J-S53024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellee

                    v.

GERALD WRIGHT

                         Appellant                   No. 2574 EDA 2018


       Appeal from the Judgment of Sentence Entered August 3, 2018
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0004499-2017

BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY STABILE, J.:                      FILED DECEMBER 09, 2019

      Appellant, Gerald Wright, appeals from his judgment of sentence of

imprisonment for attempted murder, 18 Pa.C.S.A. § 901, and related offenses.

Appellant argues that the trial court erred by permitting evidence of his post-

arrest silence in response to a police detective’s question. We affirm.

      The trial court recounted the evidence adduced during Appellant’s bench

trial as follows:

      On April 20, 2017, at approximately 11:00 PM, Tyrrell Faison,
      Omar [no last name] and [Appellant] decided to get Chinese food.
      [Appellant rode as a passenger] in a Kia minivan while Faison and
      Omar followed in a white Lexus. At around 15th Street and Nedro
      Avenue, the Kia minivan that [Appellant] was a passenger in
      stopped, and Faison stopped his car as well.           Faison saw
      [Appellant] exit the van and walk up toward Conlyn Street. A few
      minutes later, he heard 6-7 gunshots. Once Faison heard the
      gunshots, he ducked and when he looked outside again, he saw
      the Kia pull off. Faison drove off immediately as well.
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     During this time period, Tyrell Barnes was headed to the KFC near
     15th and Conlyn Streets until he stopped to chat with his friend,
     uncle, and a few other people, on Conlyn Street, about a block
     away from the KFC. After chatting for a bit, Barnes sat in the front
     passenger seat of his friend’s car to smoke some marijuana with
     his friend, Eugene. Shortly after entering the vehicle, Barnes
     heard shooting, at least five shots. He and Eugene exited the
     vehicle and Barnes ran up Conlyn Street, away from 15th Street.
     Barnes had run about 25 steps when he hit the ground and noticed
     he had been shot.

     After Barnes was shot, his uncle helped him and he was taken to
     Einstein Hospital. Barnes remained in the hospital for four days
     and had one surgery where the left side of his body, underneath
     his armpit, was stapled. Barnes was shot five times: once in his
     left arm, once under his lung, once right behind his heart, and
     twice in his back. Barnes needed the assistance of a walker for
     about three weeks after he was discharged from the hospital, and
     two bullets remained in his body, one behind his heart and the
     other on the right side of his back.

     Around the same time that the shooting occurred, Police Officer
     Chad Gugger and Police Officer Reuben Henry responded to a
     radio call reporting gunshots in the area of 15th Street and Conlyn
     Street. As the officers approached Conlyn Street, they observed
     a black Kia Sedona and a white Lexus driving the wrong way on
     the 1700 block of Conlyn Street, a one-way street, at a high rate
     of speed. The two vehicles continued at a high rate of speed,
     arrived abruptly at a stop sign, passed through the intersection
     over Conlyn Street, and made a left to go around a U-shaped
     street on Grange. Officer Gugger lost sight of the vehicles for
     approximate 3-5 seconds, and when he regained sight of them,
     both were stopped in the middle of Grange Street, near a red-
     roofed building. Once he caught back up to the two vehicles, they
     proceeded to drive off again. The officers continued following the
     two vehicles north on Ogontz Avenue until the Kia Sedona made
     a left on Nedro Avenue. The officers followed the Kia and Officer
     Henry put out flash information on the Lexus.

     Upon following the Kia, Officer Gugger activated his lights and
     sirens. The Kia continued to speed away with police following until
     it eventually crashed into a home located at 2152 Nedro Avenue.
     After the Kia crashed, Officer Gugger saw [Appellant] flee from
     the rear driver’s side of the vehicle, and he proceeded to give

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     chase.    While fleeing, [Appellant] saw two other officers
     approaching westbound on Nedro Avenue, [and] he then went
     toward the sidewalk, put his hands in the air, and got down on the
     ground. Officer Gugger successfully handcuffed [Appellant] and
     walked him back to the police car. Subsequently, Officer Gugger
     returned to the Kia to see if there was anyone else inside. He
     noticed the back door of the Kia was still open and he looked on
     the rear driver’s side, and on either the floor or the seat area, he
     observed a spent fired cartridge casing ("FCC").

     After detaining [Appellant], officers completed a 75-229 form
     which gave, among other things, a description of the person
     arrested and description of clothing at the time of arrest. The 75-
     229 form for [Appellant] stated that [Appellant] was arrested
     wearing a black hooded sweatshirt, black pants, and tan boots.

     Once [Appellant] and [the Kia’s] driver were taken into custody,
     Officer Henry returned to Grange Street at the area that he had
     observed the Lexus and Kia briefly stop. When he searched the
     area with his flashlight, he observed a 9mm Glock handgun with
     an extended clip located half on the sidewalk and half on the
     grass.

