J-A01031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CALVIN JAY HUFFMAN,

                            Appellant                No. 544 WDA 2014


         Appeal from the Judgment of Sentence entered June 11, 2013,
               in the Court of Common Pleas of Fayette County,
             Criminal Division at No(s): CP-26-CR-0001293-2011
                          & CP-26-CR-0001329-2011


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 06, 2015

        Calvin Jay Huffman (“Appellant”) appeals from the judgment of

sentence imposed after a jury convicted him of aggravated assault and

related charges.1 We affirm.

        The trial court summarized the pertinent facts and procedural history

of the case in its opinion and order denying Appellant’s post-sentence

motion:

           The main incident giving rise to the charges in this case
           occurred in the early morning hours of April 24, 2011.
           Detective Donald M. Gmitter of the Uniontown City Police
           Department was notified of a shooting at the Splash Bar in
           Uniontown. Two people had been shot and transported to
           different hospitals.  Detective Gmitter observed shell
____________________________________________


1
    18 Pa.C.S.A. § 2702.
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       casings and pools of blood throughout the area of the
       shooting, including on vehicles and the exterior walls of
       neighboring property.

          Detective Gmitter collected shell casings and cartridges
       from three different types of guns: twenty-two caliber,
       twenty-five caliber, and forty caliber. After speaking with
       eyewitnesses at the scene, [Appellant] was identified as
       one of the shooters. After conducting a lawful search and
       seizure of [Appellant’s] ex-girlfriend’s vehicle, law
       enforcement officials recovered two deformed bullets, a
       brown piece of carpet, and one latent print.

          Law enforcement also recovered and searched a second
       vehicle owned by [Appellant’s] sister.          The officers
       observed blood on the right rear seat belt, the middle of
       the right rear seat, the rear passenger’s seat, and the rear
       passenger headrest. They recovered a cell phone, digital
       camera, a letter from [Appellant], a receipt with
       [Appellant’s] name on it, a utility bill, a damaged twenty-
       two caliber live round, and the blood evidence. Detective
       Gmitter testified that one possible reason the live round
       was damaged was due to [Appellant’s] gun jamming,
       which witnesses testified to observing during the shooting.
       The digital camera revealed a photo dated April 19, 2011
       of [Appellant] holding a firearm, and the Commonwealth
       was able to confirm that date by sequencing other photos
       on the camera that were obviously taken on or near
       particular holidays, including St. Patrick’s Day and Easter
       of that year.

          In addition to the photos, there was a video recovered
       from the digital camera. [Appellant] was identified in the
       video showing off and discharging multiple rounds from a
       twenty-two caliber automatic firearm in a rural location
       several days prior to the April 24, 2011 shootings at the
       Splash Bar. Although there was never a firearm recovered
       in this case, [Appellant] was placed at the Splash Bar at
       the time in question, he was observed possessing and
       discharging a twenty-two caliber automatic firearm, and
       there were a number of projectiles consistent with [a]
       twenty-two caliber [gun] recovered from the scene and
       from inside the two vehicles.




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            Monique Curry, one of the shooting victims, knew
         [Appellant] and saw him standing behind her vehicle and
         saw him pull the trigger. She was shot twice in the
         buttocks while she was in her parked vehicle. The other
         shooting “victim” did not testify at trial.

            The case went to trial three times. The first trial held
         on June 6, 2012 resulted in a mistrial due to the
         appearance of inappropriate contact with a juror, while the
         second trial held on October 5, 2012 before the Honorable
         Judge John F. Wagner, Jr. resulted in a mistrial due to a
         hung jury. On June 5, 2013, [Appellant] was convicted by
         a jury in this Court of one count of Aggravated Assault,
         two counts of Simple Assault, and one count each of
         Recklessly Endangering Another Person, Prohibited Person
         Not to Possess Firearms, and Possession of a Firearm
         Without a License. On June 11, 2013 [Appellant] was
         sentenced to standard range sentences aggregating to
         seven and one-half (7.5) to fifteen (15) years of
         incarceration, with time credit from June 9, 2011. A timely
         Post-Sentence Motion followed on June 18, 2013. The
         transcript [of the jury trial], however, was not ordered
         simultaneously, and as a result it was not completed until
         September 3, 2013.

Trial Court Opinion, 10/2/13, at 2-4.      Following the denial of his post-

sentence motion, Appellant filed this timely appeal.

      Appellant raises the following issues:

         I. DID THE TRIAL COURT ERR WHEN IT ALLOWED INTO
         EVIDENCE PICTURES OF APPELLANT HOLDING AND
         SHOOTING A MACHINEGUN LIKE WEAPON AFTER SAID
         PHOTOGRAPH HAD BEEN RULED OUT OF EVIDENCE AT A
         PREVIOUS TRIAL, ENDING IN MISTRIAL, BY ANOTHER
         JUDGE AS BEING TOO PREJUDICIAL VIOLATING THE
         COORDINATE JURISDICTION RULE?

