Com. v. Siple, G. (memorandum)
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J-A13012-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. GEORGE SIPLE, IV, Appellant No. 275 EDA 2013 Appeal from the Judgment of Sentence entered November 30, 2012, in the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP-23-CR-0000846-2012 BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ. MEMORANDUM BY ALLEN, J.: FILED JUNE 19, 2014 imposed after a jury convicted him of attempted murder, aggravated assault, criminal conspiracy, and robbery.1 The trial court summarized the pertinent facts as follows: On May 18, 2011, at 724 Mountain Road in Aston who had been spending time with his friend Kieren Martin together in the house. At some point, they heard a scuffling noise outside. When Kevin and Derrick went outside to investigate, they were attacked, and Derrick was robbed of ____________________________________________ 1 18 Pa.C.S.A. ยงยง 901(a), 2502, 2702, 903, and 3701. *Former Justice specially assigned to the Superior Court. J-A13012-14 money by two individuals. Both Derrick and Kevin suffered stab wounds to their heads and bodies. Trial Court Opinion, 7/31/13, at 1. In conducting their investigation, Aston Township Police Detectives Nardone and Berkeyheiser spoke with Kieren Martin, who told police that shortly before the attack, he received a telephone call from Paul Gill 2, and 9/20/12, at 55Mr. Gill was not home. Id. at 55-60. Mr. Martin waited on the porch for about an hour, and observed an unknown individual run up to and enter Mr. Id. at 60. Shortly thereafter, Mr. Gill returned to the residence, walking with a limp and wearing wet clothing. Id. at 60-64. The detectives also spoke with Jesse Wilson, who informed them that Appellant told him that he had committed a robbery, after which he shed his bloody clothes, and returned to the house on Upland Avenue wearing only boxer shorts. Id. at 109-111. Additionally, on the night of the attack, Kim Mirra, were asleep in a car outside the residence on Upland Avenue when they were woken by Appellant. N.T., 9/19/12, at 213-214; N.T., 9/20/12, at 21, 23. Michael Siple then left with Appellant, and when Michael ____________________________________________ 2 Paul Gill was tried as a co-defendant with Appellant. -2- J-A13012-14 Siple returned, he told Ms. Mirra that Appellant had blood on his clothes, and that he had to help Appellant dispose of his pants. N.T., 9/20/12, at 24. Detective Nardone subsequently prepared a photographic lineup from which Kevin Sweeney identified Paul Gill as one of his assailants. N.T., 9/25/12, at 46-50. Appellant and his co-defendant Paul Gill were arrested and charged with the aforementioned crimes. A jury trial commenced on September 18, 2012, and on September 28, 2012, the jury rendered its verdicts. Following a sentencing hearing on November 30, 2012, the trial court sentenced Appellant to an aggregate term of imprisonment of thirty to sixty years of imprisonment, followed by ten years of probation. Appellant filed a post- sentence motion on December 10, 2012, which the trial court denied on January 11, 2013. Appellant filed a notice of appeal. Both Appellant and the trial court have complied with Pa.R.A.P. 1925. Appellant raises the following issues for our review: 1. Did the trial court err in allowing testimony regarding presenting a witness capable and competent to testify regarding the significance and meaning of those records? 2. Viewed cumulatively, upon considering many of the trial trial, did the trial court err such that [Appellant] was deprived of his right, both under the state and federal Constitutions, to a fair trial consistent with due process? 3. Did the trial court err in allowing the prosecutor to argue that an adverse inference should be drawn against [Appellant] -3- J-A13012-14 occasioned as a witness called by the Commonwealth? In his first issue, Appellant argues that the trial court erred by allowing d on his telephone records and the location of cellular phone towers, because 3 We disagree. within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its Commonwealth v. Drumheller, 808 A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 363, 781 A.2d 110, 117 (Pa. 2001)). The Pennsylvania Rules of Evidence, which govern the admission of expert testimony, provide: Rule 702. Testimony by experts ____________________________________________ 3 At trial, counsel for co-defendant Paul Gill raised the specific objection that Detective Nardone had presented expert testimony without being qualified to do so, thereby preserving this claim for appeal. See N.T., 9/26/12, at 1922; Commonwealth v. Myers, 403 A.2d 85 (Pa. 1979) (where codefendants preserved objection by specifically objecting at trial, although the appellant did not specifically object at trial, since the trial court had the opportunity to rule on the precise issue and appellant did not raise any issues that were not presented by his co-defendants before the trial court, appellant was entitled to raise the claim on appeal). -4- J-A13012-14 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson; (b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and (c) the expert's methodology is generally accepted in the relevant field. Pennsylvania Rule of Evidence 701, which governs opinion testimony by lay witnesses, provides: Rule 701. Opinion testimony by lay witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Here, the trial court explained its decision to admit the testimony of Detective Nardone as follows: [T]he Commonwealth had laid a foundation that Nardone has worked with cellphone records twenty to thirty times as well as provided factual knowledge on why one tower would be used as opposed to another when a call is made. ... Therefore, since -5- J-A13012-14 Nardone was testifying within the scope of his personal knowledge and specialized experience as demonstrated by the foundation laid by the Commonwealth, the trial court did not abuse its discretion nor committed an error of law by overruling Trial Court Opinion, 7/31/13, at 4-5. We agree with the trial court that Detective Nardone did not provide impermissible expert testimony. Detective Nardone explained at trial that cords from Metro PCS wireless service provider, pursuant to a search warrant, and that the records included a list of cell phone tower locations. N.T., 9/25/12, at 140-143. In addition, pursuant to a separate search warrant, Detective Nardone was able to phone. Id. at 140-143. -specific, so ... you can have two towers right next to each other, one would be a Sprint tower, one would be a Verizon tower, and they can act off those towers. N.T., 9/26/12, at 23. Detective Nardone testified, based on the subpoenaed phone records, about the and May 23, 2011, and the location of the nearest cell phone tower at the time each of the calls was placed. Id. at 23-30. We conclude that the trial court did not abuse its discretion by allowing Detective Nardone to testify about the location of the cell phone towers -6- J-A13012-14 without qualifying him as an expert. Detective Nardone did not provide phone calls with the nearest tower based on the information provided in Nardone was not required to be qualified as an expert prior to presenting such testimony.4 Appellant next argues that the cumulative effect of several of the trial be deprived of his right to a fair trial. We will first address individually each of the instances in which Appellant argues that the trial rulings constituted an abuse of discretion, and then address whether the ____________________________________________ 4 See, e.g., United States v. Baker, 496 F. App'x 201, 204 (3d Cir. 2012) cert. denied, 133 discussion of the operation of cell phone towers did not require any 702 where the testimony consisted entirely of reading and interpreting average intelligence would be able to understand that the strength of one's cell phone reception depends largely on one's proximity to a cell phone training and experience to testify about the operation of cell phone towers where he had been employed by cell phone service provider for over ten years and had sufficient personal knowledge of how cell phone towers operate to testify reliably on this subject). -7- J-A13012-14 rulings collectively resulted in such prejudice as to deprive Appellant of a fair trial. Appellant argues that after one of the victims, Kevin Sweeney, testified about the certainty of his identification during a photographic lineup, the trial court permitted Detective Nardone to re-emphasize how certain Mr. Sweeney was during the lineup, effectively allowing the detective -24. Specifically, Appellant objects to the testimony of Detective Nardone that during the photographic lineup, he told Kevin Sweeney to only select a photograph if he .T., competent, relevant testimony, corroborating the testimony of Mr. Sweeney, and was more probative than prejudicial, and therefore admissible. criminal proceeding, it must be competent and relevant. As far as relevancy is concerned, the admissibility of evidence is a matter left to the sound discretion of the trial court. discretio It may only be reversed on appeal if the trial court abused its Commonwealth v. Owens, 649 A.2d 129, 135 (Pa. Super. 1994); Pa.R.E. 402. The Pennsylvania Rules of Evidence define relevant fact that is of consequence to the determination of the action more probable -8- J-A13012-14 (emphasis added); Commonwealth v. Flamer, 53 A.3d 82, 88, n.5. (Pa. Super. 2012). corroborative ev Id. excluded if its probative value is outweighed by its potential prejudicial Commonwealth v. Owens, 649 A.2d 129, 135-136 (Pa. Super. icial simply because it is harmful to the defendant's case. The trial court is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand. Exclusion of evidence on the grounds that it is prejudicial is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the Flamer, 53 A.3d at 88, n.7. Here, the trial court explaining the procedure involved in the selection as well as gave added eup. While this did unfairly prejudicial and served the beneficial need of providing the jury with at -9- J-A13012-14 prosecutor assures the jury that the witness is credible, and such assurance is based on either the prosecutor's personal knowledge or other information Commonwealth