J-A19016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

MARTELL HERRIOTT,

                            Appellant                      No. 358 WDA 2013


          Appeal from the Judgment of Sentence of October 11, 2012
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0010556-2011


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED SEPTEMBER 23, 2014

        Appellant, Martell Herriott, appeals from the judgment of sentence

entered on October 11, 2012 in the Criminal Division of the Court of

Common Pleas of Allegheny County, as made final by the denial of

                  -sentence motion. We affirm.

        At the conclusion of trial on July 24, 2012, the jury found Appellant

guilty of first-degree murder1 and carrying a firearm without a license.2 On

July 25, 2012, the trial court granted a petition to nolle prose a charge of

persons not to possess a firearm.3             On October 11, 2012, the trial court

____________________________________________


1
    18 Pa.C.S.A. § 2502(a).
2
    18 Pa.C.S.A. § 6106(a)(1).
3
    18 Pa.C.S.A. § 6105(a)(1).



* Former Justice specially assigned to the Superior Court.
J-A19016-14



sentenced Appellant to serve life in prison without parole for his first-degree

murder conviction. The court imposed no further penalty on the charge of

carrying a firearm without a license.



in the following manner:

      On June 30, 2011, at approximately 1:25 a.m. Officer [David]
      McManus was in a marked police car and responded to a
      dispatch of shots fired. Officer McManus was responding as
      backup to the unit dispatched to a male down at 5200 Keystone
      Street [in Pittsburgh, Pennsylvania]. Officer McManus was the
      first to arrive on scene. Upon arrival, Officer McManus found the
      victim face down with blood coming from underneath his body.
      It appeared that he was shot. The victim was unresponsive and
      appeared to have sustained injuries from at least one bullet. At
      that time, Officer McManus was approached by a female that
      stated her son witnessed the shooting. The victim was identified
      as Sean [Lydell] Thompson. Officer McManus did not observe
      any weapon or firearm on the victim.             The victim was
      transported to UPMC and pronounced dead at 1:56 a.m. on June
      30, 2011. The [young man] who witnessed the shooting was
      transported to [police] headquarters for questioning, along with
      his mother. Officer McManus testified that upon his arrival the
      street was very well lit. Officer McManus testified that there
      were some porch lights on; however, some parts of the street
      were darker, but not dark.

      Prosecution witness, Rachel Zwipf, was engaged to Mr.
      Thompson. She testified that they lived together with her older
      son in Lawrenceville at the time of the murder. [Ms. Zwipf]
      testified [that] on the evening of June 27, 2011, while asleep,
      she received a phone call from Mr. Thompson. Mr. Thompson
      asked Ms. Zwipf to come and meet him at the pizza shop next to

      Thompson and Ms. Zwipf went back and forth because she did

      wanted her to meet him. She subsequently got out of bed and
      drove to the bar Remedy [], located a few minutes from her
      home. Ms. Zwipf testified that there was a sense of urgency in


                                        -2-
J-A19016-14


     the demeanor of Mr. Thompson when he was requesting her to
     get inside the bar. Mr. Thompson introduced her to several
     gentlemen. One of these men was [Appellant]. Ms. Zwipf
     testified she was in close proximity to Mr. Thompson and



     the bar, and it appeared to her that he was trying to make a
     point.    [Appellant] and Ms. Zwipf were in the bar for
     approximately fifteen minutes before they both left the bar.
     While in the bar, Ms. Zwipf testified [that Appellant] was wearing
     a fisherman style hat. [Appellant] came outside of the bar when
     the couple left and interrupted in their conversation and Ms.
     Zwipf found this suspicious.          After about five minutes,
     [Appellant] went back inside the bar. At some point outside of
     the bar Mr. Thompson told Ms. Zwipf about a beef, or dispute [,]
     that a friend of his had with [Appellant], and another man,
     Montez Freeman. Ms. Zwipf believed that this was part of the
     reason she was asked to come to the bar by Mr. Thompson. Mr.
     Thompson told her to walk home, because he did not want them
     to know what kind of car she drove. Upon Mr. Thompson
     returning home that night, he indicated he did not want to talk
     about what was going on with the men she met at the bar.

     On June 29, 2011, Mr. Thompson and Ms. Zwipf went to his
                                                                 10:00
                                                                sic] go
     to the Remedy. Mr. Thompson left Ms. Zwipf in the car and went
     inside the bar to get cigarettes for his sister. Prior to entering
     the bar, Ms. Zwipf testified that Mr. Thompson was in a good
     mood and they planned on staying in the rest of the evening.
     Mr. Thompson was in the bar approximately five minutes and
     returned to the car. Upon his return, his demeanor had changed
     significantly. He appeared upset and agitated. Mr. Thompson
     told Ms. Zwipf that he needed to return to the bar after taking

     two had a heated argument at the house. Ms. Zwipf testified
     that he looked sad, and she was concerned about him returning
     to the bar. She tried to tell him to stay at home. Mr. Thompson
     left in the car and she went to bed. Ms. Zwipf woke up around
     12:30 a.m., and spoke with Mr. Thompson on a cell phone and
     he told her he would be home in about fifteen minutes.