         II. ID THE PREJUDICIAL EFFECT OF SAID PHOTOGRAPH[S]
         CLEARLY OUTWEIGH ANY PROBATIVE VALUE THEY MAY
         HAVE HAD?

         III. DID THE TRIAL COURT ERR WHEN IT REFUSED TO
         ALLOW QUESTIONING ABOUT TWEETING SENT AND

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         RECEIVED   [REGARDING]     MONIQUE    CURRY   AS
         COLLATERAL AFTER THE TRIAL COURT OPENED THE DOOR
         AND FIRST DELVED INTO THIS AREA OVER THE
         OBJECTION OF THE DEFENSE?

Appellant’s Brief at 3.

      In his first issue, Appellant argues that the trial court violated the

“coordinate jurisdiction rule” by admitting photographs into evidence when,

at   Appellant’s   prior   trial,   Judge   Wagner    had   determined     that   the

photographs were inadmissible.         Appellant’s Brief at 6.     Appellant asserts

Judge Wagner ruled that the photographs were “to [sic] prejudicial at a

previous trial (in front of [Judge Wagner]) which ended in a mistrial.” Id.

      Appellant’s claim fails because the coordinate jurisdiction rule is

inapplicable to Appellant’s third trial. In cases involving the same procedural

posture as the instant appeal — a retrial in which the subsequent trial judge

admitted evidence previously ruled inadmissible in the first trial — our

Supreme Court has held:

         When a court grants a new trial, the necessary effect
         thereof is to set aside the prior judgment and leave the
         case as though no trial had been held. . . . By operation of
         an order granting a new trial, the [case], in contemplation
         of law, is precisely in the same as if no previous trial had
         been held.

Commonwealth          v.    Hart,     387   845,     847    (Pa.   1978)   (quoting

Commonwealth ex rel. Wallace v. Burke, 45 A.2d 871, 871 (Pa. Super.

1951).   Stated differently, “[b]ecause the grant of a new trial ‘wipes the

slate clean,’” upon retrial, “a previous court’s ruling on the admissibility of



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evidence generally does not bind a new court[.]”          Commonwealth v.

Paddy, 800 A.2d 294, 311 (Pa. 2002).

       Even if the coordinate jurisdiction applied to Appellant’s retrial and it

was determined that a violation occurred, any error in admitting the

photographs was harmless, because Appellant’s depiction thereon was

cumulative of a video played at Appellant’s third trial. See N.T., 6/4/13, at

70.    Within his issues raised on appeal, Appellant does not challenge the

Commonwealth’s use of this video at trial.      See e.g., Commonwealth v.

Arrington, 86 A.3d 831, 847 (holding that even if error occurred in

admitting evidence of telephone conversation, it was harmless because it

was “cumulative of other properly-introduced evidence with substantially

similar content”).

       In his second issue, Appellant asserts that the trial court erred in

admitting the photographs at issue because “the issue of prejudice of the

pictures clearly outweighed the probative value.”       Appellant’s Brief at 6.

According to Appellant, this conclusion “is evidenced by the fact that in the

[second trial] where the jury deliberated and was hung, they did not have

these photos[;] when the instant jury was provided the photos, all else

being the same, they convicted.” Id.

       “It is well settled that the admissibility of evidence is a matter

addressed to the sound discretion of the trial court and may be reversed

only    upon   a     showing   that   the   court   abused   that   discretion.”

Commonwealth v. Wynn, 850 A.2d 730, 733 (Pa. Super. 2004) (citations

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omitted). “Evidence is admissible if it is relevant—that is, if it makes a fact

at issue more or less probable, or supports a reasonable inference

supporting a material fact.” Id. Our Supreme Court has summarized:

        Appellate courts typically examine a trial court’s decision
        concerning the admissibility of evidence for abuse of
        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.
        Typically, all relevant evidence, i.e., evidence which tends
        to make the existence or non-existence of a material fact
        more or less probable, is admissible, subject to the
        prejudice/probative value weighing which attends all
        decisions upon admissibility.     See Pa.R.E. 401; Pa.R.E.
        402[.]

Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007).

      In rejecting Appellant’s claim, the trial court reasoned in its Pa.R.A.P.

1925(a) opinion:

             [Appellant] argued that the admission of the photos
         was in violation of Pennsylvania Rule of Evidence 403 since
         the prejudicial impact outweighed the probative value.
         The Court disagrees and has indirectly addressed this issue
         in the Post-Sentence Motion Opinion.

