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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RONALD THOMAS

                            Appellant              No. 1121 EDA 2013


             Appeal from the Judgment of Sentence March 18, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013001-2010


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY LAZARUS, J.:                      FILED OCTOBER 02, 2015

         Ronald Thomas appeals from the judgment of sentence imposed in the

Court of Common Pleas of Philadelphia County after a jury convicted him of

first-degree murder1 and possession of instruments of crime.2 Upon careful

review, we vacate Thomas’ judgment of sentence and remand for a new

trial.

         Thomas was convicted of shooting Anwar Ashmore twice in the chest

at point blank range, allegedly in retaliation for Ashmore having stolen

cocaine from him. Two witnesses gave statements to the police indicating

that they had seen Thomas shoot Ashmore.          However, intimidation by

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1
    18 Pa.C.S.A. § 2502.
2
    18 Pa.C.S.A. § 907.
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Thomas, or individuals acting on his behalf, allegedly caused those witnesses

to recant their previous statements at trial.      Ultimately, however, a jury

convicted Thomas of Ashmore’s murder and he was sentenced to life

imprisonment without the possibility of parole.

        Thomas did not file post-sentence motions. On April 16, 2013, he filed

a timely notice of appeal to this Court, in which he raises the following

claims:3

        1. Under the Sixth and Fourteenth Amendments of the U.S.
           Constitution as well as Article I, § 9 of the Pennsylvania
           Constitution, did the [t]rial [c]ourt err in admitting
           [Ashmore’s] purported hearsay statement as evidence?

        2. Under the Sixth, Thirteenth and Fourteenth Amendments of
           the U.S. Constitution as well as Article I, §§ 1 [and] 9 of the
           Pennsylvania Constitution, did the [t]rial [c]ourt err in
           permitting the prosecution to present [Thomas’] rap lyrics
           and rap-related visual images as inculpatory evidence?

        3. Under the Sixth and Fourteenth Amendments of the U.S.
           Constitution as well as Article I, § 9 of the Pennsylvania
           Constitution, did the [t]rial [c]ourt err in denying [Thomas’]
           mistrial motion?

        4. Under the Sixth and Fourteenth Amendments of the U.S.
           Constitution as well as Article I, § 9 of the Pennsylvania
           Constitution, did the [t]rial [c]ourt erroneously allow the
           prosecution to repeatedly present extensive evidence of
           purported witness intimidation?

        5. Under the Sixth and Fourteenth Amendments of the U.S.
           Constitution as well as Article I, § 9 of the Pennsylvania
           Constitution, was the evidence insufficient to sustain
           [Thomas’] convictions?

____________________________________________


3
    We have renumbered certain of Thomas’ claims for ease of disposition.



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Brief of Appellant, at 4.

      Thomas first challenges the trial court’s admission of Ashmore’s

purported statement to his brother, Hasan Ashmore (“Hasan”), that

Ashmore had participated in a theft of cocaine from Thomas. Thomas claims

that Ashmore’s statement was both irrelevant and inadmissible because it

was hearsay not subject to any exception.

      We begin by noting that the admission of evidence is committed to the

sound discretion of the trial court and our review is for an abuse of

discretion. Commonwealth v. Parker, 104 A.3d 17, 21 (Pa. Super. 2014).

      In determining the admissibility of evidence, the trial court must
      decide whether the evidence is relevant and, if so, whether its
      probative value outweighs its prejudicial effect. Evidence is
      relevant if it logically tends to establish a material fact in the
      case, tends to make a fact at issue more or less probable, or
      supports a reasonable inference or presumption regarding the
      existence of a material fact. Evidence that merely advances an
      inference of a material fact may be admissible, even where the
      inference to be drawn stems only from human experience.
      Moreover, . . . to be relevant, evidence need not be conclusive.

Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998) (internal citations

and quotation marks omitted).

      The Rules of Evidence provide as follows with regard to hearsay

statements:

      “Hearsay” means a statement that[:]

      (1) the declarant does not make while testifying at the current
      trial or hearing; and

      (2) a party offers in evidence to prove the truth of the matter
      asserted in the statement.


