Opinion
702 WDA 2023 J-S24012-24
08-26-2024
COMMONWEALTH OF PENNSYLVANIA v. JEMERE PEARSON Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered May 18, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002048-2021
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
BOWES, J.
Jemere Pearson appeals from the judgment of sentence imposed upon his convictions for carrying a firearm without a license and driving with a suspended license. We affirm.
The trial court summarized the facts and history of this case as follows:
On March 5, 2021, City of Pittsburgh Police responded to a dispatch call regarding a shooting from a Shotspotter activation near Webster Ave[nue] in the Hill District area of Pittsburgh. Upon arrival officers recovered multiple 9 mm shell casings and observed bullet holes in three vehicles in the area near Jay's Lounge. Pole camera video showed a young black male, later identified as Appellant, wearing a multicolored coat, blue jeans and white shoes running from the area and firing a gun. Appellant got into a distinctive lime green Audi and drove away. A second person, a black male wearing jeans, a gray hoodie, a red hat, and an orange vest was also observed running from the area. Police were able to utilize license plate readers in the area to identify and track the lime green Audi, which was registered to Appellant, after
it fled the area of Jay's Lounge. Further investigation showed Appellant did not have a license to carry a firearm. A warrant was issued for Appellant's arrest, and he was later apprehended and taken into custody on March 24, 2021, during a traffic stop. A search warrant was issued for Appellant's vehicle in which officers found a black HK VP 9 mm firearm under the driver's seat. The firearm was found to be operable and sixteen of the twenty-one spent sh[e]ll casing[s] recovered from the scene near Jay's Lounge were determined to have been fired from this firearm.
. . . .
Appellant [thereafter] was charged by criminal information with one count each of: carrying a firearm without a license; person not to possess; and driving with a suspended license.
Appellant proceeded to a jury trial on February 21, 2023, with the person not to possess charge being severed. [At the outset of the proceeding, the court denied motions in limine filed by Appellant seeking to preclude the Commonwealth from offering (1) evidence of the fact that he had been involved in the shooting outside Jay's Lounge, and (2) testimony about the contents of unpreserved video footage showing the license plate of the vehicle that fled the shooting.] At the conclusion of the jury trial, the jury found Appellant guilty of carrying a firearm without a license and driving with a suspended license. The person not to possess charge was then nolle prossed.
Trial counsel subsequently withdrew and new counsel was appointed on April 10, 2023.
On May 18, 2023, Appellant was sentenced by the trial court as follows:
Count one: carrying a firearm without a license - a period of two and a half to five years' incarceration and one year of state probation; and
Count three: driving with a suspended license - a period of sixty days [of] incarceration to run concurrent to the period of incarceration imposed at count one.
No post-sentence motions were filed. This timely appeal follow[ed]. Trial Court Opinion, 10/18/23, at 4-5, 1-2 (cleaned up).
The trial court ordered Appellant to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Appellant timely complied, and the court authored a Rule 1925(a) opinion. Appellant presents two questions for our review:
1. Whether the trial court abused its discretion and/or erred as a matter of law by denying Appellant's motion in limine to exclude testimony regarding the shooting when the evidence violates the Pennsylvania Rules of Evidence?
2. Whether the trial court abused its discretion and/or erred as a matter of law by denying Appellant's motion in limine to exclude testimony regarding video of the license plate and registration when that video was never turned over to [the] defense?Appellant's brief at 5 (unnecessary capitalization omitted).
Both of Appellant's issues concern evidentiary rulings. Accordingly, we apply the following standard of review:
The admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. An abuse of discretion is not merely an error in judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.Commonwealth v. Ganjeh, 300 A.3d 1082, 1091 (Pa.Super. 2023) (cleaned up).
Appellant first asserts that the trial court erred in allowing the Commonwealth to introduce evidence that Appellant had committed the March 5, 2021 shooting. See Appellant's brief at 13. He argues that this was irrelevant to the case at hand, and instead was improper and unduly prejudicial evidence of other bad acts that should have been excluded pursuant to Pa.R.E. 404(b), or at the least accompanied by a limiting instruction. Id. at 13-14. Noting that the offense for which he was on trial prohibits persons without a license from carrying a firearm in a vehicle or concealed on his person, Appellant maintains that evidence of his open possession and use of a gun outside Jay's Lounge did not prove that crime. Id. at 20 (citing 18 Pa.C.S. § 6106(a)(1) ). Rather, referring to the events of March 24, 2021, he contends that he "was pulled over, and the firearm was recovered under his seat - that is the extent of the evidence that should have been presented at trial." Id. at 15.