                                   -3-
J-A19016-14


     Ernestine Jordon, Mr

     12:30 [a.m.] and 1:45 a.m. on June 30, 2011. Officer Evans
     testified that their address on Natrona Way is literally around the
                                         ess on Keystone. Ms. Jordan
     testified her son left her house that morning and within minutes
     she heard gun shots. Shortly afterward, someone knocked on
     her door and she was informed that her son had been killed up
     the street.

     On June 30, 2011, Jacob Orcun (referred to earlier as the [young
     man] who witnessed the shooting) was on the third floor of his
     house at 5233 Keystone Street at approximately 1:00 a.m. and
     heard gunshots. He immediately ran to the other room and
     opened the window. The distance from the house of the witness
     to the sidewalk was eight feet, 11 inches. The distance from the
     front of the house to the width of Keystone Street was 29 feet,
     ten inches. He saw a white SUV and a man holding a gun. He
     described the man as [an] African American male, heavy set,
     almost six feet tall, between 20-30 years old, with side burns.
     Mr. Orcun further testified the gun was black in color and that he

                                                  he man moved over
     the front door of the car and began to shoot over the hood.
     When he looked out the window there were three lit light posts
     on the street. After the shooting, Mr. Orcun ran downstairs and
     told his mom that he had witnessed the shooting. When he told
     his mom that he had witnessed the shooting she went over to a
     police officer. A few hours later he was interviewed by the
     police. Mr. Orcun testified that he had witnessed [Appellant] get
     out of the car, shoot and walk closer, and shooting more.
     Subsequently, he picked [Appellant] out of a photo array.
     Detective [James] McGee testified that as soon as Mr. Orcun
     looked at the array he saw the photograph; he pointed right to it


     Ms. Jasmine Lewis was talking with Mr. Thompson just before he
     was shot on Keystone Street. She started to walk away and
     heard shots fired. Ms. Lewis was interviewed by the police the
     following day and identified the shooter through a photo array.
     The Defendant was the person Ms. Lewis identified in the photo
     array as the shooter.




                                    -4-
J-A19016-14


     Detective Klaczak, from the investigations branch, works the
     night felony squad. He investigated the scene of the shooting.
     He recovered fifteen 40 caliber casings on the scene. All the
     casings had Smith and Wesson on them. Thirteen out of fifteen
     were brand name Winchester; two of them were PMC.

     Firearms expert, Dr. Robert T. Levine, testified that he
     determined that all fifteen casings were discharged from the
     same firearm.     He further concluded that the firearm was
     probably a 40-caliber Glock.

     On July 23, 2011, at approximately 1:30 a.m. Officer Schmidt
     received a call from a reliable, confidential informant that a male
     with an outstanding warrant was located inside the Red Onion
     Bar located at the intersection of Kirkpatrick Street and Webster
     Avenue. Officer Schmidt was provided a detailed description of
     the homicide actor, the male with the outstanding warrant. The
     actor they were looking for was [Appellant]. Officer Schmidt had
     a photo of the suspect. Officer Schmidt and Office McManus
     observed [Appellant] exit the bar and enter a Chevy Tahoe in the
     rear passenger seat. A pursuit followed. Officer Schmidt was in
     the passenger seat. His primary responsibility was observing the
     vehicle and advising police dispatch. There were times during
     the pursuit he did not have full visibility of the vehicle. One of
     those times was when the vehicle made a right hand turn onto
     Jane Street from 24th Street. Officer Schmidt observed a black
     firearm come out of the passenger window as they continued to
     pursue the vehicle.       Officer Schmidt had a clear view of
     [Appellant] throwing the firearm out the window. The pursuit
     ended at 28th and Jane Street where the vehicle stopped.
     [Appellant] was apprehended and asked to provide his personal
     information: name, date of birth, social security number, (as the
     officer does with all his arrests). [Appellant] responded that his
     name was David Williams.

