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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DURON BOSTON PEOPLES

                            Appellant                  No. 3317 EDA 2014


            Appeal from the Judgment of Sentence October 24, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004220-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED OCTOBER 30, 2015

        Duron Peoples appeals from the judgment of sentence imposed by the

Court of Common Pleas of Chester County after a jury convicted him of first-

degree murder1 and related offenses. After careful review, we affirm.

        At trial, the Commonwealth established that on October 21, 2006, Eric

Coxry shot Jonas Suber to death with a .45 caliber semi-automatic weapon

at his home in Coatesville.          The Commonwealth further established that

Peoples solicited Shamone Woods to arrange for Coxry to commit the

murder after another individual, Donte Carter, failed to carry out the

shooting.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
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        On October 2, 2014, the day after Peoples’ conviction, the jury

convened and sentenced Peoples to life imprisonment for first-degree

murder. On October 24, 2014, the court formally imposed the sentence of

life imprisonment, along with several concurrent sentences for other

offenses. However, with respect to Peoples’ conviction for soliciting Donte

Carter to kill Suber,2 the court imposed a consecutive sentence of ten to

twenty years’ imprisonment.

        This timely appeal followed in which Peoples raises the following issues

for our review:

        1. Whether the trial court erred in denying [Peoples’] motion to
           exclude from evidence the .38 firearm that was seized from
           [Peoples’] residence at 282 Carlyn Court, Cain Township,
           Chester County, Pennsylvania.

        2. Whether the trial court erred in permitting the witness,
           Clarence Milton, to testify to letters allegedly written by co-
           conspirators, to third parties, years after the conspiracy
           concluded, as such statements were not attributed to
           [Peoples], and were otherwise inadmissible hearsay.

Appellant’s Brief, at 7.

        With respect to Peoples’ first issue, our standard of review regarding

the admissibility of evidence is an abuse of discretion.

        “[T]he admissibility of evidence is a matter addressed to the
        sound discretion of the trial court and . . . an appellate court
        may only reverse upon a showing that the trial court abused its
        discretion.” Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d
        958, 967 (2001) (citations omitted). “An abuse of discretion is
____________________________________________


2
    18 Pa.C.S. § 902.



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      not a mere error in judgment but, rather, involves bias, ill will,
      partiality,   prejudice,  manifest    unreasonableness,        or
      misapplication of law.” Commonwealth v. Hoover, 16 A.3d
      1148, 1150 (Pa. Super. 2011).

Commonwealth v. Collins, 70 A.3d 1245, 1251-52 (Pa. Super. 2013).

      On September 12, 2014, Peoples filed a motion in limine to preclude

the admission of a .38 revolver that police found at his residence during a

search on November 10, 2006.       The motion stated that Peoples was not

charged with illegally possessing the revolver and that “neither Peoples nor

any co-conspirator [was] alleged to have utilized the aforementioned .38

revolver to commit the homicide that is the subject of the instant

prosecution.” Motion in limine, 9/12/14, at 2.

      In response, the Commonwealth noted:

      This is the relevance of the .38 caliber revolver: Mr. Victor
      Devalia has related that, when Mr. Peoples extracted a .45
      caliber semi-automatic pistol from the laundry room of 282
      Carlyn Court the evening before Mr. Suber was murdered, he
      also produced a .38 caliber revolver with a taped handle. On
      November 10, 2006, when executing a search warrant of the
      residence, detectives located a .38 caliber revolver in the
      laundry room matching the description given by Mr. Devalia.
      Since it is most assuredly the case that the defense will at trial
      make a concerted attempt to discredit Devalia, the importance of
      the .38 as it was found by the police is that it corroborates one
      aspect of Devalia’s story.

Commonwealth’s Memorandum of Law, 9/12/14, at 3.

      By order dated September 22, 2014, the trial court denied Peoples’

request to exclude evidence of the .38 caliber weapon. On appeal, Peoples

argues that the court abused its discretion because admitting the weapon

“was so inflammatory that it created [a] substantial and unjustifiable risk of

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inciting the jury to decide this case on the unrelated, physically dissimilar,

firearm evidence alone.” Appellant’s Brief, at 12.

      At trial, the following exchange occurred between the attorney for the

Commonwealth and Devalia:

      Q:    [A]fter Mr. Peoples came out of the Home Depot, where
            did the two of you fellas go?

      A:    Back to his home on Carlyn Court.

      Q:    Back there?

      A:    Yes.

      Q:    And whose idea was that?

      A:    Mr. Peoples.

      Q:    And when you got back to 282 Carlyn Court, what
            happened there?

      A:    He started reaching – he started reaching up in the ceiling.

      Q:    Okay. Let me stop you right there.       Did he extract any
            firearms?

      A:    Yes, sir.

      Q:    How many?

      A:    Two.