That statute provides, with exceptions not relevant here, that "any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree." 18 Pa.C.S. § 6106(a)(1).
The trial court addressed Appellant's claim of error as follows:
Here, the video showed that on March 5, 2021, Appellant was in possession of, and firing a firearm in the area of Jay's Lounge. The spent shell casings recovered from that scene were determined to have been fired from the firearm Appellant was ultimately found to have possessed on the day (March 24, 2021) he was arrested during the traffic stop. As such, the evidence regarding the earlier shooting is clearly relevant, as such evidence is directly linked to proving the constructive possession of the firearm on March 24, 2021. Thus, the probative value of said evidence outweighed any prejudice to . . . Appellant. See Commonwealth v. Holt, 273 A.3d 514, 539 (Pa. 2022) (holding that the trial court did not abuse its discretion in admitting evidence showing the defendant's prior possession of same
firearm that was eventually used in the commission of the crimes charged).Trial Court Opinion, 10/18/23, at 6-7.
We discern no abuse of discretion by the trial court in admitting evidence of Appellant's participation in the March 5, 2021 shooting. Indeed, the criminal complaint in this case, filed on March 16, 2021, was wholly premised upon his carrying the firearm on March 5. Likewise, the May 26 criminal information alleged that Appellant carried a firearm without a license on March 5, and did not add any reference to his additional possession of it on March 24 when he was arrested. Obviously, evidence that Appellant retrieved a firearm from his car on March 5 was relevant to the issue of whether he possessed a concealed firearm without a license on March 5. The evidence surrounding the shooting was not a prior bad act, it was part and parcel of the bad act for which Appellant was on trial.
Furthermore, as discussed above, the jury saw video of the shooting, which depicted Appellant approach Jay's Lounge, return to his lime green Audi to retrieve a firearm, and then fire the weapon before returning to the car. See N.T. Trial, 2/21-22/23, at 50-54. Appellant challenged the identification, arguing that the video was blurry, pointing to the presence of a lime green car that remained at the scene after the shooting, and suggesting that the initial descriptions of the shooter and car were inconsistent with the commonwealth's trial theory. Id. at 43-45, 64. The Commonwealth thereafter attempted to squelch these doubts and bolster the identification of Appellant as the March 5 shooter by establishing that the firearm recovered from his vehicle on March 24 was the one that produced the shell casings recovered from the shooting scene. Id. at 78-80. Plainly, evidence of both events was relevant to establish Appellant's identity as the person in the surveillance video who carried a firearm in his car without a license on March 5, 2021, thus violating § 6106. No relief is due.
To the extent that Appellant claims that the court was required to provide a limiting instruction informing the jury that it may not use his other bad act of firing the weapon as evidence of his propensity to engage in criminal activity, we note that he did not request any such instruction. The authority he cites in support of this argument did not fault the court for failing to give an instruction sua sponte, but ruled that counsel had been ineffective for failing to request one. See Appellant's brief at 23-24 (quoting Commonwealth v. Billa, 555 A.2d 835, 843 (Pa. 1989)). The effectiveness of his trial counsel is not at issue in this appeal. Appellant may pursue that claim in accordance with the Post Conviction Relief Act if he so desires.
Appellant next contends that the trial court abused its discretion in denying his motion in limine to preclude the Commonwealth from offering testimony that video footage from the city's Real Time Crime Center showed the license plate of the lime green car that fled from the crime scene on March 5, 2021, as one registered to Appellant. His argument is premised upon the best evidence rule.
That rule, as codified in Pennsylvania, provides: "An original writing, recording, or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise." Pa.R.E. 1002. We have explained that "Rule 1002 is applicable only in circumstances where the contents of the writing, recording or photograph are integral to proving the central issue in a trial." Commonwealth v. Green, 162 A.3d 509, 518 (Pa.Super. 2017) (en banc) (cleaned up). "Consequently, if the Commonwealth is introducing a writing, recording, or photograph at trial, Rule 1002 requires that the original be introduced only if the Commonwealth must prove the contents of the writing, recording or photograph to establish the elements of its case." Id. (cleaned up).
Exceptions to this requirement are included in Rule 1004, which states as follows:
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.Pa.R.E. 1004.
