J-A07015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MITCHELL NAZARIO                           :
                                               :
                       Appellant               :   No. 376 MDA 2019

       Appeal from the Judgment of Sentence Entered January 18, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0001479-2017


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                       FILED: MAY 4, 2020

       Appellant, Mitchell Nazario, appeals from the January 18, 2018

judgment of sentence of life imprisonment after a jury convicted Appellant of

murder in the first degree.1 We affirm.

       The trial court summarized the factual history as follows:

       On the night of February 1, 2016, Alexa Pritt heard people talking
       outside her home in the area of Kittatinny and South 14th Street
       in Harrisburg[, Pennsylvania]. She next heard two loud booms or
       cracks, then the sound of car tires screeching. Ms. Pritt looked
       out her window and saw a dark-colored car drive away toward a
       stop sign [and] then turn right. Ms. Pritt saw something in the
       middle of the street[,] which she thought might have been a tire.
       Frightened, Ms. Pritt looked out her front door and saw a truck
       drive by the object, flash its lights, [and] then continue [driving

____________________________________________


1  18 Pa.C.S.A. § 2502(a). Appellant was also charged with possession of a
firearm prohibited and firearms not to be carried without a license.
18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), respectively. On March 23,
2018, the trial court granted the Commonwealth permission to enter a nolle
prosequi on these two charges.
J-A07015-20


     forward]. Within approximately five minutes of hearing the loud
     noises, police and ambulances arrived at the scene and attempted
     to revive a person lying in the street.

     That night, Robert Mumma went with a friend to the area of
     [South] 14th and Kittatinny Streets to buy drugs. Shortly before
     the killing occurred, Mumma briefly saw the victim, Freddy J.
     Williams, known as Freddie J, [“Williams”] in an alleyway near the
     house where Mumma intended to buy drugs. Mumma knew
     [Williams] from Dauphin County Prison and as a fellow drug user.
     [ ] After buying drugs, Mumma returned to the vehicle in which
     his friend waited. Mumma intended to use the heroin in the
     vehicle. As he sat in the parked vehicle, Mumma saw [Williams]
     pace back and forth from corner to corner. Mumma next observed
     a car pull up and stop. [Williams] approached the passenger side
     of the car and leaned on the car. Mumma did not see any attempt
     by [Williams] to enter the car. Mumma took note of the vehicle,
     worried that it might be police. Immediately after [Williams]
     approached the stopped car, Mumma heard shots. Mumma heard
     [Williams] yell something[,] which he could not discern, [and]
     then saw him fall down. Mumma observed the car speed off. The
     driver of the vehicle in which Mumma rode drove to the spot where
     [Williams] was lying in the street. It was apparent to Mumma that
     [Williams] was mortally wounded. Mumma and the driver left the
     scene. Mumma did not observe any weapons on [Williams] as he
     lay in the street.

     Harrisburg City Police Officer Brian Carriere[] was working patrol
     in a marked police unit that night when, at 9:52 p.m., he received
     a dispatch of a victim down near the intersection of South 14th and
     Kittatinny Streets.     When Officer Carriere arrived, he saw
     [Williams] lying in the middle of the street. Officer Carriere
     observed a gunshot wound to [Williams’s] right arm and a bullet
     in the chest or abdominal area.

     Officer Donald Bender also responded to the scene. Officer Bender
     observed [Williams] to be in grave condition. Officer Bender
     observed an exit wound to Williams'[s] back and an expanded
     projectile embedded in his clothing on the right side of his chest.
     Paramedics arrived and transported [Williams] to [the] hospital.
     Williams was pronounced dead shortly after arrival at the hospital.

     Forensic pathologist Wayne Ross, M.D., testified regarding the
     autopsy performed upon Williams. The autopsy revealed gunshot
     wounds to the right side of the body, one to the right chest, one


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     to the right forearm and a third impact wound to the chest. Dr.
     Ross categorized the injury to [Williams’s] right forearm as a
     defensive [wound] sustained when [Williams] raised his right
     extremity in an attempt to ward off a gunshot. One gunshot
     passed entirely through the right lung, with a trajectory of front
     to back and downward.          The gunshot to the lung caused
     Williams'[s] death. Because no soot or [gunshot] residue existed
     at the wound sites or on the clothing, Dr. Ross opined that the
     shots were fired from a distance of three to four feet or greater.
     Dr. Ross opined that based upon Williams'[s] height [of] five feet
     two inches, the lack of soot and [gunshot] residue, and the
     trajectory of the bullets, Williams was outside the vehicle when
     shot.

