J-A31001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JONATHAN AYALA,

                            Appellant                  No. 1313 EDA 2015


          Appeal from the Judgment of Sentence Entered April 2, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005085-2012


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 20, 2016

        Appellant, Jonathan Ayala, appeals from the judgment of sentence of

an aggregate term of 30 to 60 years’ incarceration, followed by 15 years’

probation, imposed after he was convicted of attempted murder and related

offenses.     Appellant challenges the trial court’s failure to strike certain

testimony by a Commonwealth witness, as well as the court’s ruling that a

portion of Appellant’s trial would be closed to the public after a member of

the trial audience made an improper comment to a juror.            After careful

review, we affirm.

        The trial court summarized the facts of this case as follows:

             On September 3, 2011, Philadelphia Police Officer Howard
        Lee was sitting inside his patrol car outside 4210 Whitaker
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A31001-16


     Avenue when he heard gunfire coming from the rear of a night
     club [sic] called the Casa De España that was situated at that
     location. The officer exited his vehicle and ran to the rear of the
     club. While doing so, he heard more gun shots [sic] and
     encountered numerous people running from the rear parking lot
     while screaming that the gun fire [sic] was coming from the rear
     of the club.

           Once in the rear of the club, Officer Lee spoke to a male
     named Jose Pagan and saw numerous other persons running
     away from the club. Based on information received from Mr.
     Pagan, Officer Lee proceeded to a driveway leading onto Hunting
     Park Avenue and observed a dark colored vehicle exiting the
     driveway onto westbound Hunting Park Avenue at a high rate of
     speed. Officer Lee notified police radio of the description of the
     car and its direction of travel.

           After the vehicle sped away, Officer Lee returned to the
     rear of the club to secure the crime scene. Upon his return, he
     observed Edwin Santana, with blood visible on his clothing
     covering his abdomen, outside the club. Officer Lee later gave a
     statement to police detectives detailing his activities that
     evening.

            Police Officer Anthony Sampson was driving his patrol car
     eastbound on Whitaker Avenue at or about the time of the
     incident when he received a radio call informing him that shots
     had been fired at Whitaker and Hunting Park Avenues. He
     immediately proceeded to that location and[,] as he was
     arriving, he heard people screaming that there had been a
     shooting and three persons had been shot. Officer Sampson
     also observed a car traveling west on Hunting Park Avenue at a
     high rate of speed. The Officer made a u-turn after hearing
     several by-standers yell, “That's the car. That's the black car -
     an Acura.” Police Officer Sampson pursued the vehicle along
     with several other officers all of whom were attempting to stop
     the car. At one point, the driver of the car being pursued
     stopped briefly at Front and Luzerne Streets but then sped away
     when Officer Sampson stepped out of his vehicle. Police finally
     stopped the vehicle when it crashed into a pole during the
     pursuit in the 4000 block of Front Street after a ten block high
     speed chase.

          The [v]ictim, Mr. Santana, suffered multiple gunshot
     wounds during the incident. He was taken to a nearby hospital


                                    -2-
J-A31001-16


        for treatment. While there he gave a signed statement to
        Philadelphia Police Detective James Perfidio wherein he related
        that he had an altercation inside the Casa De España nightclub.
        The fight spilled outside where he was approached by two
        individuals, one of whom shot him. In his statement, Santana
        gave a description of the two males, the guns they used, and
        said that they fled in a black vehicle he believed was a Honda
        down Whitaker Avenue to Hunting Park Avenue.2
           2
               Santana completely disavowed having given the
           statement stating that he was high when he was shot and
           when he was interviewed by police. Detective Perfido
           testified that Santana was awake and alert, did not appear
           to be under the influence, and that he signed his
           statement.      He added that he recorded Santana’s
           responses verbatim. Santana described his assailants as
           follows: One was a short Hispanic male with long braids
           wearing a blue shirt. The second guy was 5’ 11”, Hispanic
           male, with short braids and a turquoise shirt.[]

              Mr. Pagan was present when the shooting occurred. He
        related that he was inside the club with an acquaintance named
        Chio,[1] who got into a fight with a male after the male and
        Chio’s girlfriend became involved in a dispute. After the fight,
        Pagan told Chio to leave because the person Chio fought with
        had been escorted from the [c]lub and he did not know who he
        was. Pagan and Chio then left the club to smoke a cigarette.
        When they got outside, two men approached from behind the
        building armed with handguns.

