J-S16003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY SHOATES

                            Appellant                No. 466 EDA 2015


           Appeal from the Judgment of Sentence January 22, 2015
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0006980-2013


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 03, 2016

        Appellant Timothy Shoates appeals from the January 22, 2015

judgment of sentence entered in the Montgomery County Court of Common

Pleas following his jury trial conviction for aggravated assault and receiving

stolen property.1 We affirm.

        On September 1, 2013, Steven Hedrick witnessed an argument in the

parking lot of the Riverside Apartments in Norristown, Pennsylvania 2

between Appellant and Hollie Keller. N.T., 9/2/2014, at 27-28. Upon seeing

Mr. Hedrick, Appellant confronted Mr. Hedrick and hit his face with a gun,

causing significant injuries to Mr. Hedrick’s face and hearing loss in one ear.
____________________________________________


1
    18 Pa.C.S. §§ 2702(a)(4) and 3925(a), respectively.
2
  Both Ms. Keller and Mr. Hedrick lived at the Riverside Apartments. N.T.,
9/2/2014, at 26, 94.
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Id. at 29-31, 36-37.          Appellant and Ms. Keller, who had two children

together, left the parking lot in a black vehicle. Id. at 33-34, 95.

        A short time later, the police received a call from Ms. Keller stating a

male with a gun was following her.             N.T., 9/2/2014, at 55.   When police

arrived, Ms. Keller was visibly upset and crying, and was walking toward the

Riverside Apartments.          Id. at 56-57.       She informed the officers that

Appellant had hit her with a gun, that Mr. Hedrick had witnessed an

argument between her and Appellant, and that Appellant had hit Mr. Hedrick

with a gun. Id. at 57-59. Ms. Keller also showed the officers bruises, which

were consistent with being hit by a gun. Id. at 58-59.

        When the police officers located Appellant, he was in a black vehicle

and the officers saw a gun through the car window. N.T., 9/2/2013, at 73;

N.T., 9/10/2014, at 17, 24. The police officers later learned that the gun’s

owner had reported the gun stolen. N.T., 9/10/2014, at 8.

        On September 10, 2014, a jury found Appellant guilty of aggravated

assault with a deadly weapon of Mr. Hedrick and receiving stolen property.

The jury acquitted Appellant of the assault of Ms. Keller.3

        On January 22, 2015, the trial court sentenced Appellant to the

following consecutive terms of incarceration: 3 to 10 years’ incarceration for

the aggravated assault conviction and 1½ to 5 years’ incarceration for the


____________________________________________


3
    Ms. Keller did not testify at trial.



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receiving stolen property conviction.        Appellant filed a timely notice of

appeal. Both Appellant and the trial court complied with Pennsylvania Rule

of Appellate Procedure 1925.

      Appellant raises the following issue on appeal:

         Whether the [t]rial [c]ourt erred and abused its discretion
         by allowing into evidence testimony from a witness[,] Paul
         Keller, over counsel’s objection, concerning certain prior
         bad acts and other prejudicial, irrelevant testimony.

Appellant’s Brief at 5.

      Appellant’s issue challenges the trial court’s evidentiary ruling.     The

admissibility of evidence is a matter solely within the discretion of the trial

court, and we will reverse an evidentiary ruling only if an abuse of discretion

has   occurred.     Commonwealth        v.    Nypaver,    69   A.3d   708,   716

(Pa.Super.2013) (quoting Commonwealth v. Hernandez, 39 A.3d 406

(Pa.Super.2012)).     “An abuse of discretion may not be found merely

because an appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.”

Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa.2007) (quoting Grady v.

Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa.2003)).

      During the trial, the Commonwealth presented Ms. Keller’s father, Paul

Keller, as a witness. During cross-examination of Mr. Keller, the following

exchange occurred:

         [DEFENSE COUNSEL]: You’ve had a -- is it fair to say
         you’ve had a tumultuous relationship with [Appellant]?

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        [WITNESS]: A small choice of a relationship?

        [DEFENSE COUNSEL]: Tumultuous. Stormy.

        [WITNESS]: A stormy relationship?

        [DEFENSE COUNSEL]: Yes.

        THE COURT: With [Appellant].

        [WITNESS]: Yes.

        [DEFENSE COUNSEL]: And you don’t much care for
        [Appellant]; is that correct?

        [WITNESS]: Well, if he wasn’t so rude and --

        [DEFENSE COUNSEL]: Objection. Yes or no.

        [COMMONWEALTH]: Objection, Your Honor.

        THE COURT: Excuse me. You asked the question, [defense
        counsel]. This is the answer you’re getting. You can
        answer, sir.

        [WITNESS]: I try. And he’s pulled out guns on me and
        threatened me. So it just -- no, it didn’t work out.

        [DEFENSE COUNSEL]: I have nothing further.

        [COMMONWEALTH]:        Your    Honor,   I   have   no   further
        questions.

N.T, 9/2/2014, at 98-99. Appellant claims Mr. Keller’s response, i.e., that

Appellant “pulled out guns on me and threatened me,” constituted

impermissible bad acts evidence. Appellant’s Brief at 10-13.

     Pursuant to the Pennsylvania Rules of Evidence: “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.”   Pa.R.Evid. 404(b)(1).     However, “[w]hen . . . defense

counsel puts a question to a witness that cannot be answered fairly without


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a statement of fact as explanation, then the explanation is deemed to be

invited by counsel, and complaint that it was added to the answer cannot be

made.”   Commonwealth v. Frank, 398 A.2d 663, 672 (Pa.Super.1972);

accord Commonwealth v. Miller, 481 A.2d 1221, 1222 (Pa.Super.1984);

Commonwealth v. Dalton, 185 A.2d 653, 656 (Pa.Super.1962); see also

Commonwealth v. Fischere, 70 A.3d 1270, 1278-79 (Pa.Super.2013) (en

banc) (Commonwealth’s questions regarding Appellant’s silence during

second investigation was fair      response    to   defense counsel question

regarding appellant’s answers to investigators during initial interview).

      Although defense counsel wanted a yes or no response, the trial court

did not err when it permitted the witness to explain why the witness did not

care for Appellant. Defense counsel’s question invited an explanation, rather

than merely a yes or no response.          The trial court did not abuse its

discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2016




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