J-S56038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    JOHN ROSS,

                             Appellant                  No. 2100 EDA 2016


           Appeal from the Judgment of Sentence February 19, 2016
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0013294-2012


BEFORE: BOWES, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED OCTOBER 18, 2017

        Appellant, John Ross, appeals from the judgment of sentence imposed

following his jury conviction of persons not to possess a firearm.1 We affirm.

        The trial court aptly summarized the factual and procedural history of

this case as follows:

               Shortly after midnight on October 13, 2012, Officer James
        Tumolo (“Officer Tumolo”) and his partner, Officer Thomas
        D’Alesio (“Officer D’Alesio”) received a radio call for a person with
        a gun at 5410 Sharswood Street in Philadelphia, Pennsylvania.
        The two suspects were described as black males who were
        wearing dark clothing and had a long gun, presumably a rifle.
        When the officers arrived at the scene roughly 2-3 minutes after
        the initial call, Officer Tumolo came into contact with the 911
        caller, James Reese, who appeared to be intoxicated. Mr. Reese
        was initially cooperative, identifying himself as the caller and
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6105(a)(1).
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     directing the officers to the property at 5410 Sharswood Street,
     located about five homes from the end of the block. However,
     Officer Tumolo testified that Mr. Reese eventually refused to
     cooperate with detectives.

            Because several other officers were already stationed at the
     front of the house, Officer D’Alesio proceeded to the rear of the
     property to secure the back entrance. Officer Tumolo remained
     at the front of the house to ensure that no one entered or exited
     the property. From his vantage point in the back alley, Officer
     D’Alesio observed trash bags taped over the windows of 5410
     Sharswood Street. However, because there were holes in some
     of the bags, the officer also observed light from the interior of the
     building, indicating that the house was currently occupied.
     Roughly 30 seconds after arriving in the back alley, Officer
     D’Alesio saw the upstairs left-hand window open up. At that time,
     [Appellant] proceeded to exit through the window onto the porch
     roof, then from the roof into the backyard. [Appellant] then
     proceeded to exit the yard through a hole in the fence, eventually
     running down the alley towards where the officer was standing.
     When [Appellant] was about 5-10 feet away, Officer D’Alesio
     turned on his flashlight, retrieved his firearm, and ordered
     [Appellant] to the ground. [Appellant] complied. At trial, Officer
     D’Alesio stated that after he frisked [Appellant], he then stated
     that he did not have any guns. He said, “[T]hey had guns[.] They
     were robbing me.” [(N.T. Trial, 9/29/15, at 53)]. However,
     Officer D’Alesio also testified that these were not the first words
     out of [Appellant’s] mouth when he came into contact with the
     officer; rather, this was [Appellant’s] response to being frisked.
     Additionally, other than [Appellant], Officer D’Alesio did not see
     anyone enter or exit the house during the time that they were on
     the scene.

           After [Appellant] was secured, Officer D’Alesio entered the
     property through the back door, which led to the kitchen. There,
     Officer D’Alesio observed that the oven door was open and all of
     the burners were on; this appeared to be heating the house.
     Otherwise, the house appeared to be vacant, as there was no
     furniture or evidence of other personal effects. After clearing the
     downstairs area, Officer D’Alesio opened the front door to allow
     his partner and the other officers to enter the house.

          The officers proceeded to the second floor of the house,
     eventually entering the rear bedroom from which [Appellant] had

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     exited the house moments earlier. Inside the bedroom, there was
     a SKS-style assault rifle on the floor inside of a trash bag, partially
     sticking out. Additionally, there was a black revolver handgun on
     a table, as well as two surgical gloves, one containing a white
     powder substance and several pills which were confirmed to be
     generic Percocet. However, the room did not appear to be in
     disarray.