v. Cousar, 928 A.2d 1025, cause it did credibility or refer to information outside of the record tending to indicate that Mr. Sweeney was believable. Cousar, supra. Appellant additionally argues that the trial court improperly permitted N.T., 9/19/12, at 31-32. The state of mind hearsay exception, set forth in to Pa.R.E. 803(3), provides: The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health. A statement of memory or belief offered to prove the fact remembered or believed is included in this - 10 - J-A13012-14 exception only if it relates to the execution, revocation, identification, or terms of declarant's will. Pa.R.E. 803(3). This Court has explained: [W]here a statement is being introduced for the truth of the matter asserted, then it may be admissible if it is a mind ... such as intent, plan, motive, design, mental feeling, Traditionally, statements of the declarant's then existing state of mind are considered reliable based on their spontaneity. There are ordinarily three instances in which the state of mind exception is applicable. First, the exception may apply to prove the declarant's state of mind when that state of mind is an issue directly related to a claim or defense in the case. Second, the exception can apply to demonstrate that a declarant did a particular act that was in conformity with his or her statement after having made the statement. Finally, an out of court statement related to the person's memory or belief is admissible in the limited instance where it relates to the execution, revocation, identification or terms of the declarant's will. Pa.R.E. 803(3). Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 804 (Pa. Super. 2013) (citations and internal quotations omitted). was a then existing mental condition of the declarant, and it can be used to demonstrate that the declarant acted in accordance with his fear of [Appellant], it fits within the state of mind hearsay exception. Therefore, the trial court did not abuse their discretion or commit an error of law by - 11 - J-A13012-14 ndition, if the statement constituted inadmissible hearsay, any prejudice to Appellant -defendant Paul Gill was afraid of Appellant was de minimis. Given the strength of the other evidence in this case, including the testimony of Mr. Wilson that Appellant confessed that he had been involved in a robbery, after which he returned home without pants, and the testimony of Ms. Mirra and Kieren Martin that Appellant disposed of his pants on the night of the incident, any error in admitting the statement was harmless. See Commonwealth v. Laich, 777 A.2d 1057, 1062 63 (Pa. 2001) (internal citations omitted) (an error is considered harmless where we are convinced beyond a reasonable doubt that there is no reasonable possibility that the error could have contributed to the verdict; error is harmless where: (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). - 12 - J-A13012-14 that Appellant had been previously incarcerated, and requested a mistrial. Id. However, the trial court denied the motion on the basis that the jury was not told which of the defendants had been incarcerated, and that the rant a mistrial. Id. at 76. The denial of a motion for a mistrial is assessed on appellate review according to an abuse of discretion standard. The central tasks confronting the trial court upon the making of the motion were to determine whether misconduct or prejudicial error actually occurred, and if so, to assess the degree of any resulting prejudice. Additionally, when dealing with a motion for mistrial due to a reference to past criminal behavior, [t]he nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007) (citations and internal quotations omitted). We find no ab mistrial was not warranted. The remark about one of the defendants being the Commonwealth, and was made in passing. Moreover, the to prior criminal activity is usually not sufficient to show that the trial court - 13 - J-A13012-14 Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008). We find court erred in denying his motion for mistrial, asserting that the eliciting such testimony, which the trial court sanctioned. Appella at 27. use by [Appellant]. Said testimony is not relevant, not material, and not to 133. Nevertheless, Appellant argues that the cautionary instruction was inadequate to cure the prejudice, and that the cumulative effect of the trial fair trial. It is noteworthy that at trial, Appellant did not object to the trial than grant a mistrial, and did not argue at trial that the instruction was inadequate. - 14 - Therefore, J-A13012-14 Appellant's claim that the cautionary instruction was inadequate is unavailing. Commonwealth v. Johnson, 542 Pa. 384, 399, 668 A.2d 97, 104 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996) (appellant cannot claim trial court error for failing to grant relief which appellant failed to pursue). Moreover, absent evidence to the contrary, a presumption exists that a jury will follow the instructions of the trial court. Commonwealth v. O'Hannon, 732 A.2d 1193, 1196 (Pa. 1999). Here, the trial court directed the jury not to consider as evidence the contrary, we