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Commonwealth v. McGriff

Superior Court of Pennsylvania

April 21, 2017


         Appeal from the Judgment of Sentence July 1, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002445-2014



          STEVENS, P.J.E.

         Rudolph McGriff (hereinafter "Appellant") appeals the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on July 1, 2015, at which time he was sentenced to life imprisonment without the possibility of parole following his conviction of first-degree murder along with concurrent prison terms of two and one half (2 ½) years to five (5) years for his related firearms convictions. We affirm.

         Appellant was convicted of murdering his estranged girlfriend (hereinafter "the victim"). As the trial court set forth a comprehensive recitation of the facts developed at trial in its Pa.R.A.P. 1925(a) Opinion, we will not duplicate it herein but, instead, adopt the trial court's summary for purposes of this appeal. See Trial Court Opinion, filed 4/5/16, at 2-48.[1]

         On July 1, 2015, the jury found defendant guilty of First-Degree Murder, Firearms not to be carried without a license, Carrying firearms on public streets in Philadelphia, and Possessing instruments of crime, [2] and the trial court sentenced Appellant to an aggregate term of life imprisonment. N.T., 7/1/15, 9, 16-17. Appellant filed a post-sentence motion on July 6, 2015, and the trial court denied the same on December 1, 2015.

         On December 22, 2015, Appellant filed a timely notice of appeal. On January 12, 2016, the trial court ordered Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b), and Appellant complied on February 10, 2016. In his brief, Appellant presents the following Statement of the Questions Involved:

1. Did the trial court abuse its discretion in permitting the prosecutor to present evidence that [ ] Appellant had repeatedly refused to come in to the police office and talk to the detectives who were investigating the homicide in this case while at the same time prohibiting the defense from presenting the testimony of [ ] Appellant's attorney, Anthony Petrone, Esquire, who had instructed [ ] Appellant not to talk to the police?
2. Did the trial court abuse its discretion in refusing to permit the defense to call witnesses to inform the jury that the victim may have been slain in response to her participation in a scheme of armed robberies at that location?

         Brief for Appellant at 3.

         Appellant's first issue as it is developed in his appellate brief requires a threefold analysis. Appellant first asserts the trial court denied him his federal and state constitutional rights to due process and a fair trial when it erroneously permitted the prosecution to elicit repeatedly that Appellant had failed to meet with detectives of the Philadelphia Police Department Homicide Unit.

         Before we address the merits of this portion of Appellant's initial claim, we first must determine whether Appellant properly has preserved the issue for our consideration, for it is well-settled that a party must make a timely and specific objection at trial, and the failure to do so results in waiver of that issue on appeal. Pa.R.A.P. 302(a); see also Commonwealth v. Montalvo, 641 A.2d 1176, 1184 (Pa.Super. 1994) (citation omitted) (to preserve an issue for review, a party must make a timely and specific objection at trial, for this Court will not consider claim on appeal not called to trial court's attention at a time purported error could have been corrected).

         Pa.R.E. 103 addresses rulings on evidence and requires a contemporaneous objection in order to preserve a claim of error in the admission of evidence. The Rule reads in relevant part as follows:

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion in limine; and
(B) states the specific ground, unless it was apparent from the context. . . .

Pa.R.E. 103(a). "Consistent with ... Pa.R.E. 103(a), a motion in limine may preserve an objection for appeal without any need to renew the objection at trial, but only if the trial court clearly and definitively rules on the motion." Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa.Super. 2011) (citations omitted), appeal denied, ___ Pa. ___, 49 A.3d 441 (2012). Once the trial court enters a definitive ruling on the record, either prior to or during trial, "a party need not renew an objection or offer of proof to preserve a claim of error for appeal." Pa.R.E. 103(b).

         Prior to trial, a hearing was held before the trial court at which time Appellant presented argument pertaining to his motion in limine "to preclude statements and comments by the DA in opening and closing and in the presentation of evidence that would in any way imply that [Appellant] is guilty because of pre-arrest silence." Defense counsel further explained generally that "[t]he proffered testimony in this case is that the police asked family members of the decedent to have [Appellant] contact them and give them statements."

         Specifically, counsel referenced what the victim's "brother" and "sister" "might" say, and anticipated the Commonwealth would argue "that his failure to go to the police is an implication of guilt." N.T., 6/17/15, at 5, 8-9. Notably, defense counsel later clarified that while the Commonwealth "can present the evidence, " it would be improper to argue this failure reflects a consciousness of guilt. N.T., 6/17/15, at 17. Counsel further explained the basis for his objection as follows:

[Defense Counsel]: I object to any statements by the brother and sister, evidence that they asked him to go to the police, and then any testimony from any police officer as to whether or not he actually went to the police and any argument that the fact that he didn't go to the police is consciousness of guilt because the police were the ones that asked the family to tell him to come to them.

Id. at 20.

         In response, the Commonwealth represented it would limit its questioning of members of the victim's family to their "voluntary conversations" with Appellant to establish a course of conduct whereby Appellant repeatedly lied to and concealed information from them. Id. at 12-17, 21-23. The Commonwealth maintained that such references would be used not to establish Appellant had been hiding from police, but rather to show the credibility of other statements he made in those conversations. The Commonwealth further suggested that if the trial court and defense counsel agreed, the trial court may provide a "cautionary instruction that this evidence on this statement is coming in for the context of [the jury] to determine the credibility of the other statements in that conversation." N.T., 6/17/15, at 20-23. Counsel did not object to the presentation of such testimony for this limited purpose.

         Following a brief recess, the trial court reached the following conclusion:

My view is basically that I agree with the Commonwealth in this matter. I do not review it-I do not review it as a pre-arrest silence situation. The conversations that will be testified to by family members with [Appellant] on the day that the victim's body was found and for the period thereafter when they urged him to go to speak to police, that ...

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