J-A09044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

DWANE HANDY

                           Appellant                No. 1656 EDA 2013


           Appeal from the Judgment of Sentence entered June 5, 2013
              In the Court of Common Pleas of Philadelphia County
                  Criminal Division at No: 51-CR-0013034-2011


BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JULY 14, 2015

      Appellant, Dwane Handy, appeals from the judgment of sentence the

Court of Common Pleas of Philadelphia County entered June 5, 2013. Upon

review, we affirm.

      The relevant facts and procedural history can be summarized as

follows:

      [O]n April 2, 2011, at approximately 4:40 P.M., [Police Officer
      Candice McCoy] went to the Busti Housing Project at 46 th and
      Market Streets in Philadelphia in response to a radio call. A
      black Pontiac Bonneville was in the eastbound lane with the
      engine running. The driver’s side door was slightly open and the
      front passenger’s side window was shattered. Two (2) black
      males discovered in the vehicle had been shot multiple times.
      The male sitting in the front passenger’s seat was unresponsive.
      The male sitting in the driver’s seat was complaining of pain in
      his legs. The medic unit arrived and transported the males to
      the hospital. The male [who] had been sitting in the passenger’s
      seat, later identified as Quince Morant [(Morant)] . . ., was
      pronounced dead on arrival. The other male, later identified as
      Sharad DuBose [(DuBose)], received treatment for his injuries.
J-A09044-15



Trial Court Opinion, 5/29/14, at 2.

       Following the shooting, the police interviewed several individuals,

including DuBose, Consuelo Matthews, Jerome Boyd, John Ashmore, and

Ivory Matthews, who provided written statements incriminating Appellant as

involved in the shooting. In essence, these witnesses stated that Appellant,

along with codefendant, robbed Morant and DuBose, and, in the course of

the robbery, killed Morant and injured DuBose. At trial, however, with one

exception (Consuelo Matthews),1 all of the witnesses distanced themselves

from the prior statements they gave to the police, denying making any

statement to the police (DuBose), not recalling signing any statement

(Boyd), not recalling what information was provided to the police (Ashmore),

disputing the accuracy of the statement (Ivory Matthew), or claiming not to

have signed all pages of the statement (Ivory Matthew).

       On May 31, 2013, [Appellant] was found guilty by a jury of
       [m]urder of the [second] [d]egree; [a]ggravated [a]ssault; two
       (2) counts of [r]obbery; [c]onspiracy to [c]omit [r]obbery and,
       [p]ossession of an [i]nstrument of [c]rime. He was sentenced
       that same day to [l]ife without possibility of parole for the
       [m]urder conviction; five (5) to ten (10) years for the
       [a]ggravated [a]assault conviction; five (5) to ten (10) years for
       each [r]obbery conviction; and, . . . five (5) to ten (10) years for
       the [c]onspiracy to commit [r]obbery conviction; all sentences to
       run concurrently.


____________________________________________


1
  At trial, Consuelo Matthews, “confirmed that most of the statement was
accurate. However, she testified that she did not tell [detectives] that
[Appellant] took Ebony into the bathroom with him.” Id. at 4.



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      On June 5, 2013, the court amended its sentencing order and
      vacated the sentence imposed on the two (2) counts of
      [r]obbery since they were lesser included offenses of [second]
      [d]egree [m]urder.

Trial Court Opinion, 5/29/14, at 1 (footnote omitted). This appeal followed.

      On appeal, Appellant raises the following issues:

      1. Did not the trial court err in denying [A]ppellant’s motion to
         suppress inculpatory statements, where the statements were
         the product of an unlawful arrest unsupported by probable
         cause?

      2. Did not the trial court err in refusing to permit to question co-
         defendant . . . regarding his prior arrest with Elante
         Outterbridge, where such questioning was relevant to
         [A]ppellant’s defense at trial and where [codefendant] opened
         the door by testifying to his own character?

      3. Did not the trial court err in denying repeated defense
         motions for a mistrial, where the Commonwealth engaged in
         an ongoing course of prejudicial conduct that included open
         references to the fact that documents had been redacted;
         improper comments in denigration of defense counsel; and
         improper burden-shifting, misstatement of evidence, and
         appeals to community sympathy and outrage?

      4. Did not the trial court err in failing either to grant a mistrial or
         to conduct further investigation after it became apparent that
         specific information regarding the jury’s deliberations had
         been leaked?

Appellant’s Brief at 3.

