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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

February 7, 2014

MARK SMITH, Appellant


Appeal from the Judgment of Sentence entered July 12, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0000500-2011




Mark Smith ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of two counts of robbery, aggravated assault, and possessing an instrument of crime.[1] We affirm.

The trial court summarized the relevant facts as follows:

On October 17, 2010, Rashell Williams was sitting on the stoop at the home of her friend Christopher Collazo-Nichols and waiting for him to return from the store. As she was waiting, Williams was approached by [Appellant], who rode up to the house on a bicycle and started a conversation with Williams. Moments later, Collazo-Nichols returned to the house and told [Appellant] to leave. Collazo-Nichols argued with [Appellant] and shook [Appellant's] bike in an effort to get [Appellant] to leave. Before [Appellant] rode off, he said "I'll be back, ya'll don't know who you're messing with." After [Appellant] left, Williams and Collazo-Nichols went into the house.
A short time later, [Appellant] knocked at the door and confronted Collazo-Nichols. After a brief exchange of words, [Appellant] left the house. Shortly thereafter, [Appellant] returned to the house. Collazo-Nichols went to the door and for the third time, told [Appellant] to leave. [Appellant] said "You don't know O.G., I run these streets, " and then left the house.
Ten minutes later, Williams was in the middle bedroom when Williams heard the middle bedroom door creak open. [Appellant] had apparently entered the house through an open window on the first floor. Williams attempted to close the bedroom door. She testified that she looked up and she saw [Appellant] enter the room pointing a gun at her. [Appellant] closed the door and told Williams to be quiet and that he was going to rob Collazo-Nichols. [Appellant] then went into the front bedroom where Collazo-Nichols was sleeping.
Collazo-Nichols awoke to find [Appellant] in his room going through his belongings. [Appellant] collected Collazo-Nichols's valuables including watches, clothes, car keys, and cash. [Appellant] then went back into the middle bedroom and ordered Williams into the front bedroom with Collazo-Nichols. [Appellant] took Williams' cell-phone and removed money from her wallet. While pointing his gun at Collazo-Nichols, [Appellant] instructed him to remove televisions from the bedroom and the first floor and to load them into Collazo-Nichols's car. [Appellant] followed Collazo-Nichols to the vehicle pointing his gun at him.
[Appellant] ordered Collazo-Nichols back into the house and up the stairs to the back bedroom. Collazo-Nichols told [Appellant] that he kept nothing of value in the back bedroom. At this point, [Appellant] had his gun pointed to the back of Collazo-Nichols' head. At this time, Collazo-Nichols believed that [Appellant] was taking him to the back bedroom to kill him. When Collazo-Nichols was standing at the top of the stairs and [Appellant] was just below him, Collazo-Nichols turned to grab the gun from [Appellant]. A brief struggle ensued, which caused [Appellant] to fall down the stairs. As [Appellant] fell, he shot Collazo-Nichols in the left shoulder. In an effort to escape, Collazo-Nichols ran into the front bedroom and jumped out of the window. [Appellant] left the house through the front door and chased Collazo-Nichols down the street while firing his gun at Collazo-Nichols. Collazo-Nichols entered a bar on Germantown Avenue and called 911. Collazo-Nichols suffered a gunshot wound to the shoulder, as well as a broken foot and shattered heel and wrist.
During separate police interviews on the night of the shooting, Williams and Collazo-Nicholas provided identical descriptions of [Appellant] to the police. In their interviews Collazo-Nichols and Williams described distinctive tattoos including a tear drop under the left eye and a marijuana leaf on the neck. Based on these distinctive tattoos, the physical description and age of the alleged perpetrator, and the location of the shooting, Philadelphia Police Detective Knoll searched a police database and found that [Appellant] and another individual matched the descriptions provided.
Philadelphia Police Detective Urban conducted a lineup at which Collazo-Nichols, immediately and without hesitation, identified [Appellant] as the person who robbed and shot him. Detective Urban testified that each of the subjects in the lineup, including [Appellant], had their tattoos covered so as to avoid any suggestiveness. Detective Knoll testified that he presented Williams with a photo array in which the tattoos of each of the subjects were blacked out. Detective Knoll testified that Williams immediately identified [Appellant] as the person who robbed her upon being shown the photo array.
Detective Knoll also investigated the crime scene at Collazo-Nichols' home. Detective Knoll took photos of the bullet hole in the ceiling of the back bedroom. Detective Knoll testified that, based on his investigation and the photo presented at trial, the location of the bullet mark in the ceiling was consistent with the testimony of Collazo-Nichols and Williams regarding where in the house Collazo-Nichols was shot by [Appellant].