This Court has held that, where a defendant challenges the Commonwealth's introduction of secondary evidence to establish the contents of a lost or destroyed original, it is "the defense's burden to prove bad faith." Commonwealth v. Dorsey, 221 A.3d 312, 2019 WL 4014222, at *4 (Pa.Super. 2019) (non-precedential decision) (citing Commonwealth v. Williams, 154 A.3d 336, 340 (Pa. Super. 2017) (holding, where trial court granted a motion to suppress secondary evidence about the contents of a lost surveillance footage not based upon the best evidence rule, but because the defendant was deprived of potentially exculpatory evidence, that the defense was required to show that the Commonwealth acted in bad faith in failing to preserve the video)). Additionally, we have acknowledged that "a violation of the best evidence rule is subject to the harmless error test and does not automatically rise to the level of reversible error per se in every case where the rule is truly violated." Green, 162 A.3d at 519.
An example of application of the best evidence rule in this context is provided in Commonwealth v. Lewis, 623 A.2d 355 (Pa.Super. 1993). There, a police officer testified that Lewis stole an electronic device from a store in a mall and was arrested after he was apprehended by the store's security guard. The basis for the officer's knowledge was his review of the store's security camera footage, which purportedly showed Lewis hand the device to a companion and serve as lookout while the companion secreted the item in his jacket. On appeal from his conviction for retail theft, Lewis argued that the court should have sustained his objection to the officer's testimony based on the best evidence rule. This Court agreed that the best evidence rule required introduction of the video tape, observing:
The interpretation of exactly what occurred between [Lewis] and his companion in the . . . store was crucial to a determination of whether [Lewis] had intended to remove the radio from the store without paying for it, and whether [Lewis] had in fact known what his companion was doing when [he] exited the store with the radio in his jacket.Id. at 537. Further, the explanation for the unavailability of the video recording, namely that the system for storing the recordings in the basement of the store was "imprecise" and the security guard had been unable to locate it, did not suffice to allow the admission of secondary evidence. Id. at 538. Moreover, this Court held that the erroneous admission of the secondary evidence was not harmless, as the properly admitted evidence did not overwhelmingly establish that Lewis was aware that his companion placed the device in his jacket, the officer's testimony was not cumulative to the admissible evidence, and the testimony did not involve a tangential matter, but rather the central issue of Lewis's intent. Therefore, we ordered a new trial. Id. at 538-39.
Mindful of these legal principles, we turn to the case sub judice. To be clear, the lost recording at issue is not the Jay's Lounge footage that captured Appellant retrieving the firearm from his car, firing it, and returning to his car to flee the scene. That video was preserved and shown to the jury. Rather, the footage that was not preserved was that from the City of Pittsburgh's Real Time Crime Center which Detective Joshua Anderson consulted to determine where Appellant's vehicle went after he drove away.
Relevant to our resolution of this issue, Detective Anderson testified as follows after being asked if and how he was able to identify the person seen in the video of the shooting that was shown to the jury:
A. Yeah. So it was [Appellant]. Through my investigation, I was able to download the license plate from the vehicle.
I am also aware of [Appellant] as he has an address in Zone 2. I am aware of his prior arrests and what he looks like.
A. Are you're [sic] aware of the vehicle that he drives?
Q. Yes. It's a lime green Audi.
Q. So you're aware of the vehicle prior to this date?
A. That is correct.
Q. Thank you. And can you explain how you were able to determine -- other than based on your prior knowledge, how were you able to determine the license plate from this incident on this?
A. So I was able to follow the vehicle through the city cameras.And then there was a camera that was able to show his license plate.
Q. And did you run the registration of that license plate?
A. Yes, it came back to [Appellant].N.T. Trial, 2/21-22/23, at 54-55. Appellant explored the issue on cross-examination as follows:
Q. Okay. You mentioned that you were able to track down [Appellant] because of your familiarity with his priors and things of that nature.
And you were able to look at his license plate through this Real Time Crime Center, correct?
A. That is correct, yes.
Q. And when you looked at that, you didn't get the chance to preserve that in any way? The video pictures of the license plate, correct?
A. No. We weren't able, no.
Q. So in the last -- while this case has been ongoing, that slipped out of your hands and got deleted or something?
A. Yes, they don't -- the video isn't kept for very long on city cameras.
Q. And so after this -- I am sure this initiation of this investigation started, you did not get the opportunity to tell them: Hey. Hold on to this for this very important case. You did not get to do that?