     Ten days later, on February 11, 2016, Harrisburg City Police
     Officer Daniel [Antoni] encountered [Appellant] in the area of Hall
     Manor near the scene of the homicide. Officer [Antoni] identified
     himself as a police officer and approached [Appellant].
     [Appellant] appeared shocked [and] then took a step as if he
     intended to run. Officer [Antoni] drew his gun and commanded
     [Appellant] to get on the ground. Fellow officer Nate Owens
     arrived and placed [Appellant] in handcuffs. Officer Owens patted
     [Appellant] down and retrieved a .40 caliber semiautomatic
     handgun with an extended magazine. [Appellant] told police that
     he obtained the gun a few days earlier. [Appellant] was not
     charged with the murder at that time.

     Harrisburg Police sent the gun to the Pennsylvania State Police for
     laboratory testing. The testing revealed that the cartridge case
     obtained from the homicide scene and the bullet jacket retrieved
     from Williams'[s] body during the autopsy were discharged from
     the .40 caliber semiautomatic handgun removed from
     [Appellant's] person on February 11, 2016.

     On February 1, 2017, one year after the killing occurred,
     Harrisburg City Police Detective Jason Brinker conducted a
     recorded interview of [Appellant]. Throughout the one hour and
     forty minute interview, [Appellant] denied involvement in the
     killing. Detective Brinker then consulted with the Office of the
     District Attorney to obtain authorization to charge [Appellant].
     Detective Brinker apprised [Appellant] that he would be charged
     with murder. The detective then initiated a second interview of
     [Appellant] in which he employed a different interview technique.
     In that interview, [Appellant] admitted that he shot [Williams.]


                                    -3-
J-A07015-20


        At trial, [Appellant] testified that on the night of the incident, as
        he slowed his car to [a] stop at a stop sign in the area of [South]
        14th and Kittatinny Streets, he saw [Williams] running toward the
        car. When [Appellant] stopped his car, [Williams] banged on the
        window. [Appellant] testified that [Williams] then ran to the
        passenger side of the car. [Appellant] testified that he rolled down
        the window and asked [Williams] what he needed. [Appellant]
        testified that [Williams] appeared intoxicated and partially entered
        the passenger side window and appeared to reach for something.
        [Appellant] stated that he grabbed his gun from his lap and shot
        [Williams] twice. [Appellant] admitted that he did not see what
        [Williams] had in his hand and that [Williams] neither displayed a
        weapon nor made a threat upon [Appellant's] life.

Trial Court Opinion, 9/4/18, at 1-5 (citations to notes of testimony omitted).

        On January 18, 2018, a jury convicted Appellant of murder in the first

degree. That same day, the trial court sentenced Appellant to a mandatory

term of life in prison. Appellant filed a post-sentence motion that the trial

court subsequently denied.         On March 2, 2018, Appellant filed a notice of

appeal. The trial court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days.

Appellant timely compiled. The trial court subsequently filed a Rule 1925(a)

opinion on September 4, 2018. In a per curiam order, this Court dismissed

Appellant’s appeal for failure to file a brief.2




____________________________________________


2   This appeal was docketed with this Court at 413 MDA 2018.



                                           -4-
J-A07015-20



        On December 6, 2018, Appellant filed a petition with the trial court to

reinstate his direct appeal nunc pro tunc. The trial court granted Appellant’s

petition on January 30, 2019.3

        Appellant raises the following issues for our review:

        A.    Whether the [trial] court erred in failing to properly instruct
              the jury on the presumption of necessity for use of deadly
              force under Pennsylvania’s version of the castle doctrine?

        B.    Whether the [trial] court erred by allowing the
              Commonwealth to publish to the jury portions of a recorded
              police interview containing highly prejudicial references to
              Appellant’s prior criminal history where Appellant and the
              Commonwealth stipulated to limit such testimony?

Appellant’s Brief at 11 (extraneous capitalization omitted).4

        Appellant’s first issue challenges the trial court’s denial of a jury

instruction on the presumption that deadly force is imminently necessary to

protect oneself against death and serious bodily injury pursuant to the castle

doctrine. Id. at 23-27.

