J-S12038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ANTHONY WASHINGTON                         :
                                               :
                      Appellant                :   No. 294 EDA 2019

        Appeal from the Judgment of Sentence Entered February 11, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010630-2011


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED APRIL 28, 2020

        Appellant, Anthony Washington, appeals from the judgment of

sentence of life without the possibility of parole, which was imposed after his

convictions at a bench trial for:        murder of the first degree; conspiracy to

commit murder; retaliation against witness, victim or party; firearms not to

be carried without a license; carrying firearms on public streets or public

property in Philadelphia; and possessing instruments of crime.1 We affirm.

        The facts underlying this appeal are as follows.

        [O]n May 12, 2009, [Andrew Smallwood] robbed [Malik] Martin
        at gunpoint. Following [Smallwood]’s subsequent apprehension
        and arrest, Martin positively identified [Smallwood] as the


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. §§ 2502(a), 903, 4953(a), 6106(a)(1), 6108, and 907(a).
J-S12038-20


     perpetrator and provided the police with a formal statement
     confirming that fact.

                                *   *    *
     On March 15, 2010, [Smallwood] entered a negotiated guilty
     plea to one count of firearms not to be carried without a license
     in connection with the May 12, 2009 robbery of Malik Martin.
     [Smallwood] was subsequently sentenced to 9 to 23 months’
     imprisonment, followed by 24 months’ probation, and was
     released after approximately seven months.

     On the morning of September 16, 2010, [Smallwood] shot and
     killed Martin’s best friend, Rasul Gresham.

Commonwealth       v.   Smallwood,   No.   726   EDA   2015,   unpublished

memorandum at 1-2, 6 (Pa. Super. filed September 12, 2016) (citations to

the record omitted) (footnote omitted); see also Trial Court Opinion, dated

July 19, 2016, at 2-4 (citing N.T. Trial, 2/9/2016, at 50-52, 54-59, 63-64,

84-85, 90) & 11 n.7.

     On September 29, 2010, Martin went to the Homicide Unit at 8th
     and Race Streets and asked to speak to Detective
     [George] Pirrone. The details of the conversation between the
     detective and [Martin] were memorialized in an activity sheet.
     Detective Pirrone tried to “coax” Martin “to go on paper and give
     a formal interview,” but he was not willing.

     Martin told Detective Pirrone that he wanted to talk about his
     friend, Rasul Gresham. Gresham and he “were having some
     problems with some males in the area maybe between 56th
     Street and 59th Street area and they were having problems with
     these guys for a little while and he wanted to tell [] [the
     detective] about it.” Martin identified the “guys” as Defendant,
     Anthony “Peanut” Washington,            and        co-defendant,
     Andrew Smallwood.

Trial Court Opinion, dated July 19, 2016, at 12 (citing N.T., 2/11/2016, at

11-24).




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      “Thereafter, on April 6, 2011, Martin was shot multiple times in his

head and left forearm as he sat in his vehicle. . . . Video surveillance from a

nearby business captured [Smallwood] and Washington hiding behind

Martin’s vehicle moments before the shooting.” Smallwood, No. 726 EDA

2015, at 2 (citations to the record omitted); see also Trial Court Opinion,

dated July 19, 2016, at 4.    “Seconds after the gunshots stopped, [Officer

Robin Summers] observed a black male in a grey sweatshirt run” away from

the crime scene; the parties would later stipulate at trial that Washington

“was included as a source of the major component of the DNA mixture

detected in two samples taken from the grey hoodie.” Trial Court Opinion,

dated July 19, 2016, at 5, 9 (citing N.T. Trial, 2/9/2016, at 112-19; N.T.,

2/11/2016, at 25-26).        Officer Marc Peterson “stopped [Washington]

minutes after the shooting less than two blocks from the scene;” Washington

was “breathing a little heavy” with “his heart . . . pounding a little bit.” Id.

at 6-7, 11 (citing N.T., 2/10/2016, at 48-52, 56-57).

      Martin subsequently died as a result of his injuries on April 13,
      2011. . . . [Smallwood] was subsequently arrested and charged
      with first-degree murder and related offenses in connection with
      these two homicides.        Washington was also charged in
      connection with the murder of Martin, but was not charged in the
      murder of Gresham. On December 3, 2013, the Commonwealth
      filed a motion to consolidate these cases on the basis that both
      murders stemmed from [Smallwood]’s robbery of Martin and
      that each murder was relevant to prove [Smallwood]’s motive
      for the other. Following a hearing, the trial court granted the
      Commonwealth’s motion on December 9, 2013. Thereafter, on
      October 13, 2014, Washington’s counsel filed a pre-trial motion
      to sever his case from that of [Smallwood]. The trial court
      granted this motion, in part, on February 3, 2015.


