J-S49001-14

                      2014 PA Super 253
COMMONWEALTH OF PENNSYLVANIA,         IN THE SUPERIOR COURT OF
                                            PENNSYLVANIA
                  Appellee

                    v.

BRAHEIM PARKER,

                         Appellant                   No. 918 EDA 2011


          Appeal from the Judgment of Sentence of March 4, 2011
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0008056-2009

BEFORE: OLSON, OTT and STABILE, JJ.

OPINION BY OLSON, J.:                          FILED NOVEMBER 06, 2014

      Appellant, Braheim Parker, appeals from the judgment of sentence

entered on March 4, 2011. In this appeal, we consider whether an out-of-

court question can be hearsay. We hold that an out-of-court question can

be hearsay if it includes an assertion.     We conclude, however, that the

hearsay statement in this case was properly admitted into evidence. As we

also conclude that Appellant is not entitled to relief with respect to his

remaining claims of error, we affirm.

      The trial court1 accurately set forth the factual background of this case

as follows:




1
  We are grateful to the Honorable Linda A. Carpenter for her thorough
opinion in this case. The original trial judge resigned three months after the
judgment of sentence was entered and Judge Carpenter was later assigned
to this case for the purposes of issuing a Rule 1925(a) opinion.
J-S49001-14


      On August 5, 2008, shortly after midnight, Dorothy Miller
      [(“Grandmother”)] observed her grandson, Chauncy Miller
      [(“Victim”)], go out onto the porch of her house, located on 29th
      Street between Jefferson Street and Master Street in the City of
      Philadelphia.   Approximately one hour later, [Victim] called
      [G]randmother and, with a frustrated voice, asked her to “tell
      Bey that he had been in the house all day” and to tell Bey that
      “he didn’t take anything from anybody and doesn’t have
      anything.” [Grandmother] instructed [Victim] to put Bey on the
      phone,    but    moments     later   the   phone    went    dead.
      Approximately[] ten minutes later, [G]randmother received
      another call in which the caller said “Grandmom, Chauncy just
      been shot on 28th Street outside right where the church is.”
      [Grandmother] immediately went to the location on 28th Street,
      but could not see [Victim] because the police had already placed
      a sheet over his body and were securing the crime scene.

      Anthony Hyman [(“Hyman”)] had been sitting out on the porch
      of a friend’s house located near 1400 North 28th Street when he
      heard a gunshot.       He looked toward Jefferson Street and
      observed a male weaving in and out of parked cars being chased
      by another male who continued shooting at him. Hyman ran
      into the lot on the corner and laid in the grass. He heard
      another shot and then saw the male being shot at run past the
      lot. After the gunshots had stopped, Hyman exited the lot and
      saw a male named Dante Jones [(“Jones”)] and a female walking
      from Master Street onto 28th Street. Hyman then saw the body
      of the man who was shot lying in the street. Hyman told Jones
      that he had not seen the shooter, even though he had, because
      he did not want his knowledge of the shooting being spread to
      the [community]. Jones told Hyman that the male who had
      been shot was named Chauncy.

      Officer [Lynda] Smith was the first officer to respond to the radio
      call for a shooting in the vicinity of 28th Street and Master Street
      and, upon arrival, observed [Victim] lying on the ground with
      Hyman and Jones standing next to him. [Victim] was not
      conscious, was bleeding from the head, and was pronounced
      dead at 1:40 a.m. by [a paramedic].

Trial Court Opinion, 2/24/14, at 4-5 (internal alterations, footnotes, and

honorifics omitted).



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        The procedural history of this case is as follows.   On September 23,

2008, a criminal complaint was filed charging Appellant with first-degree

murder,2 possession of a firearm by a prohibited person,3 carrying a firearm

without a license,4 carrying a firearm on the streets of Philadelphia,5 and

possession of an instrument of crime.6        On June 19, 2009, a criminal

information was filed charging those same offenses.7 On February 28, 2011,

a jury was seated and trial began on March 1, 2011.          On March 4, 2011,

Appellant was found guilty of all charges and was immediately sentenced to

an aggregate term of life imprisonment without the possibility of parole.

        Appellant filed a timely notice of appeal.   On April 6, 2011, the trial

court issued an order pursuant to Pennsylvania Rule of Appellate Procedure

1925 requiring Appellant to file a concise statement of errors complained of

on appeal (“concise statement”). See Pa.R.A.P. 1925(b). Appellant failed to

timely comply with that order.      On November 6, 2013, Appellant filed an

application with this Court requesting that the case be remanded for the

2
    18 Pa.C.S.A. § 2502(a).
3
    18 Pa.C.S.A. § 6105(a)(2)(i).
4
    18 Pa.C.S.A. § 6106(a)(1).
5
    18 Pa.C.S.A. § 6108.
6
    18 Pa.C.S.A. § 907(a).
7
  However, the possession of a firearm by a prohibited person charge was
changed from a violation of section 6105(a)(2)(i) to a violation of section
6105(a.1)(1).



