Opinion
J-A11008-15 J-A11009-15 No. 2156 EDA 2013 No. 153 EDA 2014
08-05-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMES FULMORE Appellant COMMONWEALTH OF PENNSYLVANIA Appellee 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 No(s): 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(s): CP-51-CR-0012048-2008
BEFORE: FORD ELLIOTT, P.J.E., OLSON and WECHT, JJ. DISSENTING MEMORANDUM BY OLSON, J.:
Although I believe that the Appellants' subsequent criminal activity met the common plan, scheme or design exception under Pa.R.E. 404(b), I agree that the admission of the evidence regarding the robbery of Keisha Neal ("Neal") was erroneous because its prejudicial effect outweighed its probative value. Ultimately, however, having also determined that the error was harmless in light of other evidence presented at trial, I respectfully disagree with my learned colleagues that a new trial is warranted. Hence, I would affirm Appellants' judgment of sentence.
As the learned Majority states, in order for evidence to be admissible under Pa.R.E. 404(b) to prove a common scheme or plan,
the crimes must be so related that proof of one tends to prove the others. 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.Majority Memorandum, at 12 (citations omitted).
Moreover, I recognize that this Court has previously determined:
With a modicum of effort, in most cases it is possible to note some similarities between the accused's prior bad conduct and that alleged in a current case. To preserve the purpose of Rule 404(b)(1), more must be required to establish an exception to the rule—namely a close factual nexus sufficient to demonstrate the connective relevance of the prior bad acts to the crime in question. [...T]his Court has warned that prior bad acts may not be admitted for the purpose of inviting the jury to conclude that the defendant is a person "of unsavory character" and thus inclined to have committed the crimes with which he/she is charged.Commonwealth v. Ross , 57 A.3d 85, 104-105 (Pa. Super. 2012) (en banc).
In this case, the trial court determined "there are numerous similarities" between the facts of this case which involved the shooting of Josh Hernandez ("Hernandez") and the robbery of Neal twelve days later. Trial Court Opinion, 9/10/2013, at 11. More specifically, in examining the factors above, the trial court found the following similarities dispositive: "the use of a gun to perform a sidewalk robbery on a pedestrian victim seemingly chosen at random, the use of the same vehicle to flee, the fact that the same intersection was the site of both robberies, which were separated by only twelve days." Id.
The Majority finds that 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." Majority Memorandum, at 14. The Majority then tries to distinguish the two incidents by pointing out that there was "no allegation of robbery" in the current matter, as "money was never demanded." Id. at 14. Moreover, in this case, the victim was shot in the stomach; whereas, in the subsequent robbery, the victim was not shot. Id. at 14-15.
When presented with a challenge to an evidentiary ruling of the trial court, our standard of review is limited. A trial court's decision will not be reversed absent a clear abuse of discretion. Commonwealth v. Aikens , 990 A.2d 1181, 1184 (Pa. Super. 2010). "Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Id. at 1184-1185.
In Commonwealth v. Elliott , 700 A.2d 1243 (Pa. 1997), a case relied upon by the Majority, our Supreme Court determined that testimony from three women who were sexually assaulted by Elliott was proper under Rule 404(b) in his trial for first-degree murder. The Court ruled "[t]he three prior assaults at issue were sufficiently similar to the attack in this case to permit their introduction at trial." Elliott , 700 A.2d at 1249. Elliott approached all three women at the exact same location at approximately the same time after midnight. In the first incident, he lured the victim from a bus stop to his house under the guise that it was unsafe and then digitally penetrated her at knifepoint. In the second incident, Elliott persuaded the victim to accompany him to another residence with the promise of procuring narcotics. "Once inside the room, [Elliott] threatened [the second victim] with a knife, forced her to ingest methamphetamine, choked her, partially undressed her, and stated that he intended to sodomize her." Id. at 1250. In the third incident, Elliott grabbed the victim as she was retrieving her purse from the trunk of her car. He then knocked her unconscious and when she awoke, she found her skirt and pantyhose torn. Id. In finding similarities, the Supreme Court concluded:
They were all attacked in the early morning hours after finding themselves alone with [Elliott]. Each of the assaults had sexual overtones. Each of the women were choked or beaten, or both. Given the close similarities between these assaults, we cannot conclude that the trial court abused its discretion in admitting the testimony of [the three prior victims] to show common scheme, plan, or design.Id.
Here, the trial court applied the law properly and its decision was not manifestly unreasonable. Upon review of the record, in the current matter, Appellant Desean Kingwood ("Kingwood") told Hernandez to follow him at gunpoint and then the two men wrestled over the firearm. Appellant James Fulmore ("Fulmore") shot the victim and Kingwood and Fulmore fled. In contrast, Neal was robbed at gunpoint and Appellants then fled. While the Majority highlights the variances between the two incidents, I believe that there was sufficient similarity to meet the criteria for admissibility under Rule 404(b). When examining the factors for determining similarity under Rule 404(b), the similarities between the two crimes are striking. The locations of the crimes (the corner of Frankford and Oxford Streets) and the time of day (around midnight) were identical. A short time elapsed between the crimes that occurred; these events happened within 12 days of each other. The manner of the crimes was similar, as well. Appellants worked in tandem with firearms and used the same car and driver to flee both scenes.