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Pa.R.E. 801.

     Notwithstanding, the Rules also provide certain exceptions to the rule

against hearsay, including a “state of mind” exception:

     The following are not excluded by the rule against hearsay,
     regardless of whether the declarant is available as a witness:

                                    ***

     A statement of the declarant’s then-existing state of mind (such
     as motive, intent or plan) or emotional, sensory, or physical
     condition (such as mental feeling, pain, or bodily health), but not
     including a statement of memory or belief to prove the fact
     remembered or believed unless it relates to the validity or terms
     of the declarant’s will.

Pa.R.E. 803(3).

     Ashmore’s brother, Hasan, testified that Ashmore showed him cocaine

that Ashmore allegedly stole from Thomas’ stash house. N.T. Trial, 3/11/13,

at 15-17.   Hasan also testified that he believed that the lyrics of Thomas’

song, “Take It How You Wanna,” were about Ashmore’s theft of cocaine from

Thomas.     The lyrics included a threat by Thomas to kill the person

responsible and, according to Hasan, referred to Ashmore. Id. at 21-22.

     The Commonwealth argues that Commonwealth v. Fletcher, 750

A.2d 261, 276 (Pa. 2000), controls. In Fletcher, our Supreme Court held

that the victim’s statement to another individual that he had smoked all of

the defendant’s crack was relevant to establish the victim’s state of mind

regarding his relationship with the defendant and fell within the state of

mind exception, as it established the presence of ill-will, malice, or motive

for the killing. Id. at 293. More recently, however, the Supreme Court has


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stated that “Fletcher’s broad approach to the admissibility of hearsay

evidence touching on a victim’s state of mind in a criminal homicide

prosecution is in substantial tension with the limitations described and

applied in the subsequent decisions of the Court.”       Commonwealth v.

Moore, 937 A.2d 1062, 1071 (Pa. 2007).

      In Moore, the appellant challenged the admission, under the state-of-

mind exception, of hearsay testimony regarding statements by the victim

that the appellant had previously robbed, assaulted and bullied the victim.

The Commonwealth proffered this evidence to establish that the appellant

had become enraged at his victim because he had the “effrontery” to fight

back after years of abuse. Id. at 1072. In concluding that the trial court

had erred in admitting the testimony, the Court noted that “an out-of[-]court

statement by a murder victim may be admitted to establish the motive of

the defendant when those statements are not offered to prove the truth of

the matter asserted.”    Id. quoting Commonwealth v. Stallworth, 781

A.2d 110, 118 (Pa. 2001).      Because the testimony in Moore was only

relevant to the degree that the statements were true, the Court held it to be

inadmissible.

      More recently, this Court held in Commonwealth v. Green, 76 A.3d

575 (Pa. Super. 2013), that statements by the victim concerning the victim’s

state of mind toward Appellant are inadmissible. There, the appellant shot

his girlfriend after she had expressed to friends and family members her

intent to break off the relationship. The trial court allowed two witnesses to

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testify as to statements made by the victim regarding her relationship with

and fear of the appellant.   In concluding that the trial court had erred in

admitting the hearsay testimony, the Court stated:

     Considering the statements as evidence of Appellant’s motive, it
     appears impossible to demonstrate such an inference without
     accepting the statements for the truth of the matter asserted.
     To be relevant as to Appellant’s motive, we would have to accept
     that the Victim was fearful of Appellant and that she was
     attempting to end their relationship.          To accept these
     conclusions as the basis for Appellant’s motive is to accept the
     literal “truth” of the hearsay statements. If the Victim was not,
     in fact, fearful of Appellant and in the process of ending their
     relationship, then there was nothing about the hearsay
     statements that provided evidence of motive.            Put more
     succinctly, it is only when the admitted hearsay statements are
     taken as truthful that they provide competent evidence of
     motive.       [Our Supreme Court in Commonwealth v.]
     Thornton[, 431 A.2d 248 (Pa. 1981),] rejected the admission of
     such statements under the “state of mind” exception to the
     hearsay rule.       Either these statements were relevant but
     inadmissible as hearsay without an applicable exception, or they
     were not hearsay, in which case they were irrelevant.