     Detective Patrick Murray processed both the crime scene at 15th
     and Conlyn Streets and the crime scene at Grange Street, where
     he took photographs, created a rough sketch, and recovered
     ballistic evidence. While investigating the first crime scene at 15th
     and Conlyn Streets, Detective Murray recovered a total of thirteen
     9mm FCCs and eleven .45 caliber FCCs which he then placed on
     Property Receipt 3273798. Detective Murray then proceeded to
     the secondary crime scene at Grange Street where he recovered
     two firearms—one empty 9mm Glock with a 30-round extended
     magazine and one .45 caliber semi-automatic handgun with an
     empty 12-round magazine—that he placed on Property Receipt
     3273788.

     After his arrest, [Appellant] had been transported to the
     Northwest Detective Division. At around 2:00 AM, Detective
     Timothy Hartman was tasked with recovering the outer garments
     of the suspects, including [Appellant].     Detective Hartman
     recovered three of the four suspects’ outer garments without
     incident, but when he went to collect [Appellant]’s hooded
     sweatshirt (noted in the 75-229) from [Appellant] located in Cell
     18, he noticed [Appellant] was no longer wearing it. Detective

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      Hartman asked [Appellant] for the location of the sweatshirt, to
      which he was met with silence. Detective Hartman looked around
      and observed a hooded sweatshirt on the bench of Cell 17, the
      cell directly next to Cell 18. Cell 17 was unoccupied at the time
      he was tasked with retrieving the outer garments. Based on the
      setup of the cells, one would be able to reach outside of the front
      cell bar of one cell and throw something into the next cell.

      Detective Hartman proceeded to have a conversation with the
      individual who had been inhabiting Cell 17 earlier in the evening.
      Based on this conversation, Detective Hartman returned to Cell 17
      to recover the hooded sweatshirt contained in it. He then asked
      Officer Gugger and Officer Henry for verification that the
      sweatshirt appeared to be the same as the one [Appellant] had
      been wearing when he was arrested. Once this was confirmed,
      the sweatshirt was placed on Property Receipt 3273790.

      Sometime after the recovery of the sweatshirts from the suspects,
      the trace laboratory released a report detailing that the sweatshirt
      taken from the cell next to the one [Appellant] was in, and
      attributed to [Appellant], had tested positive for the presence of
      primer gunshot residue particles.

      Upon reaching its verdict, the trial court considered the fact that
      Faison saw [Appellant] leave the Kia, walk around the corner,
      heard gunshots, and then saw [Appellant] return to the car; after
      the Kia crashed, Officer Gugger observed [Appellant] exit the rear
      driver side of the Kia; the rear driver side of the Kia was where
      the 9mm FCC was found; the 9mm FCC recovered from the Kia
      was deemed to be from one of the firearms, later designated
      pistol 1, discovered on Grange Street; the 229 form described
      [Appellant] as wearing a black hooded sweatshirt, the same
      description as the one found in Cell 17 by Detective Hartman; that
      same sweatshirt was later identified by Officer Gugger and Officer
      [Henry]; and testing determined that there was the presence of
      gunshot residue on the hooded sweatshirt recovered from Cell 17.

Trial Court Opinion, 1/22/19, at 2-6.

      The trial court found Appellant guilty of attempted murder, aggravated

assault, conspiracy to commit murder, possessing a firearm without a license,

possessing a firearm on a public street and possessing an instrument of crime.

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On August 3, 2018, the court sentenced Appellant to eight to sixteen years’

imprisonment for attempted murder, followed by concurrent terms of

probation of four years for each firearms violation and two years for

possessing an instrument of crime.       Appellant’s aggravated assault and

criminal conspiracy convictions merged with attempted murder for sentencing

purposes.    Appellant filed timely post-sentence motions, which the court

denied, and a timely notice of appeal.     Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

      1. Did the trial court err by admitting evidence that, after his
      arrest and while in police custody, Appellant remained silent in the
      face of questioning by law enforcement?

      2. Did the trial court improperly admit evidence of a conversation
      between an investigating detective and a prisoner in a cell
      adjacent to Appellant’s, which produced inculpatory evidence
      against Appellant?

Appellant’s Brief at 5.

      Both of Appellant’s arguments on appeal relate to the following

testimony during trial:

      DETECTIVE HARTMAN: And I went to recover the outer most
      garments for the defendant Gerald Wright, sitting in the middle of
      the three defendants. Gerald Wright was in 18 Cell, Your Honor,
      in our cell room, which is the very last cell on the backside of the
      cell room. When I went to get his hood sweatshirt or the outer
      most garment -- when I got there, he was in a plain white t-shirt.
      I asked him where his sweatshirt was and he refused to answer
      me.

      DEFENSE COUNSEL: Objection.


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      THE COURT: Overruled.

      DETECTIVE HARTMAN: I inquired where his sweatshirt was, and
      I didn’t get an answer, Your Honor. The cell next to him was 17
      Cell. That cell was open and it was unoccupied at the time that I
      went down there. There was a hooded sweatshirt sitting on the
      bench of 17 Cell. I went and found that the person that was
      occupying 17 Cell was being photographed and fingerprinted at
      the time. Based on the conversation I had with that gentleman –

      DEFENSE COUNSEL: Objection; move to strike.

      THE COURT: Without telling us what the conversation was, what
      did you do next?