     Officer McManus went back to the scene where [Appellant] threw
     the gun and recovered a loaded Glock 27, 40-caliber firearm.
     The gun was loaded with a magazine clip with eight rounds in
     the magazine and one round in the chamber of the gun.
     Subsequently, Officer Stern was working on July 23, 2011, and
     recovered a gun magazine from Jane Street found by a resident.
     The magazine was made of polymer plastic as opposed to a steel
     magazine. This magazine, if inserted into a 40 caliber Glock
     firearm, would hold a total of 32 rounds of ammunition. The 32

                                    -5-
J-A19016-14


     rounds of ammunition would consist of 31 rounds in the
     magazine and 1 round in the guns chamber. Upon review of the
     video of the chase with [Appellant], the magazine was found on
     that route.    The magazine when found had 17 rounds of
     ammunition. The 17 rounds of ammunition were manufactured
     by Winchester.

     Officer Stern documented in a police report where the magazine
     was found and a description of the magazine.         When the
     magazine was turned into the property room, Officer Stern was
     unaware of the chase earlier in the morning. The magazine was
     ultimately destroyed by the evidence room. However, Officer
     Stern was shown a magazine, which was introduced into
     evidence, that was consistent with the magazine he recovered
     and documents. Ultimately, it was determined the recovered
     gun was not the gun used to shoot the victim Mr. Thompson.
     Simply stated the weapon utilized to kill Mr. Thompson was
     never recovered.

     Dr. Robert Levine was questioned about the polymer plastic
     magazine recovered on July 23, 2011.         He testified if the
     polymer plastic magazine had a number 31 and the letters RDS
     on it, this indicates it had capacity for 31 cartridges
     (bullets/rounds). He further stated, polymeric is a type of plastic
     material. Glock magazines have a plastic outer shell associated
     with them, so it is consistent with a Glock pistol. Dr. Levine
     testified the gun used in the shooting was probably a 40 caliber
     Glock. He further stated, based on his knowledge of the firing
     pin impression, the firing pin aperture marks, and the polygonal
     rifling, he would be shocked if any other manufacturer of a
     firearm was used in this incident (i.e. other than Glock). He
     concluded the polymeric magazine recovered could have been
     used to load the gun used in the shooting.

Trial Court Opinion, 7/23/13, 2-11.

     Followi                                                 -degree murder

and related charges, counsel for Appellant presented an oral post-sentence



January 17, 2013. A timely notice of appeal ensued on February 15, 2013.


                                      -6-
J-A19016-14


On February 20, 2013, the trial court directed Appellant to file a concise

statement of error complained of on appeal pursuant to Pa.R.A.P. 1925(b).

After requesting and receiving an extension of time, Appellant filed his

concise statement on April 4, 2013. The trial court issued its opinion on July

23, 2013.

      Appellant raises two claims for our review:

       I.    DID THE TRIAL COURT ABUSE ITS DISCRETION BY
             PERMITTING THE COMMONWEALTH TO PRESENT OTHER
             CRIMES EVIDENCE THAT APPROXIMATELY A MONTH AFTER
             THE HOMICIDE, [APPELLANT] POSSESSED A FIREARM
             THAT WAS NOT USED IN THE HOMICIDE AND HE MAY
             HAVE POSSESSED AN EXTENDED MAGAZINE THAT WAS
             NOT DEFINITIVELY CONNECTED TO THE HOMICIDE?

       II.   DID THE TRIAL COURT ABUSE ITS DISCRETION BY
             ADMITTING PREJUDICIAL HEARSAY TESTIMONY BY THE

             THE VICTIM THAT IMPLICATED [APPELLANT]?



      In his first issue, Appellant claims that the trial court abused its

discretion in admitting evidence pertaining to other crimes which showed



discarded a loaded gun and an extended magazine during a police chase.

Appellant argues that because the gun was not used in the shooting, and

because it was not proven that the magazine was used in the shooting, this

evidence was irrelevant and prejudicial and therefore should not have been

admitted at trial.




                                    -7-
J-A19016-14


                                                  -settled standard of review

and firmly established principles:

      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.
      Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002).


      having any tendency to make the existence of any fact that is of
      consequence to the determination of the action more probable or
      less probable than it would be without the evide


      value is outweighed by the danger of unfair prejudice, confusion
      of the issues, or misleading the jury, or by considerations of
      undue delay, waste of time, or needless presentation of
                                                 Commonwealth v.
      Kitchen, 730 A.2d 513 (Pa. Super. 1999).]

      Because all relevant Commonwealth evidence is meant to
      prejudice a defendant, exclusion 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. As this Court has noted, a trial court is not required
      to sanitize the trial to eliminate all unpleasant facts from the
      jury's consideration where those facts form part of the history
      and natural development of the events and offenses with which
      [a] defendant is charged. Commonwealth v. Serge, 837 A.2d
      1255, 1260-[12]61 (Pa. Super. 2003).

