J-S73025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LENNY REID                                 :
                                               :
                       Appellant               :   No. 369 MDA 2019

        Appeal from the Judgment of Sentence Entered January 31, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000066-2017


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED: FEBRUARY 4, 2020

        Lenny Reid appeals from the judgment of sentence, entered in the Court

of Common Pleas of Dauphin County, after a jury found him guilty of one count

each of possession of a firearm prohibited,1 possession with intent to deliver

(PWID),2 and possession of drug paraphernalia.3         Upon careful review, we

affirm.

        On November 10, 2016, an anonymous caller notified the City of

Harrisburg police that Reid had entered unit 5D of Hall Manor (Unit 5D). At

the time, Reid was wanted for violating his parole on a prior conviction. The

____________________________________________


1   18 Pa.C.S.A. § 6105(a)(1).

2   35 P.S. § 780-113(a)(30).

3   35 P.S. § 780-113(a)(32).
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police responded by sending several officers to prevent Reid’s escape and

apprehend him pursuant to an arrest warrant. Upon arrival, officers took up

positions accounting for the layout of Unit 5D. The residence had two floors

with a front and rear entrance.         The second floor was divided into a front

bedroom, a rear bedroom, and a bathroom. Officer Daniel Antoni, along with

other officers, knocked on the front door.        Simultaneously, Officer Donald

Bender positioned himself behind Unit 5D. Tyra Williams, the head of the

household, opened the front door. When officers asked if anyone else was

present, Williams indicated her children were on the first floor and her friend

Mamie Barnes was upstairs with a friend. Officer Antoni informed Williams as

to the purpose behind their presence at Unit 5D and asked for her permission

to search for Reid. Williams consented.

       Officers cleared the first floor; Williams and her children were the only

persons present. Officer Antoni then called for the individuals upstairs to come

down.    Barnes descended with a small child and her friend Jose Aponte.

Officer Bender then radioed Officer Antoni and stated he had observed a

different individual, a dark-skinned black male,4 stick his head out of the rear

bedroom window on the second floor, look around, and close the blinds after

spotting the police.




____________________________________________


4 Officer Antoni testified Aponte “is not a dark-skinned male.”        N.T. Trial
12/12/18, at 84.

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       Officer Antoni requested Officer Bender bring a K-9 in to search the

second floor. At this point, Reid showed himself, came down the stairs, and

surrendered. After the police placed Reid in custody, officers performed a

cursory check to see if anyone else was in Unit 5D. No other individuals were

present. Officer Antoni then asked Williams if he could search the house for

contraband. She consented. In the rear bedroom on the second floor, Officer

Antoni found and seized narcotics packaging supplies, a semi-automatic pistol,

heroin bundles, and a cell phone.

       Prior to trial, Reid moved to exclude any reference to the purpose behind

the police’s presence at Unit 5D, namely, effectuating an arrest warrant for

his violation of parole. The court granted his request. At trial, Officer Bender

stated “the warrant was [of] a felony nature[,]” prompting defense counsel,

Aaron Holt, Esquire, to move for a mistrial on the grounds that the

Commonwealth violated the terms of the court’s pre-trial order. N.T. Trial,

12/12/18, at 37. The court denied Reid’s motion.

       During closing arguments, Attorney Holt advanced the theory that

Aponte solely possessed the heroin and the handgun found in the rear

bedroom on the second floor of Unit 5D, and further alleged the police erred

by failing to investigate Aponte as a suspect.   5   See id. at 136–37 (“It was

____________________________________________


5 Aponte testified that he and Barnes were asleep in the front, upstairs
bedroom. N.T. Trial, 12/12/18, at 70. Aponte further testified he woke up to
let Reid into Unit 5D, returned to the front bedroom to go back to sleep, was



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[Aponte] and him alone.”). Specifically, Attorney Holt highlighted the police’s

failure to take the following steps: (1) search Aponte for drugs or cash; (2)

search for and analyze DNA evidence from the handgun or the drugs; or (3)

obtain a warrant to search the cell phone found in the rear bedroom. The

court found it necessary to clarify points of law concerning Attorney Holt’s

above-referenced assertions relating to an officer’s authority to search

individuals and the procedure for searching a cell phone.           Attorney Holt

protested vigorously at sidebar.

       The jury found Reid guilty on all counts. On January 31, 2019, the court

sentenced Reid to an aggregate sentence of four to eight years’ incarceration,

followed by two years’ probation. Reid did not file post-sentence motions. He

timely filed a notice of appeal on February 27, 2019. Both Reid and the court

complied with Pa.R.A.P. 1925.

