J-S84043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                      v.

SHAMONE F. WOODS

                                  Appellant                   No. 1012 EDA 2016


             Appeal from the Judgment of Sentence January 6, 2014
        in the Court of Common Pleas of Chester County Criminal Division
                         at No(s): CP-15-CR0004219-1009

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                                 FILED MARCH 20, 2017

        Appellant, Shamone F. Woods, appeals from a judgment of sentence of

life imprisonment for first degree murder.1              Appellant argues that the trial

court abused its discretion by refusing to grant a mistrial when (1) a

Commonwealth witness, Victor Devalia, testified that he offered to take a lie

detector    test   after    his    arrest   for   this    murder, 2   and   (2)   another

Commonwealth witness, Andre Boggs, testified that he “did time” with

Appellant in prison. We affirm.

        We summarize the factual and procedural history to place Devalia’s

and Boggs’ trial testimony in context.            Several men, including Appellant,


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
  The police initially charged Devalia with the murder but ultimately
withdrew all charges against him.
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formed a conspiracy to murder Jonas Suber. The leader of the conspiracy,

Duron Peoples, held a grudge against Suber for having a brief romance with

Peoples’ girlfriend several years earlier.   Peoples recruited Eric Coxry to

shoot Suber and had Appellant supply a .45 caliber semiautomatic pistol to

Coxry.   On October 21, 2006, Coxry used this weapon to shoot and kill

Suber in Suber’s Coatesville, Pennsylvania residence.

      An intricate web of circumstantial evidence demonstrates Appellant’s

participation in the murder plot. Devalia testified that two days before the

murder, he and Peoples drove from Atlanta, Georgia to Chester County. On

the afternoon before the murder, surveillance cameras showed Peoples and

Appellant entering a Home Depot in Downingtown, Pennsylvania at exactly

the same time but through different entrances.      Inside the Home Depot,

Peoples gave Appellant cash to pay Coxry for shooting Suber. Peoples and

Devalia traveled to Peoples’ aunt’s townhouse, where Peoples extracted a

.45 caliber semiautomatic pistol and told Devalia that “this is what the big

boys use to get the job done.” Peoples and Devalia subsequently drove to

the Regal Theatre, where Peoples donned an Afro wig, entered the theatre

and gave the pistol to Appellant. Finally, Peoples and Devalia began their

return trip to Atlanta.

      April Brown testified that on the afternoon before the murder,

Appellant directed her to go to Philadelphia to pick up Coxry and bring him

to Coatesville. Appellant met Coxry and Brown in a Coatesville apartment



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and walked over to a second apartment. Clarence Milton, Appellant’s friend

and associate, testified that in the second apartment, Coxry removed a .45

caliber semiautomatic weapon from his pants and stated that he was in town

to take care of some business to kill Suber. According to Milton, Appellant

replied that he had twenty grand for Coxry to do the job.

      Brown testified that she took Coxry to a bar named The Bongo, and

Appellant met them at this club later in the evening.       Suber’s brother,

Boggs, testified that Suber was at the Bongo that evening. Suber left the

Bongo in a white Cadillac, and Appellant, Brown and Coxry followed the

Cadillac to another bar, the Vets.

      While Peoples and Devalia were driving to Atlanta, Devalia overheard

two phone conversations between Peoples and Appellant during which they

discussed “clubbing” and “burn[ing] the house down.”        Upon arriving in

Atlanta, Peoples informed Devalia that Suber had been shot.

      A few days after Suber’s death, Appellant admitted to Brown that he

obtained money for Coxry to kill Suber. Two years later, in October 2008,

Appellant admitted to Delita Torres that “we paid some guy in Philly” to kill

Suber.

      Several weeks after the murder, detectives searched Peoples’ aunt’s

townhouse and found a box of .45 caliber cartridges with ten cartridges

missing, corresponding roughly with what the detectives found at the




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murder scene.     The detectives did not find the .45 caliber semiautomatic

pistol in the townhouse.

        The jury found Appellant guilty of (1) first degree murder, (2)

conspiracy to commit first degree murder,3 (3) criminal solicitation to

commit first degree murder,4 (4) second degree murder,5 (5) burglary6 and

(6) aggravated assault.7       On January 6, 2014, the trial court sentenced

Appellant to life imprisonment for first degree murder and a concurrent term

of eighteen to forty years’ imprisonment for the remaining offenses.      On

February 11, 2014, Appellant filed an untimely direct appeal. On March 11,

2015, this Court quashed Appellant’s appeal as untimely. On February 10,

2016, Appellant timely filed a petition under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546, alleging ineffective assistance of

counsel for filing an untimely appeal.      On March 4, 2016, the trial court

granted Appellant leave to appeal to this Court nunc pro tunc within thirty

days.    On March 24, 2016, Appellant timely appealed to this Court.    Both

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



3
    18 Pa.C.S. § 903.
4
    18 Pa.C.S. § 902.
5
    18 Pa.C.S. § 2502(b).
6
    18 Pa.C.S. § 3502(a).
7
    18 Pa.C.S. § 2702(a)(1).



