J-S46002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARSEILLE WILSON

                            Appellant                 No. 3593 EDA 2013


             Appeal from the Judgment of Sentence July 11, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013135-2011


BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                        FILED SEPTEMBER 15, 2015

        Appellant, Marseille Wilson, appeals from the July 11, 2013 aggregate

judgment of sentence of five to ten years’ imprisonment, plus ten years’

probation, imposed after he was found guilty of two counts of indecent

assault and one count each of rape and sexual assault.1           After careful

review, we affirm.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

              [The victim,] McNeil[,] testified she was 23 years old
              and had lived in West Philadelphia her entire life.
              She testified that in October 2011 she was living on
              63rd Street with her sister Talia McNeil (“Talia”) and
              her friend Shaneia Jenkins (“Shaneia”). She stated
              that on the night of October 14, 2011, she and
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1
    18 Pa.C.S.A. §§ 3126(a), 3121(a)(3), and 3124.1, respectively.
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          Shaneia went to a neighborhood bar, Connections,
          which was three blocks from her apartment. She
          testified that at the bar she had a few drinks and
          eventually Shaneia left. She testified that she drank
          two glasses of wine, some vodka, and some
          Hennessey. She stated that after Shaneia left, she
          spent time with Thomas, Temple, Razul and
          [Appellant].   She stated that she knew Thomas,
          Temple and Razul from elementary and/or high
          school, but that she had never met [Appellant]
          before.

                 McNeil testified that she eventually got a ride
          from Razul to her apartment and in the car were
          Thomas, Temple and [Appellant]. She testified that
          they were all coming back to her place to spend time
          with Talia’s boyfriend who was at their apartment.
          She testified that on the way to the apartment the
          car stopped at a gas station. She stated that in the
          three to four hours she was at the bar she had about
          four drinks and in the car she started to feel sick.
          She testified that she did not vomit in the car and
          she did not talk to the others who were in the car.
          She stated that when they got to her house she went
          straight to the bathroom to vomit. She testified that
          after throwing up she went in the bathtub to cool off
          in the water.

                 She testified that while she was in the bathtub
          she took off her shirt and was wearing a bra, and her
          tights.    She testified that eventually Talia and
          Thomas helped her out of the tub and brought her
          into the bedroom. She stated that after getting into
          bed she started vomiting again and Talia brought her
          a black bucket to vomit in. She testified that after
          vomiting, Talia closed the door and turned the lights
          off and she went to sleep. She testified that the next
          thing she remembered was waking up to [Appellant]
          in her bed with his penis inside her vagina. She
          testified that she said “get off me, stop[,] and help
          me.” She stated that Talia came into her room and
          said to [Appellant], “What are you doing to my
          sister.” To which [Appellant] responded, “My name
          is Cell. Your sister knows me,” before he ran out of

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          the room. McNeil testified that she did not know
          [Appellant] and that she saw him earlier in the night,
          but did not have any conversations with him.

                 McNeil testified that [Appellant]’s body was
          positioned behind hers and she was on her side
          when she woke up. She stated that [Appellant]’s
          hands were on her side and her panties were down
          towards her knees. She stated that she had her
          panties on when she went to sleep. She testified
          that when she told [Appellant] to stop, he kept
          having sex with her. After [Appellant] ran out, she
          testified that Shaneia and Thomas came in the room
          and they tried to call her a cab to the hospital
          because she felt pain from her tampon that was
          inside of her still. She testified that she was on her
          period that night and intentionally left the tampon
          inside her when she went to sleep. McNeil testified
          that she went to the hospital in an ambulance with
          Talia and her father.      After the hospital, McNeil
          testified that she went to the Special Victims Unit
          where a nurse performed an examination and she
          gave a statement to Detective Jenkins.

                 McNeil testified that after the incident on
          October 15, 2011, she did not see [Appellant] again
          until November 4, 2011. She testified that she saw
          [Appellant] at Connections and that it was the first
          time she returned to the bar since the assault. She
          testified that she called the police and [Appellant]
          was arrested in the bar that night. Following the
          night in October 2011, McNeil testified that she had
          been back to Connections only three times. She
          testified that one of those times she saw Temple and
          Thomas. She testified that Temple said, “I ain’t
          f[**]king with you. My man was drunk. You should
          just let him go.” She testified that she started crying
          and then approached them and Temple repeated
          himself. McNeil testified that she had only been back
          to Connections once since then because she felt
          uncomfortable being there and that something might
          happen to her. She testified that the others who
          were with [Appellant] had been at her apartment
          before October 14, 2011, but that [Appellant] had

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              never been there before and she did not think
              anything would happen that night since he was with
              her other friends.

                    McNeil identified different photographs showing
              her bedroom and her apartment. She testified that
              she had four drinks on the night of the … incident
              and that she was intoxicated, but that there were no
              moments which she did not remember. She testified
              that she did not invite [Appellant] to come back to
              her house, into her bedroom nor did she tell him that
              he could have sex with her.

Trial Court Opinion, 5/30/14, at 5-7.

        On December 8, 2011, the Commonwealth filed an information,

charging Appellant with the above-mentioned offense, plus one additional

count of rape and one count of simple assault.2            Appellant proceeded to a

jury trial on February 26, 2013, at the conclusion of which, Appellant was

found guilty of two counts of indecent assault and one count each of rape

and sexual assault.      The simple assault charge and the second rape count

were nolle prossed. On July 11, 2013, the trial court imposed a sentence of

five to ten years’ imprisonment, plus ten years’ probation, for rape but no

further penalty on the remaining charges. On July 19, 2013, Appellant filed

a timely post-sentence motion.                 The trial court entered an order on

November 19, 2013 denying Appellant’s post-sentence motion by operation




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2
    18 Pa.C.S.A. §§ 3121(a)(1) and 2701(a), respectively.