       Reid raises the following claims for our review:

       1.     When the Commonwealth elicited prior-bad-act testimony in
              violation of the court’s previous ruling on a motion in limine,
              did not the court abuse its discretion by refusing to grant
              defendant’s motion for mistrial?

       2.     Was it not improper for the court in instructing the jury to
              include sua sponte commentary disputing the legal validity
              of certain claims argued by defense counsel when there was
              no factual or legal basis for the court to instruct the jury in
              such terms and when the court assumed the role of an
              advocate?
____________________________________________


unaware of what Reid was doing at Unit 5D, and never entered the back
bedroom. Id. at 71, 76.


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Brief of Appellant, at 5.

      First, Reid argues Officer Bender violated the pre-trial ruling precluding

evidence of Reid’s prior bad acts by stating the Harrisburg Police were

attempting to effectuate a “warrant [of] a felony nature” and that the trial

court subsequently abused its discretion by failing to declare a mistrial. See

Brief of Appellant, at 26–27.

      We have outlined the relevant standard of review as follows:

      The denial of a motion for a mistrial is assessed on appellate
      review according to an abuse of discretion standard. It is primarily
      within the trial court’s discretion to determine whether [a]
      defendant was prejudiced by the challenged conduct. On appeal,
      therefore, this Court determines whether the trial court abused
      that discretion. An abuse of discretion is not merely an error of
      judgment; rather, discretion is abused when the law is overridden
      or misapplied, or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-will,
      as shown by the evidence or the record.

Commonwealth v. Padilla, 923 A.2d 1189, 1192 (Pa. Super. 2007)

(citations   and   quotations    omitted);    see   also    Commonwealth         v.

Boczkowski, 846 A.2d 75, 95 (Pa. 2004) (“A trial court need only grant a

mistrial where the alleged prejudicial event may reasonably be said to deprive

the defendant of a fair and impartial trial.”).

      Orders resolving motions in limine bind parties at trial in an identical

fashion to suppression orders. Padilla, supra at 1194 (“[B]oth a suppression

motion and a motion in limine settle, before trial, issues regarding the

exclusion or admission of evidence.”). These motions exist, in part, to provide


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a pre-trial opportunity to exclude evidence “that may prove to be so prejudicial

that no instruction could cure the harm to the defendant, thus reducing the

possibility that prejudicial error [would require] the trial court to either declare

a mistrial in the middle of the case or grant a new trial at its conclusion.” Id.

      “Determining whether prejudice has occurred is a fact[-]specific

inquiry.” Commonwealth v. Metzer, 634 A.2d 228, 235 (Pa. Super. 1993).

Our analysis is guided, in part, by the scope of the prohibition established by

the trial court’s pre-trial ruling. See Padilla, supra at 1195–96 (comparing

effect of relatively narrow restrictions established by pre-trial orders in

Commonwealth v. Treiber, 874 A.2d 26 (Pa. 2005) and Commonwealth

v. Edwards, 762 A.2d 382 (Pa. Super. 2000) with “much broader” ruling

“prohibiting any reference to . . . incarceration and parole” in Padilla). Pre-

trial orders excluding evidence of prior bad acts are guided by the long-

established prohibition against “evidence of crimes other than those charged

in the case . . . [being] presented at trial to prove the defendant’s criminal

character or his tendency towards committing criminal acts.” Padilla, supra

at 1194 (quotation omitted).      Passing references to prior criminal activity,

however, do not require reversal “unless the record illustrates definitively that

prejudice results. Prejudice results where the testimony conveys to the jury,

either expressly or by reasonable implication, the fact of another criminal

offense.” Id. at 1195 (quotations omitted).




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       Treiber, supra and Edwards, supra provide examples of narrowly-

tailored orders resolving motions in limine. In Treiber, supra, the trial court

issued a pre-trial order precluding evidence of a previous fire in the

defendant’s home.6 Treiber, supra at 31. The court, however, admitted a

threatening letter authored by the defendant to his girlfriend, in which he

stated, “[g]et rid of the dogs or I[’]ll kill them and burn you out again.” Trial

counsel objected to the word “again[,]” arguing it referred to the defendant

setting other fires and contended the word should have been redacted. Id.

Our Supreme Court found the “the threat note had no relationship to the in

limine ruling as no specific prior fire was mentioned, nor was there any

evidence related to the [previous] fire.” Id. The Court reasoned, as the word

“again” failed to convey any information to the jury about a prior crime, the

trial court did not abuse its discretion in admitting the evidence. Id.

