J. A20005/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
                     v.                  :
                                         :
ALLYN PAPPERT,                           :            No. 2570 EDA 2012
                                         :
                          Appellant      :


              Appeal from the Judgment of Sentence, May 1, 2012,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0004546-2010


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED NOVEMBER 25, 2014

        Allyn Pappert shot his daughter after an argument about her

boyfriend. On January 20, 2012, after a four-day jury trial, appellant was

convicted of third degree murder and possessing an instrument of crime

(“PIC”). Appellant now appeals from the judgment of sentence; we affirm.

        Kathy Pappert, the 41-year-old victim, was dating a man named Jay.1

Appellant disapproved of his daughter’s relationship and was strongly

opposed to the couple living together.        Appellant once told Linda Pappert,

Kathy’s mother and his ex-wife, “You know, sometimes I really feel like

killing your daughter.” (Notes of testimony, 1/18/12 at 26.) He also talked

to Linda about shooting Jay with a hollow point bullet, and appellant also



1
    We note Jay’s surname is not of record.
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remarked that he “wouldn’t think twice” about using such dangerous

ammunition on another person. (Id. at 25.) When pressed by Linda as to

what he would do to hide the body if he killed the victim, appellant indicated

that he “wouldn’t want to ruin [his] blender” because “the bones would ruin

[the blade].” (Id. at 27, 42.) Appellant indicated he was comfortable with

going to jail if he was caught as he would receive medicine for his affliction,

“have like three meals a day,” and be given a “place to sleep.” (Id. at 27,

30-31.)

      On February 14, 2010, the victim had an argument about Jay with

appellant in the rear bedroom of his home.       After unsuccessfully calling a

taxicab to arrange a ride to Jay’s house, the victim told appellant, “I’m out of

here,” and appellant responded by commanding “You ain’t going nowhere.

Get back in here.” (Id. at 231.) As the victim attempted to leave, appellant

picked up one of his guns and shot his daughter in the right side of her

torso. (Id. at 227-229.) The victim staggered down the stairs to the living

room, lay down on a sofa bed, and screamed for help. (Id. at 98-100.)

      Appellant called 911 and the tape was played for the jury. Appellant

told the dispatcher that he shot his daughter who had been “bitching and

moaning” about having been shot. Appellant expressed that the victim had

been “destroying his house” and that he was 64 years old and on disability

insurance and could not afford to fix the things she broke. As his daughter

was dying, appellant accused her of continued malfeasance, telling the



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operators that “she’s destroying shit downstairs,” and that “she won’t listen

to me.” (Exhibit C-37.)

        At approximately 3:55 a.m., pursuant to a radio call, Philadelphia

Police Sergeant Jeffrey Rabinovitch arrived to 3184 Belgrade Street. Here,

he met Officer Herring who was trying to kick in the front door as he could

hear screaming inside.     Upon entering the home, Sergeant Rabinovitch

observed the victim lying on the bed bleeding.    The sergeant asked her if

she had been shot and she responded, “My dad shot me” and indicated that

appellant was upstairs. At this time, the SWAT team arrived and the police

found appellant seated at a desk on the phone with 911. As appellant was

being arrested, he stated, in a “very casual, nonchalant” manner, that he

shot his daughter because “[s]he wouldn’t shut up.”     (Notes of testimony,

1/18/12 at 96-104.) The officer also testified that appellant’s demeanor was

“disturbingly casual” considering the circumstances. (Id. at 103.) Several

other weapons and “hundreds” of rounds of live ammunition were recovered

from the house. (Id. at 76-78.)

        Detective Nathan Williams interviewed appellant following his arrest

after appellant waived his Miranda2 rights.      The detective testified that

appellant appeared emotionless and confessed to shooting his daughter with

his Walther P-99 .40 caliber handgun. He stated that the victim made six

calls on his phone, and each one cost him money; he also averred that he


2
    Miranda v. Arizona, 384 U.S. 436 (1966).


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was on a fixed income and that the victim had stopped paying him money.

Appellant alleged that the victim broke his cordless phone by throwing it

against the door. When describing how he shot his daughter, he stated:

            I said, Kathy, if you destroy anything else in this
            house, then you’re going to have to go. You’re going
            to have to pay for it.