      DETECTIVE HARTMAN: I wasn’t going to tell you, Your Honor.
      Based on the conversation I had with that gentleman, I went and
      recovered the sweatshirt that was in 17 Cell on the bench. I
      showed that sweatshirt to Police Officer Gugger and Police Officer
      Henry. And that sweatshirt was placed on Property Receipt
      3273790.

N.T., 4/26/18, at 142-43.

      Arguably, Appellant waived both of his arguments on appeal because

trial counsel failed to specify the grounds for his objections to Detective

Hartman’s testimony. Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa.

Super. 2018) (“[i]n order to preserve an evidentiary objection for purposes of

appellate review, a party must interpose a timely and specific objection in the

trial court”).   We will excuse this defect, because the trial court’s opinion

demonstrates that it understood the nature of counsel’s objections despite

their vagueness.

      Both of Appellant’s arguments concern the admissibility of evidence

introduced during trial. Evidentiary rulings are within “the sound discretion of


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the trial court and its discretion will not be reversed absent a clear abuse of

discretion.” Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super.

2014).

        First, Appellant complains that Detective Hartman’s testimony, “I asked

[Appellant] where his sweatshirt was and he refused to answer me,” was an

impermissible reference to Appellant’s post-arrest silence because of the

detective’s failure to administer Miranda1 warnings. No relief is due.

        Detective Hartman testified to the court, sitting as fact-finder, that he

recovered the outer garments of Faison and two other suspects that were in

custody for the shooting. The detective then proceeded to Appellant’s cell and

discovered that Appellant was not wearing the sweatshirt that, according to

the 75-229 form, he had been wearing at the time of his arrest. Nor was the

sweatshirt in Appellant’s cell.         The detective asked Appellant where his

sweatshirt was, and Appellant “refused to answer.” N.T., 4/26/18, at 142.

The detective located the sweatshirt in an adjoining cell that could be reached

through the bars of Appellant’s cell. The sweatshirt tested positive for gun

residue.

        The “mere revelation of [a criminal defendant’s] post-arrest silence does

not establish innate prejudice.” Commonwealth v. Spotz, 870 A.2d 822,

833 (Pa. 2005). “Even an explicit reference to silence is not reversible error



____________________________________________


1   Miranda v. Arizona, 384 U.S. 436 (1966).

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where it occurs in a context not likely to suggest to the jury that silence is the

equivalent of a tacit admission of guilt.” Id.

      Appellant argues that the trial court committed reversible error by

construing his silence as a tacit admission of guilt. Under the circumstances

of this case, it is possible to construe Appellant’s silence as inculpatory.

Conceivably, he remained silent because he knew he had just abandoned

evidence of a crime (gunshot residue on his sweatshirt). Nevertheless, even

if Appellant’s silence was an admission of guilt, the law presumes that when

the trial court sits as factfinder, it disregards any inadmissible evidence in its

consideration of the case. Commonwealth v. Gribble, 863 A.2d 455, 462

(Pa. 2004); Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003)

(in non-jury trial, judge presumed to have disregarded inadmissible hearsay

testimony). The burden falls upon Appellant to overcome this presumption,

but he fails to do so, because the trial court made clear in its opinion that it

based its verdict on evidence unrelated to Appellant’s silence. The court wrote

that it found the following evidence dispositive: Appellant’s acquaintance,

Faison, who was driving behind the Kia in which Appellant was riding, saw

Appellant exit the Kia and walk up Conlyn Street. Opinion at 5. Faison then

heard gunshots and observed the Kia pull away. Id. Police officers testified

that the Kia sped down a one-way street the wrong way and continued to

evade the officers until it crashed into the side of a house. Id. Appellant

alighted from the Kia and fled on foot. Id. Near the Kia, police found an


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operable handgun that had just been fired. Id. They also found matching

projectiles and fired cartridge casings in the Kia and at the crime scene. Id.

Following his arrest, Detective Hartman found Appellant’s sweatshirt in an

adjoining cell. Id. The crime lab found powder from a discharged firearm on

the sleeve of the sweatshirt.    Id. at 6.    Since this evidence established

Appellant’s guilt independent of his silence, Appellant’s argument fails.

      In his second argument, Appellant claims that the court erred by

admitting hearsay evidence of a conversation between Detective Hartman and

the individual who occupied the cell adjacent to Appellant. We disagree.

      To begin, the Commonwealth did not introduce the substance of the

conversation. Detective Hartman merely stated that he had a conversation

with the individual who occupied the cell next to Appellant and described the

steps he took after the conversation. Even if the detective had testified about

the contents of the conversation, his testimony would not have been hearsay.

“It is well established that certain out-of-court statements offered to explain

the course of police conduct are admissible because they are offered not for

the truth of the matters asserted but rather to show the information upon

which police acted.” Commonwealth v. Trinidad, 96 A.3d 1031, 1037 (Pa.

Super. 2014).     Had the content of the conversation in question been

introduced, it would have been admissible to show the detective’s course of

conduct.    Further, had any content of the conversation constituted




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inadmissible hearsay, the trial court, sitting without a jury, presumably would

have disregarded it in reaching its verdict. Dent, 837 A.2d at 582.

      For these reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/19




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