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J-S49001-14


filing of a concise statement and the issuance of a Rule 1925(a) opinion. On

November 26, 2013, this Court granted Appellant’s request and remanded

this matter to the trial court.     On December 16, 2013, Appellant filed his

concise statement, which included all issues raised on appeal. On February

24, 2014, the trial court issued its Rule 1925(a) opinion.

        Appellant presents five issues for our review:

        1. Did the trial court err when it denied [the] defense motion in
           limine to not allow hearsay testimony of a conversation
           between [Victim] and [G]randmother?

        2. Did the trial court err when it permitted the jury to be
           provided the statement and photo array [presented to the]
           main Commonwealth witness?

        3. Did the trial court err when it denied [the] defense motion for
           [a] mistrial when a police detective testified a photo array
           was generated from a police [database]?

        4. Did the trial court err when it denied [the] defense motion to
           prevent [a] detective from testifying about double hearsay
           concerning [the C]ommonwealth witness’ motivation to testify
           less than truthfully?

        5. Did the trial court err in charging the jury on flight when the
           record failed to establish evidence of flight?

Appellant’s Brief at 1.8

        Appellant first challenges the trial court’s denial of his motion in limine

to prohibit introduction of the utterances by Victim to Grandmother.

Appellant contends that such utterances were inadmissible hearsay. “When

reviewing a ruling on a motion in limine, we apply an evidentiary abuse of

8
    We have re-numbered the issues for ease of disposition.



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J-S49001-14


discretion standard of review.      The admission of evidence is committed to

the sound discretion of the trial court and our review is for an abuse of

discretion.”   Commonwealth v. Orie, 88 A.3d 983, 1022 (Pa. Super.

2014), appeal denied, 172 WAL 2014 (Pa. Sept. 17, 2014) (internal

alteration and citation omitted).

      Appellant objects to the following questioning of Grandmother by the

Commonwealth:

      Q. Can you describe for the members of the jury what he said,
      what [Victim] said?

      A. He said, Grandmom, he said, Can you tell Bey I didn’t
      take anything from anybody and I don’t have anything?
      He said, But can you tell him I didn’t take anything from
      him or the house. And I said, Put Bey on the phone and I will
      tell him you been in the house all day and you just went out on
      the porch. And he said – I said, Where’s Bey? I said put Bey on
      the phone.

      He kept talking to someone in the background; I could hear that.
      And then somebody was saying no, no, uh-uh, and I said, Well
      Chauncy, is he going to get on the phone? And the phone went
      dead.

      Q. When he said those things to you, can you describe his
      demeanor for the jury when he was speaking to you?

      A. It was like he, you know, like he -- I don’t know how to put it.
      You know not his regular voice. It was like he was, you know,
      like sort of like frustrated or something.

      Q. Did the name Bey mean anything to you?

      A. No

N.T., 3/1/11, at 65-66 (emphasis supplied).




                                       -5-
J-S49001-14


      Hearsay is defined as “a statement, other than one made by the

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

the truth of the matter asserted.” Pa.R.Evid. 801(c).9 Statement is defined,

in relevant part, as “an oral or written assertion[.]”      Pa.R.Evid. 801(a).

“Communications that are not assertions are not hearsay. These would

include questions, greetings, expressions of gratitude, exclamations, offers,

instructions, warnings, etc.” Pa.R.Evid. 801 cmt.

      The trial court found that the utterances by Victim to Grandmother

were not hearsay because they were questions and were not assertions

offered for the truth of the matter asserted.       N.T., 3/1/11, at 12.    We

disagree.

      Although the issue raised by Appellant has been addressed by a

multitude of courts throughout the country, neither this Court nor our

Supreme Court has confronted the issue. As the Supreme Court of Kentucky

has explained:

      Whether a question can be an assertion and, thereby, hearsay
      has been extensively discussed by numerous courts and
      commentators, though no consensus has been reached. The
      courts that have considered the issue have reached one of three
      conclusions: (1) a question can be hearsay if it contains an
      assertion; (2) a question can be hearsay if the declarant

9
   Unless otherwise noted, all references to the Pennsylvania Rules of
Evidence in this opinion are to the rules in place at the time of Appellant’s
trial. Effective March 18, 2013, the former rules of evidence were rescinded
and replaced with the current rules of evidence. See 43 Pa.B. 620 (Feb. 2,
2013). There are no substantive differences between the former rules
discussed in this opinion and the current rules.