      Q:    And from which room did Mr. Peoples, the defendant,
            extract two firearms at 282 Carlyn Court?

      A:    There is a little, like a little laundry room type – laundry
            room right off the kitchen. He got it from up in there.

      Q:    And with regard to the two weapons, can you describe
            them for the jury?

      A:    One was a revolver and one was a big black automatic,
            said it was a .45.




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      Q:    Okay. And with regard to the revolver, was there anything
            about the handle that you remember?

      A:    It was kind of old.

      Q:    Okay. I’m going to show you what’s been marked as
            Commonwealth 68. Just take a look at it. Just take a look
            at that and tell us what is in the box marked 68, if you
            can.

      A:    Revolver.

      Q:    And just for the record purposes, to the best of your
            recollection, is this the revolver that you observed Mr.
            Peoples extract from the laundry room at 282 Carlyn
            Court?

      A:    Yes, sir.

N.T. Trial, 9/24/14, at 125-27.

      The Commonwealth also called Detective Kevin Campbell of the

Coatesville Police Department as a witness. He testified that while executing

a search warrant at Peoples’ home on November 10, 2006, he found a

revolver in the laundry room ceiling. He identified Commonwealth Exhibit 68

as the weapon. Detective Campbell also identified a photograph of the .38

that was taken during the execution of the search warrant.        N.T. Trial,

9/26/14, at 122-23.

      The final reference to the .38 occurred during closing argument, where

the Commonwealth stated:

      The police search Carlyn Court and they find that, a .38 which
      just happens to match exactly what Mr. Devalia told the police
      he saw. He got that right. He’s corroborated in that respect.

N.T. Trial, 9/30/14, at 103.




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     Evidence of crimes, wrongs or other acts is not admissible to prove a

person’s character.    However, “this evidence may be used for another

purpose.” Pa.R.E. 404(b)(2). Here, the trial court held that evidence of the

.38 caliber revolver “forms part of the history and natural development of

the events in this case, and thus has a well-established permitted ‘purpose’

use under Rule 404(b)(2).” Trial Court Order, 9/22/14, at 2. We disagree.

     In the instant matter, the Commonwealth established no connection

between the .38 caliber revolver and the events leading up to Suber’s

murder or to the murder itself.    We contrast this to Commonwealth v.

Owens, 929 A.2d 1187 (Pa. Super. 2007), where the defendant used a

shotgun to threaten three men who attempted to pick up a child for court-

ordered visitation.   Police were called and the men left with the child.

Shortly thereafter, Owens rammed his Ford Explorer into the car occupied by

the men and child, then showered the car with bullets.      Four days later,

police arrested Owens and a search of his car yielded .22 caliber bullets. “A

search of Owens’ home produced two rifle scopes and a scope mount,

shotgun shells, rifle ammunition, handgun ammunition and a .22 caliber

handgun barrel.” Id. at 1189.

     On appeal, Owens challenged the denial of his motion to preclude

admission of the shotgun shells.   This Court held that “the shotgun shells

seized from Owens’ home were relevant, since such evidence forms part of

the history and natural development of the events and offenses for which . .

. Owens [was] charged.”      Id. at 1191.    Here, because the .38 caliber

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revolver was not relevant to the crimes charged, the trial court abused its

discretion by admitting the weapon as forming part of the history and

natural development of the case.

      Nevertheless, we find that admission of the .38 caliber revolver was

harmless error.

      Harmless error is established where either the error did not
      prejudice the defendant; or the erroneously admitted evidence
      was merely cumulative of other untainted evidence; or where
      the properly admitted and uncontradicted evidence of guilt was
      so overwhelming the prejudicial effect of the error was so
      insignificant by comparison that the error could not have
      contributed to the verdict.

Owens, supra, at 1192 (citation omitted).

      Here, the jury heard testimony that Peoples drove to Chester County

from Georgia in October 2006 with the intention of arranging for the killing

of Suber. On October 20, 2006, Devalia drove Peoples to a Home Depot in

Downingtown where he met with Shamone Woods and handed him an

envelope. Devalia then drove Peoples to his house where Peoples removed

a .45 caliber semi-automatic pistol from a hiding place. Peoples explained to

Devalia that “this was what the big boys used to get the job done.”     N.T.

Trial, 9/24/14, at 128.

      In the early evening of October 20, 2006, Devalia drove Peoples to the

parking lot of a Regal Theater in Downington, where Devalia put on an Afro

wig before entering the theater.   The Commonwealth presented evidence

that while Peoples was in the theater he gave the .45 caliber weapon to



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Woods, who in turn provided it to Coxry to kill Suber. When Peoples came

out of the building, he and Devalia began their return trip to Georgia.

      In light of this evidence, admission of the .38 caliber revolver was

harmless error that does not require reversal.