             [Appellant] was charged with and ultimately convicted
         of several crimes, including Prohibited Person not to
         Possess a Firearm and Possessing a Firearm without a
         License. The photos, which were authenticated by the
         Commonwealth, were taken between St Patrick’s Day and
         Easter of 2011. The record reflects that [Appellant] has
         been prohibited from possessing a firearm since 2007 due
         to his status as a convicted felon. See [N.T., 6/3/13, at
         32]. Since the photos depict [Appellant] possessing a
         firearm four (4) years after his felony conviction, and it is
         accordingly implied that he could not have had a license to
         possess the firearm, the probative value of the

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           photographic    evidence     substantially   outweighs    its
           prejudicial impact.

Trial Court Opinion, 6/10/14, at 2-3.

         Once again, our review of the record supports the trial court’s

conclusion.      In addition, we note that Appellant’s argument regarding

prejudice is specious. A review of the 2013 trial transcript reveals that “all

else” was not “the same” in the evidence presented by the Commonwealth.

As noted above, the Commonwealth, over Appellant’s objection based upon

an alleged discovery violation, played a video of Appellant handling and

firing a weapon similar to one possessed by Appellant on the night of the

incident. See N.T., 6/4/13, at 66-70. As acknowledged by Appellant during

his testimony at the 2013 trial, this video was not played at Appellant’s

second trial in 2012.     See   N.T., 6/5/13, at 51.    Appellant’s second issue

fails.

         In his final issue, Appellant contends, “the trial court erred when it

refused to allow questioning about Tweets sent and received by Monique

Curry who claimed that she was harassed and intimidated by Autume [sic]

Close, sister of [Appellant].” Appellant’s Brief at 6. Appellant argues that

the questioning involved relative evidence and was not merely collateral to

his trial. According to Appellant:

              In fact, it was the trial court who first delved into this
           area and questioned Ms. Curry regarding the subject. [A]s
           Curry was the main witness against [Appellant,] [h]er
           credibility was paramount. The defense should have been
           permitted to inquire about this matter especially after the
           court opened the door to this inquiry.

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Id.

      In its Pa.R.A.P. 1925(a) opinion, the trial court explained why

Appellant’s claim had no merit:

           Next, [Appellant] argues that he should have been
        given the opportunity to question Commonwealth witness
        Monique Curry regarding social media correspondence,
        namely Twitter, between her and [Appellant’s] sister,
        Autum[e] Close. The Court sustained the Commonwealth
        objection because it was a collateral issue to the case at
        bar. See [N.T., 6/5/13, at 24-27].

            Ms. Curry testified that Ms. Close was allegedly
        “tweeting to people” about Ms. Curry’s testimony. See
        [N.T., 6/4/13, at 20]. Ms. Close allegedly wrote that Ms.
        Curry “was on the stand lying on her brother.” Id. [at 21].
        Ms. Curry testified that she has “been harassed [over the
        case] for two years. Id. [at 22]. This testimony was
        elicited by [Appellant on cross-examination].

           Following that testimony, [Appellant] called Ms. Close in
        an attempt to rebut Ms. Curry’s testimony and accuse Ms.
        Curry of witness intimidation. The Court agreed with the
        Commonwealth that this was a collateral issue.          See
        Pa.R.E. 403.

            Whatever occurred between Ms. Curry and Ms. Close
        after the shooting could only have marginal relevance, and
        it was already clear that they did not like each other.
        Moreover, the best evidence of the Twitter “conversations”
        was never presented. See, Pa.R.E. 1002. Diverting the
        trial into an oral discussion of what two witnesses did or
        did not say on Twitter after the incident was a pointless
        waste of time. If the evidence could have helped the
        defense, an “authenticable” printout should have been
        proffered. See, Pa.R.E. 1001(d).

Trial Court Opinion, 6/10/14, at 3.

      We discern no abuse of discretion.    Rule 611(a) of the Pennsylvania

Rules of Evidence provides:

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         Rule 611. Mode and Order of Examining Witnesses
         and Presenting Evidence

         (a) Control by the Court; Purposes. The court should
         exercise reasonable control over the mode and order of
         examining witnesses and presenting evidence so as to:

           (1) make those procedures effective for determining the
         truth;

          (2) avoid wasting time; and

          (3) protect witnesses       from   harassment    or   undue
         embarrassment.

Pa.R.E. 611(a). At trial, Appellant’s counsel fully cross-examined Ms. Curry

with regard to the “tweets,” and, as stated by the trial court, during such

questioning elicited via Curry’s testimony that she had been harassed for

being a “snitch.”   See N.T., 6/4/13, at 20-22.    Given this examination by

Appellant’s counsel, we agree with trial court’s assessment that the proffered

testimony from Ms. Close would be collateral. See, e.g., Commonwealth

v. Dowling, 778 A.2d 683, 687 (Pa. Super. 2001) (explaining that, “[i]n

exercising its discretion, a trial court may properly precluded cross-

examination on collateral matters that are unrelated to the issues at trial”).

      In sum, because Appellant’s claims of trial court error lack merit, we

affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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J-A01031-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2015




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