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J-S49001-14


       intended to make an assertion; or (3) questions can never be
       hearsay because they are inherently non-assertive.

Harris v. Kentucky, 384 S.W.3d 117, 126 (Ky. 2012).

       The Kentucky Supreme Court adopted the first approach in Harris. It

reasoned that there is “no logical reason why the grammatical form of an

utterance—whether a declarative sentence, a command[,] or a question—

should conclusively determine whether the utterance is an assertion.” Id. at

127.   Other courts have reached similar conclusions.   See, e.g. Ex parte

Hunt, 744 So.2d 851, 857 (Ala. 1999); Powell v. Indiana, 714 N.E.2d

624, 627-628 (Ind. 1999) (“[V]erbal conduct intended to assert a fact but

phrased as a question is equally capable of being a ‘statement.’”); Brown v.

Virginia, 487 S.E.2d 248, 251 (Va. App. 1997) (en banc); Kolb v.

Wyoming, 930 P.2d 1238, 1246 (Wyo. 1996); Alaska v. McDonald, 872

P.2d 627, 645 (Alaska App. 1994); Iowa v. Rawlings, 402 N.W.2d 406,

409 (Iowa 1987) (“In the present case, the utterance . . . was couched as a

question but it was phrased in such a manner as to make it an implicit

assertion of the fact.”); Carlton v. Maryland, 681 A.2d 1181 (Md. Ct. Spec.

App. 1996).

       The District of Columbia Court of Appeals and several United States

Courts of Appeals have adopted the second approach.       See Harrison v.

United States, 76 A.3d 826, 835 n.7 (D.C. 2013); United States v.

Flores, 286 F. App’x 206, 213 (5th Cir. 2008) (per curiam); United States

v. Summers, 414 F.3d 1287, 1300 (10th Cir. 2005) (“focus [of] the inquiry


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J-S49001-14


[is] on the declarant’s intent”); United States v. Long, 905 F.2d 1572,

1579 (D.C. Cir. 1990) (“The caller’s words, thus, cannot be characterized as

an ‘assertion,’ even an implied one, unless the caller intended to make such

an assertion.”). These courts have adopted the second approach because of

the note to Federal Rule of Evidence 801(a). That note provides that, “When

evidence of conduct is offered on the theory that it is not a statement, and

hence not hearsay, a preliminary determination will be required to determine

whether an assertion is intended.” Fed.R.Evid. 801(a) note.

     Finally, some state and federal courts have adopted the third

approach. See United States v. Coplan, 703 F.3d 46, 84 (2d Cir. 2012);

Ohio v. Carter, 651 N.E.2d 965, 971 (Ohio 1995) (“[B]ecause a true

question or inquiry is by its nature incapable of being proved either true or

false and cannot be offered ‘to prove the truth of the matter asserted,’ it

does not constitute hearsay[.]”).

     We reject the third approach. As the United States District Court for

the Eastern District of Kentucky has stated:

     [W]hether or not the testimony constitutes hearsay is not
     determined solely on the grammatical form it takes. Although it
     is true that questions generally are not hearsay, this is true
     because a question merely seeks answers and usually has no
     factual content. But a question[] might contain an assertion
     within it, and when it does, it is properly excluded as hearsay.

Martin v. Patterson, 2014 WL 769173, *8 (E.D. Ky. Feb. 25, 2014)

(internal quotation marks and citation omitted).




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J-S49001-14


     There    are   clearly   situations   in    which   an    utterance,   although

grammatically formulated as a question, makes an implied assertion.                For

example, “Can you give me that pocket watch sitting on your desk?,” asserts

that a pocket watch is sitting on your desk.        Similarly, “Is Mr. Smith, the

newest teacher at the school, your neighbor?,” asserts that Mr. Smith is the

newest teacher at the school.      To hold that such utterances can never be

considered hearsay would permit the admission of any out-of-court

declaration as long as it was phrased as a question, instead of a direct

assertion. Under such an approach, the focus of a hearsay objection would

be on how a declarant made an utterance instead of the content of the

utterance.   Although such a bright-line approach may be appealing for its

simplicity, it would permit out-of-court utterances that the general rule

against hearsay is meant to preclude.

     The Commonwealth cites to Giant Eagle v. Unemployment Comp.