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Smallwood, No. 726 EDA 2015, at 2-3 (citations to the record omitted).

      On February 8, 2016, Washington submitted a filing that he entitled an

“Omnibus Motion” but only included a motion to suppress evidence.         The

motion consisted of a boilerplate form with every box underneath the

heading “Suppress of Evidence” checked but without any mention of what

specific evidence Washington wanted suppressed.          At the suppression

hearing, defense counsel argued:

      [M]y client was stopped from walking down the street, and a
      police officer placed his hand on his chest. And as he previously
      testified and as discovery indicates, he felt a rapid heart beat.
      The act of placing a hand on someone’s chest is a search within
      the meaning of the 4th Amendment.

N.T., 2/8/2016, at 5.

      During the hearing, Officer Marc Peterson of the Philadelphia Police

Department testified that he saw Washington “a little less than two blocks

from” the crime scene within 30 seconds to a minute after receiving a “foot

pursuit” radio report from another officer that two suspects, both of whom

were wearing hoodies, were running from the scene of a shooting. Id. at

16-17, 19, 27. Officer Peterson stated that, when he first saw Washington,

he found it unusual that Washington was only wearing a T-shirt in 54-degree

weather. Id. at 19; N.T., 2/9/2016, at 9. He testified that he “thought it

was just a little too cold for wearing just a T-shirt” and that Washington may

have taken off his hoodie. N.T., 2/8/2016, at 19. He explained that, in his

experience as a police officer for 13 years, “whenever you hear a flash of a

jacket or a hoodie, a lot of times someone would take that off.” Id. Officer

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Peterson further testified that, when he exited his patrol vehicle, Washington

immediately put up his hands. Id. at 20.

      The officer’s testimony continued as follows:

      A.    As I’m walking over to him, I’m looking at him. I could
      see that he was breathing a little heavy. So I put my hand on
      his chest.

      Q.    For what purpose?

      A.    [J]ust wanted to see if his heart was beating fast.

      Q.    And what was the purpose of that, sir?

      A.    It’s just an indication that he may have been running.

      Q.    Okay. How was his heart beating?

      A.    It was beating fast and rapidly.

      Q.    Consistent with the breathing that you observed?

      A.    Yes. . . .

      Q.    And I believe you described his heart rate as fast or rapid,
      correct?

      A.    Yes.

      Q.    And that’s the first observation -- well, strike that. Was
      that the first observation that you made that he might have
      been running in your opinion?

      A.    Just the heavy breathing before that.

      THE COURT:         When did you notice the heavy breathing?

      THE WITNESS: When I was walking up to him. . . .

      Q.   Also, I believe if you refer to the first statement, counsel
      made reference to a statement that you gave to Southwest
      Detectives at 2:15, right after you stopped the individual, right?

      A.    Yes.




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       Q.   I will just cut to the chase. “I, along with my partner,
       stopped this male for investigation, and felt his chest and
       observed it breathing heavily.”

       So as soon as you speak to Southwest Detectives, you tell them
       about this heavy breathing on the street as well that you have
       told us about, right?

       A. Yes, sir.

N.T., 2/8/2016, at 20, 33, 50.

       During closing arguments at the suppression hearing, defense counsel

contended:

       [T]his was an arrest without probable cause. . . . [A]t the time
       that Officer Peterson approached, he placed his hand on my
       client’s chest, and his testimony was that he felt a rapid heart
       rate at that time. That, in and of itself, is a search. . . . I will
       concede that he was breathing heavily.

N.T. Suppression, 2/9/2016, at 10-12.

       The trial court denied the suppression motion. Id. at 31.

       On    February       11,   2016,     Washington     was      convicted   of    the

aforementioned crimes and immediately sentenced.                  During its findings of

fact and conclusions of law at the close of the trial, the trial court made no

mention     of   Martin’s    conversation      with   Detective    Pirrone,   see    N.T.,

2/11/2016, at 88-94, but stated:            “[Appellant] was caught and you don’t

even need the robbery.” Id. at 92.

       On July 2, 2018, Washington filed a petition pursuant to the Post

Conviction Relief Act (“PCRA”).2 On January 3, 2019, upon agreement of the

____________________________________________


2   42 Pa.C.S. §§ 9541–9546.