      Peoples next argues that the trial court abused its discretion by

allowing Commonwealth witness Clarence Milton to testify regarding portions

of two letters written by one of Peoples’ co-conspirators, Jeremiah Bush, to

prison inmate Jamil Dabney.

      At trial, Milton testified that at 8:00 p.m. on October 20, 2006, he was

at a crack house at 3rd and Chestnut in Coatesville with several people

including Bush, when Woods and Coxry came in with their friend Eppie.

Coxry removed a .45 caliber semi-automatic weapon from his person and

handed it to Milton.   When Milton handed the gun back to Coxry, Coxry

explained that they were in Coatesville “taking care of the whole situation

that they had to take care of that was involving Mr. Suber.”        N.T. Trial,

9/23/14, at 102. They mentioned $20,000 for the job. Id.

      Woods, Coxry and Eppie left the house shortly thereafter but Bush

stayed behind.   When Milton went to sleep, Bush was still in the house.

However, shortly after Milton awoke the following morning, between 9:00

and 10:00 a.m., he saw Bush coming in the door.

      At trial, the Commonwealth asked Milton to identify a letter that Bush

sent to his friend Jamil Dabney, an inmate at SCI-Fayette. The letter, which

was received on December 15, 2008, is signed “Young.” Milton testified that

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Bush is known as “Young.” Milton also identified a letter to Dabney that was

received on March 9, 2015, and was signed “Gangsta.” The return address

on the envelope indicated that the sender was “Lil Bro.” Milton testified that

Bush is also known by these names.

        The letter received on March 9, 2015 is written in unconventional

jargon and refers to several individuals by nicknames. After reviewing the

letter, Milton testified that the author, Bush, is asking Dabney to find out

whether Coxry is talking to the authorities about Bush’s involvement in the

2006 murder. Id. at 119.3

        Peoples argues that the letters were inadmissible hearsay, and that

even if there was a conspiracy to kill Suber, the letters were written years

after the conspiracy ended.         Peoples also notes that he did not write the

letters and that he is not referenced in them.

        Pa.R.E. 801 defines hearsay as a statement that “(1) the declarant

does not make while testifying at the current trial or hearing; and (2) a




____________________________________________


3
    The letter states, in part:

        Remember buddy who was over [S]omerset with you, and he
        asked you not to tell me that he was up there? Young said see
        what[’]s his set! Give him this game and see how he react. Be
        careful though because he might be singing!

Commonwealth Exhibit, 51A.




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party offers into evidence to prove the truth of the matter asserted in the

statement.” Pa.R.E. 801(c).

     The Comment to Rule 801 provides, in relevant part:

     A statement is hearsay only if it is offered to prove the truth of
     the matter asserted in the statement. There are many situations
     in which evidence of a statement is offered for a purpose other
     than to prove the truth of the matter asserted.

     Sometimes a statement has direct legal significance, whether or
     not it is true. For example, one or more statements may
     constitute an offer, an acceptance, promise, a guarantee, a
     notice, a representation, a misrepresentation, defamation,
     perjury, compliance with a contractual or statutory obligation,
     etc.

     More often, a statement, whether or not it is true, constitutes
     circumstantial evidence from which the trier of fact may infer,
     alone or in combination with other evidence, the existence or
     non-existence of a fact in issue. For example, a declarant’s
     statement may imply his or her state of mind, or it may imply
     that a particular state of mind ensued in the recipient. Evidence
     of a statement, particularly if it is proven untrue by other
     evidence may imply the existence of a conspiracy or fraud.
     Evidence of a statement made by a witness, if inconsistent with
     the witness’s testimony, may imply that the witness is an
     unreliable historian. Conversely, evidence of a statement made
     by a witness that is consistent with the witness’s testimony may
     imply the opposite. See Pa.R.E. 613(c).

Pa.R.E. 801, Comment.

     Here, Peoples was charged with, and convicted of, conspiracy to

commit first-degree murder. The Commonwealth argues that portions of the

letters were not offered to prove the truth of the matter asserted, but as

circumstantial evidence of the formation and existence of a conspiracy. See

Commonwealth v. Cassidy, 462 A.3d 270 (Pa. Super. 1983).



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      The trial court determined that the letters constituted non-hearsay

evidence of a co-conspirator’s verbal act of reaching out to third party to

make sure that an additional co-conspirator did not cooperate with the

police. See Trial Court Order, 9/8/14, at 2. Having reached this conclusion,

the trial court proceeded to determine that the letters, which were evidence

of prior bad acts, were admissible because “the probative value of the

evidence outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2).

      Peoples has failed to establish that the trial court abused its discretion

by denying his motion in limine to preclude admission of the letters.

Accordingly, he is not entitled to relief on this issue.

      Judgment of sentence affirmed.

      GANTMAN , President Judge, concurs in the result.

      PLATT, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




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