Bd. of Review, 659 A.2d 60 (Pa. Cmwlth. 1995), in support of its argument

that we should adopt the bright-line third approach.             In that case, the

Commonwealth Court stated that, “Clearly, when we speak of proving the

truth of the matter asserted we can only be speaking of a factual assertion,

not an order or a command, not a question or a request.” Id. at 62 (Della

Porta, S.J. opinion announcing the judgment of the court).

     Like    decisions   of   federal   courts    and    our    sister   states,   the

Commonwealth Court’s decisions provide only persuasive authority.                  See



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J-S49001-14


Graver v. Foster Wheeler Corp., 96 A.3d 383, 387 n.6 (Pa. Super. 2014).

In this case, however, we are not persuaded that Giant Eagle supplies the

proper rule of decision for two reasons. First, the decision is not binding on

the Commonwealth Court since the two other judges who comprised the

panel merely concurred in the result.         No subsequent panel of the

Commonwealth Court has cited to Giant Eagle for the proposition that

questions can never be assertions. Second, Senior Judge Della Porta did not

discuss the substantial case law from other jurisdictions on the matter or

provide any meaningful analysis. Instead, he made a conclusory statement.

Therefore, we decline to follow Senior Judge Della Porta’s pronouncement in

Giant Eagle.10

      We likewise reject the second approach, which holds that the

classification of a question as an assertion depends upon the subjective

intent of the declarant. Under this approach, there would be a mini-trial to

determine the subjective intent of the declarant.     While it is difficult to


10
   Justice Saylor’s concurring opinion in Commonwealth v. Lopez, 739
A.2d 485 (Pa. 1999), could be interpreted as expressing his opinion that
implied assertions are not hearsay. However, close examination of Justice
Saylor’s concurrence reveals that the implied assertions that he was
discussing were not, in fact, assertions. See id. at 506-507. Instead, the
utterance could only be considered an assertion if several assumptions were
made. The example discussed by Justice Saylor involved the prosecution’s
introduction of a letter from a codefendant containing a fabricated alibi. Id.
at 506 (citation omitted). The implied assertion that concerned Justice
Saylor required the jury to assume “the author needs a false alibi, because
he has no explanation for his conduct consistent with his innocence, because
he is guilty[.]” Id.



                                    - 10 -
J-S49001-14


determine the objective intent of an individual, attempting to ascertain an

individual’s subjective intent, when that individual is not testifying in court,

is even more difficult. “[R]are is the occasion when a party lays bare his or

her subjective intent[.]” United States v. Fletcher (In re Fletcher), 489

B.R. 224, 234 (Bankr.N.D. Okla. 2013); see also Commonwealth v. Syre,

489 A.2d 1340, 1346 (Pa. 1985) (Zappala, J. dissenting) (“In the absence of

the rare direct expression of an actor’s subjective intent and state of mind,

the mens rea must necessarily be proven by circumstantial evidence and

inferences arising from the actor’s words and deeds.”).         Thus, the second

approach is unworkable.       Instead, objective indicia should be used to

determine whether a question includes an assertion.

      Therefore, we agree with those jurisdictions that have held a question

can be hearsay if it contains an implied assertion offered for the truth of the

matter. This approach ensures that the substance of an utterance, not its

grammatical    form,    controls   whether    the   utterance     is   admissible.

Furthermore, such an interpretation of Rule 801 advances the policy goals of

the hearsay rules by excluding out-of-court utterances that are clearly

meant to assert the truth of a matter. Although it may require more inquiry

than a bright-line approach which considers all questions to be non-

assertive, it is still workable, unlike consideration of a declarant’s subjective

intent.   Courts are repeatedly asked, when making evidentiary rulings, to

consider objective factors to determine the intent of a party.            We are



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J-S49001-14


confident that the trial courts of this Commonwealth will be able to

determine if a question includes an implied assertion. Accordingly, we hold

that when a question includes an implied assertion, the question constitutes

a statement for the purpose of Rule 801(a). If that statement is offered for

the truth of the matter asserted, it is hearsay and is generally inadmissible.

        In this case, the questions asked by Victim clearly included an implied

assertion.    In particular, the questions included the implied assertion that

Victim had not taken “anything from anybody” and that Victim did not “take

anything from [“Bey”] or the house.” The questions also include the implied

assertion that “Bey” did not believe Victim. N.T., 3/1/11, at 65. Although

we hold that the questions by Victim were assertions, we conclude that the

trial   court’s   alternative   holding,   that   Grandmother’s   testimony   was

admissible under Pennsylvania Rule of Evidence 803(3), was correct.

