the individuals involved in the Hernandez shooting.
The parties stipulated that neither defendant had a valid firearms license, and further stipulated as to Mr. Hernandez's hospital admission and significant injuries. The parties also stipulated that the charges filed in Keisha Neal's case were withdrawn by the Commonwealth after Ms. Neal failed to appear in court.
* * *
A motion to suppress was jointly filed on December 15, 2008. Following a hearing, by separate orders, the trial court suppressed both the in-court and the out-of-court photo identifications of the men. The Commonwealth filed an interlocutory appeal, and a panel of this court reversed both orders. Commonwealth v. Fulmore and Kingwood , 25 A.3d 340 (Pa.Super. 2011). Prior to trial, counsel for the Commonwealth filed a motion to admit other acts evidence; specifically, evidence of the crime involving Neal that occurred 11 days after the instant offense in the same neighborhood at the same time of day. In its motion, the Commonwealth sought to introduce the evidence under a common plan, scheme, or design, access to weapons, or identity. Following a hearing, on January 11, 2013, the Honorable Earl W. Trent ruled that evidence of Neal's robbery was admissible at trial under the common plan, scheme, or design rationale.
Both co-defendants were arrested for the robbery of Neal; however, she failed to show up for the preliminary hearing on three consecutive dates, and the Commonwealth was forced to withdraw the prosecution. --------
A jury trial was held, and on April 26, 2013, the co-defendants were convicted of the aforementioned crimes. Following sentencing, Fulmore filed a post-sentence motion, which was denied on July 1, 2013. Thereafter, each appellant filed a timely notice of appeal and complied with the trial court's order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed opinions.
Fulmore has presented the following five issues for our review:
I. Whether the trial court erred in admitting the testimony of Felix Rodriguez to rebut [Fulmore's] otherwise uncontradicted alibi defense when said testimony was irrelevant under Pa.R.E. 401 because a) Rodriguez' employment with U.S. Airways at the Philadelphia International Airport was terminated 4 months prior to the date of the crime; b) Rodriguez therefore was unable to testify as to working conditions at the airport on the night of June 30, 2008; and c) Rodriguez offered no testimony whatever relative to [Fulmore]; said "rebuttal" testimony was only offered to inflame and prejudice the jury against [Fulmore?]Fulmore's brief at 4.
II. Whether the trial court erred in admitting as evidence of a "bad act" under Pa.R.E. 404(b)(2) the tape-recorded "911" call made by Keisha Neal alleging a gun-point robbery committed by [Fulmore] when Ms. Neal refused to testify not only at the preliminary hearing relating to this "act" which resulted in the withdrawal of all charges against [Fulmore], but also at the trial of the instant matter; said evidence being not of any act, but being offered for the sole purpose of inflaming and prejudicing the jury against [Fulmore ?]
III. Whether the trial court erred in admitting as evidence the tape-recorded '911' call made by Keisha Neal as her refusal to appear and testify under oath against [Fulmore] at the trial of the
instant matter violated [Fulmore's] right to cross-examine all witnesses against him as guaranteed by the confrontation clause of the 6th Amendment to the United States Constitution[?]
IV. Whether there was not sufficient evidence as a matter of law to find [Fulmore] guilty beyond a reasonable doubt of the charges lodged against him[?]
V. Whether the trial court abused its discretion in denying [Fulmore] a new trial on the charges lodged against him when said verdicts were against the weight of the evidence[?]
Kingwood has presented the following issues for our review:
1. Did not the lower court err when it granted the Commonwealth's Motion to Introduce 404(b) evidence, where; the subsequent criminal activity did not meet the common plan, scheme or design exception, and where the evidence was more prejudicial than probative?Kingwood's brief at 4-5.
2. Did not the lower court err as a matter of law and violate [Kingwood's] state and federal Constitutional rights under the Confrontation Clause, his right to a fair trial, and his right to due process of law, when it allowed the Commonwealth to introduce the subsequent bad act testimony solely through a 911 call, and [Kingwood] was not allowed to confront or cross-examine any witness as to this subsequent criminal act and where the 911 call did not meet the standards of an excited utterance?