       In Edwards, supra, the defendant was wanted for a January 8, 1995

robbery. Edwards, supra at 384. He was arrested on January 29, 1995,

following a “scuffle” in a department store, during which a gun fell out of his

waistband. Id. The defendant was subsequently charged with robbery and

possession of an instrument of crime for the January 8 incident, but was not

charged for his conduct on January 29. Id. In a pre-trial ruling, the trial court

precluded the Commonwealth from introducing testimony “that would


____________________________________________


6The defendant in Treiber was charged with, inter alia, burning his own home
down. Treiber, supra at 29.

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establish directly or by inference that [defendant] was arrested for other

offenses arising out of the [January 29] incident[.]” Id at 388. The court

permitted a police officer and a department store employee to testify

regarding the January 29 incident, describing the scuffle, the gun, and the

defendant being transported to the police station. Id. This Court concluded

“the Commonwealth complied with the [t]rial [c]ourt’s ruling and did not elicit

facts . . . to indicate that Appellant had been arrested or charged with criminal

offenses in connection with [the January 29] incident.” Id. Therefore, we

concluded the testimony was not prejudicial, as it “did not expressly or by

reasonable implication communicate to the jury the involvement of Appellant

in another criminal offense.” Id. at 388–89.

      The two cases above are brought into sharp relief by Padilla, supra,

which involved a far broader pre-trial ruling prohibiting “any reference to

[Appellant’s] incarceration and parole[.]” Padilla, supra at 1195. At trial,

an officer described arriving at the scene of the crime by stating, in relevant

part, “[a]pparently [Appellant] just got out of jail[.]” Id. at 1192. This Court,

taking the “much broader” ruling into account, found the officers remarks “a

direct reference to Appellant’s recent incarceration.”      Id. at 1196.     We,

therefore, concluded the testimony “expressly and by reasonable implication[]

communicated to the jury Appellant’s involvement in another criminal

offense.” Id.




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      Instantly, Attorney Holt anticipated the prejudicial impact of Reid’s

status as a parolee during pre-trial motions. See N.T. Trial 12/12/18, at 12.

He sought to preclude any mention of Reid’s status as a parolee on the record

in the following exchange:

      [Attorney Holt:] . . . And there’s another issue as well. The reason
      the officers went to the home is that somebody said that . . . Reid
      had a warrant out for his arrest. He was on state parole at the
      time. I guess he absconded.

      So I don’t want any mention of—a motion in limine—to limit the
      testimony as to why the officers were present in the home. I don’t
      think that’s relevant or germane to the fact at issue.

      The court: Well, there’s always a need for context. So let’s find
      out—how were you[, the Commonwealth,] planning on explaining
      the officers present at—

      [The Commonwealth:] Your Honor, my plan was to refer to . . .
      Reid as a person of interest that the police were interested in
      speaking with and that they had received a tip that he was there—
      or not even a tip. It doesn’t have to be a tip. Just that they were
      aware that a person they were interested in speaking with was at
      this residence and we were interested in speaking with him.

      [Attorney Holt:] Could I confer with my client for just a moment?

      The court: Absolutely.

      [Attorney Holt:] All right, Your Honor, if we could just not get into
      the fact that he was on parole at the time, that would be fine by
      me. The fact that he had a warrant, I mean the jury can know
      that but what the warrant was for is not relevant.

      The court: All right. Well, if indeed it was for a parole violation
      being probably being more prejudicial than probative, all right. So
      let’s just keep it as a warrant and not mention that it was parole
      and we’re good.

N.T. Trial, 12/12/18, at 11–12 (capitalization adjusted).


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       Officer Bender, the first witness presented by the Commonwealth,

affirmed his presence at the scene resulted from “a wanted person with a

warrant being at [Unit] 5D[.]” N.T. Trial, 12/12/18, at 32–33. Attorney Holt

moved for a mistrial after the following exchange:

       [Commonwealth:]     And what would be—what would be the
       purpose of the K-9 unit coming in to assist with that, what would
       procedure be?

       [Officer Bender:] Procedure for this would be that the warrant
       was [of] a felony nature which is required for use of a K-9 in this
       application [sic]. So having that the first floor was already cleared
       by officers, I was at the bottom of the stairs and I gave two[ . . .
       7]



Id. at 37.

       Reid argues the court erred by failing to grant a mistrial as the

Commonwealth’s questioning “elicited the type of prejudicial reference—a

warrant of a felony nature—that the pretrial ruling was designed to prevent.”

