J-S30017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                           OF PENNSYLVANIA
                             Appellee

                        v.

    TERRELLE LAMAR SMITH

                             Appellant                     No. 1191 WDA 2017


          Appeal from the Judgment of Sentence entered July 18, 2017
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0014980-2014


BEFORE: BENDER, P.J.E., STABILE, J. AND STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                                FILED AUGUST 21, 2018

        Appellant, Terrelle Lamar Smith, appeals from judgment of sentence

entered in the Court of Common Pleas of Allegheny County on July 18, 2017,

amending the January 20, 2016 judgment of sentence imposed following

Appellant’s conviction of possession of firearm with altered manufacturer’s

number,     carrying    a    firearm   without   a   license,   and   flight   to   avoid

apprehension.1 Appellant argues the evidence was insufficient to support his

conviction for flight to avoid apprehension. He also argues the trial court erred

in permitting the Commonwealth to introduce evidence of the “De Ruad Mob”



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.


1   18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1) and 5126(a), respectively.
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tattoo Appellant has on his chest. Following review, we vacate in part and

affirm in part.


      In its Rule 1925(a) opinion, the trial court condensed the underlying

facts of the case, noting “[Appellant] was convicted after a jury disbelieved

his alibi witnesses. According to him, he was at a nearby hospital when a City

of Pittsburgh officer, who knew him from prior interactions, spotted someone

and that someone ran[,] after pulling a gun from the waistband of his pants.”

Trial Court Opinion, 12/19/17, at 1.

      At trial, the Commonwealth presented testimony from two police

officers, Officers Lafferty and Robey, who testified they saw two black males

standing next to a black Audi on De Ruad Street at approximately 7:20 p.m.

on September 17, 2014. Officer Lafferty identified one of those individuals as

Appellant and stated that Appellant noticed the officer, quickly turned, began

to pull a firearm from his waistband, and ran on De Ruad Street toward

Wyandotte Street.    Notes of Testimony (N.T.), 10/15/15, at 57, 63, 68.

Officer Lafferty explained that the officers gave chase while instructing

Appellant to drop the gun.   Id. at 64-65. Appellant dropped the gun and

continued to run on Wyandotte Street toward Firth Avenue. Id. at 65. The

officers were unsuccessful in their attempt to catch up with or apprehend

Appellant. In the course of the chase, Officer Robey retrieved the discarded

gun. Id. at 44.




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      Officer Lafferty testified he was familiar with Appellant from other

encounters on De Ruad Street, where the chase began. Id. at 58-59. He

stated he was aware that Appellant had a tattoo on his chest that read, “De

Ruad Mob,” and identified a photograph of a bare-chested Appellant showing

the tattoo in question. Id. at 60. He explained that “De Ruad Street Mob is

a gang in the Hill District of the City of Pittsburgh.” Id. at 61.

      The Commonwealth also presented two expert witnesses. The first was

a member of the Pittsburgh Police Department’s Mobile Crime Unit, who

processed the gun and collected DNA from it. Id. at 81-85. The second was

a DNA analyst from the Allegheny County Medical Examiner’s Officer who

explained that testing revealed a DNA mixture of three or more individuals.

N.T. at 101. He noted that “all of the genes that were associated with the

DNA profile of [Appellant] were also found in the DNA results from the DNA

mixture that were (sic) found on the gun. [Appellant] could not be excluded

as a potential contributor to that DNA mixture.” Id. at 102. The prosecutor

asked:

      So you are saying basically the two options were [Appellant]
      touched the - - he is part of the DNA mixture or, in the alternative,
      the chances of randomly selecting someone who would match that
      DNA profile that was on the mixture is roughly the same as the
      chances of winning the Powerball?

Id. at 105. In response, the expert stated, “It’s roughly. Roughly that.” Id.

      The defense presented four alibi witnesses who testified that Appellant

was at Mercy Hospital visiting his brother at the time of the events described


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by the two officers.     The defense also presented testimony from Doron

McCarthy, whom Officer Robey had identified as the owner of the Black Audi

parked next to which Appellant was standing when first observed by the

officers. McCarthy stated that he was familiar with Appellant, though they

were not friends. Id. at 161. He testified he was on De Ruad Street on the

night in question, visiting his aunt who was ill. While he could not identify the

individual chased by the officers, he was “a hundred percent sure” the

individual was not Appellant. Id. at 161-169.