3. Did not the lower court err as a matter of law, abuse its discretion, and deny [Kingwood] a fair trial, when it denied his request for a mistrial, where; he was not provided the 911
tape until mid-trial, and based upon reliance that the complaining witness from the subsequent bad act would testify, [Kingwood] tailored his opening statement to confront that testimony, and had he known, as the Commonwealth did, he would have addressed the matter pre-trial, investigated the 911 tape and presented a substantially different opening statement?
4. Did not the trial court err as a matter of law and abuse its discretion when it allowed Commonwealth Exhibit 41 to be admitted into evidence and presented to the jury; where C-41, a compilation of various pictures of Buick automobiles, was not properly authenticated?
We begin by turning to the claims presented concerning the admission of other bad acts evidence, which is dispositive of this appeal. Finding that the trial court erred in allowing the introduction of evidence of bad acts, we reverse and remand for a new trial. We decline to examine the remaining issues.
The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. Commonwealth v. Aikens , 990 A.2d 1181, 1184 (Pa.Super. 2010), appeal denied , 4 A.3d 157 (Pa. 2010).
Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those past acts or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior bad acts may beCommonwealth v. Sherwood , 982 A.2d 483, 497 (Pa. 2009). This court has determined that the plain language of "Rule 404(b) does not distinguish between prior and subsequent acts." Commonwealth v. Wattley , 880 A.2d 682, 685 (Pa.Super. 2005). See e.g. Commonwealth v. Styles , 431 A.2d 978, 980 (Pa. 1981) (evidence of subsequent criminal conduct admissible to show that killing was not accidental).
admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). In determining whether evidence of other prior bad acts is admissible, the trial court is obliged to balance the probative value of such evidence against its prejudicial impact. Commonwealth v. Powell , 598 Pa. 224, 956 A.2d 406, 419 (2008).
Simply stated, Rule 404(b) operates to prevent the jury from drawing an inference of a defendant's guilt based upon his or her propensity to commit criminal acts. In this regard, the Pennsylvania Supreme Court has explained:
[T]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.Commonwealth v. Spruill , 391 A.2d 1048, 1049-1050 (Pa. 1978) (citations omitted).
There are, of course, narrow exceptions to this rule, which may apply when the other criminal acts are so closely related to the crime charged that they demonstrate a defendant's motive, intent, malice, identity, or a common scheme, plan, or design. Commonwealth v. Stanley , 398 A.2d 631, 633-634 (Pa. 1979). These exceptions, however, "cannot be stretched in ways that effectively eradicate the rule." Commonwealth v. Ross , 57 A.3d 85, 104 (Pa.Super. 2012) ( en banc ).
The subsequent bad acts consisted of evidence of a robbery committed by Fulmore 11 days after the Hernandez shooting; Kingwood was in the vehicle Fulmore drove off in after robbing Neal. The suppression court admitted the evidence under the common scheme or plan exception; however, in the Rule 1925(a) opinion the trial court states the evidence also met the identity exception. We find the evidence was improperly admitted.
In order for Rule 404(b) evidence to be admissible to prove a common scheme or plan, the crimes must be so related that proof of one tends to prove the others. Commonwealth v. Elliott , 700 A.2d 1243, 1249 (Pa. 1997), abrogated on other grounds by Commonwealth v. Freeman , 8276 A.2d 385 (Pa. 2003). Factors to establish similarity include the elapsed time between crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed. Commonwealth v. Cain , 29 A.3d 3, 7 (Pa.Super. 2011) (internal quotation omitted). The existence of a common scheme is relevant to establish any element of a crime, "so long as it does not merely indicate the defendant's propensity to commit similar crimes." Commonwealth v. Bronstein , 691 A.2d 907, 915-916 (Pa. 1997).
For example, in Elliott , the appellant was accused of sexually assaulting and then killing a young woman whom he approached outside of a particular club at 4:30 a.m. Our supreme court affirmed the trial court's decision to permit three other young women to testify that the appellant had similarly preyed upon each of them as they were leaving the exact same club in the early morning hours, and that he had physically and sexually assaulted them. Elliott , 700 A.2d at 1250-1251. The court reasoned that the testimony was admissible to establish a common scheme, plan, or design in light of the "close similarity between [the] assaults." Id.