Brief of Appellant, at 26 (quotation omitted). We disagree. We find the above-

mentioned pre-trial ruling to be narrowly tailored such that it permitted

mention of the police’s presence for the purpose of effectuating a warrant and

precluded testimony revealing the warrant’s origin—a parole violation.

Compare Treiber, supra at 31 (precluding mention of prior arson) and

Edward, supra at 388 (precluding testimony expressing or implying

Appellant was charged for conduct during incident leading to his arrest) with


____________________________________________


7At this point, Attorney Holt’s objection interrupted Officer Bender. N.T. Trial,
12/12/18, at 37.

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Padilla, supra at 1195 (prohibiting “any reference to [Appellant’s]

incarceration and parole[.]”).

      The exchange to which Attorney Holt objected related to the procedure

under which the Harrisburg Police deploy their K-9 unit.        See N.T. Trial,

12/12/18, at 37. Officer Bender did not portray Reid as a parolee. See id. at

37.   Rather, Officer Bender’s limited disclosure informed the jury he was

present at Unit 5D because of an arrest warrant. N.T. Trial, 12/12/18, at 37.

The jury later learned the warrant was for Reid’s arrest, that Reid was

arrested, and that, prior to Reid’s arrest, he had been in a room containing

contraband. Id. at 39, 87–90. Officer Bender’s statement, however, did not

expressly or by reasonable implication communicate any information

regarding Reid’s violation of parole or his involvement in any criminal episode

other than the one at trial; the statment, therefore, did not prejudice his case.

Compare Padilla, supra at 1192, 1196 (finding statement that Appellant

“just got out of jail” prejudicial as it was “a direct reference to Appellant’s

recent incarceration”) with Edward, supra at 388 (finding witnesses’

testimony detailing fight leading to appellant’s arrest, gun dropped by

appellant, and transporting appellant to police station did not prejudice

defendant because witnesses did not specifically mention arrest or indicate

filing criminal charges). Consequently, the court did not abuse its discretion

by denying Reid’s motion for a mistrial. See Padilla, supra at 1192.




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      Next, Reid argues the court abused its discretion by providing

commentary during its jury instruction, without a factual or legal basis, which

undermined Attorney Holt’s closing argument. Brief of Appellant, at 30.

      We review the trial court’s jury instructions as follows:

      [T]he reviewing court must consider the charge as a whole to
      determine if the charge was inadequate, erroneous, or prejudicial.
      The trial court has broad discretion in phrasing its instructions,
      and may choose its own wording so long as the law is clearly,
      adequately, and accurately presented to the jury for its
      consideration. A new trial is required on account of an erroneous
      jury instruction only if the instruction under review contained
      fundamental error, misled, or confused the jury.

Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009) (citations and

quotations omitted).

      “It is properly the function of the trial judge to define and frame for the

jury those factual issues which are contested and which require the weighing

of conflicting evidence.” Commonwealth v. Kelly, 446 A.2d 941, 944 (Pa.

Super. 1982); see Pa.R.Crim.P. 647(E) (“The trial judge may give any other

instructions to the jury . . . at anytime during the trial as the judge deems

necessary and appropriate for the jury’s guidance in hearing the case.”). Such

instruction is proper, “provided[:]    (1) there is reasonable ground for any

statement [the court] may make; and (2) [the court] clearly leaves to the jury

the right to decide all the facts and every question involved in the case

regardless of any opinion of the court thereon.” Commonwealth v. Nesbitt,

419 A.2d 64, 67 (Pa. Super. 1980).




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      Instantly, Attorney Holt advanced the theory that the Harrisburg Police

failed to investigate whether the confiscated contraband belonged to one of

the other individuals in Unit 5D—particularly Aponte—stating as follows during

closing argument:

      You heard testimony from the officer that when . . . Barnes and
      . . . Aponte walked down the stairs[,] neither of those individuals
      were searched. Although they did not see which room those
      individuals came out of, the officers did not take the opportunity
      to stop them, pat these individuals down, see if [Aponte] had
      drugs on his person, see if he had four or five grand in his pocket.

                                      ...

      You also heard testimony that there was a cell phone in that back
      bedroom—a cell phone.          I mean, this is—it does—the
      Commonwealth—the officer was practically given a gift wrapped
      way of corroborating who was in that back bedroom.

                                      ...