              When []Chio[] saw the two men, he told one of them to
        put his gun down and fight him “like a man.” The men did not
        put down the guns but instead began firing at Chio. When they
        stopped shooting, the two males walked behind the building
        after which Pagan saw a dark sporty Honda speed out of the lot.

               Shortly after the shooting, police transported Pagan to the
        location where the fleeing vehicle had crashed. Once there,
        Pagan identified the vehicle as the one he saw drive from the lot
        and told police that the two males police had in custody were the
        males he saw shoot Chio. Pagan also gave police a statement
____________________________________________


1
    It is undisputed that Chio is a nickname for Edwin Santana.



                                           -3-
J-A31001-16


     describing the person who shot Chio as having on a teal shirt
     with his hair in braids. Pagan, however, could not identify where
     each [individual] was seated in the vehicle because they were
     already outside when he was brought to the location to identify
     them.

         Police Sergeant David Pinkerton participated in the pursuit of
     the [vehicle], and prevented it from leaving after it became
     disabled. Sgt. Pinkerton approached the vehicle and observed
     its driver, later identified as Rodriguez-Diaz, who had braids and
     was wearing a teal greenish colored shirt, climbing from the
     driver’s seat into the rear seat. [Sgt.] Pinkerton immediately
     placed Rodriguez-Diaz in custody as other officers apprehended
     the front seat passenger, Appellant Jonathon [sic] Ayala, who
     also was wearing a teal greenish colored shirt. The sergeant
     then secured the vehicle for later examination. As he did so he
     observed a black automatic handgun behind the driver’s seat.
     The gun was secured and found empty of ammunition.

        [Sgt.] Pinkerton was present when Mr. Pagan arrived at the
     scene to identify [Appellant and Rodriguez-Diaz]. Although the
     [s]ergeant could not hear what Pagan said[,] he observed him
     shaking his head “yes” while pointing to Rodriguez-Diaz and
     [Appellant], and the vehicle. After Pagan identified [Appellant
     and Rodriguez-Diaz], [Sgt.] Pinkerton retraced the route of the
     pursuit. While doing so, he recovered a Glock hand gun [sic] in
     the general area where the … vehicle struck a utility pole as it
     fled police. He conceded that during the pursuit, he did not see
     the gun thrown from the vehicle.

        Police obtained a search warrant for [the] vehicle. Upon
     executing the warrant, they seized the handgun, a .45 caliber
     Colt MK4, from the backseat. They also collected the Glock
     received by [Sgt.] Pinkerton on the highway as well as ten .45
     caliber fired cartridge cases and a projectile in the rear parking
     lot of the club. Police observed bullet holes in the door of the
     club and recovered a bullet fragment inside the club.

        The ballistic evidence was later examined by Police Firearms
     Examiner Ann Marie Barnes. Her examination revealed that the
     ten fired cartridge cases and the spent projectile had been fired
     from the Colt .45 hand gun [sic] recovered from the rear of the
     … vehicle.




                                   -4-
J-A31001-16



Trial Court Opinion (TCO), 1/21/16, at 2-6 (citations to the record and one

footnote omitted).

       In January of 2015, Appellant and Rodriguez-Diaz were tried together

before a jury, and both men were convicted of various offenses. Specifically,

Appellant was convicted of attempted murder, 18 Pa.C.S. § 2502;

conspiracy to commit murder, 18 Pa.C.S. §§ 903 and 2502; aggravated

assault, 18 Pa.C.S. § 2702; possessing an instrument of crime, 18 Pa.C.S. §

907; possession of a firearm by a person prohibited, 18 Pa.C.S. § 6105;

carrying a firearm without a license, 18 Pa.C.S. § 6106; carrying a firearm

on a public street in Philadelphia, 18 Pa.C.S. § 6108; and recklessly

endangering another person, 18 Pa.C.S. § 2705.2             On April 2, 2015,

Appellant was sentenced to an aggregate term of 30 to 60 years’

imprisonment, followed by 15 years’ probation. He filed a timely notice of

appeal, and also timely complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) statement.          The court filed a Rule 1925(a) opinion on

January 21, 2016.