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of law. See generally Pa.R.Crim.P. 720(B)(3)(c). On November 20, 2013,

Appellant filed a timely notice of appeal.3

         On appeal, Appellant raises one issue for our review.

              Did not the trial court err when it admitted an out-
              of-court statement in evidence for its effect on the
              listener where the listener’s reaction to the
              statement was irrelevant to the case and the trial
              court’s refusal to give a limiting instruction
              restricting the jury from considering the evidence for
              its truth unfairly prejudiced … [A]ppellant?

Appellant’s Brief at 4.

         Although presented as a single issue, Appellant’s argument on appeal

contains two sub-issues.        First, Appellant avers the trial court abused its

discretion in allowing McNeil to testify to a statement made by Temple, “I

ain’t f[**]king with you. My man was drunk. You should just let him go.”

N.T., 2/27/13, at 39.        Specifically, Appellant argues that statement was

irrelevant under Pennsylvania Rule of Evidence 401 and its probative value

was outweighed by its prejudicial effect under Rule 403. Appellant’s Brief at

13, 22. In his second sub-issue, Appellant argues the trial court erred in not

instructing the jury that it may not consider said statement for its truth. Id.

at 19.

         We begin by noting our well-settled standard of review regarding these

issues.
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3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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            The admissibility of evidence is at the discretion of
            the trial court and only a showing of an abuse of that
            discretion, and resulting prejudice, constitutes
            reversible error. An abuse of discretion is not merely
            an error of judgment, but is rather the overriding or
            misapplication of the law, or the exercise of
            judgment that is manifestly unreasonable, or the
            result of bias, prejudice, ill-will or partiality, as
            shown by the evidence of record. Furthermore, if in
            reaching a conclusion the trial court over-rides or
            misapplies the law, discretion is then abused and it is
            the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted), appeal denied, 83

A.3d 167 (Pa. 2013). Likewise, “[i]n deciding whether a trial court erred in

refusing to give a jury instruction, we must determine whether the court

abused its discretion or committed an error of law.”      Commonwealth v.

Clouser, 998 A.2d 656, 658 (Pa. Super. 2010) (citation omitted), appeal

denied, 26 A.3d 1100 (Pa. 2011).

      Assuming, arguendo, that the trial court erred by allowing Temple’s

statement and in not giving the requested limiting instruction to the jury, we

nevertheless conclude that its errors were harmless.

            [A]n error will be deemed harmless where the
            appellate court is convinced beyond a reasonable
            doubt that the error could not have contributed to
            the verdict. Guidelines for determining whether an
            error is harmless include: (1) whether the error was
            prejudicial to the defendant or if prejudicial, whether
            the prejudice was de minimis; (2) whether the
            erroneously     admitted   evidence      was     merely
            cumulative of other, untainted evidence which was
            substantially similar to the erroneously admitted
            evidence; or (3) whether the evidence of guilt was so

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           overwhelming as established by properly admitted
           and uncontradicted evidence that the prejudicial
           effect of the error was so insignificant by comparison
           to the verdict.

Commonwealth v. Molina, 33 A.3d 51, 67 (Pa. Super. 2011) (en banc)

(citation omitted), affirmed, 104 A.3d 430 (Pa. 2014).

     As part of his defense, Appellant called Miguel Thomas who testified

that Temple told McNeil the following.

           Like, I don’t want to speak to you because you got
           one of my friends locked up and you know that’s not
           what happened. You know that’s not how it went
           down. Like, he didn’t rape you. He didn’t hold you
           down and rape you or anything like that. It was just
           like we were drunk and we tried -- he tried to do it to
           you. Now, that’s how you should put it. Don’t try to
           put it like he raped you because that’s not how it
           went down.

N.T., 2/28/13, at 26-27.    Here, because Temple’s statements came in as

part of Appellant’s own defense, they were introduced to establish the

substance of Temple’s statements, not for the limited purpose of their effect

on the listener such as during the Commonwealth’s case-in-chief. Cf. N.T.,

2/26/13, at 5-9.    Since Appellant’s own defense witness testified to the

same statements as those Appellant complains of on appeal, but in greater

detail, which were admitted for their substance, any potential prejudice was




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de minimis, rendering any potential errors by the trial court harmless. 4 See

Molina, supra.

       Based on the foregoing, we conclude Appellant’s issue is devoid of

merit. Accordingly, the trial court’s July 11, 2013 judgment of sentence is

affirmed.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




____________________________________________
4
  Appellant acknowledges his eliciting of Temple’s statements from his own
witness, but blames the trial court for not giving the limiting instruction.
Appellant’s Brief at 25. Appellant argues that he was “trying to make the
best of a bad situation.” Id. However, in our view, it appears odd that
Appellant would wish for the jury to hear testimony, that according to
Appellant undermines his own credibility, for a second time. Further, we
agree with the Commonwealth that Appellant’s intentional elicitation of
Temple statements reflects a belief that the statement could have been
beneficial to him, such as to undermine Temple or the victim’s credibility by
suggesting to the jury that they were all intoxicated and could not remember
the events correctly. See generally Commonwealth’s Brief at 9 n.3.



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