J-S03026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC CRUZ

                            Appellant                No. 1127 EDA 2015


            Appeal from the Judgment of Sentence January 7, 2015
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0003627-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                FILED APRIL 11, 2016

        Eric Cruz appeals from the judgment of sentence imposed on January

7, 2015, in the Court of Common Pleas of Chester County.         A jury found

Cruz guilty of aggravated assault, simple assault, recklessly endangering

another person, and possessing an instrument of a crime.1        In a related

severed non-jury trial, the trial court found Cruz guilty of persons not to

possess a firearm.2 Cruz received an aggregate sentence of 15 to 30 years’

incarceration.     In this timely appeal, Cruz claims the trial court erred in

allowing Detectives Louis DeShullo and John O’Hare offer their lay opinion

identifying Cruz as the assailant from a video surveillance recording.

____________________________________________


1
    18 Pa.C.S. §§ 2702(a), 2701(a), 2705, and 907(a), respectively.
2
    18 Pa.C.S. § 6105(a)(1).
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Additionally, Cruz claims the trial court erred in allowing Detectives DeShullo

and O’Hare to testify they recognized Cruz from the community, which

testimony functionally forced Cruz to waive cross-examination of the

witnesses. Following a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

        This matter arises out of an incident that took place in the early

morning hours of September 1, 2012, outside of the Star Social Club, on

Market Street, in West Chester, Pennsylvania. A fight broke out as people

were leaving the club sometime after 3:00 a.m. During the course of that

fight, the victim, Jareal Mills, was shot in the left forearm, thereby fracturing

it. The break required an open reduction/internal fixation. The Star Social

Club, described in testimony as an after-hours drinking establishment, had

video surveillance inside. Federal drug enforcement agents had placed video

surveillance on a nearby utility pole outside the club.      This “pole camera”

captured the fight and shooting from a distance of approximately 100 feet.

        Detectives Louis DeShullo and John O’Hare both testified they knew

Cruz from the community.          Further, internal surveillance video taken from

the Star Social Club revealed Cruz was in the club that night and that he left

the club shortly before the shooting.3 Based upon their personal knowledge

of Cruz and the video of Cruz inside the club, they testified they could


____________________________________________


3
    Cruz stipulated he was depicted in the inside video.



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identify Cruz as the assailant in the outside surveillance video. Based upon

this, the police put together a photo array, containing a photograph of Cruz.

This photo array was then shown to Mills, who stated he could not identify

his shooter from the lineup. A few days later, Mills returned to the police,

telling them he could identify the shooter in the lineup, but had feared

retaliation. He had told his mother about the incident and his mother had

convinced him to return to the police. Mills looked at the photo lineup again

and identified Cruz as the person who shot him.       However, at trial, Mills

disavowed his pre-trial identification of Cruz, claiming he had been drinking

excessively on the night in question, had likely smoked marijuana, and

taken Xanax pills as well.

      Testimony by Detectives DeShullo and O’Hare identifying Cruz as the

assailant not only served to explain the course of the investigation,

specifically, how Cruz came to be charged with the crime, but was also

substantive evidence. Cruz objected to the identification testimony claiming

it impermissibly infringed upon the province of the jury and improperly

suggested Cruz had a prior criminal history.

      Our standard of review for the admission of evidence is oft stated:

         With regard to the admission of evidence, we give the trial
         court broad discretion, and we will only reverse a trial
         court's decision to admit or deny evidence on a showing
         that the trial court clearly abused its discretion. An abuse
         of discretion is not merely an error in judgment, but an
         overriding misapplication of the law, or the exercise of
         judgment that is manifestly unreasonable, or the result of
         bias, prejudice, ill-will or partiality, as shown by the
         evidence of the record.

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     Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super.
     2012)(citations and quotation marks omitted).

     “Relevance is the threshold for admissibility of evidence.”
     Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super.
     2015); see also Pa.R.E. 402.