        That Rule provides that:

        The following statements, as hereinafter defined, are not
        excluded by the hearsay rule, even though the declarant is
        available as a witness
                                     ***
        A statement of the declarant’s then existing state of mind,
        emotion, sensation, or physical condition, such as intent, plan,
        motive, design, mental feeling, pain, and bodily health. A
        statement of memory or belief offered to prove the fact
        remembered or believed is included in this exception only if it
        relates to the execution, revocation, identification, or terms of
        declarant's will.

Pa.R.Evid. 803(3).




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J-S49001-14


     “Generally, out[-]of[-]court statements by homicide        victims are

admissible when they are relevant to show proof of motive or malice.”

Commonwealth v. Kunkle, 79 A.3d 1173, 1185 (Pa. Super. 2013),11 citing

Commonwealth v. Luster, 71 A.3d 1029, 1041 (Pa. Super. 2013) (en

banc), appeal denied, 83 A.3d 414 (Pa. 2014);12 Commonwealth v.

Puksar, 740 A.2d 219, 225 (Pa. 1999). In Puksar, our Supreme Court held

that the victim’s statement that he had a dispute with the defendant over

model trains was admissible under the state of mind exception.      Puksar,

740 A.2d at 225.



11
   In Kunkle, this Court held that “statements from the decedent that he
was scared of [the defendant] and that if he were to end up dead it would be
[the defendant’s] fault” were admissible under the state of mind exception.
Kunkle, 79 A.3d at 1185 (internal quotation marks and citation omitted).
12
   In Luster, this Court, sitting en banc, held that the victim’s statements
“that she was fearful that [the defendant] was going to do something real
bad to her, and . . . that she was scared [the defendant] was trying to kill
her” were properly admitted under the state of mind exception. Luster, 71
A.3d at 1041 (internal quotation marks omitted). Five judges in Luster
rejected three judges’ view that, under Commonwealth v. Levanduski,
907 A.2d 3 (Pa. Super. 2006) (en banc), appeal denied, 919 A.2d 955 (Pa.
2007), the victim’s statements were not admissible under the state of mind
exception. See Luster, 71 A.3d at 1060-1061 (Ott, J. concurring in part
and dissenting in part) (discussing Levanduski).

In Commonwealth v. Green, a three-judge panel of this Court used the
same reasoning as the three-judge minority in Luster in holding that a
victim’s statement that she was afraid of the defendant was not admissible
under the state of mind exception. 76 A.3d 575, 579–582 (Pa. Super.
2013), appeal denied, 87 A.3d 318 (Pa. 2014).          However, as Judge
Strassburger correctly noted, the majority in Green did not cite (or discuss)
Luster. Id. at 587 (Strassburger, J. concurring).




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J-S49001-14


      In this case, Victim’s questions to Grandmother showed that an

individual named “Bey” had a motive to kill Victim.          Specifically, Bey

believed that Appellant had taken something from somebody.            Bey also

believed that Victim was not in Grandmother’s house earlier in the day. This

situation is akin to Puksar as Victim’s statements showed that there was a

dispute between Victim and Bey.        Thus, Victim’s assertion was clearly

relevant to show that Bey had a motive to kill Victim.         As such, it was

admissible under Pennsylvania Rule of Evidence 803(3).         Accordingly, the

trial court did not err by admitting Grandmother’s testimony regarding her

conversation with Victim prior to the murder.

      In his second issue on appeal, Appellant argues that the trial court

abused its discretion in permitting Commonwealth’s Exhibit 40 (the

statement made by Hyman, the Commonwealth’s key witness, with the

photo array presented to Hyman attached) to be sent back with the jury

during deliberations. Pennsylvania Rule of Criminal Procedure 646 provides,

in relevant part, that, “Upon retiring, the jury may take with it such exhibits

as the trial judge deems proper[.]”     Pa.R.Crim.P. 646(a).    “[W]hether an

exhibit should be allowed to go out with the jury during deliberation is within

the discretion of the trial judge, and such decision will not be overturned

absent an abuse of discretion.” Commonwealth v. Dupre, 866 A.2d 1089,

1102 (Pa. Super. 2005), appeal denied, 879 A.2d 781 (Pa. 2005) (citation

omitted).



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J-S49001-14


      Hyman testified that he was present when Victim was shot. See N.T.,

3/1/11, at 90.    He further testified that he did not see the shooter in the

courtroom that day.    Id. However, in a prior statement to police, he had

identified Appellant as the shooter. See Commonwealth’s Exhibit 40. When

Hyman refused to identify Appellant at trial, the Commonwealth attempted

to impeach his testimony with his prior inconsistent statement to police,

which was marked as Commonwealth’s Exhibit 40. Originally, when the jury

retired to deliberate, Commonwealth’s Exhibit 40 was not sent back with it.

