J-S11032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT W. BASS,                            :
                                               :
                       Appellant               :       No. 623 EDA 2017

            Appeal from the Judgment of Sentence August 26, 2016
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0004051-2015

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 29, 2018

        Robert W. Bass (“Bass”) appeals from the judgment of sentence entered

following his convictions of two counts of criminal attempt (theft and murder),

and one count each of aggravated assault, robbery, conspiracy, burglary,

trespass, recklessly endangering another person (“REAP”), and terroristic

threats.1 We affirm.

        On October 16, 2014, Bass and his cohort, Jerald Batts (“Batts”), forced

their way into the home of Shania Wessels (“Wessels”) and Kenneth Lyles

(“Lyles”). Kasheem Bass (“Kasheem”) remained in a car parked a few houses

from Wessels’s residence. When they found no money in the living room of

the residence, Bass and Batts forced Wessels upstairs to unlock the bedroom

door. Lyles, asleep in the bedroom, woke to find a firearm and a flashlight

____________________________________________


1   See 18 Pa.C.S.A. §§ 907, 2702, 3701, 903, 3502, 3503, 2705, 2706.
J-S11032-18


pointed at his face. The men demanded money and threatened to kill Lyles

and Wessels. Lyles began to fight for control of the firearm. Suddenly, Lyles

heard Batts say “bust him,” at which time Bass shot Lyles twice. One shot

grazed Lyles’s arm; the other shot entered Lyles’s abdomen. Bass and Batts

fled the scene. As they did so, Bass picked up his fired casings, but left the

Halloween mask that he had been wearing and a 9mm semi-automatic

handgun.

      The following day, Bass called Wessels, his cousin, and admitted his part

in the incident. Kasheem subsequently told police that he was present during

the home invasion, but was unaware of the purpose of the visit to the home.

Subsequently, Batts admitted to police his involvement in the incident, and

identified Bass as the man who had shot Lyles.

      The trial court summarized what next transpired as followed:

      [] Bass was arrested on April 2, 2015, and charged with attempted
      murder, burglary, robbery and related offenses. [Bass] was
      bound over for court on all charges[,] following a preliminary
      hearing on April 16, 2015. A jury was empaneled on April 25,
      2016.      Prior to the jury being sworn on April 26, the
      Commonwealth presented a [M]otion in limine to introduce a video
      that was discovered on YouTube the previous day. The video
      depicted [Bass’s] brother threatening the cooperating co-
      defendant with the kidnapping, maiming and possible death of the
      witness’[s] son[,] as well as the cooperating witness. After
      viewing and hearing argument on the admissibility of the video[,]
      the [trial court judge] held the [M]otion in abeyance pending the
      testimony of the cooperating witness[,] who allegedly could lay
      the foundation for the video’s admission. … It was at that time
      that [Bass] decided to waive his right to a jury trial. The jury was
      then dismissed.

Trial Court Opinion, 6/20/17, at 1-2.

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      After a bench trial, the trial court convicted Bass of the above-described

charges. Following the preparation of a pre-sentence investigation report, the

trial court sentenced Bass to an aggregate prison term of ten to twenty years,

followed by ten years of probation. Bass filed a post-sentence Motion, which

the trial court denied. Thereafter, Bass filed the instant timely appeal.

      Bass presents the following issue for our review: “Did the [trial] court

violate [Bass’s] right to a jury trial by refusing to prohibit the Commonwealth

from introducing unduly prejudicial and inadmissible evidence into trial that

the Commonwealth only produced after the jury was empaneled?” Brief for

Appellant at 4, 16. Bass argues that the trial court’s delay in ruling upon the

admissibility of the YouTube video recording

      forced [Bass] into a Hobson’s choice: either proceed to a trial with
      the empaneled jury and risk that jury hearing explosive,
      prejudicial and inadmissible evidence, or give up his right to a trial
      by jury and hope that a professional jurist hearing the case alone
      would be less swayed by the improper evidence….

Id. at 16-17. According to Bass, the trial court’s delay deprived Bass of his

fundamental right to a trial by jury. Id. at 17.

      Regarding   the   YouTube     video,   Bass   argues   that,   pursuant   to

Commonwealth v. King, 689 A.2d 918, 923 (Pa. Super. 1997), threats by

third persons against a witness may be relevant “if the Commonwealth shows

that the defendant is linked in some way to the threats.” Brief for Appellant

at 19. Bass states that in King, this Court held that “the prejudicial impact of

third-party intimidation outweighed its probative value and therefore was


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properly excluded by the [trial] court.” Id. (citation omitted). Bass asserts

that in the instant case, the Commonwealth failed to demonstrate any link

between Bass and the person in the video. Id. at 19-20.