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parties, the PCRA court granted relief and reinstated Washington’s direct

appeal rights nunc pro tunc.         On January 24, 2019, Washington filed this

timely direct appeal. Washington filed his statement of errors complained of

on appeal on February 24, 2019.                The trial court entered an opinion on

March 29, 2019, stating that its prior opinion, dated July 19, 2016, would

serve as its opinion pursuant to Pa.R.A.P. 1925(a).3

       Washington presents the following issues for our review:

       [1.] Did the trial court err and/or abuse its discretion when it
       permitted the Commonwealth to present evidence consisting of
       statements made by the decedent Malik Martin where:

          • the statements should have been precluded as hearsay;
          and

          • the statements related to other acts of defendant and
          should have been precluded as violative of Rule of
          Evidence 404(b)?

       [2.] Did the trial court err and/or abuse its discretion when it
       permitted the Commonwealth to present evidence consisting of
       prior crimes committed by the codefendant which was unduly
       prejudicial, and that prejudice (substantially) outweighed the
       probative value (if any) of the evidence?

       [3.] Did the trial court err and/or abuse its discretion when it
       denied [Washington]’s motion to suppress?

Washington’s Brief at 4 (suggested answers and trial court’s answers

omitted).




____________________________________________


3 The trial court opinion dated March 29, 2019, also explained the appeal’s
procedural history after July 19, 2016.



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     Washington contends that “the trial court erred and abused its

discretion when it admitted statements made by [Martin.]”           Id. at 33.

Washington “challenges this decision on multiple grounds[,]” arguing that

the statements are (1) “hearsay that does not fall within any exception to

the rule prohibiting hearsay” and (2) “precluded by Rule of Evidence

404(b).” Id.

     The admissibility of evidence is a matter within the sound
     discretion of the trial court and will be reversed only where there
     is a clear abuse of discretion. . . . Evidence is admissible if it is
     relevant—that is, if it tends to establish a material fact, makes a
     fact at issue more or less probable, or supports a reasonable
     inference supporting a material fact—and its probative value
     outweighs the likelihood of unfair prejudice.

Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019) (citations

omitted).

     Hearsay “is an out-of-court statement offered to prove the truth of the

matter asserted in the statement.       The rule against admitting hearsay

evidence stems from its presumed unreliability, because the declarant

cannot   be    challenged   regarding   the   accuracy   of   the   statement.”

Commonwealth v. Chmiel, 889 A.2d 501, 532 (Pa. 2005) (citation

omitted).   Even if a court erred by admitting hearsay, the appellant must




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still establish that the court’s error was reversible error.     In re M.T., 607

A.2d 271, 280-81 (Pa. Super. 1992) (per curiam).4

       Rule 404(b) of the Pennsylvania Rules of Evidence states:

       (b) Crimes, Wrongs or Other Acts.

              (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.

Pa.R.E. 404(b)(1)-(2).        We further note that even erroneously admitted

evidence of “bad acts” will not necessarily require a new trial:

       Not all improper references to prior bad acts will mandate a new
       trial, however. Mere passing reference to criminal activity will
       not require reversal unless the record indicates that prejudice
       resulted from the reference. Harmless error is present when the
       properly admitted evidence of guilt is so overwhelming and the
       prejudicial effect of the error is so insignificant by comparison
       that it is clear beyond a reasonable doubt that the error could
       not have contributed to the verdict.

Commonwealth v. Stafford, 749 A.2d 489, 496-97 (Pa. Super. 2000)

(internal citations omitted).
____________________________________________


4 We may rely on cases predating the enactment of the Pennsylvania Rules
of Evidence to the extent they comport with the Rules. Commonwealth v.
Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).



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      A review of the record discloses that the trial court did not rely on any

of Martin’s conversation with Detective Pirrone in reaching its decision:

      There was sufficient and compelling evidence of [Washington]’s
      guilt in this case. Given the strength of the other evidence,
      including DNA evidence linking [Washington] to the crime and
      the testimony of the officers who arrested [Washington] less
      than two blocks away from the scene within seconds of the
      shooting, any prejudice to [Washington] resulting from the
      admission of this evidence was de minimis. Moreover, the risk
      of Martin’s statements being given undue weight by the fact
      finder was minimized since this case was not tried before a jury.