            A search warrant was executed by Detective James Horn,
     who testified as to the findings at trial. The following items were
     recovered from the property: (1) black RG Industry model RG23,
     .22 caliber long rifle with an obliterated serial number loaded with
     four live .22 caliber rounds; (2) One magazine containing seven 9
     millimeter rounds; (3) Brown stock Russian SKS assault rifle 7.62
     millimeter loaded with one round in the chamber and 12 in the
     magazine; (4) two additional magazines for the assault rifle, one
     empty and one loaded with two live rounds; (5) banana clips; (6)
     a blue latex glove with white powdery substance. Detective Horn
     reiterated that the house was not in any state of disarray; rather,
     it was vacant and generally in poor condition. No currency was
     found at the scene, nor were any robbery suspects located at the
     scene or elsewhere. An additional search warrant was executed
     to collect a sample of [Appellant’s] DNA for purposes of comparing
     the sample with the prints and DNA found on the items recovered
     from the house. . . .

           Crime Scene Investigator Gary Guaraldo testified that he
     conducted a latent examination on the rifle, the three magazines
     and the handgun. Although each of the items came back negative,
     Officer Guaraldo explained that statistically speaking, retrieving a
     fingerprint from a modern gun is successful less than 10 percent
     of the time.

                                  *    *    *

             On September 29, 2015, [Appellant] appeared before the
     [trial court] for a jury trial. On that same day, the Commonwealth
     litigated a motion in limine to admit evidence of a shooting that




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       occurred at 5410 Sharswood Street in [May] 2012,[2] in which
       [Appellant] sustained a gunshot wound. The Commonwealth
       argued that the incident was relevant to [Appellant’s] relationship
       to the block and to his access to the property. It sought to include
       evidence of the incident as a fact, rather than an act on the part
       of [Appellant]; however, the Commonwealth argued, if the court
       were to consider the shooting as [Pa.R.E.] 404(b) evidence, it
       would be permissible to show motive. The motion was granted
       and the matter proceeded to trial.[3]

(Trial Court Opinion, 2/17/17, at unnumbered pages 1-5) (most record

citations omitted).

       On October 5, 2015, the jury found Appellant guilty of the above-stated

offense. On February 19, 2016, the trial court sentenced him to a term of not

less than four and one half nor more than nine years’ incarceration.

Appellant’s timely post-sentence motions were denied by operation of law on

June 29, 2016. This timely appeal followed.4

       Appellant raises one issue for our review:

       Did not the trial court err in allowing the Commonwealth to
       present testimony that [A]ppellant had been previously shot, and
       his friend killed, in the same neighborhood as the instant incident,
____________________________________________


2The trial court mistakenly provides a date of October 2012 for the shooting.
However, it is clear from the record that the relevant date is May 17, 2012.
(See N.T. Trial, at 134-35).

3 At trial, in brief testimony spanning two pages of the trial transcript,
Detective Joseph Centeno testified that: he was involved in the investigation
of the May 2012 shooting which occurred on the 5400 block of Sharswood
Avenue; Appellant was shot in the right arm and thigh; two of his friends also
were shot, one fatally; and no one was arrested in connection with the
incident. (See N.T. Trial, at 134-35).

4 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on August 22, 2016. The trial court filed an opinion
on February 17, 2017. See Pa.R.A.P. 1925.

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      where such testimony was pure propensity evidence barred by
      Rule 404(a) of the Pennsylvania Rules of Evidence and failed to
      satisfy an exception under Rule 404(b), and regardless of the
      purpose for which the trial court permitted the evidence, it should
      have been precluded as irrelevant and unduly prejudicial under
      Rules 404(b)(2) and 403?

(Appellant’s Brief, at 3).

      In his issue on appeal, Appellant challenges the trial court’s admission

of evidence regarding the May 2012 shooting. (See id. at 12-24). Appellant

maintains that this evidence was irrelevant, that it was improper propensity

evidence precluded by Pa.R.E. 404(b), and that it was unfairly prejudicial.

(See id.). We disagree.

      Our standard of review is as follows:

             Admission of evidence is within the sound discretion of the
      trial court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. 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.

