J-S74013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYREEK WILSON,

                            Appellant                 No. 3075 EDA 2013


         Appeal from the Judgment of Sentence Entered April 30, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001718-2012


BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.003A                 FILED DECEMBER 23, 2014

        Appellant, Tyreek Wilson, appeals from the judgment of sentence of a

term of life imprisonment. Appellant challenges the admission of testimony

introduced at his trial, which he alleges was irrelevant, or, in the alternative,

unfairly prejudicial. We affirm.

        Appellant proceeded to a jury trial on February 3, 2013.       The facts

adduced at trial were as follows:

        Dwayne Smith was murdered on October 16, 2011, near the
        intersection of Kent Street and Hyatt Street in the Sun Village
        section of Chester, Pennsylvania. At trial, the victim's wife,
        Yvette Smith, testified that the victim left his primary residence
        in order to finish removing personal effects from his former
        residence, located at 1009 Hyatt Street, at approximately 7:30
        a.m. on the morning of October 16, 2011.             Officer Doug
        Staffelbach of the City of Chester Police Department testified
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S74013-14


     that, on the morning of October 16, at approximately 8:15 a.m.,
     he responded to two dispatches. The first reported shots fired in
     the area near the intersections of 10th Street and Hyatt Street,
     and 10th Street and McDowell Avenue. The second dispatch
     indicated that there was a subject down in the same area.
     Officer Staffelbach then discovered the victim, Dwayne Smith,
     dead at the scene. The post-mortem report, supported by the
     testimony of Medical Examiner Frederick Hellman, confirmed the
     official cause of death as multiple gunshot wounds.

            An acquaintance of [Appellant], Rondale Van, testified that
     on the day of the murder, he saw [Appellant] standing near an
     alleyway behind Van's property, with the victim approaching in
     the same direction from across the street. When Van turned to
     reenter his home, he heard three to four gunshots and
     immediately spotted [Appellant] running through the alleyway.
     Steven Couch, another acquaintance of [Appellant], testified that
     he conversed with [Appellant] following the murder of their
     mutual friend, Marvin Fitzgerald, which occurred approximately
     two weeks prior to the murder of Dwayne Smith. According to
     Couch, [Appellant] made several remarks indicating his desire to
     seek revenge on Fitzgerald's killer.      Additionally, following
     Smith's murder, [Appellant] suggested he was responsible for
     Smith's death, stating that he did not want his friend Fitzgerald
     to "die alone."

             To rebut the testimony of the Commonwealth's witnesses,
     [d]efense counsel called Edna Wilson, the grandmother of
     [Appellant], as an alibi witness. On the morning of October 16,
     Wilson was in her home at 1026 McDowell Avenue, located a few
     hundred yards from the scene of the shooting. After taking a
     shower, Wilson entered her bedroom and briefly seated herself
     on the bed before hearing the gunshots. Wilson then testified
     that she immediately checked the time on her television, noted it
     was 8:15 a.m., and walked to her hallway. Wilson then shouted
     downstairs that she heard gunshots, and was answered by an
     unseen individual who she claimed to be [Appellant]. Prior to
     trial, the Commonwealth administered an interview of Wilson in
     preparation for her testimony as an alibi witness. According to
     her statement to police, Wilson has a rule in her home, of which
     all her grandchildren were aware. Wilson was adamant that
     nothing illegal, whether firearms or drugs, were allowed in her
     home at any time.



                                   -2-
J-S74013-14



Trial Court Opinion (TCO), 7/2/14, at 2 – 3 (citations to the record omitted).

      Appellant was convicted of first degree murder and possessing an

instrument of crime on February 8, 2013. On April 20, 2013, Appellant was

sentenced to a term of life imprisonment, and a consecutive term of 2½ to 5

years’ incarceration. He filed a timely notice of appeal, as well as a timely

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

      Appellant now presents the following question for our review:

      I.    Whether the [t]rial [c]ourt erred when it denied
            [Appellant’s] motion in limine to preclude references made
            by his grandmother, Edna Wilson, regarding her general
            rule that guns and drugs are not permitted in her house
            since any probative value it may have had was outweighed
            by the prejudice it would cause by implying to the jury that
            [Appellant] had previously brought these items into her
            home?

Appellant’s brief at 5.

      We review claims of evidentiary error under the following standard:

      The admission of evidence is solely within the province of the
      trial court, and a decision thereto will not be disturbed absent a
      showing of an abuse of discretion. “An abuse of discretion is not
      merely an error of judgment, but if in reaching a conclusion the
      law is overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias[,] or ill-will discretion ... is abused.”

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal

citations omitted).

      Appellant first argues the trial court erred in permitting Wilson to

testify about her “house rule” barring guns and drugs from her residence,


                                     -3-
J-S74013-14



because that testimony was not relevant.           He also contends it was

impermissible evidence regarding alleged prior bad acts.         See Pa.R.E.

404(b)(1) (providing that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with that character”).

      Wilson described her “house rule” to the police during an interview

conducted as part of their homicide investigation.    Prior to trial, Appellant

filed a motion in limine seeking to exclude testimony regarding Wilson’s

“house rule.” The trial court denied this motion. Appellant’s counsel then

introduced Wilson as a defense witness at trial.    During his questioning of

Wilson, he solicited testimony about the “house rule.” The Commonwealth

did not inquire about the “house rule” on-cross examination.

      Even if the statement were admitted in error, we believe the harmless

error doctrine applies.

      Error is considered to be harmless where: 1) the error did not
      prejudice the defendant or the prejudice was de minimis; or 2)
      the erroneously admitted evidence was merely cumulative of
      other, untainted evidence which was substantially similar to
       { "pageset": "S2d
                    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. Williams, 573 A.2d 536, 538-539 (Pa. 1990).

      First, we note that it was Appellant, and not the Commonwealth, who

introduced evidence to the jury regarding this rule.        Moreover, Wilson



                                    -4-
J-S74013-14



unequivocally testified that she had never seen Appellant bring contraband

into her home. N.T., 2/7/13, at 191. Consequently, even assuming the trial

court admitted this evidence in error, that error did not prejudice Appellant.

      Moreover, as observed by the trial court,

      Overall, [] Wilson's testimony regarding her house rules was not
      pivotal to [Appellant’s] case as a whole. The concern of unfair
      prejudice caused by the existence of a house rule was
      overshadowed by the testimony placing [Appellant] near the
      scene of the crime. In this sense, the testimony of the alibi
      witness corroborated the testimony of the Commonwealth's
      witnesses, a risk of which [Appellant] was very aware. Taken as
      a whole, it is likely the jury's attention was not focused on the
      existence of a house rule, but rather on [Appellant’s] being
      placed only one hundred yards from the murder.

TCO at 8. We agree the properly admitted evidence of Appellant’s guilt was

so overwhelming, and the prejudicial effect of any error so insignificant by

comparison, that any testimony about the “house rule” could not have

contributed to the jury’s verdict.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




                                     -5-