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     We now turn to the testimony of Devalia and Boggs at the heart of this

appeal. Devalia testified that two days before the murder, he and Peoples

drove from Atlanta, Georgia to Chester County. N.T., 10/23/13, at 10-12.

Devalia’s purpose for the trip was to deliver a pit bull puppy to another man

in Chester County.      Id. On the afternoon before the murder, Devalia and

Peoples were driving to the Home Depot in Downingtown when Devalia

heard Peoples contact Appellant on a “chirp” phone, i.e., a walkie-talkie. Id.

at 25, 30.     Later that day, Devalia drove Peoples to Peoples’ aunt’s

residence, where Peoples retrieved two handguns.              Id. at 36, 76-78.

Devalia and Peoples then drove to the Regal Theatre, which Peoples entered

by himself, and then began driving back to Georgia. Id. at 39-43, 78-81.

During   the   return    to   Georgia,   Devalia   heard   another   chirp   phone

conversation between Peoples and Appellant. Appellant told Peoples that he,

Appellant, was “clubbing,” and Peoples told Appellant to “lay on him.” Id. at

44-46.   Devalia inferred that the meaning of “clubbing” was to “hurt

somebody.”     Id. at 46.      Later during the same trip, Devalia overheard

another chirp conversation in which Peoples instructed Appellant to “burn

the house down.” Id. at 48. Appellant replied: “I got you, I got you.” Id.

At the conclusion of the return trip, Peoples told Devalia that Suber had been

shot. Id. at 49.

     During Devalia’s testimony, the prosecutor asked: “To address

[defense counsel’s] insinuation that you were involved [in Suber’s murder,]



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can you assure us that you were not involved in any respect?” Id. at 103.

Devalia replied: “Yes sir. And when I was arrested I offered a lie detector

test twice.”   Id.   Defense counsel moved for a mistrial.       The trial court

denied the motion and gave the following instruction to the jury:

         Ladies and gentlemen, the last answer which was given,
         volunteered by this witness regarding a lie detector is
         hereby stricken from the record. I do instruct you to
         disregard that testimony and strike it from your
         consideration. You’re not to use that testimony in your
         deliberations. Is there anyone seated on the jury who
         believes they will not be able to follow that instruction? If
         you think you will not be able to follow my instruction or
         that you will not follow my instruction[,] please raise your
         hands now. Let the record reflect that no juror has raised
         their hands in response to the striking instructions.

Id. at 105-06.

      The next Commonwealth witness, Boggs, was Suber’s brother and was

not involved in his murder. Boggs testified that on the evening before the

murder, he and Suber met Appellant at the Bongo, and Appellant shook

Boggs’ hand.     Id. at 118.   When the prosecutor asked whether Appellant

shook Suber’s hand, Boggs stated: “No. We were a little more familiar. We

did time together.” Id. Defense counsel again moved for a mistrial. The

trial court denied a mistrial and gave the following instruction to the jury:

         Ladies and gentlemen, once again I’m going to strike
         certain testimony from your consideration. The part of the
         answer given by this witness to the last question – and I’ll
         mention it so you’re clear exactly what it is, that he had
         done time together with a particular individual[,] is
         stricken from the record.




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         I instruct you to disregard that testimony that I [have] just
         stricken from your consideration and not to use that
         testimony in your deliberation.

         And once again[,] I’ll ask is there anyone here that will not
         follow that instruction? If you believe you will not follow
         my instruction[,] please raise your hands. Let the record
         reflect no juror has raised their hand.

Id. at 119-20.

      Appellant raises two arguments in this appeal:

         1. Whether the trial court erred by not granting a mistrial
         following an exchange during examination between the
         prosecutor and a witness, Victor Devalia, during which Mr.
         Devalia stated that his assurance that he was not involved
         in the murder was based on his willingness to submit to a
         lie detector test two times when he was arrested?

         2. Whether the trial court erred by not granting a mistrial
         following an exchange during direct examination between
         the prosecutor and a witness, Mr. Boggs, during which Mr.
         Boggs stated that he was familiar with the Appellant
         because they did time together?