Trial Court Opinion, 9/16/13, at 1-3 (citations to notes of testimony omitted).

Appellant was arrested and the Commonwealth filed a criminal information charging Appellant with twenty-nine crimes, several of which were subsequently nolle prossed. Following a jury trial on March 22, 2011, Appellant was convicted of robbery, aggravated assault and possessing an instrument of crime. The jury found Appellant not guilty of attempted murder, burglary, carrying firearms in public in the City of Philadelphia, and carrying firearms without a license.

On July 12, 2012, following a hearing, the trial court sentenced Appellant to 201 months to 402 months of imprisonment. Appellant filed a timely notice of appeal. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:


Appellant's Brief at 3.

Appellant first argues that the trial court erred in overruling his motion for a mistrial on the basis that the Commonwealth committed prosecutorial misconduct during opening statements. 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. "The purpose of an opening statement is to apprise the jury how the case will develop, its background and what will be attempted to be proved; but it is not evidence. ... The prosecution, as well as the defense, is afforded reasonable latitude in presenting opening arguments to the jury. [However] [a] prosecutor's statements must be based on evidence that he plans to introduce at trial, and must not include mere assertions designed to inflame the jury's emotions. A prosecutor's opening statements may refer to facts that he reasonably believes will be established at trial." Commonwealth v. Parker, 919 A.2d 943, 950 (Pa. 2007). We observed:

Not every unwise remark on a prosecutor's part constitutes reversible error. Indeed, the test is a relatively stringent one. Generally speaking, a prosecutor's comments do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in 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.

Here, Appellant objects to comments by the Assistant District Attorney, who, during opening statements, summarized the evidence then made the following remarks:

Assistant District Attorney: The evidence is really that strong. Why do we need you? Why can't this be worked out some other way –-
Appellant's Counsel: Objection.
Trial Court: Sustained.
Assistant District Attorney: The answer is, it's the law. Because the law says that every person charged with a crime has an absolute right to a jury trial by his peers. The law says that no matter how heinous your crime –-
Appellant's Counsel: Objection. Objection.
Trial Court: Sustained.
Assistant District Attorney: Every defendant has an absolute right to a jury trial. That's why we're here. But the same law provides those rights, the same law that protects all of us from people who do things like –-
Appellant's Counsel: Objection, again.
Assistant District Attorney: I ask that you hear the facts and apply the law and find [Appellant] guilty. Thank you.
Appellant's Counsel: Judge, I would ask you to rule on my motion. I'm sorry to inconvenience the Court.
Trial Court: Ladies and gentlemen of the jury, the personal opinions of the prosecutor should not be taken into consideration. Only the evidence which is proven at trial is what you should form your final facts from. Okay.

N.T., 5/22/12, at 22-23.

Appellant argues that the trial court erred in failing to grant a mistrial based on the above remarks. Appellant's Brief at 9-14. Appellant argues that the prosecutor voiced prejudicial opinions, indicated that Appellant's guilt was a foregone conclusion, and suggested to the jury that the jury trial was a mere formality because Appellant was guilty. Id. Appellant asserts that these comments had the effect of undermining the objectivity of the jury, interfered with the ability of the jury to weigh the evidence, and were so prejudicial as to warrant a mistrial. Id.

The trial court, however, disagreed. The trial court explained:

Immediately following [Appellant's] motion for a mistrial, the trial court instructed the jury not to consider the personal opinion of the prosecutor and to only consider evidence proven during the trial. The trial court's cautionary instruction immediately following the motion for a mistrial and merely moments after the prosecutor made his alleged inappropriate comments adequately cured any potential prejudice.

Trial Court Opinion, 9/16/13, at 4-5.

"Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial." Commonwealth v. Judy, 978 A.2d 1015, 1019–1020. "Prosecutorial misconduct is evaluated under a harmless error standard." Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa.Super. 2012). Given the foregoing, we find no error in the trial court's determination that the prosecutor's comments were not "so inflammatory as to fix bias and hostility against Appellant in the minds of the jury." Harris, supra. Moreover, following the prosecutor's remarks, the trial court promptly instructed the jury that the personal opinions of counsel were not to be taken into consideration, thus limiting any prejudicial effect from the challenged remarks. We thus conclude that the trial court did not err in declining to grant Appellant's motion for a mistrial based on the prosecutor's remarks.

In his second issue, Appellant argues that the trial court committed reversible error by overruling an objection to hearsay testimony given by Detective Dowling. "The admission or exclusion of evidence is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. Thus, our standard of review is very narrow. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012) quoting McManamon v. Washko, 906 A.2d 1259, 1268–1269 (Pa.Super. 2006).

Appellant challenges the trial court's admission of Detective Dowling's testimony in which he referred to statements made by Mr. Collazo-Nichols when the detective interviewed Mr. Collazo-Nichols at Temple Hospital, approximately ten to fifteen minutes after Mr. Collazo-Nichols had been shot. N.T., 5/22/12, at 105-111. At trial, Appellant objected, asserting that Detective Dowling's testimony constituted inadmissible hearsay. Id. The trial court, however, explained in its Pa.R.A.P. 1925(a) opinion that the testimony was permissible under the excited utterance exception to the hearsay rule.

With regard to the excited utterance exception, our Supreme Court recently explained:

As is well-settled, excited utterances fall under the common law concept of res gestae. Res gestae statements, such as excited utterances, present sense impressions, and expressions of present bodily conditions are normally excepted out of the hearsay rule, because the reliability of such statements are established by the statement being made contemporaneous with a provoking event. While the excited utterance exception has been codified as part of our rules of evidence since 1998, see Pa.R.E. 803(2)[2], the common law definition of an excited utterance remains applicable, and has been often cited by this Court:
[A] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.... Thus, it must be shown first, that [the declarant] had witnessed an event sufficiently startling and so close in point of time as to render her reflective thought processes inoperable and, second, that her declarations were a spontaneous reaction to that startling event.
The circumstances surrounding the statements may be sufficient to establish the existence of a sufficiently startling event.

Commonwealth v. Murray, __ A.3d __, 2013 WL 6831852 at 14-16 (Pa. 2013) (citations omitted).

Upon review, we find no error in the trial court's decision to admit Detective Dowling's tesimony referring to Collazo-Nichols' statements shortly after Collazo-Nichols had been robbed at gunpoint, shot and wounded, and had jumped out of an upstairs window in an effort to escape. As the trial court explained:

Officer Dowling testified that he spoke with Collazo-Nichols at the hospital where he was being treated for gunshot wounds and injuries to his wrist and ankle. Officer Dowling spoke to Collazo-Nichols just 10 minutes after Collazo-Nichols called 911, which was moments after he was robbed at gunpoint and shot by [Appellant]. It is beyond peradventure that Collazo-Nichols was suffering from the shock and excitement of being robbed at gunpoint in his home and shot by [Appellant] ten minutes earlier.
The trial court properly allowed Officer Dowling's testimony into evidence under the excited utterance exception to the rule of hearsay because (1) the statements were made to Officer Dowling a mere 10 minutes after Collazo-Nichols was robbed at gunpoint and shot by [Appellant], (2) Collazo-Nichols did not talk to anyone other than 911 before speaking with Dowling, and (3) Collazo-Nichols was under the stress and trauma from suffering serious gunshot injuries.

Trial Court Opinion, 9/16/13, at 5-6 (citations omitted).

We agree with the trial court's reasoning. Although Appellant argues that the Commonwealth failed to present evidence that Collazo-Nichols was in an excited or hysterical state at the time he made the statements to Detective Dowling, "the circumstances surrounding the statements may be sufficient to establish the existence of a sufficiently startling event." Murray, supra. Here, the "circumstances surrounding the statements" clearly support the trial court's determination that Collazo-Nichols' statements constituted an excited utterance. Judgment of sentence affirmed.

Judgment Entered.

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