J-S56012-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

JOSHUA ROBINSON

                         Appellant                   No. 3630 EDA 2016


          Appeal from the Judgment of Sentence November 10, 2016
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0004954-2013
                           CP-51-CR-0004955-2013


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 27, 2017

      Joshua Robinson appeals from the judgment of sentence of 58 and

one-half to 117 years incarceration imposed following his convictions for two

counts of aggravated assault and robbery, in addition to, inter alia, one

count of conspiracy to commit robbery and various firearm charges.       We

affirm.

      The trial court summarized the incident leading to Appellant’s

conviction in its Pa.R.A.P. 1925(a) opinion as follows.

      [I]n the early morning hours of August 9, 2010, Michael Brown,
      wanting to purchase thirteen bags of crack cocaine, approached
      Gloria Alston and inquired if Alston knew someone from whom
      he could buy drugs. Ms. Alston called Kareem White and set up a
      meeting for the sale of the drugs to Brown. Kareem White and
      William Ross drove to the 1100 block of South Sixty-First Street

* Retired Senior Judge specially assigned to the Superior Court.
J-S56012-17



      in Philadelphia as arranged, where Brown approached the
      passenger side of the car, pulled out money, asked about the
      drugs, and if they had guns in the car with them. The defendant,
      Joshua Robinson, suddenly appeared in the middle of the street.
      Robinson walked slightly past the vehicle, turned and fired twice
      into the vehicle. Gunfire was returned and Robinson shot three
      or four more times into the vehicle and fled. White was shot in
      the back of his head and left torso. Ross suffered a gunshot
      wound to the back of his head and left hand. White and Ross
      were transported to the Hospital of the University of
      Pennsylvania and miraculously, both survived.

Trial Court Opinion, 1/31/17, at 3 (citations to transcript omitted).

      We add the following facts.      The identity of the shooter remained

unknown until 2012, as Kareem White had implicated another man. Kareem

testified that he believed Kevin Rogers had set him up for a robbery, as he

and Rogers used to sell drugs together. Their illicit partnership ended due to

Kareem’s dissatisfaction with the quality of Rogers’ drugs. On the day of the

shootings, Kareem received a call from Gloria Alston, asking if she could

purchase $100 worth of cocaine. He agreed, and stated that he would drive

to her location.

      Kareem, joined by William Ross, arrived and saw Michael Brown,

whom Kareem knew to be Kevin’s cousin.         That man approached the car,

and engaged in a conversation with the two dealers.         Shortly thereafter,

another individual approached the vehicle and started firing a gun. Based on

this sequence of events, Kareem believed that Rogers had arranged the

shooting, presumably as revenge for severing their drug partnership.




                                     -2-
J-S56012-17



     Detective Frank Mullen interviewed Kareem at the hospital a few hours

after the shooting. Kareem identified Brown in a photo array and suggested

that Detective Mullen speak to Alston.    Ms. Alston gave a statement at

approximately 9:00 a.m.      She told Detective Mullen and his partner,

Detective Darryl Pearson, that she regularly used crack cocaine and knew a

number of dealers. She would occasionally act as a middleman and arrange

drug sales in exchange for some cash or a cut of the drugs.         She was

hanging out in an apartment when a man who identified himself as Kevin

Rogers’s cousin, Jasir, arrived and asked Alston to arrange a drug deal.

Alston did so, and witnessed Jasir approach the vehicle upon Kareem’s

arrival. She saw the shooter approach the vehicle and open fire, but did not

know the shooter. She identified Jasir in a photo array. Detective Pearson

testified that Jasir was, in fact, Michael Brown.   Brown was arrested on

September 29, 2010, and charged with robbery.