      [An officer] could have just as easily executed a search warrant,
      gotten into that phone. There may have been pictures of [Aponte]
      in that phone. There could have been text messages from
      [Aponte] to whomever. There could have been [e]-mails, social
      media accounts that they could have gone through, the whole
      nine.

N.T. Trial, 12/12/18, at 138.

      The court responded to Attorney Holt’s above-recounted argument

during its jury charge as follows:

      I don’t normally comment on arguments of counsel[,] but in
      certain cases I just want to make sure that there’s no confusion.
      I know there was some reference to whether the police searched
      the people coming down the steps.

      Just be aware that a police officer going into a private home with
      permission to search for someone that they have a warrant for

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      does not give authority to the police to search anybody else in
      that house.

      I mean, there’s limitations on what they can do. They need to
      have their own independent probable cause. So there [were] a
      lot of things that were raised that the police may or may not have
      done such as fingerprinting and all the rest. That’s fair game.

      But to say that they didn’t search private citizens in someone’s
      home when they really don’t have a legal authority to do it is kind
      of a tough one. I want to make sure we keep things in fair game
      as far as argument.

      Similarly[,] in searching a phone, [] a judge would have to sign
      an order like that[;] that’s only done when there’s specific
      probable cause that [can] justify the invasion of the privacy of
      someone’s phone and the contents of it. So that actually isn’t
      done for the convenience of an investigation. There has to be
      probable cause to believe there is evidence on a particular phone.

Id. at 174–75.

      Reid asserts “[t]here was no factual or legal basis for the court to give

those instructions[,]” arguing the court’s instruction informed the jury

“categorically that there was no way for the police to have searched Aponte”

and suggested “that the police could not have procured a search warrant with

respect to the phone.” Id. at 34–35.

      Reid mischaracterizes the court’s statements.         The above-recounted

instructions   describe   discrete   criminal   procedure    concepts—searching

individuals in a home and searching cell phones. Id. at 174–75. In explaining

these concepts, the court did not make a definitive pronouncement as to how

they would be applied; instead, as the following passage reveals, the court

attempted to clarify any potential misconceptions created by Attorney Holt’s


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closing argument and direct the jury towards making findings-of-fact relevant

to the case at hand:

      [T]he statements that I made are how the [c]ourt views the law
      as it comes to whether someone can be searched in someone’s
      home or whether a phone can be searched in a private home as
      opposed to something that was tied to a specific criminal
      investigation.

                                      ...

      I told you the law isn’t what I want it to be. . . . And that’s why I
      have to rule the way I truly do. But I don’t want it to interfere
      with your fact-finding function and that is you’ve got to
      concentrate on the evidence that was there or the evidence that’s
      not there, but you can’t take a legal conclusion and try to build
      something beyond [that.]

Id. at 187.

      The police had consent to search Unit 5D for contraband. See N.T. Trial.

12/12/18, at 86–87 (affirming Williams gave consent for police to “search the

house for anything illegal.”).   This, however, did not give the police the

authority to search everyone in the house, as there neither existed probable

cause for an “all persons present” search warrant nor reasonable suspicion to

suspect anyone posed a danger to the police.          See Commonwealth v.

Wilson, 631 A.2d 1356, 1358 (Pa. Super. 1993) (noting disfavor for “all

persons present” warrants; requiring “affidavit of probable cause [containing]

sufficient fact to justify a search of everyone found on the premises.”); see

also Commonwealth v. Bozeman, 205 A.3d 1264, 1274 (requiring officers

“articulate specific facts from which he could reasonably infer that the




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individual was armed and dangerous” for Terry8 frisk). Likewise, the court

correctly stated a search of a cell phone requires a warrant supported by

probable cause. See Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa.

2018) (“[A] warrant is generally required for law enforcement to search a cell

phone.”).

        While neither description—either that pertaining to police authority for

searching citizens in private homes while effectuating an arrest warrant or

that contemplating the requirements for searching a cell phone—constitutes

an exhaustive doctrinal explanation, the court’s commentary served only to

frame issues brought into question by Attorney Holt’s closing argument. See

Kelly, supra at 944 (permitting court to “define and frame for the jury those

factual issues which are contested”). As the court possessed the authority to

instruct the jury on these subjects, and as nothing in its instructions was

“inadequate, erroneous, or prejudicial[,]” we find no abuse of discretion in the

court’s charge. Fletcher, supra at 792. Reid’s second claim, therefore, fails.

        Judgment of sentence affirmed.




____________________________________________


8   Terry v. Ohio, 392 U.S. 1 (1968).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/04/2020




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