In its opinion, the trial court also stated that the subsequent robbery of Neal was admissible to prove identity. In Commonwealth v. Shively , 424 A.2d 1257 (Pa. 1981), our supreme court held that evidence of prior crimes may be admissible
to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here, much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.Id. at 1259, citing McCormick on Evidence § 190 (1972 2d ed.). "Required, therefore, 'is such a high correlation in the details of the crimes that proof that a person committed one of them makes it very unlikely that anyone else committed the others.'" Commonwealth v. Weakley , 972 A.2d 1182, 1189 (Pa.Super. 2009), quoting Commonwealth v. Novasak , 606 A.2d 477, 484 n.7 (Pa.Super. 1992), appeal denied , 986 A.2d 150 (Pa. 2009).
We disagree with the trial court that the requirements for common scheme, plan, or design and identity have been satisfied in this case. Any similarity between the attack of Hernandez and the subsequent robbery of Neal falls short of proof of a common scheme, plan, or design to demonstrate identity. The Commonwealth presented evidence of similarity only at a basic level -- that both incidents occurred on the same street corner, at the same time of night, and involved two men in a late-model Buick. Cf. Elliott , 700 A.2d at 1249 (holding that evidence of prior bad acts is admissible to prove "a common scheme, plan or design where the crimes are so related that proof of one tends to prove the others").
We agree with the Commonwealth that there was no allegation of robbery in the incident with Hernandez. Rather, Hernandez, who was accompanied by another person, testified that Kingwood approached him with a gun and told him to walk with him; money was never demanded. After a struggle over the gun, Fulmore shot Hernandez in the stomach and both men fled in a black Buick. In the subsequent incident 11 days later, the allegation was that Fulmore approached a woman standing alone and asked her for change for $20. After engaging conversation, Fulmore allegedly produced a handgun and went into her pocket, taking money before driving off in a burgundy Buick. Kingwood did not participate in the robbery but was seated in the vehicle.
Under the common scheme exception, it is the similarity between the other acts and the facts surrounding the crimes charged -- not the mere fact that the two incidents occurred -- which makes the other act evidence of a common scheme. In sum, any similarities between this case and the Neal robbery fall woefully short of proof of a common scheme, plan, or design. Additionally, the instant facts and the subsequent robbery lacked any commonalities to constitute a "signature" crime.
This does not end our inquiry. Before we may grant appellant relief, we must find that the trial court's error was not harmless. It is well settled that the Commonwealth bears the burden of establishing that the error was harmless beyond a reasonable doubt. Commonwealth v. Brooker , 103 A.3d 325, 332 (Pa.Super. 2014).
This burden is satisfied when the Commonwealth is able to show that: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial [e]ffect of the error so insignificant by comparison that the error could not have contributed to the verdict.Commonwealth v. Green , 76 A.3d 575, 582 (Pa.Super. 2013) (citation omitted), appeal denied , 87 A.3d 318 (Pa. 2014).
Our supreme court has noted that "[e]vidence of prior criminal activity . . . is probably only equaled by a confession in its prejudicial impact upon a jury." Spruill , 391 A.2d at 1050. "The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him, of the presumption of innocence." Commonwealth v. Trowery , 235 A.3d 171, 172 (Pa.Super. 1967). For this reason, Rule 404(b)(1) explicitly prohibits introduction of evidence of prior bad acts for the purpose of showing that the defendant has a generalized propensity to commit crimes.
This case clearly rested on the strength of the identification testimony of Hernandez as there was no physical evidence or inculpatory statements in this case. We find the Commonwealth's Rule 404(b) evidence was nothing more than an invitation to the jury to infer that the co-defendants committed the attempted murder against Hernandez with the intent to rob him because 11 days later Fulmore robbed Neal at gunpoint and Kingwood was in the car he left the scene in. The jury heard Fulmore engaged in a gunpoint robbery at the same intersection at approximately the same time 11 days later. Such would indicate the men had a propensity for crime and violence and would make the jury more likely to believe they were responsible for the Hernandez shooting.
Based on the particularly prejudicial nature of other bad acts evidence, we cannot find that the trial court's admission of Rule 404(b) evidence was harmless beyond a reasonable doubt. Accordingly, we are constrained to find the co-defendants are entitled to a new trial.
Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.
Wecht, J. joins the Memorandum.
Olson, J. files a Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015