      Bass additionally challenges the Commonwealth’s timing of its Motion in

limine. Specifically, Bass takes issue with the Commonwealth filing its Motion

in limine after voire dire had ended. Id. at 20. According to Bass, “[g]iven

that [Bass] had no way of knowing what could conceivably transfer plainly

inadmissible evidence into admissible evidence, he waived his right to a trial

by jury and instead proceeded to a trial by judge.” Id. Bass asserts that

“[w]hen considering the timing of the [M]otion, the disclosure of the video,

and the [trial] court’s refusal to rule on the inadmissible evidence, the issue

is elevated from a traditional evidentiary matter to one of constitutional

dimensions.” Id. Basically, Bass argues that by holding its ruling in abeyance,

the trial court interfered with his constitutional right to a trial by a jury. See

id.

      Initially, we observe our standard of review:

      “[A] motion in limine is a procedure for obtaining a ruling on the
      admissibility of evidence prior to trial, which is similar to a ruling
      on a motion to suppress evidence, [therefore] our standard of
      review ... is the same as that of a motion to suppress.”
      Commonwealth v. Mitchell, 588 Pa. 19, 902 A.2d 430, 455 (Pa.
      2006). 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. Baumhammers, 599 Pa. 1, 960
      A.2d 59 (Pa. 2008).

Commonwealth v. Rosen, 42 A.3d 988, 993 (Pa. 2012).


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     Since the prosecution prevailed in the [trial] court, we may
     consider only the evidence of the prosecution and so much of the
     evidence for the defense as remains uncontradicted[,] when read
     in the context of the record as a whole. Where the record supports
     the factual findings of the trial court, we are bound by those facts
     and may reverse only if the legal conclusions drawn therefrom are
     in error.

Commonwealth v. Blair, 860 A.2d 567, 571 (Pa. Super. 2004) (citation

omitted).

     In King, at a bail hearing, an inmate incarcerated with the defendant

testified at the defendant’s bail hearing. King, 689 A.2d at 920. According

to the inmate, the defendant (a) claimed to be innocent of homicide; (b) knew

the name of the Commonwealth’s witness against him; and (c) threatened

that he wanted to “lay her down,” which the inmate interpreted to mean that

the defendant wanted to kill the witness. Id. A few days after the defendant

had spoken with the inmate, and two days before the defendant’s preliminary

hearing, a friend of the defendant attempted to break into the witness’s home.

Id. Subsequently, the defendant presented a motion in limine to preclude the

inmate’s testimony related to his threat, and any evidence related to the

break-in at the witness’s home. Id. Although the trial court excluded much

of the Commonwealth’s evidence, the court permitted the inmate “to testify

that there was a conversation between the [defendant] and [the inmate,] and

that [the inmate] became aware that the woman who was a witness against

[the defendant] was a woman named T.”          Id. (internal quotation marks

omitted).


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       On appeal, this Court reversed the exclusion of the evidence related to

the defendant’s threat against the witness. Id. at 922-23. Specifically, this

Court recognized that “[e]vidence that a defendant has threatened to kill a

Commonwealth witness may be admissible to show the defendant’s

consciousness of guilt.”    Id. at 922 (citations omitted).     Regarding the

evidence of the third-party’s attempt to break into the witness’s home, this

Court stated that “threats by third persons against witnesses may be relevant

if the Commonwealth shows that the defendant is linked in some way

to the threats.” Id. at 923 (emphasis added). However, the Court affirmed

the trial court’s ruling, stating that there was “no evidence that [the

defendant] organized or ordered the break-in at [the witness’s] home. The

[trial court] properly weighed the probative value of this evidence against its

prejudicial impact and, in her discretion, ruled the evidence inadmissible.” Id.

       By contrast, in the instant case, the trial court did not rule on the

admissibility of the evidence regarding threats against the witness lodged by

Bass’s brother. Rather, the trial court held the Motion in abeyance, pending

testimony by the cooperating witness that would establish a foundation for its

admission. N.T., 4/26/16, at 17. We discern no abuse of discretion in this

regard, as an appropriate foundation, i.e., tying Bass to the threats made by

his brother, would render the statements admissible. See King, 689 A.2d at

923.




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      Regarding Bass’s assertions that the timing of the Motion in limine, and

the trial court’s holding its ruling in abeyance, violated his right to a jury trial,

we adopt the trial court’s conclusion that the claim lacks merit, and the

rationale for the court’s conclusion, as set forth in its Opinion. See Trial Court

Opinion, 6/20/17, at 7-9.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/18




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