        In reviewing a trial court’s denial of a jury instruction, our standard of

review is as follows:

        [o]ur standard of review when considering the denial of jury
        instructions is one of deference—an appellate court will reverse a
        [trial] court's decision only when it abused its discretion or
        committed an error of law. Our key inquiry is whether the
        instruction on a particular issue adequately, accurately and clearly
____________________________________________


3 The trial court did not direct Appellant to file a Rule 1925(b) concise
statement. The trial court filed a statement on June 10, 2019, referencing its
September 4, 2018 Rule 1925(a) opinion.

4   For ease of reference, we have assigned page numbers to Appellant’s Brief.

                                           -5-
J-A07015-20


       presents the law to the jury, and is sufficient to guide the jury in
       its deliberations.

Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018)

(quotation marks and original brackets omitted), appeal denied, 217 A.3d 180

(Pa. 2019).

       In criminal cases, “the mere submission and subsequent denial of

proposed points for charge that are inconsistent with or omitted from the

instructions actually given will not suffice to preserve an issue, absent a

specific objection or exception to the charge or the trial court's ruling

respecting the points.”       Commonwealth v. Pressley, 887 A.2d 220, 225

(Pa. 2005) (footnote omitted).          “Although obligating counsel to take this

additional step where a specific point for charge has been rejected may appear

counterintuitive, as the requested instruction can be viewed as alerting the

trial court to a defendant's substantive legal position, it serves the salutary

purpose of affording the [trial] court an opportunity to avoid or remediate

potential error, thereby eliminating the need for appellate review of an

otherwise correctable issue.” Id. at 224 (citation and footnote omitted).

       A doctrine of common law origin,5 the castle doctrine “is an evidentiary

means by which a defendant may attempt to prove justification by

____________________________________________


5 “The traditional common law castle doctrine is a basic tenet of American law:
‘The principle that a man's home is his castle is basic to our system of
jurisprudence.’” Commonwealth v. Childs, 142 A.3d 823, 828 (Pa. 2016)
(citation and brackets omitted). “The ideological foundation for the castle
doctrine is the belief that a person's home is his castle and that one should
not be required to retreat from his sanctum.” Id. (citation omitted).

                                           -6-
J-A07015-20



self-defense.” Cannavo, 199 A.3d at 1287. In 1972, the castle doctrine was

codified in Pennsylvania at 18 Pa.C.S.A. § 505 and later amended by

Pennsylvania legislation in 2011. Section 505, in pertinent part, states,

                  § 505. Use of force in self-protection

      (a) Use of force justifiable for protection of the person.--
      The use of force upon or toward another person is justifiable when
      the actor believes that such force is immediately necessary for the
      purpose of protecting himself against the use of unlawful force by
      such other person on the present occasion.

      (b) Limitations on justifying necessity for use of force.--

                                     ....

         (2) The use of deadly force is not justifiable under this
         section unless the actor believes that such force is necessary
         to protect himself against death, serious bodily injury,
         kidnapping or sexual intercourse compelled by force or
         threat; nor is it justifiable if:

            (i) the actor, with the intent of causing death or
            serious bodily injury, provoked the use of force
            against himself in the same encounter; or

            (ii) the actor knows that he can avoid the necessity of
            using such force with complete safety by retreating,
            except the actor is not obliged to retreat from his
            dwelling or place of work, unless he was the initial
            aggressor or is assailed in his place of work by another
            person whose place of work the actor knows it to be.

         (2.1) Except as otherwise provided in paragraph (2.2), an
         actor is presumed to have a reasonable belief that deadly
         force is immediately necessary to protect himself against
         death, serious bodily injury, kidnapping or sexual
         intercourse compelled by force or threat if both of the
         following conditions exist:

            (i) The person against whom the force is used is in the
            process of unlawfully and forcefully entering, or has
            unlawfully and forcefully entered and is present
            within, a dwelling, residence or occupied vehicle; or

                                     -7-
J-A07015-20


            the person against whom the force is used is or is
            attempting to unlawfully and forcefully remove
            another against that other's will from the dwelling,
            residence or occupied vehicle.

            (ii) The actor knows or has reason to believe that the
            unlawful and forceful entry or act is occurring or has
            occurred.

         (2.2) The presumption set forth in paragraph (2.1) does not
         apply if:

                                     ....

