J-A24037-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
                  v.                    :
                                        :
STORM E. MASON,                         :
                                        :
                       Appellant        :    No. 137 EDA 2015


      Appeal from the Judgment of Sentence Entered August 14, 2014,
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0000681-2013

BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED OCTOBER 13, 2015

      Storm E. Mason (Appellant) appeals from the judgment of sentence

entered following his convictions for one count of third-degree murder, one

count of carrying a firearm without a license, one count of carrying a firearm

on public streets in Philadelphia, and one count of possessing instruments of

a crime. We affirm.

      The trial court set forth the relevant factual history of this case as

follows.

              On the night of October 15, 2012, [Appellant] and his
      girlfriend, Deborah Reed, went to Big Fella’s Bar located at 1348
      South 33rd Street in Philadelphia, Pennsylvania. When
      [Appellant] entered Big Fella’s Bar, he saw a woman [whom] he
      knew and greeted the woman with a hug. Matthew Smith, the
      nephew of the woman [Appellant] hugged, pushed [Appellant]
      and told him not to hug Smith’s aunt. This upset [Appellant] and
      made him angry.



* Retired Senior Judge assigned to the Superior Court.
J-A24037-15


            Shortly thereafter, [Appellant], Reed, and [Appellant’s]
      friend Kylif, left the bar. Smith and his cousin, Lamont Griffin,
      then left the bar as well. While everyone was gathered outside,
      [Appellant] and Kylif started to “play fight” with each other.
      [Appellant] then attempted to get Smith to “play fight” as well.
      [Appellant] continued to provoke Smith until Smith punched
      [Appellant] and [Appellant] fell into the street.

            [Appellant] then picked himself up off the ground and told
      Smith, “Give me a fair one, a fair one.” Smith replied, “Alright,
      alright,” and started to walk towards [Appellant] in the street.
      [Appellant] then reached into his jacket and pulled out a gun and
      started to fire at Smith. Smith turned around and attempted to
      run after [Appellant] opened fire. Smith was hit by three bullets
      and fell to the ground. [Appellant] started to run away after
      Smith fell. However, [Appellant] stopped, turned back, and
      returned towards Smith, firing two more bullets at Smith’s body.
      [Appellant] shot Smith a total of five times. Smith was shot on
      the outside of his left shoulder, on the left side of his abdomen,
      on the inside of his calf, and twice on the left side of his back.

             Police officers responded to the scene and observed Smith
      on the ground, bleeding and unresponsive. Smith was
      transported to the University of Pennsylvania Hospital where he
      was ultimately pronounced dead. Police officers recovered [five]
      fired .380 cartridge cases from the scene of the shooting.

Trial Court Opinion, 2/20/2015, at 2-3 (citations and footnotes omitted).

      Appellant was arrested four days after the shooting. N.T., 6/17/2014,

at 220.   During that four-day timeframe, Reed stayed with Appellant at

various locations. Id. at 221-235. Following Appellant’s arrest, she gave a

statement to police implicating Appellant. Id. at 237.

      Prior to trial, the Commonwealth filed a motion in limine, pursuant to

Pa.R.E. 404(b), seeking to introduce evidence of a 2007 incident, in which




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Appellant pistol whipped Reed.1 The Commonwealth argued that this

evidence was relevant to explain Reed’s state of mind following the homicide

and her delay in reporting to authorities Appellant’s involvement in Smith’s

death. Following a hearing on the issue, the trial court ruled in Appellant’s

favor, excluding the evidence of Appellant’s prior bad acts unless defense

counsel “open[ed] the door by referencing or trying to create an inference in

[his] argument or [his] cross-examination that this was a delayed reporting

and therefore [Reed] shouldn’t be believed.” N.T., 6/16/2014, at 20.

      On    direct   examination,    Reed    testified   to   her   observations,

whereabouts, and interactions with Appellant before, during, and after the

shooting. N.T., 6/17/2014, at 212-238. Because Appellant had threatened

her and her family following the shooting, Reed testified that she only spoke

to police after Appellant’s arrest. Id. at 230.

      During Reed’s cross-examination, defense counsel questioned her at

length regarding whether there was an operating telephone, landline or

mobile, available to her at each location she traveled to after the shooting;

whether she had used any of the available phones in the days after the

shooting; and, if so, whom she had called. N.T., 6/18/2014, at 36-37, 39-

40, 41, and 49.