                  I had the gun in my hand and my finger on the
            trigger, and it went boom. She was standing right
            there in the doorway. I had my finger on the trigger
            because I don’t normally keep a bullet in the
            chamber, just in the magazine, should I drop it or
            something and it didn’t go off.

Notes of testimony, 1/18/12 at 227.

     An expert in ballistics, Officer Ronald Weitman, examined the

Walther P-99, the projectile recovered from the body, and other ballistics

evidence recovered. Officer Weitman explained that the Walther P-99 has a

double-Action/single-action trigger with a decocker.   (Notes of testimony,

1/19/12 at 18-19.)   The officer explained that this weapon is incapable of

firing a projectile unless someone physically chambered a round from the

magazine.   (Id. at 28-30.)   The gun must either be intentionally put into

single-action mode, or else be manually cocked by pulling a mechanism on

the gun backward and forward before firing. (Id.) The officer also testified

that the gun was loaded with hollow-point bullets; these bullets are designed

to “mushroom,” expand and cause collateral damage, upon impact with

human flesh. (Id. at 30, 47.) Dr. Marlon Osbourne, the assistant medical

examiner, determined the cause of death was a homicide.            (Notes of


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testimony, 1/18/12 at 154-158.)       Dr. Osbourne testified that the bullet

traveled through the victim’s arm, liver, interior vena cava, and stomach;

ultimately, the bullet lodged underneath her skin. (Id. at 171.)

      Appellant testified at trial. He admitted to owning multiple guns and

having ammunition in the house. (Notes of testimony, 1/19/12 at 117.) He

habitually carried a gun around the house. (Id. at 119.) While he did not

like the victim’s boyfriend, he testified he had never threatened to kill him or

his daughter.    (Id. at 120.)   His defense was that the shooting was an

accident, which contradicted several accounts he had previously given that

he shot his daughter because she “wouldn’t shut up.”        His explanation at

trial was:

                   And I goes -- got there. I turned around and I
             seen [sic] the gun laying [sic] on the desk. I go, oh,
             man, you ain’t taking my gun. Like that.

                    I went to grab it, and I’m not [sure] -- I’m
             watching her so she don’t [sic] turn around and see
             where I’m gonna hide it. I grab it like that there. I
             slid it to the edge of the desk. And I guess I over
             shot it, and it dropped. I grabbed it. When I
             grabbed it, it went off.

Id. at 133-134. He also explained that he had told the 911 dispatchers that

his daughter was “bitching and moaning” because he thought she might be

“upset” about having been shot. (Id. at 145-146.)

      On cross-examination, appellant denied telling his wife that he had a

hollow-point bullet with the victim’s boyfriend’s name on it and that he




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would use a blender3 to dispose of the victim’s body in the event that he

murdered her.       (Id. at 185.)   Appellant testified that the only thing the

victim broke before he shot her was his cordless phone, and he admitted

that he had once been told that hollow point bullets were capable of “a one[-

]shot drop.” (Id. at 194, 213.)

        On January 20, 2012, the jury returned guilty verdicts for third degree

murder and PIC. On May 1, 2012, the court imposed a sentence of 20-40

years’ imprisonment for murder and a consecutive 1-2 year sentence for

PIC.    Appellant filed post-sentence motions on May 4, 2012; the motions

were denied on August 17, 2012. Appellant filed a timely notice of appeal,

and the trial court filed an opinion.4 (Docket #9, 10.)

        Appellant now presents the following issues for our review:

              1.    Were the convictions for the crimes of Murder
                    of [sic] the Third Degree and [PIC] not
                    supported by sufficient evidence?

              2.    Were the convictions for the crimes of Murder
                    of [sic] the Third Degree and [PIC] against the
                    weight of the evidence?

              3.    Did Judge Robins New err when she failed to
                    charge the jury on the crime of Involuntary
                    Manslaughter? Did the evidence demonstrate
                    or suggest [appellant] was acting only
                    negligently or recklessly, thereby warranting
                    an Involuntary Manslaughter charge?

3
    Appellant referred to the appliance as a juicer. (Id.)
4
  Appellant was not ordered to and did not file a concise statement of errors
complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A.


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             4.    Did the trial judge err in not granting a mistrial
                   and did the District Attorney err in eliciting a
                   prior alleged unrelated bad act and hearsay
                   testimony that [appellant] came to the door
                   with a gun two years before?            Was the
                   prejudice by this hearsay and alleged unrelated
                   bad acts not curable by the curative
                   instruction?