            (iii) the actor is engaged in a criminal activity or is
            using the dwelling, residence or occupied vehicle to
            further a criminal activity;

18 Pa.C.S.A. § 505(a), (b)(2), (b)(2.1), and (b)(2.2)(iii). “[Trial] courts must

assess the appropriateness of a self-defense instruction, namely, that a valid

claim of self-defense or the castle doctrine must be made out as a matter of

law, and this determination must be made by the trial [court]. Such claim

may consist of evidence from whatever source.” Cannavo, 199 A.3d at 1287

(citation, original brackets, and original quotation marks omitted). Section

505(b)(2.1) “requires both subsections 2.1(i) and 2.1(ii) to be met in order

for the castle doctrine to apply.” Cannavo, 199 A.3d at 1287.

      Here, Appellant argues that the castle doctrine was applicable because

“the evidence at trial demonstrated that Williams unlawfully and forcefully

entered [Appellant’s] vehicle which [Appellant] occupied at the time and

[Appellant] was aware that the unlawful and forceful entry was occurring.”

Appellant’s Brief at 26.     Specifically, Appellant contends the evidence

demonstrated


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J-A07015-20


      [Appellant] lowered his passenger [side] window to speak with
      Williams to see if Williams needed aid due to the cold weather,
      Williams then jumped, uninvited, through [Appellant’s passenger
      side] window and began to scream and grab at [Appellant].
      Williams then began to reach for something on his person, which
      [Appellant] believed would cause him serious injury. It was
      []reasonable for [Appellant] to believe that Williams was reaching
      for a weapon due to their presence in a high gun violence
      neighborhood.

Id. at 26-27. Appellant argues the castle doctrine was applicable and the trial

court erred in failing to instruct the jury as to the presumption that Appellant

was justified in using deadly force to protect himself against death or serious

bodily injury. Id. at 27.

      A review of the record demonstrates Appellant submitted proposed jury

instructions that included Pennsylvania Suggested Standard Criminal Jury

Instruction 9.501(A) related to the castle doctrine and the use of force or

deadly force in self-defense. Pa.S.S.J.I. (Criminal) §9.501(A) (2012). The

record further demonstrates that at the close of testimony and prior to the

trial court charging the jury, Appellant argued the applicability of the castle

doctrine presumption before the trial court.      N.T., 1/17/18, at 328-332.

Appellant, admitting that he was in possession of an illegal firearm at the time

of incident, argued that Section 505(b)(2.3) did not preclude the presumption

instruction because Section 505(b)(2.3), commonly referred to as the stand

your ground defense, applied in circumstances not present in the case sub

judice. Id. at 329. The trial court charged the jury, in pertinent part, as

follows:



                                     -9-
J-A07015-20


     If the Commonwealth proves to you beyond a reasonable doubt
     that [Appellant] used deadly force then to prove that such force
     was not justifiable in this case it must prove one of the following
     elements beyond a reasonable doubt: A, that [Appellant] did not
     reasonably believe that he was in immediate danger of death or
     serious bodily injury at the time he used the force, and that,
     therefore, his belief that it was necessary for him to use deadly
     force to protect himself was unreasonable.

     Put another way, the Commonwealth must prove either that
     [Appellant] did not actually believe he was in danger of death or
     serious bodily injury such that he needed to use deadly force to
     defend himself at that point; or, that while [Appellant] actually
     believed he needed to use deadly force, his belief was
     unreasonable in light of all the circumstances known to him.

     Keep this in mind: A person is justified in using deadly force
     against another not only when they are in actual danger of
     unlawful attack but also when they mistakenly but reasonably
     believe they are. A person is entitled to estimate the necessity
     for the force he employs under the circumstances as he
     reasonably believes them to be at the time. In the heat of conflict,
     a person who has been attacked ordinarily has neither time nor
     composure to evaluate carefully the danger and make nice
     judgments about exactly how much force is needed to protect
     himself.

     Consider the realities of the situation faced by [Appellant] here
     when you decide whether or not the Commonwealth has proven
     beyond a reasonable doubt either that, one, he did not believe he
     was actually in danger of death or serious bodily injury to the
     extent that he needed to use such force in self-defense; or, two,
     that while he did believe that, his belief was unreasonable.

     That [Appellant] knew he could avoid the necessity of using force
     with complete safety by retreating, but he failed to do so, is the
     other area that you should consider when deciding whether or not
     the Commonwealth has proven the elements beyond a reasonable
     doubt.