Green, 76 A.3d at 581.

     Likewise, here, Hasan’s hearsay testimony is only relevant for its

truth, as substantive evidence that Ashmore stole Thomas’ cocaine and thus

provided Thomas with a motive to kill Ashmore. As in Moore, while these

statements may have been admissible as circumstantial evidence of

Ashmore’s fear of Thomas, they could not properly be admitted as

substantive evidence of the theft of the cocaine over Ashmore’s hearsay

objection. See Moore, 937 A.2d at 1072. As Ashmore’s state of mind is not




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relevant to an issue of the case, the trial court erred in admitting the

testimony under the state of mind exception to the hearsay rule.

     Thomas also claims that the trial court erred in admitting rap lyrics

and related images.    Specifically, the court allowed the Commonwealth to

present evidence of a song entitled “Take It How You Wanna,” which was co-

authored by Thomas and two other individuals. The song tells the story of

an individual who is angered that someone stole a brick of cocaine belonging

to the narrator and states that “somebody gonna die on this [corner]. For

touching shit don’t belong to ya.”    In light of Hasan’s testimony regarding

Ashmore’s statement that he had stolen cocaine from Thomas, the trial court

admitted the lyrics as evidence of Thomas’ state of mind pursuant to Pa.R.E.

404(b).

     Generally, evidence of other crimes, wrongs or acts is inadmissible to

prove a person’s character in order to show that the person acted in

accordance with that character on a particular occasion. Pennsylvania Rule

of Evidence 404(b) provides as follows:

     (b) Crimes, Wrongs or Other Acts.

          (1) Prohibited Uses. Evidence 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 the character.

          (2) Permitted Uses. This 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.

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Pa.R.E. 404(b).

       Here, the trial court concluded that the rap lyrics were properly

admitted to demonstrate Thomas’ motive for killing Ashmore.         The court

stated:

       As the evidence at trial demonstrated, [Thomas] was involved in
       the sale of drugs, and a large quantity of drugs was stolen from
       his “stash house.”     Following the theft of drugs, [Thomas]
       recorded a song wherein he stated that the stolen drugs were
       worth a significant amount of money, money which substantially
       impacted his quality of life, and that said act of betrayal would
       be his reason for killing the person responsible.             This
       demonstration of [Thomas’] motive, growing out of his
       involvement in drug dealing, and the statement of intent
       contained in his rap lyrics, constituted the type of evidence that
       our courts have unequivocally deemed admissible in similar
       situations. Accordingly, this evidence was properly admitted to
       demonstrate [Thomas’] motive for killing the decedent.

Trial Court Opinion, 12/20/13, at 11 (citations omitted).

       Thomas argues that the evidence was irrelevant and, even if not, the

probative value of the evidence was outweighed by its potential for unfair

prejudice.4 Thomas also argued that it only served to influence the jurors’
____________________________________________


4
  Thomas also presents constitutional claims regarding the admission of the
rap lyrics. In his brief, Thomas purports to cite to a portion of the record in
which he claims counsel presented the constitutional argument. However, a
review of that portion of the trial record indicates that the cited argument by
counsel: (1) related solely to the admission of the videotape evidence, and
(2) addressed relevance and not violations of a constitutional dimension.
Accordingly, as Thomas failed to preserve this issue before the trial court,
the issue is waived and we will not consider it herein. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”); Commonwealth v. Colavita, 993 A.2d 874 (Pa.
2010) (appellate courts may not reach claims that were not raised below).



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opinion of Thomas’ character and not to prove motive or intent.         Thomas

also notes that the jurors became “inordinately focused” on the rap music

evidence, asking to see the CD cover and examine the lyric sheet and

inquiring as to the release date of “Take It How You Wanna.”            Thomas

asserts that rap music is “inherently fictitious” and, as such, is irrelevant and

should not be used as a “confessional statement.”