       Herein, Appellant presents three issues for our review:
       I. Should the testimony of [Sgt.] Pinkerton that after a car
       chase, each defendant was identified as being involved in the
____________________________________________


2
  Rodriguez-Diaz was convicted of conspiracy to commit murder, possessing
an instrument of crime, possession of a firearm by a person prohibited,
carrying a firearm without a license, carrying a firearm on a public street,
and recklessly endangering another person.       He was sentenced to an
aggregate term of 16 to 36 years’ incarceration, followed by 5 years’
probation.



                                           -5-
J-A31001-16


      shooting by Jose Pagan have been stricken because it violated
      the Confrontation Clause and was double hearsay?

      II[.] Was the failure to strike Sgt. Pinkerton’s identification
      testimony harmless?

      III. Did the court err when it closed the courtroom after learning
      that one juror was approached in the hallway outside the
      courtroom by a person who said, “He’s not guilty”?

Appellant’s Brief at 11 (unnecessary capitalization omitted).

      Appellant’s first two issues are related and may be addressed together.

Appellant takes issue with the court’s decision to deny his motion to strike

certain testimony by Sgt. Pinkerton. As context for Appellant’s claim, Sgt.

Pinkerton offered the following testimony on direct-examination, regarding

Jose Pagan’s identification of Appellant and Rodriguez-Diaz at the scene of

their vehicle crash:

      [The Commonwealth:] When [Pagan] gets to that location, what
      is he brought there for?

      [Sgt. Pinkerton:] For identification.

      …

      [The Commonwealth:] … [Pagan] is brought there and first he is
      there to look at the vehicle? Is that fair?

      [Sgt. Pinkerton:] Yes.

      [The Commonwealth:] Does he identify that vehicle.

      [Sgt. Pinkerton:] Yes.

      [The Commonwealth:] The two individuals that you said were
      already in handcuffs.

      …

      Does he identify any of those individuals?




                                      -6-
J-A31001-16


        [Sgt. Pinkerton:] Yes. Both males, one at a time, are taken out
        of the vehicle. The witness has a chance to identify. Identified
        both individuals as the males from the shooting up on
        Whitaker Avenue.

N.T. Trial, 1/22/15, at 192-93 (emphasis added).3

        On cross-examination, defense counsel questioned Sgt. Pinkerton

further about Pagan’s identification of Appellant and Rodriguez-Diaz:

        [Defense Counsel:] And with regard to Mr. Pagan, you were at
        the scene and he did not identify [Appellant] as doing anything
        at the [nightclub]; correct?

        [Sgt. Pinkerton:] The only thing I got that was at the scene
        [was] he said -- he pointed to both of them, shook his head yes.
        I didn’t have a conversation [with Pagan]. The officer that had
        both -- had [Pagan] in the car had the conversation with him.

        …

____________________________________________



3
    Appellant also takes issue with the following testimony by Sgt. Pinkerton:

        [The Commonwealth:] Why is it that [Appellant and Rodriguez-
        Diaz are] taken out one at a time?

        [Sgt. Pinkerton:] … They’re separated right away. Two different
        cars. So it gives the eyewitness a chance to take a look at one.
        And he says yes, [or] no. We put them back in the
        vehicle, and then we direct the other defendant to come
        out. Then he’s ID’d.
N.T. Trial, 1/22/15, at 193 (emphasis added). While Appellant suggests that
this testimony by Sgt. Pinkerton was another reference to Pagan’s
identification of Appellant and Rodriguez-Diaz, we disagree. Instead, it
seems that the sergeant was referring to the general way in which witnesses
are asked to separately identify multiple suspects. Thus, we do not consider
this testimony by Sgt. Pinkerton to be the type of ‘identification evidence’ at
issue herein.