     Now, the final area I must discuss with you is voluntary
     manslaughter. And then I'm going to give you some final
     instructions, and you'll be prepared to deliberate.

     As my earlier definition of malice indicates, there can be no malice
     when certain reducing circumstances are present. When these

                                    - 10 -
J-A07015-20


      circumstances are present a killing may be voluntary
      manslaughter, but never murder. This is true when a defendant
      kills under an unreasonable mistaken belief in justifying
      circumstances.

      Accordingly, you can find malice and murder only if you are
      satisfied beyond a reasonable doubt that [Appellant] was not
      acting under an unreasonable belief that the circumstances were
      such that if they existed would have justified the killing.

      The reducing circumstance of a defendant acting under an
      unreasonable belief that the circumstances of the killing were
      justified applies where [Appellant] actually believed that he was
      in immediate danger of death or serious bodily injury at the time
      he used deadly force but his belief was unreasonable in light of
      the facts as they appeared to him at the time; or [Appellant] did
      not violate his duty to retreat from the place as I explained those
      terms when I described to you the justification defense.

      So let me read this again to you: The reducing circumstance of a
      defendant acting under an unreasonable belief that the
      circumstances of the killing were justified applies where, one,
      [Appellant] actually believed that he was in immediate danger of
      death or serious bodily injury at the time he used deadly force but
      his belief was unreasonable in light of the facts as they appeared
      to him at the time; or [Appellant] did not violate his duty to retreat
      from the place as I explained those terms when I described to you
      the justification defense.

Id. at 401-404.     At the conclusion of the charge, the trial court asked

Appellant if there were any exceptions to the instructions, to which Appellant

replied, “No objection, Your Honor.” Id. at 408.

      A review of the record demonstrates Appellant failed to properly

preserve this issue for appellate review because Appellant failed to object or

take exception to the jury instructions after they were given but before the

jury began its deliberation.       The fact that Appellant’s proposed jury

instructions included a request for the castle doctrine presumption and the



                                     - 11 -
J-A07015-20



fact that Appellant presented an argument in favor of the same to the trial

court prior to the charge being given does not excuse Appellant’s failure to

properly preserve this issue by specifically objecting at the conclusion of the

instructions or noting his exception on the record regarding the trial court’s

decision not to give the requested charge. Therefore, we concur with the trial

court that Appellant waived this issue.6

       Appellant’s second issue challenges the trial court’s denial of his motion

for a mistrial based upon the admission of video evidence that allegedly

contained highly prejudicial references to Appellant’s criminal history.

Appellant’s Brief at 28-32.

       It is well-settled that the review of a trial court's denial of a motion
       for a mistrial is limited to determining whether the trial court
       abused its discretion. An abuse of discretion is not merely an error
       of judgment, but if in reaching a conclusion the law is overridden
____________________________________________


6  Alternatively, if Appellant had not waived this issue, we would find
Appellant’s argument to be without merit. “Statutory interpretation is a
matter of law, and our standard of review is de novo and our scope of review
is plenary.” Childs, 142 A.3d at 827 (citation omitted). While Section
505(b)(2.3) applies in factual circumstances not present in the case sub
judice, Section 505(b)(2.2) precludes the castle doctrine presumption when,
inter alia, “the actor is engaged in criminal activity.”           18 Pa.C.S.A.
§ 505(b)(2.2). In the instant case, Appellant admitted that he unlawfully
possessed the firearm he used to shoot Williams. As such, Appellant was
engaged (and charged with engaging) in criminal activity at the time he used
deadly force to kill Williams. Therefore, Appellant is not entitled to the castle
doctrine presumption. Moreover, Dr. Ross, in his expert medical opinion,
stated that Williams was standing outside Appellant’s car and not coming
through the passenger side window at the time he was shot and that the
wounds were consistent with someone in retreat. Mumma’s eyewitness
testimony confirmed this opinion when he said he did not see Williams attempt
to enter the passenger side window of Appellant’s vehicle. Consequently, we
would find Appellant’s issue to be without merit.

                                          - 12 -
J-A07015-20


      or misapplied, or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will
      discretion is abused. A trial court may grant a mistrial only where
      the incident upon which the motion is based is of such a nature
      that its unavoidable effect is to deprive the defendant of a fair trial
      by preventing the jury from weighing and rendering a true verdict.