             5.    Did the trial judge err in not granting a mistrial
                   and did the District Attorney err in eliciting
                   from [appellant’s] ex-wife, Linda Pappert, that
                   [appellant] told her he would not think twice of
                   using a hollow point bullet on a person, and
                   then allow her to further state he would use
                   the bullet on the decedent’s boyfriend? (1/18
                   N.T. 25). Did this reference to unrelated bad
                   acts deny [appellant] his right to due process
                   and fair trial?

Appellant’s brief at 6-7.

       The first issue presented for our review is whether the evidence was

sufficient to support the verdicts of third degree murder and PIC. No relief is

due.

       Prior to addressing this issue, we will recite our standard of review:

             The standard we apply in reviewing the sufficiency of
             the evidence is whether viewing all the evidence
             admitted at trial in the light most favorable to the
             verdict winner, there is sufficient evidence to enable
             the fact-finder to find every element of the crime
             beyond a reasonable doubt. In applying the above
             test, we may not weigh the evidence and substitute
             our judgment for the fact-finder. In addition, we
             note that the facts and circumstances established by
             the Commonwealth need not preclude every
             possibility of innocence. Any doubts regarding a
             defendant’s guilt may be resolved by the fact-finder
             unless the evidence is so weak and inconclusive that


                                      -7-
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            as a matter of law no probability of fact may be
            drawn from the combined circumstances.           The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the trier of
            fact while passing upon the credibility of witnesses
            and the weight of the evidence produced, is free to
            believe all, part or none of the evidence.

Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.Super. 2008),

appeal denied, 980 A.2d 606 (Pa. 2009), quoting Commonwealth v.

Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006).

      “Third degree murder occurs when a person commits a killing which is

neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice.” Commonwealth v. Tielsch, 934 A.2d 81,

94 (Pa.Super. 2007), appeal denied, 952 A.2d 677 (Pa. 2008), cert.

denied, 555 U.S. 1072 (2008) (citation omitted). “Malice is not merely ill-

will but, rather, wickedness of disposition, hardness of heart, recklessness of

consequences, and a mind regardless of social duty.”      Commonwealth v.

Hardy, 918 A.2d 766, 774 (Pa.Super. 2007), appeal denied, 940 A.2d 362

(Pa. 2008). “Malice may be inferred from the use of a deadly weapon on a

vital part of the victim’s body.”   Commonwealth v. Gooding, 818 A.2d

546, 550 (Pa.Super. 2003), appeal denied, 835 A.2d 709 (Pa. 2003).

      Appellant contends the Commonwealth did not demonstrate malice or

a motive for shooting the victim. (Appellant’s brief at 33.) He points to the



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fact that he called 911 and cooperated with the police.       (Id. at 33, 36.)

Appellant also avers he “easily could have continued to shoot” as there were

more bullets in the gun. (Id. at 37.) He states that, at most, the evidence

shows that he acted negligently and recklessly in picking up the gun, which

discharged and killed his daughter. We disagree.

        There is no doubt in this matter that the Commonwealth proved

appellant killed the victim with malice.     When viewed in the light most

favorable to the Commonwealth, the evidence demonstrates that appellant

shot his daughter through her torso, a vital part of the body, with a deadly

weapon; such is sufficient to permit an inference of malice necessary for

murder in the third degree. Gooding, supra. Overwhelming evidence was

presented, including three inculpatory statements from appellant, including a

confession, that appellant shot the victim after an argument as she

“wouldn’t shut up” and was “destroying his house.”        The argument was

about    her     boyfriend,   whom   appellant   admittedly   disliked.   The

Commonwealth also demonstrated malice through appellant’s assertions on

the 9-1-1 tape.      Moreover, expert testimony was presented that the gun

used must either be intentionally put into single-action mode, or else be

manually cocked by pulling a mechanism on the gun backward and forward

before firing.

        The Commonwealth also presented testimony that appellant had

previously threatened to kill the victim and her boyfriend; in fact, he had



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threatened to shoot her boyfriend with the same type of hollow-point bullet.

Appellant also indicated he would dispose of the victim’s body in a blender if

he “actually killed her” if it would not damage the blender.