However, the jury requested to see Commonwealth’s Exhibit 40 during its

deliberations.   Appellant objected to the exhibit being sent back with the

jury; however, the trial court overruled the objection.

      Appellant contends that this case is similar to Commonwealth v.

Russell, 322 A.2d 127 (Pa. 1974). In Russell, a prosecution witness who

had previously implicated the defendant exonerated him when called at trial.

Id. at 130. The prosecution sought to impeach the witness’ testimony by

introducing a prior inconsistent statement.     Id. at 130-131.   “The exhibit

was permitted in evidence solely for the purpose of impeachment.” Id. at

131. Thus, our Supreme Court stated that allowing the exhibit to go back

with the jury was an abuse of discretion. Id.

      However, in this case there is no indication that the statement was

admitted solely for the purpose of impeachment. To the contrary, it is clear

that the prior inconsistent statement was admitted as substantive evidence.



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See N.T., 3/3/11,13 at 14-15 (trial court discussing charging the jury with

Pennsylvania State Standard Criminal Jury Instruction 4.08A(2)); id. at 125

(trial court giving Pennsylvania State Standard Criminal Jury Instruction

4.08A(2)).    Appellant did not object to the statement being admitted as

substantive evidence.14 See id. at 21. Therefore, Russell is distinguishable

from the case at bar.

        Instead, we find that this case is similar to Commonwealth v.

Causey, 833 A.2d 165 (Pa. Super. 2003), appeal denied, 848 A.2d 927 (Pa.

2004), Commonwealth v. Merbeh, 411 A.2d 244 (Pa. Super. 1979), and

Commonwealth v. Riggins, 386 A.2d 520 (Pa. 1978). In Causey, like in

the case at bar, a prior statement was read into the record during trial.

Causey, 833 A.2d at 177. Also like in the case at bar the jury, during its

deliberations, requested that it be furnished a copy of the statement. Id. at

178.    The trial court agreed to send back a copy of the statement to the

jury.   We held that “a prosecution witness’[] statement entered into trial

evidence as an exhibit may be sent out to the jury.”       Id.   Similarly, in


13
    The notes of testimony are labeled as being from March 11, 2011.
However, it is clear from the record that they are from March 3, 2011. The
file from which the notes were transcribed was named “3-3-11.txt.”
Furthermore, the notes of testimony fit logically between the notes of
testimony of March 2, 2011 and March 4, 2011.
14
   The statement was properly admitted as substantive evidence. See
Commonwealth v. Fletcher, 750 A.2d 261, 276 n.19 (Pa. 2000),
abrogated on other grounds, Commonwealth v. Freeman, 827 A.2d 385
(Pa. 2003), citing Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992).



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Merbeh, we concluded that allowing a witness’ prior inconsistent statement

to go out with the jury was not an abuse of discretion. Merbeh, 411 A.2d at

247.   In Riggins, the trial court allowed the jury to receive the victim’s

statement that had been recorded by a police officer on a napkin. Riggins,

386 A.2d at 525. Our Supreme Court concluded that it was not an abuse of

discretion for the trial court to send the statement back with the jury

because the defendant had failed to object when the napkin was entered

into evidence and it did not place undue weight on the victim’s statement.

Id. at 525-526.

       In   this   case,   as   in   Riggins,     Appellant   did   not   object   when

Commonwealth’s Exhibit 40 was entered into evidence. The jury’s request

for the statement showed that it was weighing whether to believe his

testimony at trial or his prior inconsistent testimony. His testimony at trial

was easy to understand at it was elicited through the traditional question

and answer format.         However, Hyman’s prior inconsistent statement was

entered into evidence with the assistant district attorney reading both the

question and the answer and then asking Hyman if she had read the

statement correctly.       Thus, the jury may have been seeking to read the

statement in a typical question and answer format. This did not place undue

weight on the statement, rather it gave the statement the same weight as

Hyman’s testimony. For these reasons, we conclude the trial court did not

abuse its discretion in permitting Hyman’s statement to go out with the jury.



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J-S49001-14


See Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012),

appeal denied, 63 A.3d 772 (Pa. 2013) (“[C]ourts [in this Commonwealth]

have rarely found that materials given to juries during deliberations

constitute reversible error.”).