1
  Appellant was arrested for this offense, but the charges were later
withdrawn.



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      At the end of cross-examination, the trial court revisited the ruling

made in limine, and determined that defense counsel had opened the door

to Reed’s delay in reporting; therefore, extrinsic evidence of the prior assault

was admissible to rebut such an inference. Id. at 56-58. (“I did say if you

raised an inference that [Reed] delayed [in] reporting, that I would allow

that [incident] to come in as an explanation, if in fact that was the

explanation. I don’t know if it is or it isn’t. But you went over chronologically

… each place that she was, how many days transpired in great detail, the

availability of a telephone, was there a telephone there, did you have access

to a cellphone, was there a land line phone. You didn’t ask the question did

you call the police, but we know she didn’t call the police because that came

out already that she didn’t contact the police until after his arrest. I can’t

think of any reason that you would have covered in great detail her activities

or access to a telephone on all those different days, when she got up, when

she went to sleep, without trying to create an inference in the jury’s mind as

to if she believed that [Appellant] acted in the manner in which she testified,

why didn’t she call the police.   That is the only possible reason, and so I

expressed my opinion that I would allow [the ADA] on redirect to come back

now and ask [Reed].”)

      In response, counsel argued that his cross-examination was designed

to point out inconsistencies in Reed’s prior statements in order to impeach

her credibility. Id. at 58-63. The trial court gave counsel the benefit of the



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doubt as “an officer of the court” and accepted as true his assertions

regarding the purpose of his detailed cross-examination, but concluded that

the door had been opened and permitted the Commonwealth to introduce

the evidence of Appellant’s prior bad acts.

      Thus, on re-direct examination, Reed testified to various violent

interactions with Appellant, including the 2007 pistol whipping incident. Id.

at 86-87. During and immediately following this testimony, the trial court

issued two limiting instructions to the jury, directing them to consider Reed’s

testimony about Appellant’s prior violent acts for the limited purpose of its

bearing on her credibility and her conduct following the shooting. Id. at 86-

88. The trial court specifically instructed the jury that it could not consider

this testimony to be probative of whether Appellant was a violent person.

Id. at 86.    In the final charge to the jury, the trial court issued a third

limiting instruction regarding this testimony. N.T., 6/19/2014, at 190-91.

      On June 20, 2014, at the completion of the jury trial, Appellant was

convicted of the aforementioned offenses.2 On August 14, 2014, Appellant

was sentenced to an aggregate term of 24 to 48 years of incarceration.

Appellant filed timely post-sentence motions, which were denied on

December 9, 2014.     This timely-filed appeal followed.   Both Appellant and

the trial court complied with the mandates of Pa.R.A.P. 1925.


2
  The charge of carrying a firearm without a license was severed. The trial
court found Appellant guilty of that charge immediately following the jury
trial.


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      Appellant raises one issue for this Court’s review.

      Did the lower court err when it allowed the prosecutor[,] on
      redirect examination of a non-party witness, to elicit extrinsic
      evidence on a collateral matter, regarding a prior bad act, to
      bolster the witness’s believability, and explain her behavior,
      where the prior bad act was too remote in time and was a single
      isolated incident, to be relevant on any issue at trial?

Appellant’s Brief at 7 (unnecessary capitalization and trial court’s answer

omitted).

      Appellant’s claim is multifold. First, he claims that “defense counsel,

having moved in limine to exclude the prejudicial testimony concerning the

alleged prior crime and having obtained a favorable ruling, was entitled to

rely upon that determination.” Appellant’s Brief at 37.         Next, Appellant

contends that it was the Commonwealth that opened the door to the prior

bad acts testimony, and he was unfairly punished as a result. Appellant’s

Brief at 38-45. Specifically, Appellant maintains his cross-examination of

Reed was designed to respond to the Commonwealth’s direct examination,

which placed in issue “the matter of [Reed’s access to and use of]

telephones” in the days following the shooting. Id. Finally, Appellant

contends that the trial court’s limiting instruction was insufficient to cure the

prejudice suffered by Appellant. Id. at 46-51.

      We address Appellant’s claims mindful of the following. “[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. An abuse of discretion is not a mere


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J-A24037-15


error in judgment but, rather, involves bias, ill will, partiality, prejudice,

manifest unreasonableness, or misapplication of law.” Commonwealth v.

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

      Relevance     is   the   threshold      for   admissibility   of   evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Evidence is

relevant if: “(a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact is of consequence in

determining the action.” Pa.R.E. 401. “All relevant evidence is admissible,

except as otherwise provided by law. Evidence that is not relevant is not

admissible.” Pa.R.E. 402. “The court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

      It is well-established that “evidence of prior crimes is not admissible

for the sole purpose of demonstrating a criminal defendant’s propensity to

commit crimes.” Commonwealth v. Melendez–Rodriguez, 856 A.2d

1278, 1283 (Pa. Super. 2004). However, “[t]his evidence may be admissible

for   another    purpose,   such   as   proving     motive,   opportunity,   intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of

accident. In a criminal case this evidence is admissible only if the probative

value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.