      In response, the Commonwealth argues that the rap music evidence is

clearly relevant in light of the testimony of the victim’s brother, Hasan

Ashmore, regarding Thomas’ motive for killing Ashmore: Ashmore’s alleged

theft of Thomas’ cocaine stash.     Moreover, the Commonwealth claims, the

evidence was not prohibited by Rule 404 because it was admitted to prove

motive, intent and ill-will.   For the following reasons, we conclude that the

trial court improperly admitted the rap lyric evidence.

      We begin by noting that the cases relied upon by the trial court are

inapposite.   First, neither case involves the admission of rap lyrics as

evidence of motive.     Second, both cases are factually distinguishable.     In

Commonwealth v. Hall, 565 A.2d 144 (Pa. 1989), the appellant challenged

the trial court’s admission of evidence regarding his past drug dealing. In

affirming the trial court’s allowance of the testimony, the Supreme Court

concluded that the evidence presented at trial “established that the victims

were known drug dealers; further that the victims recently cheated the

appellant in a drug deal and, finally that the appellant had killed the victims

in revenge for cheating him.” Id. at 149. Accordingly, in light of the other

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evidence adduced at trial, questions regarding the appellant’s prior drug

dealings were relevant to establish his motive.

      Here, the only evidence either connecting Thomas to the drug trade or

demonstrating that Thomas possessed a drug-related motive for killing

Ashmore was the testimony of Ashmore’s brother, which we have already

determined to have been improperly admitted.         As such, unlike in Hall,

there is no other record evidence corroborating the Commonwealth’s

assertion that the rap lyrics are anything more than fictional depictions of

street life in North Philadelphia.

      In Commonwealth v. Reid, 642 A.2d 453 (Pa. 1994), the appellant

asserted that the trial court erred in permitting the jury to learn of his

association with the Junior Black Mafia. At trial, a Commonwealth witness

testified that he had seen the appellant shoot the victim. In an attempt to

impeach that witness, the defense inquired about a prior inconsistent

statement indicating that the witness, who had known the appellant for

years, could not identify the shooter.        In response, the Commonwealth

elicited testimony from the witness that his prior inconsistent statement was

the result of threats made against him by the Junior Black Mafia.          In

affirming the trial court’s ruling, the Supreme Court concluded that, by

asking about the prior inconsistent statement, the defense had “opened the

door” to the Commonwealth’s introduction of the evidence regarding the

Junior Black Mafia. Here, in contrast, Thomas did not pursue any evidence

or line of questioning that would have opened the door to the introduction of

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the rap music evidence.    Moreover, we have now held to be excluded the

only other evidence adduced at trial that would have rendered the rap lyrics

relevant.

      The Commonwealth relies on two Pennsylvania cases involving the

admission of rap lyrics in support of its argument that the rap evidence was

relevant and admissible. In Commonwealth v. Flamer, 53 A.3d 82 (Pa.

Super. 2012), two defendants, the Flamer brothers, were charged with the

murder of Allen Moment, Jr. Prior to trial in that case, the Commonwealth

filed a motion in limine to introduce evidence that the Flamers had conspired

with a third individual, Derrick White, to kill a witness in the Moment trial.

The trial court granted admission of some of the Commonwealth’s evidence,

but denied admission of most of it.           The Commonwealth filed an

interlocutory appeal of the trial court’s adverse rulings on several of those

evidentiary issues, including one involving the admission of one of the

defendants’ writings and raps, recovered in his prison cell, which the trial

court found to be irrelevant and prejudicial.    In the raps, the defendant

talked about people “‘keeping their mouths shut,’ sending his friends to kill

for him, and ‘popping shells’ in people that ‘run their mouth.’” Id. at 89. In

reversing the trial court, this Court concluded that the raps “have a tendency

to show contemplation for conspiratorial arrangement” and are, therefore,

relevant. The Court also found that the raps were not unduly prejudicial.

      We find Flamer to be distinguishable from the instant matter because

in that case, there was other record evidence, in addition to the rap lyrics,

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establishing the Flamers’ motive for killing the witness. This other evidence

provided a context in which the jury could consider the rap lyrics.              In

contrast, here, with the exclusion of Hasan Ashmore’s testimony, there is no

other evidence either connecting Thomas to the drug trade or establishing a

motive of retaliation for drug theft. As such, the relevancy of the rap lyrics

is based upon nothing more than speculation.