     Authorities continued their investigation, largely through investigation

of cellular phone records. Meanwhile, in early September of 2010, Abdalah

Josma was arrested following a vehicular stop for numerous firearms

offenses.   Josma spoke to a detective, and stated that Appellant had

previously given Josma a firearm. Appellant indicated that he had used this

gun to kill two people in a drug deal setup.        Josma then showed the

authorities that gun, which was a revolver. Detective Mullen explained that




                                   -3-
J-S56012-17



since revolvers do not expel casings, forensic attempts to connect the gun to

the shooting would be fruitless.

        On March 14, 2012, Brown and his attorney contacted the authorities

to offer information, which ultimately led to Appellant’s arrest.        Brown

testified at trial, and related the following.      He approached Alston and

identified himself as Rogers’ cousin, and asked her to arrange a sale. When

Brown went outside to wait, he saw Appellant, whom he recognized.

Appellant told Brown he was looking to rob someone.            Brown informed

Appellant that he would be buying some drugs, and told him “after

everything I handle is done, you could just go ahead and rob them.”          He

then explained to the jury that he approached Kareem’s car, whereupon

Appellant approached and fired his gun.

        Following a jury trial, Appellant was convicted of the aforementioned

charges and sentenced.1           Appellant filed a timely notice of appeal and

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal. The trial court authored its

opinion in response and the matter is ready for our review. Appellant raises

the following two issues.

        I. Did the trial court err and cause irreparable harm to Appellant
        when the court allowed the Commonwealth to elicit testimony
        from a witness, Gloria Alston, regarding fears of retaliation when
____________________________________________


1
    Appellant was acquitted of two counts of attempted homicide.



                                           -4-
J-S56012-17



      there was no evidence of any retaliation in relation to Appellant
      and when the jury could only conclude that Appellant could have
      been the only one with motive or interest in retaliation?

      II. Did the trial court err and cause irreparable harm to Appellant
      by allowing the Commonwealth to read witness Gloria Alston's
      out-of-court, hearsay statement into evidence when there was
      no significant issue with the witness' memory and there was no
      Brady/Lively impeachment because there was no evidence that
      the witness was recanting or disavowing her prior statement?

Appellant’s brief at 4.

      Both of these claims attack the trial court’s decision to admit evidence.

The admission of evidence “is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.

2015) (citation and quotation omitted). “Accordingly, a ruling admitting

evidence will not be disturbed on appeal unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.”    Commonwealth v. Huggins, 68 A.3d

962, 966 (Pa.Super. 2013) (citations and internal quotations omitted).

      The first claim involves the prosecutor asking Ms. Alston if she was

scared. The pertinent exchange was as follows:

      Q. [A]re you nervous today?

      A. Yes, I am very nervous.

      Q. Are you a little scared today?

      A. I'm afraid, yes.



                                     -5-
J-S56012-17



      [APPELLANT]: Objection, Your Honor.

      THE COURT: Overruled.

      Q. What are you afraid of?

      A. Retaliation.

      [Appellant]: Objection.

      THE COURT: Overruled, but that's enough of that.

N.T., 11/2/16, at 107.

      Appellant alleges that the trial court erroneously overruled his

objection and caused prejudice, as there was no objective evidence of any

retaliation. In its Pa.R.A.P. 1925(a) opinion, the trial court states that Ms.

Alston “was obviously distressed at testifying in open court and the

exchange with Ms. Alston was merely an explanation as to why the witness

was acting as she was on the witness stand.” Trial Court Opinion, 1/31/17,

at 4-5.

      We find that the court did not abuse its discretion.   We addressed a

substantially similar set of circumstances in Commonwealth v. Bryant,

462 A.2d 785 (Pa.Super. 1983), and opined that evidence of a witness’s

subjective fear are permissible to explain aspects of the witness’s testimony:

      In general, “‘threats by third persons against ... witnesses are
      not relevant [and thus not admissible into evidence] unless ...
      the defendant is linked in some way to the making of the
      threats.’” Commonwealth v. Carr, 436 Pa. 124, 127, 259 A.2d
      165, 167 (1969) (citation omitted). Nevertheless, an exception
      to the rule exists where the evidence in question was not offered



                                    -6-
J-S56012-17



      to prove the accused's guilt “but to explain a [witness's] prior
      inconsistent statement.”