Appellant’s Brief at 3.

      Appellant first argues that the trial court erred by refusing to grant a

mistrial when Devalia testified that he offered to take a lie detector test after

his arrest for Suber’s murder.      Appellant contends that the prosecutor’s

question induced Devalia to give this testimony, which improperly bolstered

his credibility. We disagree.

      The court may grant a mistrial “when an event prejudicial to the

defendant occurs during trial.” Pa.R.Crim.P. 605(B). A mistrial is a remedy

of last resort; “[a] trial court is required to grant a mistrial only where the



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alleged prejudicial event may reasonably be said to have deprived the

defendant of a fair and impartial trial.” Commonwealth v. Fortenbaugh,

63 A.3d 191, 193 (Pa. 2013) (citation and quotation marks omitted). The

decision to deny a mistrial is subject to review for abuse of discretion. Id.

         In determining whether a testimonial reference to a
         polygraph test warrants a mistrial, three factors are
         generally considered: (1) whether the Commonwealth
         prompted the reference to the polygraph test; (2) whether
         the reference suggested the results of the polygraph; and
         (3) whether the trial court issued prompt and adequate
         instructions regarding the unreliability and inadmissibility
         of polygraph tests . . . After consideration of these three
         factors, courts must assess the resulting prejudice to the
         defendant, an evaluation which turns on whether such
         reference, considered in light of the circumstances of the
         case, causes an inference to arise as to the defendant’s
         guilt or innocence.

Id. (citations omitted).

      Appellant fails to satisfy any of these three criteria.        First, the

prosecutor’s   question    to   Devalia—“[t]o   address   [defense   counsel’s]

insinuation that you were involved [in Suber’s murder,] can you assure us

that you were not involved in any respect?”—did not prompt Devalia to refer

to a polygraph test. The prosecutor only asked Devalia to assure the jury

that he was not involved in Suber’s murder. We agree with the trial court

that the prosecutor “did not refer to, or even obliquely hint at, a polygraph

test, and [Devalia’s] statement about the polygraph was completely

unprompted.” Trial Ct. Op., 4/29/16, at 4. Second, Devalia did not state

that he actually underwent a polygraph test, let alone suggest its results.



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Third, the trial court immediately instructed the jury to disregard Devalia’s

statement.       We   acknowledge     that   the   trial   court    did   not   follow

Fortenbaugh’s directive to instruct that polygraph tests are “unreliabl[e]

and inadmissibl[e].”     Fortenbaugh, 63 A.3d at 193.              Nevertheless, the

court asked whether any juror could not follow its instruction to disregard

Devalia’s statement, and no juror answered in the affirmative.                   See

Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011) (citation

omitted) (“[t]he law presumes that the jury will follow the instructions of the

court”).     Finally, we conclude that Devalia’s fleeting statement about

volunteering to take a lie detector test did not prejudice Appellant.            This

statement was entirely collateral to the issue of Appellant’s guilt or

innocence. The only inference that could possibly have arisen from Devalia’s

reference to a lie detector test was that Devalia was credible, not that

Appellant was guilty.     Having studied the record, we conclude that the

verdict was entirely the result of the substantial body of circumstantial

evidence summarized above.

      Appellant’s second argument is that the trial court should have granted

a mistrial when Boggs testified that he and Appellant “did time together.”

We disagree.

      The trial court perceptively observed:

           We first observe that the meaning of “we” as used by
           [Boggs] is not entirely clear, as it could represent [Boggs]
           and [Appellant], or [Boggs] and the victim. Assuming it
           does pertain to [Appellant], this vague statement was the


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         only reference made to [Appellant]’s prior criminal history.
         [Boggs] did not give any specificity as to the reason
         [Appellant] was incarcerated, or how long he was in
         prison. As with the other complained-of statement, the
         Commonwealth did not elicit the testimony, but rather it
         was volunteered by [Boggs] after answering the
         Commonwealth’s actual question. The court also again
         gave a prompt limiting instruction following the sidebar
         conference . . .

         The statement about [Appellant]’s incarceration was a
         “singular, passing reference,” unclear in both form and
         substance, that was volunteered by [Boggs]. Other than
         the statement itself, the record does not demonstrate any
         prejudice to [Appellant] caused by the statement,
         especially in light of the court’s prompt limiting instruction
         to the jury.

Trial Ct. Op. at 7. We agree with this analysis and conclude that no relief is

due.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/20/2017




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