A. No. I wasn't able to preserve it.
Q. Okay, And you mentioned that because of your familiarity with [Appellant], you were immediately able to pick him out of this video, even though the video is a little bit blurry, because of the lime green car?
Because of the Real Time Crime Center [footage] that you were not able to preserve, you were able to put out that warrant for him, correct?
THE COURT: Well, one second. The conclusion that the video is blurry, there's been no testimony to that. The video will speak for itself. Whether the video was blurry or not is up to the [j]ury to decide.
[APPELLANT'S COUNSEL]: Yes, Your Honor.
Q. So due to the video, due to the lime green vehicle, due to the Real Time Crime Center video, which we no longer have,
you were able to find from your personal experience that this was [Appellant], correct?
A. Yes. That is correct.Id. at 63-65.
The trial court succinctly addressed Appellant's claim that the court abused its discretion in allowing Detective Anderson to testify to the contents of the lost video footage by stating: "Here there was no evidence that that destruction of the evidence was owing to an act of bad faith on the part of the Commonwealth. Thus, the testimony regarding this evidence was clearly admissible under Pa.R.E. 1004." Trial Court Opinion, 10/18/23, at 8.
Appellant, having initially argued that the events of March 5, 2021, were irrelevant to prove that he carried a firearm without a license, claims that the video depicting his license plate on that date "was vital to the Commonwealth's case as it went to the identification of Appellant." Appellant's brief at 28. Likening this case to Lewis, he asserts the lost-original exception to the best evidence rule does not apply because the Commonwealth had no satisfactory explanation for the unavailability of the surveillance video, equating lack of due diligence with bad faith. Id. at 29-30.
We find Appellant's claim to be devoid of merit. First, proving that Appellant's license plate was on the car speeding away from the scene of the March 5, 2021 shooting was not an element of the crime that the Commonwealth was endeavoring to prove, namely carrying a firearm without a license. Rather, it was part of the evidence the prosecution utilized in establishing Appellant's identity as the person who had concealed a weapon in his car before utilizing it in the shooting. Thus, Rule 1002 is not clearly implicated in this case. See, e.g., Commonwealth v. Townsend, 747 A.2d 376, 380 (Pa.Super. 2000) (concluding best evidence rule was not implicated when officer testified to the contents of the defendant's written confession because "the contents were not an element of the crime; they were part of the evidence the Commonwealth chose to present to prove appellant did what was alleged in the charging documents").
Assuming for the sake of argument that the best evidence rule does pertain here and the Commonwealth acted in bad faith in failing to preserve the license plate video, we conclude that the error was harmless. An error is harmless where the Court is convinced beyond a reasonable doubt that one of the following is true:
(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 effect of the error so insignificant by comparison that the error could not have contributed to the verdict.Green, 162 A.3d at 519 (cleaned up).
In this vein the Commonwealth argues:
Detective Anderson[ testified] that he was able to identify [A]ppellant upon viewing him on the video footage that was played and admitted at trial. In viewing the surveillance video recovered from the city pole camera, the detective testified that the person depicted in the video wearing a multi-colored jacket
was [A]ppellant. He then described how [A]ppellant could be seen running down the street to his car, opening his door and subsequently firing his gun down the street. Once he finished firing, [A]ppellant ran back to his car and then drove from the scene. When asked to explain how he was able to identify appellant, Detective Anderson testified that he knew him from prior arrests, knew what he looked like, knew he drove a lime green Audi, and knew he lived at an address in Zone 2, which was all separate from the license plate information obtained from the unavailable video. Thus, a source other than the video of the license plate was provided to the jury as a basis for identifying appellant. In addition to hearing the detective's identification based on his familiarity with [A]ppellant, the jury was able to view the surveillance video during the detective's testimony and during its deliberations.Commonwealth's brief at 27.
Given the copious evidence identifying Appellant as the person who possessed the gun on the night in question, which further included the testimony that the gun that had been used in the shooting was recovered from under the seat of his lime green Audi after he was stopped while driving it a few weeks afterwards, we are convinced beyond a reasonable doubt that any error was harmless in this case. Upon this record, the challenged evidence was cumulative of untainted proof of Appellant's identity, and any prejudice to him was de minimis. As such, his second issue merits no relief.
Since neither of Appellant's challenges warrants disturbing his convictions, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.