      In his third issue, Appellant contends that the trial court erred by

failing to grant a mistrial after Detective Levi Morton testified, “When we

have information either through our investigation or from eyewitnesses out

on the street as to a name of an individual that is a possible suspect, that

person named, if they are found in our database, we will put them in a photo

[array].” N.T., 3/2/11, at 41.       Appellant contends that Detective Morton’s

reference impermissibly implied to the jury that Appellant had previously

been convicted of a crime and, therefore, his photo was in the police

database.    Appellant timely moved for a mistrial at the conclusion of

Detective Morton’s testimony.       Appellant made a strategic decision not to

request a cautionary instruction so as not to draw attention to the matter.

      “A trial court may grant a mistrial only where the incident upon which

the motion is based is of such a nature that its unavoidable effect is to

deprive the defendant of a fair trial by preventing the jury from weighing

and rendering a true verdict.” Commonwealth v. Fortenbaugh, 69 A.3d

191, 193 (Pa. 2013) (citation omitted). “In reviewing a trial court’s denial of

a   motion    for   a   mistrial,   our     standard   is   abuse   of   discretion.”

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013) (citation omitted).



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“Likewise, a mistrial is not necessary where cautionary instructions are

adequate to overcome any possible prejudice.”           Commonwealth v.

Fletcher, 41 A.3d 892, 894–895 (Pa. Super. 2012), appeal denied, 57 A.3d

67 (Pa. 2012) (citation omitted).

      This Court has held “that after the reference to a photograph [selected

from police files] the controlling question is whether or not a juror could

reasonably infer from the facts presented that the accused had engaged in

prior criminal activity.” Commonwealth v. Harris, 533 A.2d 727, 731 (Pa.

Super. 1987), appeal denied, 549 A.2d 914 (Pa. 1988) (citation omitted).

We conclude that the jury could not reasonably infer from Appellant’s

photograph being in the police database that Appellant had a prior criminal

conviction. Our Supreme Court has held that “the unexplained possession

by the police of a defendant's photo [is not necessarily] proof that the

defendant had a previous conviction.”        Commonwealth v. Brown, 512

A.2d 596, 598 (Pa. 1986) (McDermott, J. opinion announcing the judgment

of the court).   Instead, “[o]ne’s picture may be in the possession of the

police even though the person was neither charged, tried[,] nor convicted of

any crime. . . . At the most it proves only that the police had a photo of the

defendant on file.”   Id. at 598-599.   Thus, in Brown our Supreme Court

held that a jury could not reasonably infer from police possession of the

defendant’s photograph that the defendant had previously been convicted of

a crime.   Id. at 599-600.   Although, our Supreme Court has held that a



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defendant is entitled to a cautionary instruction upon request, id., in this

case Appellant made a strategic decision to decline such an instruction.

      The situation in the case at bar is similar to the situation in

Commonwealth v. Young, 849 A.2d 1152 (Pa. 2004). In that case, the

police officer testified that the photos that were shown to a witness were

taken from a database containing photographs of people “who have had

contact with the police.” Id. at 1156. Our Supreme Court held

      that the explanation of how the photo imager compiled
      photographs and the statement regarding ‘contact with the
      police’ focused only on prior contact with the police and did not
      reasonably imply prior criminal conduct. The prior contact with
      the police could have occurred under a variety of circumstances
      that were not criminal in nature including involvement in a motor
      vehicle accident or violation, as a witness to a crime, or as a
      victim of a crime.

Id.

      In this case Detective Morton’s brief testimonial reference was even

more innocent than the police officer’s testimony in Young.            Detective

Morton did not state that the database contained photographs of individuals

that had previous contact with the police. Instead, he merely stated that it

was a police database. This could mean that the database included driver’s

license   or   firearms   license   photographs.   Even   the   most   extreme

interpretation of Detective Morton’s testimony only matches that of the

police officer in Young.        As our Supreme Court determined that the

statement in Young did not result in prejudice to the defendant, we

conclude that Appellant was not prejudiced by Detective Morton’s reference


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to the police database.     Accordingly, Appellant’s third issue on appeal is

without merit.

        In his fourth issue on appeal, Appellant contends that the trial court

erred in admitting double hearsay regarding Hyman’s motivation for

testifying untruthfully.     This testimony involved a conversation that

Detective John Cahill had with Hyman in the courthouse hallway on March 1,

2011.     This issue is waived.   Pursuant to Pennsylvania Rule of Appellate

Procedure 302, “Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”      Pa.R.A.P. 302(a). With respect to

evidentiary rulings, “Error may not be predicated upon a ruling that admits

[] evidence unless . . . a timely objection, motion to strike[,] or motion in

limine appears of record, stating the specific ground of objection, if the

specific ground was not apparent from the context[.]” Pa.R.Evid. 103(a)(1).