      In his first argument, Appellant claims the trial court erred in finding

the officers had probable cause to arrest Appellant. Specifically, Appellant

argues the Commonwealth failed to make out a prima facie case Appellant

committed the crimes ascribed to him.          Appellant’s Brief at 33 (quoting




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Commonwealth v. Weigle, 997 A.2d 306 (Pa. Super. 2010)).                        Appellant

also added that

       Pennsylvania courts have thus held that the question of probable
       cause is closely related to the issue of legal sufficiency: would
       the evidence possessed by the police at the time they arrested
       appellant, assuming it were true, have been sufficient to allow a
       judge or magistrate to find probable cause to bind him over for
       trial?

Id. (relying, presumably, on Weigle).

       Appellant    misunderstands         the     law.      Weigle     deals   with   the

Commonwealth’s         burden     at   a       preliminary   hearing,    not    with   the

Commonwealth’s burden at a suppression hearing. At a preliminary hearing,

the Commonwealth must provide (i) evidence of each of the material

elements of the crime charged and (ii) and establish probable cause to

warrant belief that the accused committed the crime.2                   At a suppression

____________________________________________


2
  In Commonwealth v. Lacey, 496 A.2d 1256, 1260-61 (Pa. Super. 1985),
this Court noted:

       A creature of statute, the preliminary hearing is intended to
       protect the accused from unlawful detention. To that end, the
       prosecution must establish at least a prima facie case that a
       crime has been committed and that the accused is the one who
       committed it. The Commonwealth’s burden at this stage falls
       short of proof beyond a reasonable doubt. The proof need only
       be such that, if the evidence were presented at trial and
       accepted as true, the trial judge would be warranted in allowing
       the case to go to the jury.

Id. at 1260 (citations omitted). We also explained our standard of review as
follows:

(Footnote Continued Next Page)


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hearing    where       a   defendant      challenges      the   arrest,   however,     the

Commonwealth must produce only evidence of the propriety of the arrest,

i.e., probable cause to arrest, not evidence sufficient to make a prima facie

case of guilt. Commonwealth v. Holloway, 323 A.2d 216, 217 (Pa. Super.

1974).    “It is only probability, and not a prima facie showing of criminal

activity[,] that is the standard of probable cause for arrest[.] If the officer

had known of a complaint when he took the appellant into custody, he would

have had all the evidence presented at trial, i.e. prima facie evidence of guilt

beyond    a   reasonable       doubt.”       Id.;   see    also   Commonwealth          v.

Thompson, 985 A.2d 931 (Pa. 2009) (“probability, and not a prima facie

showing, of criminal activity” necessary for search and seizure) (emphasis in

original) (citing Illinois v. Gates, 462 U.S. 213, 235 (1983)).                      Thus,

reliance on Weigle is misplaced.


                       _______________________
(Footnote Continued)

              Our function is to take the facts proven by the
              Commonwealth at the preliminary hearing and to
              determine whether the sum of those facts fits within
              the statutory definition of the types of conduct
              declared by the Pennsylvania legislature in the
              Crimes Code to be illegal conduct. If the proven
              facts fit the definition of the offenses with which the
              appellees are charged, then a prima facie case was
              made out as to such offense or offenses. If the facts
              do not fit the statutory definitions of the offenses
              charged against the appellees, then the appellees
              are entitled to be discharged.

Id. at 1260-61 (citation omitted).



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     Applying the proper standard, the trial court concluded the officer had

probable cause to arrest Appellant. Specifically, at the suppression hearing,

the investigating detective testified that he spoke, inter alia, to Ebony

Matthews, Ivory Matthews, and the mother of eyewitness John Ashmore, all

of whom knew Appellant and codefendant.       Ebony told the detective that,

“just” after the shooting, then 11-year-old John Ashmore told Ebony that he

saw codefendant shooting someone inside a car. N.T. Suppression, 2/14/13,

at 12. Ebony told the detective that Ashmore was shaking with fear because

he had seen everything and “he was afraid that they were going to come get

him.” Id. at 13.

     Ivory Matthews reported that Ashmore, upon entering the Matthews’

apartment after the shooting, told Ivory that Appellant was in the backseat

of the car when codefendant approached Morant and DuBose and said, “Y’ all

got to . . . the count of five to give it up.”   Id. at 23.    Ashmore saw

Appellant get out the car’s back seat and walk away from codefendant

before codefendant began firing the gun. Id.; see also id. at 36-37.