      In the present case the Commonwealth witness revealed his
      subjective      fear      that     Appellant      or   Appellant's
      family might threaten him or his family if he testified against
      Appellant. The witness did not intimate that he had actually
      received threats from any source. Furthermore, the testimony
      concerning possible threats was not introduced to establish
      Appellant's guilt but was adduced to reconcile the inconsistencies
      in the witness's pre-trial and at-trial statements.

Id. at 788 (emphasis in original, some citations omitted). Likewise, the trial

court permitted the testimony as a way of explaining Ms. Alston’s demeanor

and behavior on the stand. Furthermore, Ms. Alston did not state that she

was actually threatened, only that she subjectively feared that retaliation

could occur. We therefore find no error.

      The second issue concerns a lengthy question to Ms. Alston, which

involved reading the entire content of her statement to Detective Mullen.

However, we note that prior to taking that action, the Commonwealth

attempted to refresh her recollection as indicated by the following exchange:

      Q. Okay. I'm going to step back just a little bit. This guy Michael
      Brown, did you know a guy named Kev who lived on that same
      block?

      A. Yeah.

      Q. Did Michael Brown ever, I guess, was it ever told to you that
      Michael Brown was Kev's cousin?

      A. No.

      Q. No?



                                     -7-
J-S56012-17



     A. No.

N.T., 1/31/16, at 106. The prosecutor then offered Ms. Alston a document,

which Ms. Alston recognized as having reviewed previously with the

prosecutor in preparation of her testimony. She reviewed the statement and

acknowledged that the document was the statement she gave to Detective

Mullen:

     Q. . . . And [Detective Mullen] had asked you questions. Is that
     fair?

     A. Right.

     Q. That night?

     A. Yes.

     Q. And the first few pages are the Miranda warnings that he
     gave you. He told you all your rights and all that kind of stuff?

     A. Uh-huh.

     Q. Is that right?

     A. Right.

     Q. Okay. And then I read to you the first, I read to you your
     whole statement.

     A. Right.

     Q. Earlier today.

     A. Yes.

     Q. When we were at lunch.

     A. Yes.



                                   -8-
J-S56012-17



      Q. Okay. And all of that was true and correct to the best of your
      memory. Is that fair?

      A. Right.

Id. at 109-110.      The Commonwealth then read an answer from the

statement, wherein Ms. Alston stated that Jasir (a/k/a Michael Brown) had in

fact identified himself as Kevin’s cousin. Ms. Alston responded that she did

not remember saying that.     Examination continued, and Ms. Alston again

experienced difficulties recalling certain details, prompting the prosecutor to

again reference the prior statement, this time by directly reading what the

statement said.

      Q. Okay. And do you know where Reem lived?

      A. No.

      Q. Okay. Do you remember telling Detective Mullen that Reem
      lived right next door to Kev?

      A. I don't remember.

      Q. Okay. Let's just go right here. Court's indulgence. Well, let's
      go back. Miss Alston, the first question that the detective asked
      you was, "Tell me what you can about what happened outside of
      eleven hundred South Sixty-First Street on 8/9/10 at
      approximately 12:40 a.m. from the beginning." You give a very,
      very long answer. It starts on page one and ends on page two;
      is that correct?

      A. I guess.

      Q. Okay. Let's go to page three.

      Question: "When Jasir went to visit" --




                                     -9-
J-S56012-17



         [APPELLANT]: Objection. I don't know what. Is she being
         impeached? I think she said she doesn't remember. If she
         doesn't remember, she can look at it, review it and see if it
         refreshes her memory, but she can't be read the question.