     “Evidence is relevant if it has any tendency to make a fact more
     or less probable than it would be without the evidence[,] and the
     fact is of consequence in determining the action.” Pa.R.E. 401;
     see also Tyson, 119 at 358 (stating that “[e]vidence is relevant
     if it logically tends to establish a material fact in the case, tends
     to make a fact at issue more or less probable or supports a
     reasonable inference or presumption regarding a material fact.”).
     “The court may exclude relevant evidence if its probative value is
     outweighed by a danger of ... unfair prejudice....” Pa.R.E. 403;
     see also Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa.
     Super. 2012) (stating that even when evidence meets the
     relevance requirements, “such evidence may still be excluded
     where its probative value is outweighed by the danger of unfair
     prejudice.”).

        However, [e]vidence will not be prohibited merely because
        it is harmful to the defendant. [E]xclusion is limited to
        evidence so prejudicial that it would inflame the jury to
        make a decision based on something other than the legal
        propositions relevant to the case.... This Court has stated
        that it is not required to sanitize the trial to eliminate all
        unpleasant facts from the jury's consideration where those
        facts are relevant to the issues at hand[.]

     Kouma, 53 A.3d at 770 (citation omitted); see also Pa.R.E. 403
     cmt. (defining “unfair prejudice” as “a tendency to suggest a
     decision on an improper basis or to divert the jury's attention
     away from its duty of weighing the evidence impartially.”).

Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015).

     Additionally, we note the dictates of Pa.R.E. 701, regarding opinion

testimony of lay witnesses:

     If a witness is not testifying as an expert, testimony in the form
     of an opinion is limited to one that is:

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         (a) rationally based on the witness’s perception;

         (b) helpful to clearly understand the witness’s testimony or
         to determining a fact in issue; and

         (c) not based on scientific, technical or other specialized
         knowledge within the scope of Rule 702.

Pa.R.E. 701 (a)-(c).

      Our review of the certified record leads us to conclude the testimony of

Detectives DeShullo and O’Hare meets the Rule 701 criteria. Both detectives

were familiar with Cruz, and could identify him from the video surveillance

evidence taken inside the club.       As part of that interior identification, the

detectives noted certain physical characteristics of Cruz, including his

clothing, relative size, and fact that he was carrying something akin to a

paper bag as he left the club, shortly before the altercation. The pole video

depicted what was described as a melee outside the Star Social Club.

Although the pole video was not sufficiently detailed to allow for facial

recognition,   both    detectives   testified   based on   the   totality of their

knowledge, they believed they could identify Cruz as the assailant.

Accordingly, that testimony was rationally based upon both witnesses’

perception; it helped explain the officers’ course of action, as well as helping

clarify the video of approximately one dozen people engaging in an

altercation; and was not based upon any scientific, technical or specialized

knowledge within the scope of Rule 702 (regarding expert testimony).           In

light of the above, Cruz is not entitled to relief on his claim that Detectives



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DeShullo and O’Hare should not have been allowed to provide identity

testimony based upon the video evidence.         (See, Commonwealth v.

Harvard, 64 A.3d 690, 695 (Pa. Super. 2013), “Officer Kirby compared the

surveillance footage to Harvard’s driver’s license and concluded that Harvard

was the person in the surveillance photo.”    This is virtually the same fact

pattern as presented herein.)

      Cruz also argues that the identification testimony improperly invaded

the province of the jury, in that the jury should have been able to interpret

the video evidence itself and the complained of testimony went to the

ultimate issue to be determined - the identity of the assailant.          This

argument is unavailing. As noted above, the testimony fulfilled the relevant

Rule 701 criteria in providing help to interpret what could have been a

confusing video. Further, the Rules of Evidence regarding opinion evidence

specifically allow for such opinion testimony embracing an ultimate issue,

such as physical characteristics. See Pa.R.E. 704.

      Additionally, we agree with the trial court’s own cogent analysis

regarding this aspect of Cruz’s argument. The trial court noted, “As with any

witness testimony, the jury was free to believe some, all, or none of [the

complained of] testimony when making the ultimate determination of the

shooter’s identity.” Trial Court Opinion, 7/20/2105, at 5.