404(b)(1)-(2).



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J-A24037-15


      Appellant’s first contention, that he was entitled to rely upon the

“favorable ruling” in limine, is a mischaracterization of the trial court’s

determination and does not entitle Appellant to relief.      The record reveals

that, contrary to Appellant’s argument, the court’s ruling could be revisited if

Appellant opened the door to such testimony on cross-examination.

      Citing to nine places in the record where Reed discussed telephones on

direct examination, Appellant next claims that it was the Commonwealth

that opened the door to the prior bad acts testimony. Appellant’s Brief at 38-

43. However, a fair reading of Reed’s testimony on direct examination does

not create an inference of delayed reporting: three of Reed’s statements

refer to Appellant’s calling a gypsy cab at some point following the shooting,

N.T., 6/17/2014, at 224, 225; two refer to when and if Reed spoke to her

mother following the shooting, id. at 226, 232; and the rest reference

Appellant’s use of phones in the days following the shooting. Id. at 226-27,

228, 232. Moreover, only two of these comments, those related to Reed’s

conversations   with   her   mother,    were     made   in   response   to   the

Commonwealth’s direct questions about telephone use.              By contrast,

counsel’s cross-examination focused on Reed’s access to and use of

telephones in the days following the shooting.

      Based on a fair reading of the notes of testimony, we find no abuse of

discretion in the trial court’s determination that Appellant’s detailed cross-

examination, and not the Commonwealth’s limited questioning regarding



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J-A24037-15


telephones, created an inference of delayed reporting. Appellant had been

warned prior to trial that creating such an inference would result in the

admission of Appellant’s prior bad acts. Nonetheless, he questioned Reed at

length regarding her access to and usage of telephones in the days following

the shooting.   Under these circumstances, we discern no error in the trial

court’s decision to admit Reed’s testimony, as it was admissible to counter

the inference that she delayed in reporting, as well as to explain Reed’s fear

of Appellant and her conduct following Smith’s death.3

      Moreover, we agree with the Commonwealth that the probative value

of this evidence did not outweigh its prejudicial effect. The trial court is not

“required to sanitize the trial to eliminate all unpleasant facts from the jury’s

consideration where those facts are relevant to the issues at hand and form

part of the history and natural development of the events and offenses for

which the defendant is charged.” Commonwealth v. Lark, 543 A.2d 491,

501 (Pa. 1988). See also Commonwealth v. Dillon, 5925 A.2d 131, 141

(Pa. 2007) (“Evidence will not be prohibited merely because it is harmful to

the defendant.”). The evidence of Appellant’s prior violent interactions with




3
  Indeed, evidence of Appellant’s prior bad acts was arguably admissible
following Reed’s testimony on direct examination wherein she stated that,
following the shooting, Appellant stabbed her on the head, hand, and ear
with a fork, and threatened to kill her and her family if they spoke to police.
N.T., 6/17/2014, at 228-231.




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Reed, introduced for legitimate purposes, was not unduly prejudicial, nor

was it likely to have an undue influence on the jury.

      Additionally, we are cognizant that, when examining the potential for

undue prejudice, a limiting instruction may ameliorate the prejudicial effect

of the proffered evidence. See e.g. Commonwealth v. Hutchinson, 811

A.2d 556 (Pa. 2002). As discussed above, during and immediately following

Reed’s testimony, the trial court gave a limiting instruction to the jury,

informing them that they were to consider her statements not as evidence of

Appellant’s guilt, but for the limited effect the prior incidents had on Reed’s

state of mind. In the final charge, the trial court reiterated this ruling. Jurors

are presumed to follow the trial court’s instructions. Commonwealth v.

Baker, 614 A.2d 663, 672 (Pa. 1992). The trial court’s instructions to the

jury in this case properly limited the use of the prior bad acts testimony.

Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014) (holding that

the trial court’s limiting instructions were sufficient to overcome the

prejudicial effect of prior bad acts evidence). As discussed above, the prior

bad acts evidence in the instant case was properly admitted, albeit for a

limited purpose.    Thus, we are unconvinced that the trial court’s three

limiting instructions were somehow deficient.

      For all of the foregoing reasons, we conclude that the trial court did

not commit error in admitting Reed’s testimony.          Accordingly, we affirm

Appellant’s judgment of sentence.



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       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/13/2015




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