      There is no indication on the record that the court placed undue
      emphasis on Martin’s statements to Detective Pirrone. In fact,
      the court made no mention of this evidence in its findings of fact
      and conclusions of law at the close of trial.

Trial Court Opinion, dated July 19, 2016, at 14-15 (citing N.T., 2/11/2016,

at 88-94).   Therefore, even if Martin’s conversation with Detective Pirrone

was improperly admitted hearsay and “prior bad acts” evidence (an issue we

need not reach), the admission of that evidence was harmless, and we fail to

see error sufficient to justify reversal of the trial court’s judgment.      See

Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (“the harmless

error doctrine, as adopted in Pennsylvania, reflects the reality that the

accused is entitled to a fair trial, not a perfect trial” (citations omitted)). As

noted, we defer to a trial court on evidentiary issues. Clemons, 200 A.3d at

474. We see no clear abuse of discretion here. Apart from that deference,

we conclude that any error that might have occurred was harmless when

viewed in the context of the entire record.




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      Next, Washington argues that “the trial court erred and abused its

discretion when it admitted evidence relating to [Smallwood]’s alleged

robbery of [Martin] . . . in 2009.”    Washington’s Brief at 39.   Washington

“submits that it was error to admit this evidence because it unduly

prejudicial to him and, that prejudice is outweighed by the probative value,

if any, of the evidence at issue.” Id. He additionally asserts that “the trial

court even acknowledged that the robbery evidence had virtually no

probative value with respect to the charges at issue in the matter sub judice.

See N.T. 02/11/16, p. 92 (acknowledging in reaching a verdict, ‘you don’t

even need the robbery’).” Id. at 45 (some formatting).

      Our standard of review for challenges to the admissibility of evidence

remains an abuse of discretion. Clemons, 200 A.3d at 474.

      Upon review, we conclude that the evidence that Smallwood previously

robbed Martin was admissible, because it was part of the sequence of events

that formed the history of this case, known as the res gestae or “complete

story” exception.   Commonwealth v. Crispell, 193 A.3d 919, 936 (Pa.

2018) (evidence of crimes, wrongs, or other bad acts may be admissible as

res gestae when relevant to furnish the complete story or context of events

surrounding the crime); Commonwealth v. Murphy, 657 A.2d 927, 932

(Pa. 1995) (evidence that defendant killed witness who saw defendant

commit the murder for which he was on trial was so interwoven with the

facts of the case as to be admissible under the res gestae exception);

Commonwealth v. Ferguson, 107 A.3d 206, 211 (Pa. Super. 2015) (in

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order for evidence of prior acts “to be admissible as evidence of motive,” the

acts “must give sufficient ground to believe that the crime currently being

considered grew out of or was in any way caused by the prior set of facts

and   circumstances”       (citation   and     internal   quotation   marks   omitted);

Commonwealth v. Flamer, 53 A.3d 82, 87 (Pa. Super. 2012) (evidence

showing that appellants conspired with a third party to kill a witness to

another murder committed by appellants was admissible to prove the history

of the case under the res gestae exception). Washington was charged not

only with murder but also with retaliation against witness, victim or party.5

A fact-finder could reasonably conclude from the record that Martin’s

statement to police positively identifying Smallwood as the individual who

had robbed him at gunpoint caused Smallwood and Washington to kill Martin

in retaliation. See Smallwood, No. 726 EDA 2015, at 1-2, 6; Trial Court

Opinion, dated July 19, 2016, at 2-4 (citing N.T., 2/9/2016, at 50-52, 54-59,

63-64, 84-85, 90) & 11 n.7.            Accordingly, the trial court, sitting as fact-

finder, needed to hear the background about the Smallwood robbery and

Martin’s prior cooperation in that case to understand the case against

Washington and to find Washington guilty of murder and of retaliation

against witness, victim or party. Without evidence of the robbery of Martin

____________________________________________


5 “A person commits an offense if he harms another by any unlawful act or
engages in a course of conduct or repeatedly commits acts which threaten
another in retaliation for anything lawfully done in the capacity of witness,
victim or a party in a civil matter.” 18 Pa.C.S. § 4953(a).