        The Commonwealth also relies on Commonwealth v. Ragan, 645

A.2d 811 (Pa. 1994).      There, the trial court admitted lyrics to a rap song

recorded by the defendant’s rap group, which described someone being shot

to death.    The appellant claimed that the lyrics were irrelevant since the

song did not deal with the specific murder for which he was on trial.

However, the Supreme Court concluded that, because the lyrics were

introduced in response to testimony on direct examination in which the

appellant had portrayed himself as a college student and artist, “[t]he fruits

of appellant’s artistic leanings were clearly relevant to rebut this testimony.”

Here,    unlike   in   Ragan,   Thomas     did   not   open   the   door   to   the

Commonwealth’s presentation of the rap evidence, nor was it introduced to

rebut defense evidence.

        In the case at bar, the relevancy of the rap lyrics is inextricably linked

to the inadmissible testimony of Hasan Ashmore, the victim’s brother,

regarding the fact that the victim had told him that he had stolen cocaine

from Thomas. Without Ashmore’s testimony, there is no nexus between the

events described in “Take It How You Wanna” and the shooting of the victim.

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Indeed, Ashmore’s testimony was the only evidence linking Thomas to the

drug trade.      In each of the cases cited by the trial court and the

Commonwealth, the statements contained in the rap lyrics in question were

made relevant by other evidence adduced by the Commonwealth at trial.

Thus, the other evidence made it more likely that the statements contained

in the rap lyrics were not fictional, but rather reflections of the defendants’

state of mind or motive.      Here, except for the inadmissible testimony of

Hasan Ashmore, the Commonwealth presented no evidence that Thomas

was either involved in the drug trade or possessed any motive to kill the

decedent.     The lyrics did not mention the victim by name and, standing

alone, any connection between the lyrics and the crime is entirely

speculative. In short, considered in the vacuum created by the exclusion of

Hasan’s testimony, the rap lyrics do not make the fact at issue – that

Thomas killed Ashmore – more or less probable.              See Pa.R.E. 401.

Therefore, it necessarily follows that the admission of the rap lyrics into

evidence was also erroneous.

        Having concluded that the trial court erred in admitting Hasan

Ashmore’s hearsay testimony and the rap evidence, we must determine

whether the admission of that evidence amounted to harmless error. Id. at

1073.

        It is well established that an error is harmless only if we are
        convinced beyond a reasonable doubt that there is no reasonable
        possibility that the error could have contributed to the verdict.
        The Commonwealth bears the burden of establishing the
        harmlessness of the error. This burden is satisfied when the

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      Commonwealth is able to show that: (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 the
      erroneously admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial [e]ffect of the error so insignificant by comparison
      that the error could not have contributed to the verdict.

Commonwealth v. Laich, 777 A.2d 1057, 1062-63 (Pa. 2001).

      After reviewing the record, we are not convinced that there is no

reasonable possibility that the trial court’s errors could have contributed to

the verdict.   Hasan Ashmore’s testimony and the rap lyrics were the only

pieces of evidence connecting Thomas to the sale of illegal drugs and

providing Thomas with a motive to kill Ashmore. Without this evidence, the

Commonwealth’s case consisted of several witnesses who have recanted

and/or changed their testimony regarding Thomas’ involvement in the

shooting of Anwar Ashmore.      Thus, we cannot say that the testimony of

these witnesses provided uncontradicted evidence of Thomas’ guilt that was

so overwhelming that the erroneously admitted evidence could not have

contributed to the verdict. See id. Indeed, during its deliberations, the jury

made multiple requests to examine the evidence involving the rap song,

demonstrating the importance that the jury placed on this evidence.




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       For the foregoing reasons, we are constrained to vacate Thomas’

judgment of sentence and remand the case for a new trial in accordance

with the dictates of this memorandum.5

       Judgment      of    sentence     vacated;   case   remanded;   jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




____________________________________________


5
  Because of our disposition of the matter, we need not address Thomas’
remaining issues on appeal.



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