      Clearly, the jury was permitted to reject appellant’s self-serving claim

that the gun had accidentally discharged. Additionally, “the Commonwealth

need not prove motive in order to establish the existence of malice.”

Commonwealth v. D’Ambro, 456 A.2d 140, 143 n.5 (Pa. 1983). See also

Commonwealth v. Manchas, 633 A.2d 618, 623 (Pa.Super. 1993), appeal

denied, 651 A.2d 535 (Pa. 1993).       Suffice it to say that the trial court’s

verdict was supported by evidence legally sufficient to sustain a conviction

for third degree murder.

      With regard to his conviction for PIC, appellant claims that the

evidence does not suggest the intent to employ the gun criminally.

(Appellant’s brief at 39.)   Possession of an instrument of a crime is “a

misdemeanor of the first degree if [a defendant] possesses any instrument

of crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). Given

the above discussion of the third degree murder charge, there is sufficient

evidence from which the fact-finder could infer that appellant possessed a

gun with intent to use it in a criminal manner. Accordingly, we affirm this

conviction.




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     Appellant further contends that the verdict of guilty of third degree

murder was so contrary to the weight of the evidence that he should have

been granted a new trial.

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question
           of whether the verdict is against the weight of the
           evidence. Because the trial judge has had the
           opportunity to hear and see the evidence presented,
           an appellate court will give the gravest consideration
           to the findings and reasons advanced by the trial
           judge when reviewing a trial court’s determination
           that the verdict is against the weight of the
           evidence. One of the least assailable reasons for
           granting or denying a new trial is the lower court’s
           conviction that the verdict was or was not against
           the weight of the evidence and that a new trial
           should be granted in the interest of justice.

                   This does not mean that the exercise of
           discretion by the trial court in granting or denying a
           motion for a new trial based on a challenge to the
           weight of the evidence is unfettered. In describing
           the limits of a trial court’s discretion, we have
           explained[,] [t]he term ‘discretion’ imports the
           exercise of judgment, wisdom and skill so as to
           reach a dispassionate conclusion within the
           framework of the law, and is not exercised for the
           purpose of giving effect to the will of the judge.
           Discretion must be exercised on the foundation of
           reason,     as   opposed    to    prejudice,  personal
           motivations, caprice or arbitrary actions. Discretion
           is abused where the course pursued represents not
           merely an error of judgment, but where the
           judgment is manifestly unreasonable or where the
           law is not applied or where the record shows that the
           action is a result of partiality, prejudice, bias or
           ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

removed) (citations omitted).


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      Appellant essentially reasserts his sufficiency of the evidence claim.

He states that he wishes to incorporate many of his sufficiency arguments

into his weight claim. (Appellant’s brief at 44.) Nevertheless, to the extent

that his weight claim can be distinguished, it fails to provide a basis for

relief. Appellant argues that the trial court abused its discretion by denying

his weight claim as there was “no motive” for the murder, he had no prior

criminal record, and he only shot his daughter once. Appellant also avers

that he had been taking the gun to hide it when it went off, and he fully

cooperated with the police.

      Obviously, the jury rejected appellant’s claim that the shooting was

accidental. Again, testimony was presented that appellant had a contentious

history with his daughter about her boyfriend and had previously threatened

to kill her. Following an argument, appellant grabbed his gun and shot her

in the torso. Appellant called 911 while his daughter lay bleeding and stated

that he shot her because she “wouldn’t shut up” and related that she was

“bitching and moaning” about being shot.               The trial court heard the

competing evidence and did not find that the jury’s decision was shocking to

its conscience. Appellant is not entitled to relief.

      In his third issue, appellant asserts he requested a jury instruction for

involuntary manslaughter, which the court denied.            Appellant, however,

maintains the facts at trial supported such an instruction. We disagree.




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      “Our    standard of   review   when considering    the   denial of   jury

instructions is one of deference -- an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011) (citation

omitted).    When reviewing the trial court’s instructions, the whole charge

must be examined.       Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa.

2011). The trial court is not required to instruct the jury pursuant to every

request.     Commonwealth v. Rodriguez, 495 A.2d 569, 572 (Pa.Super.

1985).

      It is well settled that an instruction on a mitigated form of homicide is

“warranted where the offense is at issue and the evidence would support

such a verdict.”    Commonwealth v. Montalvo, 986 A.2d 84, 100 (Pa.