      On rebuttal, the Commonwealth recalled Officer Lafferty who explained

he went to Mercy Hospital after the defense filed its notice of alibi. Id. at 179.

However, because approximately six months had passed since the incident

and because the hospital had switched camera systems in the interim, the

hospital no longer had any footage from that night. Id.

      The jury returned a verdict of guilty on all three charges. On January

20, 2016, the trial court sentenced Appellant to a term of four to eight years’

incarceration and two years’ consecutive probation for possessing a firearm

with an altered serial number. The court also imposed a consecutive eight

years of probation for carrying a firearm without a license. The court did not

impose any additional sentence for flight to avoid apprehension.

      Trial counsel did not file a post-sentence motion or an appeal.         On

September 13, 2016, Appellant filed a pro se petition for post-conviction relief

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.


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Appointed counsel filed an amended petition, which the court granted,

permitting Appellant to file a post-sentence motion. By order entered July 18,

2017, the court granted Appellant’s motion with respect to Appellant’s

probationary sentence, which was corrected from eight to seven years. In all

other respects the motion was denied.       This timely appeal followed.    Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant asks us to consider two issues, which we have reordered for

ease of discussion:

   1. Whether the trial court abused its discretion by permitting the
      Commonwealth to introduce evidence that [Appellant] has a
      tattoo stating “De Ruad Street Mob” on his chest, and thereby
      unfairly prejudicing [Appellant] by providing the jury with a basis
      to conclude that he was in a gang/mob?

   2. Whether the Commonwealth introduced sufficient evidence to
      convict [Appellant] of flight to avoid apprehension where the
      government’s evidence did not demonstrate that [Appellant] fled
      from the police to avoid a pending criminal charge, a pending
      criminal trial, a sentence to which he was subject, or a sentence
      which had yet to be imposed[?]

Appellant’s Brief at 6.

      In his first issue, Appellant argues the trial court abused its discretion

by permitting the Commonwealth to introduce evidence of Appellant’s “De

Ruad Mob” tattoo. Appellant claims the evidence resulted in undue prejudice,

providing the jury with a reason to conclude Appellant was in a gang or mob.

As such, Appellant is challenging the trial court’s ruling on admission of

evidence. This Court has explained:



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     The admission of evidence is a matter vested within the sound
     discretion of the trial court, and such a decision shall be reversed
     only upon a showing that the trial court abused its discretion. In
     determining whether evidence should be admitted, the trial court
     must weigh the relevant and probative value of the evidence
     against the prejudicial impact of the evidence. Evidence is
     relevant if it logically tends to establish a material fact in the case
     or tends to support a reasonable inference regarding a material
     fact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014) (quoting

Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009)

(additional citation omitted). “An abuse of discretion may result where the

trial court improperly weighed the probative value of evidence admitted

against its potential for prejudicing the defendant.” Id. (quoting Weakley,

972 A.2d at 1189 (additional citations omitted)).

     In Antidormi, this Court explained:

        The threshold inquiry with admission of evidence is whether
        the evidence is relevant. “Evidence is relevant if it logically
        tends to establish a material fact in the case, tends to make
        a fact at issue more or less probable, or supports a
        reasonable inference or presumption regarding the
        existence of a material fact.”          Commonwealth v.
        Spiewak, 533 Pa. 1, 617 A.2d 696, 699 (1992). In
        addition, evidence is only admissible where the probative
        value of the evidence outweighs its prejudicial impact.
        Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 160
        (1978).

     Commonwealth v. Stokes, 78 A.3d 644[, 654] (Pa. Super.
     2013) (internal citations modified for uniformity); see also
     Pa.R.E. 401; 402; 403.

     Otherwise relevant evidence may be excluded if its probative
     value is outweighed by its potential for prejudice. “The probative
     value of the evidence might be outweighed by the danger of unfair


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      prejudice, confusion of the issues, misleading the jury, undue
      delay, pointlessness of presentation, or unnecessary presentation
      of cumulative evidence.” Commonwealth v. Page, 965 A.2d
      1212, 1220 (Pa. Super. 2009) (citing Commonwealth v. Dillon,
      592 Pa. 351, 925 A.2d 131, 141 (2007) (citing Pa.R.E. 403)).
      “The comment to Pa.R.E. 403 instructs that: ‘“Unfair prejudice”
      means a tendency to suggest decision on an improper basis or to
      divert the jury’s attention away from its duty of weighing the
      evidence impartially.’” Id. (quoting Pa.R.E. 403). However,
      “[e]vidence will not be prohibited merely because it is harmful to
      the defendant.” Dillon, 925 A.2d at 141. “[E]xclusion is limited
      to evidence so prejudicial that it would inflame the jury to make a
      decision based upon something other than the legal propositions
      relevant to the case.” Commonwealth v. Owens, 929 A.2d
      1187, 1191 (Pa. Super. 2007) (citing Commonwealth v.
      Broaster, 863 A.2d 588, 592 (Pa. Super. 2004)).