                                           -7-
J-A31001-16


       [Defense Counsel:] So wait a minute. At no time does the
       witness identify to you what person A, the passenger, and
       person B did?

       [Sgt. Pinkerton:] No.

Id. at 208-09. Upon further questioning by defense counsel, Sgt. Pinkerton

acknowledged that he did not hear or see Pagan identify Appellant and/or

Rodriguez-Diaz; rather, Pagan’s identification had been “relayed” to him by

another officer. Id. at 209-211.

       After Sgt. Pinkerton’s testimony concluded, both Appellant’s and

Rodriguez-Diaz’s attorneys moved to strike Sgt. Pinkerton’s testimony

regarding Pagan’s identification of Appellant and Rodriguez-Diaz.        Id. at

223.    A lengthy and confusing discussion regarding that motion ensued,

during which both defense attorneys seemingly argued that Sgt. Pinkerton’s

direct-examination testimony regarding Pagan’s identification should be

stricken.    In other words, the defense sought to strike the sergeant’s

statement that Pagan “[i]dentified both individuals as the males from the

shooting up on Whitaker Avenue.” Id. at 193. The defense argued that this

testimony constituted “secondhand hearsay,” id. at 227, as Sgt. Pinkerton

had admitted on cross-examination that he did not actually hear or see

Pagan make that identification, but had only been told about it by another

officer. The trial court ultimately denied defense counsels’ motion to strike.4
____________________________________________


4
  It seems that the trial court misunderstood defense counsels’ motion to
strike as pertaining to the cross-examination testimony of Sgt. Pinkerton,
and declined to strike that evidence because it had been elicited by the
(Footnote Continued Next Page)


                                           -8-
J-A31001-16



       Now, on appeal, Appellant contends that the trial court erred by not

striking Sgt. Pinkerton’s direct-examination testimony. We need not delve

into the specifics of his argument, nor determine if he is correct, as we agree

with the Commonwealth that this purported error was harmless.
       Harmless error exists where: (1) the error did not prejudice the
       defendant or the prejudice was de minimis; (2) the erroneously
       admitted evidence was merely cumulative of other untainted
       evidence which was substantially similar to 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. Robinson, 554 Pa. 293, 721 A.2d 344, 350
       (1999).

Commonwealth v. Stallworth, 781 A.2d 110, 120 (Pa. 2001).

       Here, the Commonwealth maintains that any prejudicial effect of Sgt.

Pinkerton’s direct-examination testimony was insignificant, and could not

have    impacted       the   verdict     when    compared   to   the   “overwhelming

circumstantial     evidence”      that    proved    Appellant    and   Rodriguez-Diaz

committed the shooting. Commonwealth’s Brief at 9. We agree. Namely,

Pagan himself took the stand and testified that the two people he saw at the
                       _______________________
(Footnote Continued)

defense. See id. at 227; see also TCO at 9. However, our review of the
record demonstrates that the defense was asking the court to strike the
direct-examination testimony by Sgt. Pinkerton regarding Pagan’s
identification. See N.T. Trial, 1/22/15, at 226. Notwithstanding the court’s
misapprehension in this regard, it is well-established that we may affirm the
trial court “on any valid basis, as long as the court came to the correct
result….” Wilson v. Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa.
Super. 2005) (citations omitted).




                                            -9-
J-A31001-16



scene of the vehicle accident were the same “two people that [he] saw

outside with guns and shooting at [the victim]….”     N.T. Trial, 1/22/15, at

180.   In addition to Pagan’s identification, the Commonwealth presented

evidence demonstrating that Appellant and Rodriguez-Diaz fled from police

and, when their vehicle ultimately crashed, the firearm used in the shooting

was found inside the car, and a second gun was found in the street along

their route of flight.   In light of this evidence, we are convinced that the

jury’s verdict did not hinge on Sgt. Pinkerton’s direct-examination statement

indicating that he heard Pagan identify Appellant and Rodriguez-Diaz at the

scene of the vehicle crash.    Therefore, Appellant’s first and second issues

fail, as any error by the court in not striking Sgt. Pinkerton’s testimony was

harmless.