Commonwealth v. Tyson, 119 A.3d 353, 357–58 (Pa. Super. 2015) (en

banc), appeal denied, 128 A.3d 220 (Pa. 2015) (citations omitted).

      “Relevance is the threshold for admissibility of evidence.” Id. at 358

(citation omitted). “Evidence is relevant if . . . it has any tendency to make a

fact more or less probable than it would be without the evidence [] and . . .

the fact is of consequence in determining the action.” Pa.R.E. 401(a)-(b). “All

relevant evidence is admissible, except as otherwise provided by law.

Evidence that is not relevant is not admissible.” Pa.R.E. 402. “The court may



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exclude relevant evidence if its probative value is outweighed by a danger of

. . . unfair prejudice[.]” Pa.R.E. 403. “[A]ll evidence in a criminal proceeding

is prejudicial to the defendant, and . . . relevant evidence is to be excluded

only when it is so prejudicial that it may inflame the jury to make a decision

based upon something other than the legal propositions relevant to the case.”

Commonwealth v. Colon, 846 A.2d 747, 753 (Pa. Super. 2004), appeal

denied, 870 A.2d 320 (Pa. 2005) (citation and internal quotation marks

omitted).

      Pennsylvania Rule of Evidence 404(b) provides, in pertinent part:

      (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).

      Regarding this rule, “[e]vidence of prior crimes is not admissible for the

sole purpose of demonstrating a criminal defendant’s propensity to commit

crimes.” Tyson, supra at 358 (citation omitted; emphasis added).

           Evidence of a defendant’s prior criminal activity is
      inadmissible to demonstrate his bad character or criminal
      propensity.
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            It has been succinctly stated that (t)he purpose of this rule
      is to prevent the conviction of an accused for one crime by the use
      of evidence that he has committed other unrelated crimes,
      and to preclude the inference that because he has committed
      other crimes he was more likely to commit that crime for which
      he is being tried. The presumed effect of such evidence is to
      predispose the minds of the jurors to believe the accused guilty,
      and thus effectually to strip him of the presumption of innocence.

Commonwealth v. Cox, 115 A.3d 333, 337 (Pa. Super. 2015) (en banc),

appeal denied, 124 A.3d 308 (Pa. 2015) (citations omitted; emphasis added).

      Here, the Commonwealth presented evidence that Appellant was the

victim of a shooting, not that “he has committed other unrelated crimes[.]”

Id. (citation omitted). Rule 404(b) has no applicability in this context. The

testimony concerning the shooting was not evidence of any “crime, wrong or

act” by Appellant. As a result, the evidence was not inadmissible under Rule

404(b), because this rule was not implicated.       See Commonwealth v.

Johnson, 160 A.3d 127, 146 (Pa. 2017) (concluding that Rule 404(b) was not

implicated where the subject testimony was “not evidence of any particular

‘crime, wrong or act’ by [Appellant].”).

      Furthermore, the evidence at issue was clearly relevant to the

Commonwealth’s case against Appellant. As previously noted, “Rule 401 of

the Pennsylvania Rules of Evidence provides a broad definition of relevant

evidence, as 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.” Id. (citation and internal quotation marks omitted). “Even



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evidence that merely advances an inference of a material fact may be

admissible.” Id. (citation omitted).

      Instantly, the testimony regarding the shooting on the block of the 5410

Sharswood Avenue property was probative to show Appellant’s ties to the

abandoned house, and that his presence in the area was not random. The

evidence also provided a possible explanation for his possession of a gun, for

self-protection, in an area where he was recently the victim of a violent crime.

Although this evidence may have been harmful to Appellant, it was not so

unfairly prejudicial as to necessitate its exclusion, especially in light of the fact

that he was the injured party. See Pa.R.E. 403; Colon, supra at 753.

      In sum, we conclude that the trial court’s admission of the challenged

evidence did not constitute a clear abuse of discretion. See Tyson, supra at

357–58. Therefore, Appellant’s issue on appeal merits no relief. Accordingly,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/17




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