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (citations,

quotation marks, and ellipsis omitted), cert. denied, 566 U.S. 986 (2012).

“The remedy of a mistrial is an extreme remedy required only when an

incident is of such a nature that its unavoidable effect is to deprive the

appellant of a fair and impartial tribunal.” Commonwealth v. Cornelius,

180 A.3d 1256, 1261 (Pa. Super. 2018) (citation omitted). “When an event

prejudicial to the defendant occurs during trial only the defendant may move

for a mistrial; the motion shall be made when the event is disclosed.” Id. at

1262, citing Pa.R.Crim.P. 605(B). Failure to object when the disclosure occurs

constitutes waiver of the issue. Cornelius, 180 A.3d at 1262. “Harmless

error exists where (1) the error did not prejudice the defendant or the

prejudice was de minimus; (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 was so insignificant by comparison that the error could not

have contributed to the verdict.” Commonwealth v. Freeman, 827 A.2d

385, 411 (Pa. 2003) (citation omitted).




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       Here, the record demonstrates that prior to trial, the Commonwealth

stated the video interview of Appellant by the police, which it intended to play

for the jury, contained “numerous references to [Appellant] being on parole,

to being released from State prison, to being in the hole in State prison, [and]

a number of things that would be obviously on their face prejudicial.” N.T.,

1/16/18, at 7. Appellant concurred that “[s]ome of those statements involve

[Appellant] alluding to the fact that he was just released from incarceration;

also, that he did hustle drugs in the past, things of that nature[.]” Id. The

Commonwealth stated that it edited the video so the prejudicial statements

would be muted during playback.7 Id. The trial court allowed the edited video

to be played and stated it would instruct the jury that the muted portions were

not relevant in the instant case. Id. at 11-12.

       Appellant argues that despite the Commonwealth’s assurance that the

prejudicial statements were muted, several “highly prejudicial” statements

made during the interview were nevertheless audible to the jury.8 Appellant’s
____________________________________________


7 We note that Appellant did not view the edited video before it was played for
the jury. N.T., 1/17/19, at 224.

8 The trial court held that Appellant waived this issue for failure to specifically
cite locations within the record where highly prejudicial statements from the
interview were found. Trial Court Opinion, 9/4/18, at 8-9. Notwithstanding,
the trial court proceeded to address the merits of Appellant’s issue with regard
to the audible portions of the interview where Appellant objected on the
record. Id. at 9-10. Where appellant’s Rule 1925(b) statement is overly
vague to the extent that the trial court is unable to discern the specific points
of the trial appellant is referring to, appellant waives that issue.
Commonwealth v. Postie, 110 A.3d 1034, 1041 (Pa. Super. 2015).



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J-A07015-20



Brief at 30-32. Specifically, Appellant contends the audible video included the

police asking Appellant if he were “in here for gun charges,” a reference to

Appellant being released from prison, the police asking Appellant if Williams

was trying to buy drugs from Appellant, and the police asking Appellant, in

reference to his selling drugs, if he had “hustled in the past” to which Appellant

stated, “Yeah, I hustled.” Id. at 30-31. Appellant argues, “the jury hearing

that [Appellant] was previously incarcerated and sold drugs inflamed the

passions of the jury and caused the jury to render a verdict based on the fact

that [Appellant] was a supposed drug dealer and had been in jail before.” Id.

at 32.

         A review of the notes of testimony reveals that Appellant moved for a

mistrial and objected after each of the three audible portions of the interview

that Appellant deemed highly prejudicial.          N.T., 1/17/18, at 222, 225,

230-231, and 239. In response to the audible question, “You’re in here for

gun charges[,]” the trial court stated, “[b]ased on the prior evidence of

[Appellant] having the gun and the fact that he's admitting to having shot

[Williams], although it's in self-defense, I’m going to permit it to go on and
____________________________________________


Although counsel is required to cite specific instances of error with references
to the notes of testimony in the Rule 1925(b) statement to avoid waiver of
the issue, we decline to find waiver in this instance because the trial court was
able to discern the claims of error upon review of the notes of transcript and
address those claims. Furthermore, we note that Appellant was required to
submit a Rule 1925(b) statement before the notes of testimony were filed.
Commonwealth v. Harris, 979 A.2d 387, 390 n.1 (Pa. Super. 2009)
(stating, “since counsel was ordered to file the [Rule 1925(b)] statement
before receiving the trial transcripts, we will overlook what would otherwise
be []unacceptable vagueness in the statement”).