conclude that the trial court did not abuse its discretion or commit an error of law. trial, for the reasons explained above, we conclude that the trial court did ion that Derrick (which was cured by a cautionary instruction) do not warrant relief individually, nor do they warrant relief cumulatively. - 15 - J-A13012-14 In his final issue, Appellant argues that the trial court erred in allowing the prosecutor to argue that an adverse inference should be drawn against at 29-32. The record reflects that at trial, when the Commonwealth called Michael Siple to the stand, after Mr. Siple identified Appellant and his codefendant, Paul Gill, the prosecutor attempted to question Mr. Siple about statements he made when interviewed by Detective Nardone at the Aston Township Police Department. N.T., 9/19/12, at 160-185. In response, Mr. Id. When the Commonwealth then presented Mr. Siple with a written copy of his statement to the police, Mr. Siple stated that he could not read it. Id. The Commonwealth then stated that he did not know to whom the voice on the audiotape belonged. Id. Thereafter, Mr. Siple refused to answer any more questions. Id. The trial court then ruled that pursuant to the confrontation clause, the police statement because Appellant had been deprived of the opportunity to cross-examine Mr. Siple about that statement when Mr. Siple refused to testify. N.T., 9/25/12, at 4-5. - 16 - J-A13012-14 during its closing arguments, suggested that the jury impute an adverse statement constituted prosecutorial misconduct and warranted a mistrial. Appellant refers to the following statement by the prosecutor: How about Michael Siple? He was happy to tell me, those things. But as soon as I asked him anything of substance he clammed up. He got silent. He refused to speaks volumes in this case and you can discuss, you cousins. If he had something that would help his cousins was attitude and non-compliance. N.T., 9/27/12, at 83. Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. 2005) (citation omitted), appeal denied, 928 A.2d 1289 (Pa. 2007). In considering such a claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one. Id. We observed: reversible error. Indeed, the test is a relatively stringent constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in - 17 - J-A13012-14 their minds fixed bias and hostility toward Appellant so that they could not [weigh] the evidence objectively and render a true verdict. Prosecutorial misconduct, however, will not be found where the comments were based on evidence or proper inferences therefrom or were only oratorical flair. In order to evaluate whether comments were improper, we must look to the context in which they were made. Harris, 884 A.2d at 927. secutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, Commonwealth v. Judy, 978 A.2d 1015, 1019 1020 ated under a harmless Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012). Appellant argues that the Commonwealth impermissibly suggested silence implicates the Constitutional privilege against self-incrimination, our Supreme Court has held: It is clear beyond question that no inference can be taken against the person invoking the privilege. Although it could be argued that under certain circumstances, a refusal to testify on grounds of self-incrimination might have probative value in establishing an issue in a matter to which the witness was not a party, we have recently held that it is not permissible for either defense or prosecution to attempt to capitalize on such refusal. Where it is the prosecutor who attempts to use such a device, there is a special vice: the inference to be drawn from the refusal to testify of the defendant's codefendant, accomplice or associate has no probative value whatsoever in establishing the guilt of the - 18 - J-A13012-14 defendant. It is rather an effort to cause the jury to Commonwealth v. DuVal, 307 A.2d 229, 232-233 (Pa. 1973) (emphasis added). Here, however, Michael Siple did not invoke the Fifth Amendment privilege. See Salinas v. Texas, 133 S. Ct. 2174, 2178, 2181, 186 L. Ed. ion of the privilege ... must claim it at the time he relies on it) (citations and internal quotations omitted). Appellant cites no authority to support an assertion that a witness who refuses to testify, without invoking the Fifth Amendment privilege, should be treated the same as a witness who invokes the privilege, and, absent more, we decline to extend such Constitutional protections. See Commonwealth v. Todaro, 569 A.2d 333, 335 (Pa. 1990) (there is a distinct danger [that] a refusal to testify on Fifth Amendment grounds by a known co-actor will be taken improperly, as evidence of a defendant's guilt e Amendment privilege that may prejudice or influence a jury, not mere not justify the conclusion that the jury has drawn an inference prejudicial to - 19 - J-A13012-14 invoke his Fifth Amendment privilege. We find no abuse of discretion in the For the foregoing reasons, we affirm the judgment of sentence. Judgment of sentence affirmed. Justice Fitzgerald concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/19/2014 - 20 -
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