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by Smallwood and of Martin’s cooperation with police thereafter, the

Commonwealth could never have established Washington’s motive for

shooting Martin. The narrative history of the case would be nonsensical if

the Commonwealth could only present what happened without being able

to offer why it happened. The fact-finder would not have had the “complete

story.” The highly probative nature of this evidence clearly outweighs any

undue prejudice arising from its admission. See Falmer, 53 A.3d at 87-88

(“highly probative nature of this evidence” of the history of the case and

appellants’ consciousness of guilt “outweighs any undue prejudice arising

from its admission” (citing Commonwealth v. Paddy, 800 A.3d 294, 307-

08 (Pa. 2002) (evidence admissible to prove motive is highly relevant in the

determination of guilt))). Consequently, we discern no abuse of discretion

on the part of the trial court in permitting evidence that Smallwood robbed

Martin to be introduced at trial.

      Finally, Washington urges this Court to find that the trial court “erred

when it denied” his “motion to suppress physical evidence recovered from

[him] by a police officer during a stop and frisk.” Washington’s Brief at 46.

He continues:

      The confluence of facts and circumstances known to Officer
      Peterson prior to stopping [Washington], detaining him, and
      checking his heart rate, are insufficient to justify such a seizure
      and search. . . . Officer Peterson’s decision to seize a person
      walking at a normal pace in the area of a crime who does not fit
      the description of either suspect reported by fellow officers is
      constitutionally impermissible. . . . Washington respectfully
      submits that under the facts of the case sub judice, the officer
      lacked reasonable suspicion to seize Mr. Washington when they

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       exited their police vehicle. . . . Walking away from police (even
       in a high crime area) is not sufficient to establish reasonable
       suspicion to initiate an investigative detention where the
       individual does not also match information provided by an
       anonymous tipster.[6] In re J.G., 860 A.2d [185,] 187-89 [(Pa.
       Super. 2004)].

Id. at 56-58 (emphasis in original). The appellate brief hence appears only

to challenge Officer Peterson’s stop of Washington. See id.

       “Where the suppression court’s factual findings are supported by the

record, we are bound by these findings and may reverse only if the court’s

legal conclusions are erroneous.” Commonwealth v. Yim, 195 A.3d 922,

926 (Pa. Super. 2018).         Our scope of review from a suppression ruling is

limited to the evidentiary record created at the suppression hearing.

Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).

       At the suppression hearing, Washington contended that Officer

Peterson did not have probable cause to arrest him.          N.T. Suppression,

2/9/2016, at 10.       In his appellate brief, Washington now argues that the

officer did not have reasonable suspicion to stop him for an investigative

detention; however, Washington never raised a claim before the trial court

that Officer Peterson did not even have mere reasonable suspicion to stop

him, as opposed to the higher hurdle of probable cause to arrest him.

Compare N.T. Suppression, 2/9/2016, at 10, with Washington’s Brief at

____________________________________________


6 Contrary to this assertion, this case did not involve an anonymous tipster.
See N.T., 2/8/2016, at 16 (Officer Peterson heard description of suspects
directly from a radio report from another police officer).



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56-58; see Commonwealth v. Parker, 161 A.3d 357, 362 (Pa. Super.

2017) (“an ‘investigative detention’ must be supported by a reasonable

suspicion; it subjects a suspect to a stop and a period of detention, but does

not involve such coercive conditions as to constitute the functional

equivalent of an arrest”; “an arrest or ‘custodial detention’ must be

supported by probable cause” (citation omitted)). Thus, Washington failed

to preserve the issue of whether the officer had reasonable suspicion to stop

him, Washington’s Brief at 56-58, and this challenge is therefore waived.

Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal”).7

       For the reasons given above, all of Washington’s appellate claims are

meritless or waived. We therefore affirm his judgment of sentence.

       Judgment of sentence affirmed.

____________________________________________


7  Assuming Washington had preserved this challenge, we would still
conclude that Officer Peterson had reasonable suspicion to justify an
investigative detention of him.      The officer testified that he first saw
Washington, who was only wearing a T-shirt that was inappropriate for the
weather, less than a minute after receiving a “foot pursuit” radio report from
another officer that two hoodie-wearing suspects were running from the
scene of a shooting and less than two blocks from the scene of the crime.
N.T., 2/8/2016, at 16-19, 27-28; N.T. Suppression, 2/9/2016, at 9. Officer
Peterson further testified that, based upon his experience as a police officer,
fleeing suspects often remove an outer layer of clothing that could identify
them, such as a hoodie. N.T., 2/8/2016, at 19. Officer Peterson added that
Washington immediately put up his hands upon seeing the officer exit his
patrol car. Id. at 20. All of these circumstances taken in combination
demonstrate that Officer Peterson had reasonable suspicion to stop and to
detain Washington for further investigation.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/28/2020




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