      Moreover,

            While it is unknown in any trial the extent to which a jury
      chooses to place reliance upon particular testimony during its
      deliberations, it is clear that the jury in this case chose to

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      carefully make its own independent determination of the identity
      of the shooter. Approximately one hour into deliberations, the
      jury requested to view the outside (“pole camera”) video
      footage. When the jury was brought back into the courtroom for
      this purpose, the jurors requested to stand closer to the
      projector screen rather than sit in the jury box when the video
      was played, and they asked to watch the video several times.
      These accommodations were allowed by the court, and the
      jurors watched the video, first at slow-motion speed, and then
      again in real-time.

            The very fact that the jury was so meticulous in reviewing
      the video during deliberations indicates that the jurors wanted to
      analyze its contents in sufficient detail to enable them to make
      their own judgment as to the identity of the shooter. Not only
      did the jurors desire to see the video during deliberations, they
      wanted to see it more than once, up close, and at varying
      speeds. Had the jury, in an unquestioning manner, simply taken
      the testimony of Detectives DeShullo and O’Hare at face value,
      there would have been no interest in examining the footage so
      closely. [Cruz’s] claim that identification was taken out of the
      hands of the jury is rendered untenable by the jury’s inquisitive
      conduct during deliberations, and [Cruz] is not entitled to relief
      on this claim.

Id. at 5-6.

      Next, Cruz argues that the trial court erred in allowing Detectives

DeShullo and O’Hare to testify they knew Cruz from the community. Cruz

argues such a reference impermissibly suggested to the jury that Cruz had a

criminal history. Cruz supports his argument by citing two cases from the

Federal Sixth Circuit, one from the Federal Ninth Circuit, and one from

Illinois. These cases may be informative, but they have no binding effect on

us.   Rather, we look to Commonwealth v. Sanders, 442 A.2d 817 (Pa.

Super. 1982) which addresses the instant issue. In Sanders, a panel of our

Court held that a police officer’s testimony that he knew the defendant,


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knew his nickname and knew several of the bars defendant frequented did

not raise an inference that the defendant had been involved in prior criminal

activity. Of particular relevance, Sanders stated:

      Merely because a police officer knows someone or knows where
      they may be found does not suggest that the person has been
      engaged in prior criminal activity. A policeman may know
      someone because they reside in the same neighborhood or for
      any other number of reasons. We refuse to hold that a
      policeman's statement to the effect that he knew someone,
      knew his nickname, or was familiar with the person's
      whereabouts raises an inference of prior criminal activity. Any
      such holding would defy all logic and good sense. Not everything
      a policeman says about a person constitutes an inference of prior
      criminal activity on the part of that person.

Commonwealth v. Sanders, 442 A.2d at 818 (citation omitted).

      Here, the Detectives merely mentioned they knew Cruz from the

community. As in Sanders, merely knowing Cruz from the community did

not raise the specter of prior criminal activity.

      Finally, Cruz complains that because Cruz did have a prior criminal

history, allowing the Detectives to testify they knew him effectively

prevented him from cross-examining the Detectives.       The certified record

belies this claim. Detective O’Hare was subjected to what was transcribed

as 10 pages of cross-examination regarding his ability to identify Cruz in the

“pole video.”   Detective O’Hare was questioned on such topics as lack of

quality in the “pole video”, lack of lighting, camera flare and the fact that

Detective O’Hare could not base his identification of Cruz solely on the “pole

video.” Further, Cruz has not put forth any relevant question he could not



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ask. Similarly, no ruling prevented Cruz from subjecting Detective DeShullo

to the same manner of cross-examination.4          Cruz was demonstrably not

prevented from cross-examining the Detectives, nor does our review of

Cruz’s argument and the certified record reveal any prejudicial limitation on

his ability to cross-examine the Detectives.

       Based on the foregoing, Cruz is not entitled to relief.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




____________________________________________


4
  The notes of testimony from May 14, 2014 demonstrate that defense
counsel began to cross-examine Detective DeShullo in the same manner as
Detective O’Hare.   However, counsel moved on to a different line of
questioning. See N.T. Trial, 5/14/2014 at 189-193.



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