     John Ashmore’s mother reported to the detectives that she saw

Appellant with codefendant on the elevator “right after” the shooting. N.T.

Suppression, 2/15/13, at 51-52.      She heard Ebony warning codefendant

about the police in the courtyard. Id.

     The trial court summarized this evidence as follows:




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J-A09044-15


       There [are] three really strong statements that indicate that
       [Appellant] more likely than not had involvement in this murder.
       ...

       So    [codefendant]   comes     up   to   commit    a   murder,
       robbery/murder, [Appellant] gets to leave the car unscathed and
       [codefendant] and [Appellant] are together within a few minutes
       after the homicide. If that is not probable cause, I don’t know
       what is.

Id., at 63-64.

       The trial court also properly noted: “There is a difference between

probable cause to arrest and whether the detectives believed they had

enough evidence to hold and whether they want to bring their case at that

time or gather more information.” Id. at 66.

       In light of the foregoing, we conclude the trial court did not err in

denying Appellant’s motion to suppress the statements.3

       In his second claim, Appellant argues the trial court erred in not

allowing him to question codefendant about codefendant’s prior arrests to

show that Elante Outterbridge, who had been arrested with codefendant in

the past in connection with another robbery, was involved in the crimes at

issue here.
____________________________________________


3
  To the extent Appellant argues the Commonwealth failed to make a prima
facie case at the preliminary hearing because the officer did not have
probable cause to arrest, we find the claim meritless. It is well known that
any defect in the preliminary hearing is cured by subsequent trial. “Once a
defendant has gone to trial and has been found guilty of the crime or crimes
charged, however, any defect in the preliminary hearing is rendered
immaterial.” Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014)
(citation omitted).



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J-A09044-15


        In his argument, Appellant mentions Pa.R.E. 404(b) as controlling the

issue, but fails to provide the pertinent analysis (i.e., why the evidence

sought was permissible as opposed to impermissible and whether its

probative value outweighed its potential for prejudice).4      Appellant merely

argues that he should have been allowed to question codefendant because

codefendant opened the door by testifying about his character for being a

law-abiding citizen, i.e., on two occasions, codefendant commented about

the tone or content of the questions from the Commonwealth that,

according to the codefendant, made him look like something he was not.


____________________________________________


4
    Rule 404(b) reads as follows:

        (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.

        (3) Notice in a Criminal Case. In a criminal case the prosecutor
        must provide reasonable notice in advance of trial, or during trial
        if the court excuses pretrial notice on good cause shown, of the
        general nature of any such evidence the prosecutor intends to
        introduce at trial.

Pa.R.E. 404(b).




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J-A09044-15


       Appellant’s representation of the testimony above as “character

evidence” is a stretch. However, even if codefendant “opened the door”5 to

questions about his character, Appellant fails to provide any explanation why

he wanted to question codefendant on a prior arrest for robbery—assuming

he could have impeached him with evidence of prior arrests—if he merely

intended to show that he was not a law-abiding citizen.6 We see no other

reason for the proposed line of questions than Appellant’s attempt to

establish that codefendant acted in conformity with the prior robbery. Such

evidence, however, is expressly prohibited under Pa.R.E. 404(b)(1).             “A

defendant has a fundamental right to present evidence, so long as the

evidence is relevant and not subject to exclusion under our Rules of

Evidence.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014). In

the instant matter, Appellant essentially claims the trial court should have

allowed him to show that Elante Outterbridge was involved in the instant

robbery/murder,        not    Appellant,       because   codefendant   and   Elante



____________________________________________


5
  “A litigant opens the door to inadmissible evidence by presenting proof that
creates a false impression refuted by the otherwise prohibited evidence.”
Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013)
(citations omitted).
6
  Codefendant had seven arrests, mostly for felonies, including an arrest in
connection with a robbery that took place in the neighborhood of the Busti
Projects (West Philadelphia) on September 6, 2008. See N.T. Suppression,
2/14/13, at 27; N.T. Suppression, 2/15/13, at 60.



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Outterbridge were arrested in connection with the 2008 robbery.7 “Reverse

Rule 404(b) evidence” refers to a defendant’s use of other acts evidence

under Pa.R.E. 404(b) to show that a third party had committed the crime at

issue. See United States v. Stevens, 935 F.3d 1380, 1404 (3d Cir. 2001)

(construing the materially similar Fed.R.Evid. 404(b)).     No Pennsylvania

court has squarely addressed the use of reverse Rule 404(b) evidence, but

some have mentioned the concept obliquely. See, e.g., Commonwealth v.