       In Appellant’s third issue, he contends that the trial court erred by

closing the courtroom to public spectators after a juror informed the court

that a member of the trial audience had said, “[h]e didn’t do it,” to that

juror. N.T. Trial, 1/23/15, at 92. When the juror informed the court about

this comment by a public spectator, the court closed the courtroom and

colloquied all members of the jury. Id. at 92-105. After the colloquies were

completed, the trial court stated that for “[t]he remainder of this trial, I’m

going to close off the courtroom.     Okay?”   Id. at 105.   Appellant did not

object to the court’s decision. See id.

       Because Appellant failed to lodge an objection, the trial court

concludes, in its Rule 1925(a) opinion, that Appellant has waived his claim

                                     - 10 -
J-A31001-16



that the court erred by closing the courtroom to public spectators. See TCO

at 13. In response, Appellant contends that “it was clear that the court had

decided to [close the courtroom], and under such circumstances an

objection should   not be     required.”     Appellant’s Brief at 25   (citing

Commonwealth v. Hammer, 494 A.2d 1054, 1060 (Pa. 1985), abrogated

on other grounds by Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)).

     Appellant’s reliance on Hammer is unconvincing.        There, Hammer

argued that the trial judge improperly engaged in a “pattern of examination

of witnesses” that “constituted advocacy of a point of view favoring the

prosecution and that this undue participation adversely and prejudicially

contributed to the verdict, thus amounting to a denial of due process.”

Hammer, 494 A.2d at 1058. While Hammer had not objected to the court’s

conduct, our Supreme Court ruled that his failure to do so did not waive the

claim for appellate review.     The Court reasoned that any objection by

Hammer would have been “meaningless to satisfy the reasons for raising

objection” and could have even “intensified judicial animosity” against him.

Id. at 1060. Accordingly, the Hammer Court held “that the failure of trial

counsel to object to questioning by the judge, who is charged with a function

of self-regulation, will not under all circumstances render the allegation of

judicial impropriety unavailable for appellate review.”       Id. (footnote

omitted).

     Here, the trial court was not questioning witnesses; rather, the court

decided to preclude the public from viewing Appellant’s trial after a member

                                    - 11 -
J-A31001-16



of the audience made an improper comment to a juror.           Nothing in the

record suggests (nor does Appellant aver) that the trial court’s decision

stemmed from animosity toward Appellant, or that the court would have

responded with annoyance had Appellant objected. Indeed, after the court

stated that it was closing the courtroom, it invited a response by Appellant

by asking, “Okay?” Appellant made no comment or objection, and his trial

continued without a public audience. Under these circumstances, we do not

agree with Appellant that the limited waiver exception announced in

Hammer applies to his failure to object to the court’s purported error of

closing the courtroom. Consequently, Appellant has waived his challenge to

that decision on appeal.5

       Judgment of sentence affirmed.
____________________________________________


5
  In any event, we note that Appellant’s argument pertaining to the merits of
this issue is insufficient to demonstrate an abuse of discretion by the trial
court. See Commonwealth v. Phillips, 946 A.2d 103, 108 (Pa. Super.
2008) (“A trial court’s decision regarding access to judicial … proceedings is
within the sound discretion of the trial court, and we will reverse only if the
trial court abuses its discretion.”). Appellant avers that “[t]he closing of a
courtroom is a very serious matter and closure is and should be the rare
exception, and may not be ordered absent careful balancing of competing
interests, consideration of alternatives to closure, and [an] articulation of
findings.” Appellant’s Brief at 25 (citing Presley v. Georgia, 558 U.S. 209
(2010)). However, aside from stating these legal precepts, Appellant offers
no discussion of how they apply to the case at hand. For instance, Appellant
does not suggest what alternative measures the court could have taken,
other than closing the courtroom. He also does not discuss how his interest
in a public trial outweighed the risk that audience members would comment
to jurors or make other attempts to influence the verdict. Accordingly, even
had Appellant not waived this claim, he has not demonstrated that the trial
court abused its discretion in closing the courtroom to the public.



                                          - 12 -
J-A31001-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2016




                          - 13 -