2009).     The crime of involuntary manslaughter is defined as follows:     “A

person is guilty of involuntary manslaughter when as a direct result of the

doing of an unlawful act in a reckless or grossly negligent manner, or the

doing of a lawful act in a reckless or grossly negligent manner, he causes the

death of another person.” 18 Pa.C.S.A. § 2504(a). “Where the act itself is

not unlawful, to make it criminal, the negligence must be such a departure

from prudent conduct as to evidence a disregard for human life or an

indifference to the consequences.”    Commonwealth v. McLaughlin, 401

A.2d 1139, 1141 (Pa. 1979).




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      Instantly, appellant testified that the shooting occurred as he

attempted to hide the gun from the victim so that she would not take the

weapon. Appellant claimed to believe the gun did not have a bullet in the

chamber at the time and thus it was not immediately fireable. At trial, he

blamed the victim declaring, “she must have loaded it, because I didn’t.”

(Notes of testimony, 1/19/12 at 149.)          Appellant then averred he slid the

gun to the edge of the desk but “over shot it and it dropped.” (Id. at 133-

134.) After it fell “about four. . . [or] five inches,” appellant “grabbed it with

both hands” and “it went off.” (Id. at 134-135, 163-164.)

      The trial court concluded that appellant’s claim that the shooting was a

complete accident was not “the type of recklessness needed for a finding of

involuntary manslaughter.”      We agree. Appellant’s act of reaching for the

gun on the desk would not be an “unlawful act” within the definition of

involuntary manslaughter, see Commonwealth v. Flax, 200 A. 632, 638

(Pa. 1938), and appellant’s act of grabbing it after it fell on the floor could

not be seen as needlessly creating a danger to human life, thus constituting

criminally negligent conduct.

      Rather, appellant’s version, if believed by the jury, would have

supported a verdict of homicide by misadventure, which was an instruction

provided by the court. (Notes of testimony, 1/20/12 at 111-112.) In Flax,

supra, we defined an accidental killing which would relieve the actor of

criminal responsibility for the death as being:



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                  Homicide by misadventure (which is excusable)
           is the accidental killing of another, where the slayer
           is doing a lawful act, unaccompanied by any
           criminally careless or reckless conduct.          ‘Three
           elements enter into the defense of excusable
           homicide by misadventure: (1) The act resulting in
           death must be a lawful one. (2) It must be done
           with reasonable care and due regard for the lives
           and persons of others. (3) The killing must be
           accidental and not intentional, or without unlawful
           intent, or with out evil design or intention on the part
           of the slayer. All these elements must concur and
           the absence of any one of them will involve in guilt.
           Even though the homicide is unintentional, it is not
           excusable where it is the result or incident of an
           unlawful act, such as pointing or presenting a gun,
           pistol or other firearm at another person in such a
           manner as to constitute an offense under the laws of
           the state, . . . .’

Flax, at 637-638.

     Appellant’s actions meet this criteria as he testified his actions were

done with reasonable care and due regard for his daughter.            Appellant’s

testimony did not establish that he was reckless or grossly negligent to

warrant an involuntary manslaughter charge.       Appellant testified that he

exercised great care to prevent accidents with his firearms; he explained the

safety precautions taken and his intent to hide the gun for his daughter’s

well-being. (See notes of testimony, 1/19/12 at 20, 143, 176). His defense

was that by happenstance the gun fell and discharged.

     Moreover, although appellant claimed he shot the victim accidentally,

the trial evidence indicated otherwise.      See Commonwealth v. Rogers,

615 A.2d 55, 62 (Pa.Super. 1992) (where the physical evidence is in



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contradiction to the defendant’s testimony, the court may refuse an

inapplicable instruction).   Expert testimony was presented that appellant

would have had to manually chamber a round. Thus, he was not entitled to

an instruction on involuntary manslaughter.

      In his fourth issue, appellant claims the trial judge erred in failing to

grant a mistrial after the District Attorney elicited a prior alleged, unrelated

bad act as well as hearsay testimony that appellant came to the door with a

gun two years before the victim’s death. (Appellant’s brief at 49.) Appellant

acknowledges the     trial   court’s cautionary instruction,   but    claims   no

instruction could cure the prejudice derived from the testimony. (Id. at 50.)