      In addressing the admissibility of a gun for demonstrative
      purposes, the Pennsylvania Supreme Court has held that:

        [a] weapon shown to have been in a defendant's possession
        may properly be admitted into evidence, even though it
        cannot positively be identified as the weapon used in the
        commission of a particular crime, if it tends to prove that
        the defendant had a weapon similar to the one used in the
        perpetration of the crime.




                                     -8-
J-A19016-14


      Commonwealth v. Williams, 640 A.2d 1251 (Pa. 1994).
      Similarly, in Commonwealth v. Shoatz, 366 A.2d 1216 (Pa.
      1976), the Pennsylvania Supreme Court stated that:

        [A]t the time of his arrest approximately one and one-half
        years after the incident, appellant along with his
        companions were found to have possessed numerous
        advanced military weapons and munitions. These items
        included two of the United States Army's most advanced
        automatic rifles or machine guns, the M-16, plastic
        explosives manufactured solely for military use and other
        various military-type of ammunition. It is now contended
        that this evidence was irrelevant and served only to inflame
        and prejudice the jury since appellant was not being tried
        for the possession of this property.

                                     ***

        Inasmuch as the instruments and devices found on
        appellant consisted of guns, ammunition and explosives, all
        of which corresponded generically and some of which
        corresponded exactly to the type of ammunition used in the
        homicide, it was relevant as a circumstance to help identify
        appellant and to help to connect him with the crime of
        which he was accused ...

        Shoatz, 366 A.2d 1216, 1225-26.

Commonwealth v. Broaster, 863 A.2d 588, 591-593 (Pa. Super. 2004),

appeal denied, 876 A.2d 392 (Pa. 2005).

      Applying these principles in the case at bar, it is evident that Appellant

is not entitled to relief on his opening claim. As the trial court observed, the

discarded gun and magazines were relevant to connect Appellant with the



victim was shot with a handgun of the same caliber; and, (2) the recovered

magazine housed the same number of rounds that would have been left


                                     -9-
J-A19016-14


after a 15-round volley (the number of shell casings recovered at the crime

scene one month earlier). Furthermore, no unfair prejudice emanated from

the admission of this evidence since the trial court instructed the jury that

the proof should be considered for identification purposes only and that the

gun was not used to kill the victim. Since the trial court did not abuse its

discretion in admitting this evidence, Appellant is not entitled to relief on his

initial claim.

      In his second claim, Appellant complains that the trial court erred and



girlfriend. In developing this claim, Appellant points to testimony in which

                                     he victim said that he had a dispute with

Appellant which he (the victim) needed to address.       Appellant argues that




under the state of mind exception to the rule against hearsay. We conclude

that this claim is meritless and that Appellant is not entitled to relief. In the

alternative, even if Appellant established that admission of the challenged

testimony violated the rule against hearsay, we find that this error was

harmless.


      while testifying at the trial or hearing, offered in evidence to

      Hearsay

      Pa.R.E. 802. One of the more well-established exceptions to the

                                     - 10 -
J-A19016-14


      inadmissibility of hearsay evidence, commonly referred to as the

      exceptions in Pa.R.E. 803. Specifically, Rule 803(3) provides an
      exception to the hearsay rule for:

        (3) Then Existing Mental, Emotional, or Physical Condition.
        A statement of the declarant's then-existing state of mind
        (such as motive, intent or plan) or emotional, sensory, or
        physical condition (such as mental feeling, pain, or bodily
        health), but not including a statement of memory or belief
        to prove the fact remembered or believed unless it relates
        to the validity or terms of the declarant's will. Pa.R.E.
        803(3).

Commonwealth v. Green, 76 A.3d 575, 579 (Pa. Super. 2013), appeal

denied, 87 A.3d 318 (Pa. 2014).

      In this case, the trial court found that the challenged testimony related

solely to the vict

                                                              See Trial Court

Opinion, 7/23/13, at 22-25.       Our review of the record confirms this

assessment. Hence, we perceive no error or abuse of discretion in the trial



trial court erred in admitting the challenged evidence under Rule 803(3), we

conclude that any such error was harmless in view of the independent and

compelling                                    See Green, 76 A.3d at 583

(finding that trial court abused its discretion in admitting hearsay statements

from two witnesses under the state of mind exception but that error was

harmless given other evidence of guilt); Commonwealth v. Levanduski,

907 A.2d 3, 22 (Pa. Super. 2006) (en banc


                                    - 11 -
J-A19016-14


wife/defendant and her paramour inadmissible in murder trial under state-

of-mind   exception   but   that   error   was   harmless   in   view   of   other

overwhelming evidence), appeal denied, 919 A.2d 955 (Pa. 2007), cert.

denied, 552 U.S. 823 (2007). Thus, no relief is due.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




                                     - 12 -