Id. at 750.

      Prior to trial, Appellant’s counsel filed a motion in limine, seeking to

preclude “any and all testimony containing reference to [Appellant’s]

purported gang affiliations.” Motion in Limine, 7/27/15, at 2 (unnumbered).

The motion was based on Officer Lafferty’s reference to Appellant as a “known

De Raude (sic) Street Mob Gang Member” in his Affidavit of Probable Cause.

Id. at ¶ 3. Appellant asserted he knew of “no such organization and has no

gang affiliations.” Id. at ¶ 5. He claimed character evidence was irrelevant

and inadmissible under Pa.R.E. 402. Even if relevant, it would be inadmissible

under Pa.R.E. 403 because the danger of prejudice outweighed its probative

value. Id. at ¶¶ 6-8.

      The Commonwealth did not file a response to the motion. However,

prior to trial, the Commonwealth did file a motion to compel, asking the trial

court to compel Appellant “to submit to the photographing of any and all

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tattoos on [his] body, including tattoos on his chest.”      Motion to Compel

Submission to Photographing of Tattoos, 10/13/15, at 2 (unnumbered). The

Commonwealth contended that the photographs were “necessary to show the

identity of [Appellant] as a person who is known to be affiliated with De Ruad

Street.” Id. at 1, ¶ 3.

      Argument on pre-trial motions was held on October 13, 2015. At that

time, the following exchange took place:

      Appellant’s Counsel: I did file a motion with respect to in limine
      with respect to a reference to this De Ruad Street Gang Mob.
      [Officer Lafferty] has included that in his reports. And I find that
      very prejudicial and would like to have that prohibited from
      testimony. Unless the Commonwealth is prepared to make a
      foundation.

      Trial Court: Is there any way you can establish that that’s his
      gang?

      Prosecutor: The officer has informed me he has a tattoo on his
      chest, [Appellant], that says, “De Raude (sic) Street Mob Gang.”

      Trial Court: I mean, I can’t make him take off his shirt. If you
      have a video or something, I would allow you to use it. But I can’t
      - - I can’t say, “Pull your shirt up and show it.” Do you understand
      what I mean?

      Prosecutor: The reason - - I do. The reason we would want to
      introduce it is just because that occurred - - the crime occurred
      on that street. It would show that he would likely be in that area
      because he is member of that gang.

      Trial Court: If the officer saw it and he says, “I know he’s in that
      gang because I saw his tattoo on his chest,” I mean, that’s the
      street it’s on. I am not going to bar anyone from the truth. If
      that’s the truth, then he can say what he wants. You can cross-
      examine him and do what you want to do about it. But if you saw
      the tattoo and it said that and that’s the street he is on, then I am
      allowing it to come in. Anything else?

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     Appellant’s Counsel: No, Your Honor.

     Prosecutor: No, Your Honor.

N.T., Pre-Trial Proceedings, 10/13/15, at 9-11.

     At trial, the following exchanges occurred:

     Prosecutor: Now, is there anything that you’re familiar with
     regarding [Appellant] other than the fact that you see him on that
     street all the time that would associate him with De Ruad Street?

     Officer Lafferty: I know that he as a tattoo which says, “De
     Ruad Mob” on his chest.

     Prosecutor: I am going to show you what I have marked as
     Commonwealth Exhibit 4. Can you describe that?

     Officer Lafferty: That’s a photo of [Appellant] with his shirt off
     smiling and a picture of the tattoo on his chest area.

     Prosecutor: And that’s the tattoo that you are referencing?

     Officer Lafferty: Yes.

           Prosecutor:   Commonwealth              moves   to     admit
           Commonwealth Exhibit 5.

           Appellant’s Counsel: No objection, Your Honor.

           Trial Court: So admitted.

           ***

     Prosecutor:    What’s the significance of the fact that it says,
     “De Ruad Mob?”

     Officer Lafferty: De Ruad Mob, De Ruad Street Mob is a gang in
     the Hill District of the City of Pittsburgh. And [Appellant] is - -

           Appellant’s Counsel: Objection, Your Honor.

