J-S36001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                     v.

EUGENE MCMILLER

                           Appellant                  No. 352 WDA 2013


            Appeal from the Judgment of Sentence January 23, 2013
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013606-2011


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JUNE 30, 2015

        Appellant, Eugene McMiller, appeals from the judgment of sentence

entered on January 23, 2013, after a jury convicted him of second degree

murder, robbery, and three counts of recklessly endangering another

person. McMiller contends that the trial court erred in overruling his

objection to the admission of evidence of prior bad acts. We affirm.

        McMiller and his co-defendant, Gary Smith, were accused of killing

Justin Charles during a robbery on October 14, 2011. On that day, Michael

Elko and Charles Coddington, both admitted heroin users, were at Elko’s

home. A friend of the pair, Charles, came to the home with two African-

American males, one of whom was later identified as McMiller. Charles, also

a heroin user, was trying to arrange a drug deal with the two men. An
*
    Retired Senior Judge assigned to the Superior Court.
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altercation ensued. According to Elko, during the altercation, McMiller had

pulled out a gun and demanded money from Charles several times, with

Charles refusing each time. Elko further testified that McMiller had

threatened that, if Charles did not give him the money, he would give the

gun to the other man who would use it. The robbery culminated in the death

of Charles. When shown a photo array by police, Elko identified McMiller as

one of the men who came into his house, and as the man who demanded

money from him.

     At trial, McMiller chose to testify on his own behalf. Prior to that

testimony, McMiller was informed of his rights with regard to testifying or

remaining silent, as well as any potential ramifications from testifying.

Specifically, McMiller was informed that his own answers to questions could

subject him to additional questions on items that would not normally be

admissible. Along with other examples, it was mentioned if McMiller testified

that he did not know Gary Smith, the Commonwealth could cross-examine

him on the fact that he had recently been arrested with Smith. McMiller

indicated   that   he   understood   all   of   the   potential   ramifications   and

consequences of his testimony.

     During McMiller’s testimony, he indicated that he was afraid when

Smith pulled a gun on Charles, and he indicated that it “was the first time I

was in a situation like that.” N.T., Trial, 10/24-25/12, at 77. On cross-

examination, McMiller recommitted to his statement that he had never been


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in a situation like that, where a gun was pulled on a person. See id., at 86.

After a defense objection, the court permitted the Commonwealth to explore

the subject of an incident that occurred at a convenience store two days

prior to the murder of Charles. McMiller had been arrested on charges that

he committed an armed robbery with Smith on October 12. It was alleged

that the two were at a convenience store and Smith put a gun in the back of

the clerk and demanded money. See id.

        Following a jury trial, McMiller was convicted of second degree

murder,1 robbery,2 and three counts of recklessly endangering another

person.3 The trial court later sentenced McMiller to life in prison without

parole for the murder conviction and to a concurrent term of 5 to 10 years

for robbery. This timely appeal followed.

        McMiller’s sole claim raised on appeal is that the trial court denied him

a fair trial by permitting the introduction into evidence of allegedly unrelated

and unproven criminal activity. Specifically, he claims the trial court erred in

admitting, over defense counsel’s objection, evidence of McMiller’s alleged

involvement in criminal activity that occurred two days prior to the instant

murder. See Appellant’s Brief, at 20-25.

        The applicable standard of review for a challenge to the admissibility of

evidence is well settled.


1
    18 Pa. C.S.A. §2502(b)
2
    18 Pa. C.S.A. §3701(a)(1)
3
    18 Pa. C.S.A. §2705
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      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of its
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness,
      or partiality, prejudice, bias, or ill-will, or such lack of support so
      as to be clearly erroneous.

Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)

(citation and quotation marks omitted)

      McMiller testified on his own behalf and therefore cross examination of

him was limited by rules pertaining to witnesses generally. “The credibility of

a witness may be impeached by any evidence relevant to that issue, except

as otherwise provided by statute or these rules.” Pa.R.E. 607(b). If a

defendant offers himself as a person worthy of belief, the jury has the right

to know what kind of man he is and thus his previous record is admissible to

aid in assessing his credibility. See Commonwealth v. Butler, 173 A.2d

468, 474 (Pa. 1961).

      Evidence implying other crimes may be introduced when the evidence

has a proper evidentiary purpose and is not used merely to demonstrate

that the defendant is a person of bad character with a propensity to commit

crime. See Commonwealth v. Hood, 872 A.2d 175, 185 (Pa. Super.

2005). When the defense opens the door it is well established that the

Commonwealth may impeach a defendants’ credibility with reference to prior

crimes. See id. “[The defendant] is not insulated from being discredited


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about the factual accuracy simply because that proof involves other crimes.”

Id. (brackets in original; citation omitted).

      In his own testimony McMiller ardently told the jury – twice – that he

had never before been in a situation like the one at issue, in which Smith

pulled a gun on a victim. Understandably, this opened the door for the

Commonwealth to attempt to impeach McMiller’s credibility, as he had been

charged as a co-defendant in the same type of robbery at a convenience

store merely two days prior to the robbery and murder at issue. This cross-

examination clearly attacked McMiller’s credibility. It was thus permissible

because it was not offered to show McMiller’s bad character or propensity for

this particular crime, but rather, to prove that the testimony he offered was

not truthful. Admission of such evidence is within the sound discretion of the

trial court and where, as here, there is a legitimate purpose for allowing

such evidence to come in, no abuse of discretion is found.

      While the evidence of the prior robbery was prejudicial, the trial court

used its discretion in admitting the evidence after weighing the prejudicial

impact against its probative value. The trial court provided the jury with a

cautionary instruction during its closing charge to ensure that it was clear

that the prior robbery charge was only a pending criminal case and to ensure

the bad acts testimony would not be misused by the jurors.

      There was evidence admitted showing that the Defendant has a
      pending criminal case for which he is not on trial at this
      point…This evidence is not evidence of the Defendant’s guilt. You
      must not infer guilt from the evidence of the pending case. This

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      evidence may be considered by you for one purpose only. That is
      to help you judge the credibility and weight of the testimony
      given by the Defendant as a witness in this trial. This evidence
      must not be considered by you in a way other than for the
      purpose that I just stated. You must not regard this evidence as
      showing that the Defendant is a person of bad character or
      criminal tendencies from which you might be inclined to infer
      guilt.

N.T., Trial, 10/24-25/12, at 162-163. A jury is presumed to follow the

court’s instructions. See Hood, 872 A.2d at 185. Thus, the trial court

properly limited the purpose for which the evidence of the prior arrest could

be used.

      McMiller agrees that the alleged event that occurred two days prior

was analogous to the present crime, but suggests that the evidence should

not have been permitted because he was only alleged to have been involved

in the previous robbery with Smith and had not yet been convicted of it. See

Brief for Appellant, at 22-23. However, a prosecutor may only not malign an

accused with irrelevant evidence of prior crimes. See Commonwealth v.

Days, 784 A.2d 817, 821 (Pa. Super. 2001). “When prior crimes or arrests

are made relevant by the accused’s own testimony, cross-examination on

these points is entirely proper.” Id. (emphasis supplied).

      We conclude the trial court did not commit an abuse of discretion in

admitting the evidence of prior bad acts to impeach McMillers’ credibility on

the stand during his own testimony. We therefore conclude that McMiller is

due no relief on his sole claim on appeal.

      Judgment of sentence affirmed. Jurisdiction relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2015




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