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J-A07015-20



note your exception.” Id. at 228. The trial court explained, “that inadvertent

inclusion of reference to gun charges did not create prejudice as [Appellant]

acknowledged throughout the case that [he] possessed a gun and shot

[Williams].” Trial Court Opinion, 9/4/18, at 9.

      At trial, Appellant testified that on the evening in question, he possessed

a gun. N.T., 1/17/18, at 272-273, 277-278. Officer Antoni stated that while

in uniform on February 11, 2016, several days after the shooting, he

attempted, upon encountering Appellant, to make contact with Appellant. Id.

at 149-150. Appellant, after noticing Officer Antoni, moved in such a way as

to indicate he was going to run from Officer Antoni.        Id. at 151.    After

Appellant was handcuffed, a gun was found on his person that the police

seized. Id. at 151-152, 300. The jury heard testimony that the bullet jacket

and cartridge case recovered from the crime scene showed they were fired

from the same gun seized from Appellant several days later. Id. at 212.

      Based upon a review of the record, we find the audible portion of

Appellant’s video interview by the police that referenced Appellant’s gun

related charges to be without prejudice. The record supports that the jury

was aware Appellant had a gun, that he was detained by the police, that the

gun was discovered on his person, and that the gun was used in the murder

of Williams. Moreover, Appellant offered a self-defense explanation for the

shooting.

      Appellant’s next objection was that the audible video interview

referenced Appellant being released from prison. Id. at 230-231. The trial

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court found this evidence to be cumulative of the testimony offered by another

witness, Robert Mumma, who stated he met Appellant in prison. Id. at 231.

A review of the notes of testimony demonstrates that Mumma stated, without

objection, that he knew Appellant from seeing him in Dauphin County Prison.

N.T., 1/16/19, at 74. We concur with the trial court that the audible video

reference to Appellant being released from prison is cumulative of witness

testimony. Therefore, Appellant’s argument of prejudice is without merit.

      Appellant’s final objection was to police questions about whether

Williams was trying to buy drugs from Appellant and if Appellant hustled in

the past, to which Appellant responded in the video that he did hustle. N.T.,

1/17/19, at 239.     Appellant contends the reference to “hustle” meant

Appellant sold drugs.    Id. at 239-240.      The trial court, unaware of this

meaning of the word “hustle,” stated, “I believe it’s de minimus at most. I

don’t believe that the jury is prejudiced by it[.]” Id. at 240-241.

      Mumma testified, without objection, that he knew Williams would

approach cars to see if people wanted to buy drugs and that he had gotten

high on drugs with Williams in the past. N.T., 1/16/19, at 70, 79. He also

testified that he was in the area of the shooting that evening to purchase drugs

and that this area was known for its drug activity. Id. at 67-68. Appellant

testified that his criminal history included convictions for receiving stolen

property and for theft from a motor vehicle.       N.T., 1/17/19, at 291-292.

Appellant’s explanation of the shooting was that he shot Williams in

self-defense. Appellant failed to demonstrate how the evidence of Appellant’s

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prior history of “hustling” or whether Williams was attempting to purchase

drugs from Appellant when he approached his car prevented the jury from

weighing the evidence in light of Appellant’s self-defense argument and

rending a true verdict. We concur with the trial court that the audible portion

of the video interview concerning Appellant selling drugs in the past is de

minimus.

       Appellant failed to demonstrate that the three audible portions of the

video interview prejudiced Appellant and his theory of self-defense so as to

deny him a fair trial.      A review of the record demonstrates that Appellant

admitted to having a gun and shooting Williams and that the gun used to

shoot Williams was found in Appellant’s possession several days after the

shooting. Eyewitness and expert medical testimony further established that

Williams was outside Appellant’s car and in a position of retreat at the time he

was shot.     Appellant’s argument that these audible portions of the video

interview were prejudicial is without merit.9

       Judgment of sentence affirmed.

       Judge Dubow joins.

       Judge McLaughlin concurs in the result.




____________________________________________


9 Although we do not condone the Commonwealth’s inadvertent failure to edit
the video interview as promised in its stipulation, we likewise find that counsel
for Appellant had a duty to review the video interview before it was shown to
the jury.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/04/2020




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