           Trial Court: What would be the objection?

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          Appellant’s Counsel: May we approach?

          Trial Judge: Sure.

     [Whereupon, discussion at side bar as follows:]

          Appellant’s counsel: I was under the impression that the
          admission of the tattoo was limited to his knowledge of the
          area and there would be no discussion about any gang or
          mob behavior.

          Trial Court: What’s your thoughts?

          Prosecutor: I can direct the witness to say that he’s known
          to frequent that street and not mention the work “gang.” Is
          that - -

          Appellant’s counsel: Well, the line, the questioning tends
          to establish there is a mob and a gang. The idea was just
          the location of the street.

          Prosecutor: The line of questioning was to establish he is
          known to be in that area.

          Appellant’s Counsel: Well, you’ve done that.

          Prosecutor: That’s all I am trying to establish.

          Trial Judge: Let’s move on. The jury will be finders of fact.
          I think they will interpret De Ruad to be a mob. They will
          make that determination. If you have any basis to establish
          that’s a gang, that he is in a gang, you can use it. But if
          there is nothing specifically that verifies he is, then I think
          that we’ve done enough, and the jury can draw their own
          conclusions from the tattoo.

          Prosecutor: Okay.

          Appellant’s Counsel: Thank you, Your Honor.

     [Open court, jury present.]




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      Prosecutor: Officer, this occurred on De Ruad Street when you
      first saw [Appellant]; correct?

      Officer Lafferty: Yes.

      Prosecutor: And that’s the same De Ruad, same spelling as
      what’s on his chest?

      Officer Lafferty: Affirmative. Yes.

N.T., Trial, 10/15/15, at 60-63.

      As the above exchanges reflect, Appellant’s counsel did not object to the

questions about the tattoo or to the introduction of the photograph into

evidence. It was only when Officer Lafferty noted that De Ruad Street Mob is

a Hill District gang that counsel objected, before Officer Lafferty offered any

testimony concerning Appellant’s affiliation, or lack thereof, with that gang.

When testimony resumed following the side bar discussion, there was no

further reference to the De Ruad Mob, other than to confirm De Ruad Street

as the location of the events of September 17, 2014, and the spelling of

Appellant’s tattoo.    Moreover, there was no objection lodged to the

Commonwealth’s closing when the prosecutor referenced the tattoo and its

apparent indication that Appellant “identifies himself as a member of the De

Ruad Mob.” N.T., Trial, 10/16/15, at 197.

      Addressing Appellant’s contention that the trial court abused its

discretion in permitting evidence of Appellant’s tattoo, the trial court

reasoned:

      [Appellant] has a tattoo on his chest. It says “De Ruad Mob.” This
      incident happened on De Ruad Street. A rather short street in the

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       City of Pittsburgh not far from UPMC-Mercy Hospital and PPG
       Paints Arena, the home of the current Stanley Cup Champion,
       Pittsburgh Penguins.[2]     Before trial this admissibility of the
       “tattoo” was brought up. The court heard from both sides.
       Ultimately, the court authorized a photograph to be taken of the
       tattoo and that photograph was then admitted. The basis for its
       admission was its relevance outweighed the prejudice. The case
       was tried through the filter of an alibi offered by [Appellant]. Him
       having a tattoo made it more probable than not that he would be
       on that very street when the officer saw him immediately before
       the chase began.

Trial Court Rule 1925(a) Opinion, 12/19/17, at 2 (unnumbered) (some

capitalization omitted).

       Appellant argues the trial court considered only the relevance of the

evidence, failing to analyze whether the relevance outweighed the prejudice

associated with the tattoo. Appellants’ Brief at 19. He contends:

       Such is underscored by (i) trial testimony from law enforcement
       [] that [Appellant] was seen De Ruad Street all the time, making
       evidence of the tattoo unnecessary and cumulative to other
       evidence placing [Appellant] frequently on the street in questions,
       and (ii) [the trial judge’s] own statement during trial that the jury
       “will interpret De Ruad to be [a] mob.”

Id. at 19 (citation to notes of testimony omitted). However, as counsel for

the Commonwealth noted during argument on its motion to compel

submission to photographing the tattoo:

       [Appellant] is the one that got the tattoo that said “Mob.” He is
       the one making the statement he is part of the De Ruad Mob. It’s
       not anyone else putting those words in his mouth. He chose to
       get that tattoo. Any prejudicial value is coming from the fact
       [Appellant] put the word “Mob” in.
____________________________________________


2 The trial court’s opinion predated the June 2018 Stanley Cup championship
in which the Washington Capitals defeated the Las Vegas Golden Knights.