Chmiel, 889 A.2d 501, 534-35 (Pa. 2005) (holding that trial court properly

precluded defendant from questioning witness concerning prior burglary

which did not fall within permitted purposes of Rule 404(b) but merely

tended to establish action in conformity with the prior act). To the extent a

defendant’s reverse Rule 404(b) evidence is admissible, it certainly does not

permit a defendant to seek admission of “propensity evidence in violation of

the prohibition of Rule 404(b).” United States v. Williams, 458 F.3d 312,

314 (3d Cir. 2006). The claim is therefore without merit.

       Appellant next argues the trial court erred in denying Appellant’s

motions for mistrial due to the Commonwealth’s misconduct. 8       Appellant,

____________________________________________


7
  As noted, Appellant does not argue the questioning was intended to show
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of incident.” Pa.R.E. 404(b).
8
  Appellant sought a mistrial following the Commonwealth’s reference to
documents and/or photographs being redacted and following a comment,
directed to the jury, “that they would be serving until Memorial Day.”
(Footnote Continued Next Page)


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J-A09044-15


however, does not challenge any specific ruling made by the trial court as

improper or incorrect. In fact, Appellant conceded the rulings were proper.

Appellant’s Brief at 52. Appellant merely states the cumulative impact of the

Commonwealth’s actions amounted to prosecutorial misconduct even if the

instances themselves, considered separately, did not rise to the level of

prosecutorial misconduct. Id. In support, Appellant cites Commonwealth

v. Bricker, 487 A.2d 346 (Pa. 1985), for the proposition a mistrial should be

granted if the Commonwealth has engaged in a pattern of misconduct

throughout the trial.

         The claim fails for several reasons. Preliminarily, we note that Bricker

is   a    plurality   opinion,    which    means    it   is   not   binding   authority.

Commonwealth v. Antoszyk, 985 A.2d 975, 981 (Pa. Super. 2009).                       In

any case, in Commonwealth v. Miles, 681 A.2d 1295 (Pa. 1996), the

Supreme Court acknowledged that “if the prosecutor has engaged in a

pattern of misconduct throughout the trial then there is reason to grant a

new trial.” Id. at 1303 (citing Bricker). However, the Supreme Court also

noted that “[n]o number of failed claims may collectively attain merit if they

could not do so individually.” Id. (citation omitted) (emphasis in original).
                       _______________________
(Footnote Continued)

Appellant    also   brought    another   motion    for   mistrial following
Commonwealth’s closing argument.             Appellant argued that the
Commonwealth improperly cited DuBose’s statements for their content,
whereas they were admitted for impeachment purposes only; improperly
shifted the burden to the defense to produce evidence; improperly misstated
the evidence; and improperly appealed to community sympathy or outrage.



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J-A09044-15


Here, as in Miles, all claims for prosecutorial misconduct failed, and

Appellant did not challenge their disposition. Thus, as in Miles, we conclude

Appellant is not entitled to relief based on his claim.

      Additionally, the claim fails on its merits.

      The denial of a motion for a mistrial is assessed on appellate
      review according to an abuse of discretion standard.        See
      Commonwealth v. Savage, 529 Pa. 108, 116, 602 A.2d 309,
      312 (1992). The central tasks confronting the trial court upon
      the making of the motion were to determine whether misconduct
      or prejudicial error actually occurred, and if so, to assess the
      degree of any resulting prejudice.              See generally
      Commonwealth v. Boczkowski, 577 Pa. 421, 454, 846 A.2d
      75, 94 (2004) (characterizing a mistrial as an extreme remedy
      that needs only be granted where a prejudicial event may
      reasonably be said to have deprived the defendant of a fair
      trial).

Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa. 2006).

      Here, the trial court found the challenged comments regarding the

redacted photos and the pace of the trial were in fact intemperate and

improper, but did not deprive Appellant of a fair trial.     Similarly, the trial

court found two comments (use of DuBose’s statements and appeal to the

community outrage) made during the closing argument required a curative

instruction, but none of the claims warranted granting Appellant’s motion for

mistrial.   On appeal, as noted, Appellant does not challenge any of these

rulings, and does not argue—except for bald allegations—he suffered

prejudice. As such, Appellant is entitled to no relief on this claim.