            We review the trial court’s decision to deny a mistrial
            for an abuse of discretion.       Commonwealth v.
            Boone, 862 A.2d 639, 646 (Pa.Super.2004).            A
            mistrial is necessary only when “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.
            Parker, 957 A.2d 311, 319 (Pa.Super.2008),
            appeal denied, 600 Pa. 755, 966 A.2d 571 (2009).
            A mistrial is inappropriate where cautionary
            instructions are sufficient to overcome any potential
            prejudice. Id.

Commonwealth v. Bedford, 50 A.3d 707, 712-713 (Pa.Super. 2012),

appeal denied, 57 A.3d 65 (Pa. 2012).

      Instantly, Michael Mitchell, a Commonwealth witness, was called to

attempt to corroborate the fact that appellant carried firearms around his

house.   Mitchell testified that he had once seen appellant answer his door



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while holding a gun. (Notes of testimony, 1/19/12 at 93.) However, during

his testimony, it became clear that Mitchell only had secondhand knowledge

of that event. (Id. at 94.) Defense counsel immediately objected, and the

trial court sustained appellant’s objection, denied his motion for a mistrial,

and gave an immediate cautionary instruction to disregard the testimony.

            Ladies and gentleman of the jury, the witness cannot
            testify as to things that people may have relayed to
            him.    You are to -- just as I told you in the
            beginning, sometimes things would come in and I
            would direct you to disregard them. And you may --
            you must do so.

            And so in this situation, since the witness did not see
            the incident that occurred two years prior personally,
            he may not relay to you what was told to him
            because that person is not here for purposes of
            cross-examination. And you are not to consider it,
            nor may counsel argue it to you.

            So you must act as if -- you must follow my
            instructions, disregard it, not consider it.     Any
            questions or answers given in regard to that, please
            cross it out of your notebooks.

Id. at 94-95.

      Appellant’s bald claims of prejudice do not afford him relief. The court

sustained appellant’s objection to Mitchell’s hearsay testimony and also

unequivocally told the jury to disregard it.      We can presume the jury

followed the court’s instructions, and appellant is unable to show otherwise.

See Commonwealth v. Mollett, 5 A.3d 291 (Pa.Super. 2010), appeal

denied, 14 A.3d 826 (Pa. 2011) (stating jury is presumed to follow court’s

instructions). Appellant admittedly did not object during trial to the court’s


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instruction. (Appellant’s brief at 51; see notes of testimony, 1/19/12 at 94-

95.)   We agree with the trial court’s determination that appellant was not

entitled to mistrial, and any prejudice to appellant was effectively cured by

the court’s immediate cautionary instructions.

       The final claim presented is whether Linda Pappert’s testimony that

appellant stated he “wouldn’t think twice about using [a hollow-point bullet]

on a person,” and had once threatened to do so to the victim’s boyfriend,

was inadmissible.5     That evidence, according to appellant, violated the

general rule barring proof of prior criminality.6

            Our standard of review for considering whether a
            ruling on the admissibility of evidence was proper is
            well settled:

                  Admission of evidence is a matter within
                  the sound discretion of the trial court,
                  and will not be reversed absent a
                  showing that the trial court clearly
                  abused its discretion.     Not merely an
                  error in judgment, an abuse of discretion
                  occurs when the law is overridden or
                  misapplied, or the judgment exercised is
                  manifestly unreasonable, or the result of
                  partiality, prejudice, bias, or ill-will, as
                  shown by the evidence on record.




5
  We note the trial court did not address this issue in its Rule 1925(a)
opinion.
6
  We also note our disagreement with the Commonwealth that this claim is
waived for purposes of appeal. The statement was addressed in a pretrial
ruling. (See notes of testimony, 1/17/12 at 156-157.)


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Commonwealth v. Handfield, 34 A.3d 187, 207-208 (Pa.Super. 2011),

quoting Commonwealth v. Cain, 29 A.3d 3, 6 (Pa.Super. 2011) (quotation

omitted).

      Appellant’s argument ignores, however, that such evidence may be

admitted if it is relevant to prove something other than a defendant’s

propensity for committing crimes. E.g., Commonwealth v. Claypool, 495

A.2d 176 (Pa. 1985). The evidence here complained of by the appellant was

certainly relevant to prove motive, malice, or ill-will. Since the challenged

evidence was clearly admissible under an exception to the general

prohibition, no relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014




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