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N.T., 10/14/15, at 18-19. We agree.

      As the Commonwealth suggests, “the only real issue for the jury was

the identity of the man whom the officers saw discard the gun on De Ruad

Street.   The challenged evidence was a photo of a tattoo that established

[Appellant’s] connection to that particular street.” Commonwealth Brief at 15.

      We find the trial court properly concluded the relevance of evidence

regarding Appellant’s tattoo outweighed any prejudice to Appellant.         We

discern no abuse of discretion in that determination.       This conclusion is

bolstered by Officer Lafferty’s testimony relating to his identification of

Appellant,   whom   he   knew   from   previous   encounters—including      one

documented as recently as two weeks before the events in question, as well

as the officer’s prior awareness of the tattoo at issue.      See N.T. Trial,

10/15/15, at 57-60.      Moreover, Officer Lafferty was unequivocal in his

identification of Appellant, even without reference to the tattoo, as reflected

in the following exchange between Officer Lafferty and the prosecutor:

      A. I got a good look at him when we were on De Ruad Street
      because he was facing me whenever I dropped down onto the
      street. And when he ran he turned around, I think around two
      times looking at me, so I got a look at, like, the side of his face
      when he was running.

      Q. When did you first know it was [Appellant]?

      A. Immediately. I immediately knew it was him. While I was
      running - - When I got to Watson [Street] I called out over the
      radio the actor’s description. And then I actually said the name.
      I said, “It’s Tyrone Smith. It’s Tyrone Smith.” That’s what I said
      over the radio. But I was huffing and puffing. And I realized, oh,

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      I gave the wrong name. And I said, “It’s Terrelle Smith, Terrelle
      Smith.” And I said it over the radio numerous times.

      Q. So you knew who it was immediately and as you were chasing
      him?

      A. Yes.

N.T., Trial, 10/15/15, at 68.

      We find no abuse of discretion in the trial court’s ruling. Appellant’s first

issue fails.

      In his second issue, Appellant contends the evidence was insufficient to

support his conviction of flight to avoid apprehension. A person is guilty of

“flight to avoid apprehension, trial or punishment” if he “willfully conceals

himself or moves or travels within or outside this Commonwealth with the

intent to avoid apprehension, trial or punishment[.]” 18 Pa.C.S.A. § 5126(a).

      In its Rule 1925(a) opinion, the trial court agreed with Appellant that

the evidence was not sufficient to support the conviction.             The court

determined the only evidence to support the jury’s verdict was the stipulation

between the parties providing that Appellant had previously been convicted of

a felony as of the date of the events leading to his arrest. The court explained:

      This is simply not enough. The jury needed more facts. The
      evidence did not show he was avoiding trial. In fact, the evidence
      showed his trial was over and done with. The evidence did not
      show he was avoiding punishment or avoiding something that
      might flow from a sentence, like a probation violation warrant.
      The totality of the government’s evidence fails to answer the
      quintessential question in this type of case – What was he
      avoiding? On this record that simple question remains a mystery.
      The conviction at Count 3 should be reversed and [Appellant]
      should be adjudicated not guilty of this accusation.

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Trial Court Rule 1925(a) Opinion, 12/19/17, at 2-3 (unnumbered) (citation

omitted).

     In its brief, the Commonwealth notes that it “is constrained to agree

with [Appellant] that the evidence was indeed insufficient to sustain his

conviction for violating § 5126.” Commonwealth Brief at 17. However, the

Commonwealth also recognizes that Appellant did not receive any additional

sentence for his conviction of flight to avoid apprehension. Id. As a result,

the Commonwealth contends, we need not remand for resentencing because

vacating the conviction will not disturb the sentencing scheme. We agree.

See In the Interest of P.S., 158 A.3d 643, 652-53 (Pa. Super. 2017), appeal

denied, 174 A.3d 1029 (Pa. 2017) (citing Commonwealth v. Thur, 906 A.2d

552, 569 (Pa. Super. 2006) (“if our decision does not alter the overall

[sentencing] scheme, there is no need for a remand.”)).

     Appellant’s conviction for flight to avoid apprehension is vacated. In all

other respects, we affirm Appellant’s judgment of sentence.

     Judgment vacated in part and affirmed in part.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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