Id. at 114-15. The trial court overruled the objection, and the prosecutor

then read the statement in full, reciting the questions and answers given,

which occupied eight pages of transcript. After reading the entire statement,

the prosecutor concluded with, “Miss Alston, I just read you that whole

thing.     Do you remember giving that answer?”         The witness responded,

“Most of it.” The prosecutor then asked, “When you say most of it, what is

it? What’s different that you don’t? I guess, what do you not remember?”

Id. at 124.

         As indicated by the objection, Appellant insisted that the proper course

was to show Ms. Alston the statement to see if it refreshed her recollection.

Appellant argues that the trial court abused its discretion because “there was

no significant issue with the witness’s memory and . . . there was no

evidence that the witness was recanting or disavowing her previous

statement.” Appellant’s brief at 10.

         The Commonwealth responds that the trial court properly permitted

the prosecutor to read the questions and answers pursuant to Pa.R.E.

803.1(3), which states:

         (3)   Recorded   Recollection  of   Declarant-Witness. A
         memorandum or record made or adopted by a declarant-witness
         that:



                                       - 10 -
J-S56012-17



      (A) is on a matter the declarant-witness once knew about but
      now cannot recall well enough to testify fully and accurately;

      (B) was made or adopted by the declarant-witness when the
      matter was fresh in his or her memory; and

      (C) the declarant-witness testifies accurately reflects his or her
      knowledge at the time when made.

      If admitted, the memorandum or record may be read into
      evidence and received as an exhibit, but may be shown to the
      jury only in exceptional circumstances or when offered by an
      adverse party.

Pa.R.E. 803.1(3).

      We agree that the trial court did not abuse its discretion in permitting

the Commonwealth to read the questions and answers, as all three

requirements were met.      First, a review of Ms. Alston’s testimony, as

excerpted supra, plainly establishes that she could not recall the details of

her statement, which was given approximately six years before her in-court

testimony. Second, the prosecutor asked the witness if her prior statements

reflected “what happened that night” to which Ms. Alston stated, “Yeah.”

Finally, Ms. Alston conceded that she reviewed her statement with the

prosecutor in preparation for her testimony, and agreed when asked, “And

all of that was true and correct to the best of your memory. Is that fair?”

      Accordingly, we disagree with Appellant’s assertion that there was no

significant issue with the witness’s memory.    In this vein, we note that in

Commonwealth v. Shelton, 170 A.3d 549 (Pa.Super. 2017), we affirmed

the trial court’s decision to permit introduction of prior statements in a

                                    - 11 -
J-S56012-17



videotaped interview pursuant to this same hearsay exception. With respect

to whether the witness evidenced any difficulties recalling the details of

previous statements, we specifically noted that the witness admitted to

memory issues but would nevertheless answer questions:

      At trial, the victim acknowledged that her memory of events was
      “much better then [.]” Importantly, she informed the court that
      when the Commonwealth asked her a question at trial to which
      she could not recall the answer, she would say “no,” rather than
      admit that she did not recall. Although the victim was able to
      testify at trial about many details of the abuse by her father,
      from our review of the transcribed portions of the video
      recording we discern that the victim reported the events of
      abuse more fully, with a greater level of detail, at her forensic
      interview. The victim testified that there were times during
      her testimony when she did not recall the answer to a
      question posed by the Commonwealth but instead of
      admitting as such, she answered the question in the
      negative.

Id. at 552–53 (citations to transcript omitted, emphasis added). The same

is true here; Ms. Alston simultaneously admitted that she could not recall the

particular answers given, but nevertheless answered many questions as if

she recalled all details.   Hence, we cannot conclude that the trial court

abused its discretion in permitting the Commonwealth to read the statement

to the witness.

      Additionally, we add that by asking Ms. Alson if she had any

corrections or anything to add regarding the statement, the prosecutor

effectively gave the witness an opportunity to explain anything that was




                                    - 12 -
J-S56012-17



incorrect in the statement, as opposed to introducing the statement as

substantive evidence. Therefore, we find no error.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




                                   - 13 -