        In this case, Appellant objected to the admission of Detective Cahill’s

testimony regarding his conversation with Hyman related to phone calls

Hyman’s brother had received. See N.T., 3/2/11, at 3, 5. However, it was

clear from the context of the objection that Appellant was objecting on the

basis of relevancy, and not on the basis of hearsay.        Appellant’s counsel

objected stating, “I would object to the admission of that testimony. I don’t

believe any door was opened that would permit that type of testimony.” Id.

at 5. He continued, “My position is by asking [Detective Cahill] specifically

what happened to Anthony Hyman alone does not open the door to allow



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evidence presented about the contacts made by whoever to his brother.”

Id. at 6. The trial court responded, “These questions go to his motivation as

to why he [identified] one time and didn’t [identify] the other time.”   Id.

This exchange shows that Appellant’s objection was based on relevancy

grounds. Cf. Leaphart v. Whiting Corp., 564 A.2d 165, 171 (Pa. Super.

1989), appeal denied, 577 A.2d 890-891 (Pa. 1990) (using the term “open

the door” while discussing relevancy). Nowhere did Appellant object based

on hearsay and the trial court never discussed hearsay when ruling on the

objection.   As Appellant failed to state the specific grounds of his hearsay

objection in the trial court, and the specific grounds were not apparent from

the record, the issue is not preserved for appellate review.             See

Commonwealth v. Lopez, 57 A.3d 74, 82–85 (Pa. Super. 2012), appeal

denied, 62 A.3d 379 (Pa. 2013) (failure to specify that objection was based

on hearsay resulted in issue being waived on appeal).

      Appellant’s final issue challenges the trial court’s jury instruction

regarding flight.   In order to preserve a claim that a jury instruction was

erroneously given, the Appellant must have objected to the charge at trial.

See Commonwealth v. Spotz, 84 A.3d 294, 318 n.18 (Pa. 2014) (citations

omitted); Pa.R.A.P. 302(b) (“A general exception to the charge to the jury

will not preserve an issue for appeal.   Specific exception shall be taken to

the language or omission complained of.”); Pa.R.Crim.P. 647(B) (“No

portions of the charge nor omissions from the charge may be assigned as



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error, unless specific objections are made thereto before the jury retires to

deliberate.”). As our Supreme Court has explained:

      The pertinent rules, therefore, require a specific objection to the
      charge or an exception to the trial court’s ruling on a proposed
      point to preserve an issue involving a jury instruction. Although
      obligating counsel to take this additional step where a specific
      point for charge has been rejected may appear counterintuitive,
      as the requested instruction can be viewed as alerting the trial
      court to a defendant’s substantive legal position, it serves the
      salutary purpose of affording the court an opportunity to avoid
      or remediate potential error, thereby eliminating the need for
      appellate review of an otherwise correctable issue.

Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005) (footnotes and

citations omitted); see Commonwealth v. Garang, 9 A.3d 237, 244–245

(Pa. Super. 2010) (citations omitted); Commonwealth v. Moury, 992 A.2d

162, 178 (Pa. Super. 2010) (citations omitted).

      In this case, Appellant objected to the flight charge at the charging

conference.    See N.T., 3/3/11, at 12 (“Can we talk about flight for one

second? Note my objection to the inclusion of a flight charge.”). However,

after the court read the charge to the jury, the court asked, “Counsel, do

you need to see me before we go further?” Id. at 118. Appellant’s counsel

responded “No.” Id. As Appellant responded in the negative when asked if

any additions or corrections to the jury charge needed to be made, he has

waived his final issue.

      In sum, we hold that a declarant’s question is a statement for

purposes of Pennsylvania Rule of Evidence 801(a) if it includes an implied

assertion.    We conclude, however, that Victim’s hearsay statement in this


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case was properly admitted under Pennsylvania Rule of Evidence 803(3).

We conclude that the trial court did not abuse its discretion in permitting

Hyman’s prior inconsistent statement to be sent back with the jury. We also

conclude that the trial court did not abuse its discretion in refusing to declare

a mistrial after a witness referenced a police database as the source of

Appellant’s photograph. Appellant has waived his hearsay objection to the

police officer’s testimony regarding phone calls to Hyman’s brother.

Appellant has also waived his objection to the jury instructions because he

failed to object after the jury had been charged. As Appellant is not entitled

to relief on any of his claims of error, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2014




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