The fact that completed crimes do not align perfectly is not dispositive. Elliott is instructive because the sexual crimes in that case, the methods of luring the victims, and the locations of the actual assaults were not identical to one another. Moreover, I note that while the prior bad acts in Elliott were sexual assaults, Elliott was on trial for murder. Likewise, herein, the fact that one victim was shot while fighting back, does not make the crimes dissimilar under Rule 404(b). The Commonwealth showed a close factual nexus sufficient to demonstrate the connective relevance of the crime in question with the subsequent robbery. Appellants engaged in a criminal scheme at the exact same location, in the exact same manner, and within two weeks. Thus, I must respectfully disagree with the Majority's conclusion that the trial court erred in finding that the evidence of the subsequent robbery of Neal met the common plan, scheme or design under Rule 404(b).
However, "[i]n 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." Aikens , at 1185; see also Pa.R.E. 404(b)(2). "In balancing the need for the evidence against the possible prejudice to the jury, the court is to look to the actual need for evidence of prior bad acts in light of the issues, the other evidence available to the prosecution and the strength or weakness of the prior bad acts evidence in supporting the issue." Commonwealth v. Schwartz , 615 A.2d 350, 356 (Pa. Super. 1992) (citation omitted). Here, when Neal was unavailable as a witness, the trial court allowed the Commonwealth to admit into evidence the recorded 911 call that she made while the robbery was in progress. Because Neal was not available as a witness and, thus, not subject to cross-examination, essentially, the jury was permitted to hear an emotional caller describing a harrowing experience. To me, the highly prejudicial impact of this evidence outweighed its probative value. Hence, its admission was error.
As discussed infra, there was other evidence available to the prosecution, including two eyewitnesses, such that prior bad acts evidence was unnecessary. --------
However, I believe that the admission of the prior bad act evidence was harmless. "The harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, but not necessarily a perfect or error-free trial." Commonwealth v. Parker , 882 A.2d 488, 495 (Pa. Super. 2005)(citation omitted). "An error may be deemed harmless by an appellate court where the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the error is so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict." Id. "In other words, evidentiary rulings by a trial court which, in all likelihood, do not affect the verdict will not provide a basis for disturbing the jury's judgment." Id.
In the case sub judice, the Majority finds the error in admitting the prior bad act evidence was not harmless because "[t]his case rested on the strength of the identification testimony of Hernandez as there was no physical evidence or inculpatory statements in this case." Majority, at 16. I disagree. Initially, the trial court suppressed Hernandez's in-court and out- of-court identifications of Fulmore and Kingwood. However, a panel of this Court reversed the trial court's suppression ruling, finding police did not taint the identification process. See Commonwealth v. Fulmore , 25 A.3d 340 (Pa. Super. 2011). Hernandez identified Kingmore and Fulmore, as his attackers, from separate photo arrays less than three weeks after the incident. N.T., 4/23/2013, at 201. He identified them quickly at the hospital. Id. at 209-210. Additionally, Hernandez identified both Appellants at the preliminary hearing. Id. at 211. He also identified both Appellants at trial. Id. at 163, 172. Moreover, Hernandez came "face-to-face" and "made eye contact" with Kingwood; Kingwood stood over him with a gun drawn approximately eight feet away. Id. at 182-193. Fulmore was 10-15 feet from Hernandez. Id. at 190. In identifying both men, Hernandez testified he was
[one] [h]undred fifty percent sure. I'll never forget their face[s] that two men tried to take my life and just sitting there laughing about it, making jokes about it. I'm not going to forget that.Id. at 201. Later, he reiterated, "I will not forget their faces." Id. at 228. Hernandez also testified that, at the crime scene, he heard Fulmore call Kingwood "Sean." Id. at 161. Hernandez stated that both men arrived and fled in a dark-colored Buick automobile. Id. at 180-186. Hernandez knew it was a Buick, because he had the same type of car. Id. at 285-286. Based upon the foregoing, Hernandez's identification testimony was compelling.
Moreover, the learned Majority overlooks the fact that David Reeves, who was with Hernandez at the time of the crime, corroborated Hernandez's version of events. Additionally, Reeves gave police a detailed description of Fulmore. Id. at 132. Reeves also testified that Fulmore was reaching into the trunk of 1990s, dark-colored Buick. Id. at 111, 121-124.
Detective William Fiala testified at trial, as well. He obtained a search warrant for a burgundy Roadmaster Buick. N.T., 4/25/2013, at 19-20. The vehicle was registered to James Fulmore. Id. at 19. This information corroborated Hernandez's and Reeves' testimony that their assailants approached and fled in a dark-colored Buick.
As such, I believe that there was sufficiently compelling evidence to support Appellants' convictions beyond a reasonable doubt, such that the error in admitting the prior bad acts evidence was harmless. Accordingly, in my view, Appellants are not entitled to a new trial. Hence, I respectfully dissent.