      Appellant next argues the trial court erred in failing either to grant a

mistrial or to conduct further investigation after it became apparent that

                                      - 12 -
J-A09044-15


specific information about the jury’s deliberations had been leaked.

Specifically, Appellant argues that during the deliberations the trial court

learned that a juror, Juror No. 7, had participated in conversations with

outside parties regarding the jury’s deliberations.

      A close reading of Appellant’s argument reveals that Appellant does

not challenge the trial court’s denial of his motion for mistrial.     Indeed,

Appellant concedes the trial court’s determination in this regard was correct.

Appellant’s Brief at 54.    Appellant, rather, argues, for the first time on

appeal, that the trial court should have engaged in “further inquiries to trace

the leak,” Appellant’s Brief at 58, and that questioning only one juror, the

juror allegedly involved in the leak, was not enough to assess whether

Appellant was prejudiced by the leak.         Id.   In support, Appellant cites

Commonwealth v. Price, 344 A.2d 493 (Pa. 1975) for the proposition that

“where the juror visited the scene of the crime, but that juror was not

identified or questioned by the court, likelihood of prejudice could not be

discounted and new trial was required[.]” Appellant’s Brief at 56.

      Appellant never requested or even alluded to the necessity of

conducting further investigation until this appeal.        As per defendants’

request, the trial court questioned the only juror who could have been the

source of the potential leak (Juror No. 7). Appellant did not complain at any

time before now about the adequacy of the inquiry. The trial court was not

made aware of the necessity of conducting further inquiry at any time.


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Appellant raises the issue for the first time on appeal. The claim is therefore

waived. See Pa.R.A.P. 302(a).

      Additionally, had the claim been preserved, we would have found it

meritless.

      Once the trial court is made aware that a juror has been exposed
      to extraneous information [. . .] that was not provided in open
      court or vocalized by the trial court via instructions which may
      have affected the juror’s deliberation, the trial court must assess
      the prejudicial effect of the extraneous influence. In so doing,
      the trial court should consider: (1) whether the extraneous
      influence relates to a central issue in the case or merely involves
      a collateral issue; (2) whether the extraneous influence provided
      the jury with information they did not have before them at trial;
      and (3) whether the extraneous influence was emotional or
      inflammatory in nature.

Commonwealth v. Pope, 14 A.3d 139, 145 (Pa. Super. 2011) (citing

Commonwealth v. Messersmith, 860 A.2d 1078, 1085 (Pa. Super.

2004)).

      Here, the claim again would fail for several reasons. First, Appellant

presumes prejudice from the trial court’s failure to conduct further inquiries

into the leak. However, this is not the test. The burden is on the moving

party, here Appellant, to prove he suffered prejudice. Id. Second, once the

moving party shows prejudice, the trial court must assess the extent of the

prejudice of the extraneous influence.   Appellant never made this showing

because he never raised the issue before the trial court. To this end the trial

court noted that Appellant “has failed to provide an argument as to how this

extraneous information may have affected the juror’s deliberation such that


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J-A09044-15


it may have prejudiced [Appellant] or Co-Defendant.             There was no

argument made by [Appellant] as to what impact, if any, this extraneous

information had on Juror No. 7.”         Trial Court Opinion, 5/29/14, at 22.

Finally, Price is distinguishable.   In Price, the trial court never conducted

any inquiry into the alleged misconduct resulting in the trial court’s failure to

assess whether any prejudice occurred. Here, however, the trial court fully

examined—to Appellant’s satisfaction—Juror No. 7, and concluded that

Appellant did not suffer prejudice from the extraneous influence.        In this

regard, the trial court noted:

      [T]he trial court conducted a meaningful colloquy with Juror No.
      7[.] . . . Juror No. 7, a corrections officer at the House of
      Corrections, has a daughter who is a Corrections Officer at
      [Philadelphia Industrial Corrections Center]. Juror [No.7] denied
      speaking to anyone[,] including her daughter[,] about the
      deliberations in the case. [Juror No. 7] acknowledged that her
      daughter did tell her that [Appellant] knew her mother was
      sitting as a juror in his trial and asked her to put in a word with
      her mother. Juror No. 7’s daughter told her that she ignored
      [Appellant] and acted like nothing happened.

Trial Court Opinion, 5/29/14, at 21.

      Thus, the instant matter is distinguishable from Price.       As a result,

Appellant’s reliance on Price is misplaced.

      In light of the foregoing, we conclude Appellant is not entitled to relief

on any of his claims.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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