J-A09006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                              :                  PENNSYLVANIA
                              :
           v.                 :
                              :
                              :
 JONTEE D. RUSSELL            :
                              :
                Appellant     :             No. 935 WDA 2017

          Appeal from the Judgment of Sentence February 11, 2017
  In the Court of Common Pleas of Westmoreland County Criminal Division
                     at No(s): CP-65-CR-0002246-2014

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 18, 2018

      Jontee D. Russell appeals from the aggregate judgment of sentence of

eight to sixteen years imprisonment imposed after a jury convicted him of

various crimes related to a home invasion robbery. We affirm.

      In November 2013, Appellant informed Jamar Atkinson, his cousin, that

he had “a lick to hit,” meaning a robbery or burglary. N.T., 5/4-7/15, at 174-

75. Atkinson discussed the “opportunity” with his friend from work, Derrell

Mack, who did not know Appellant. Id. at 175-76. On November 14, 2013,

Atkinson called Mack to enlist him to pick up Atkinson and drive from

Pittsburgh, where they both lived, to Appellant’s residence in Donora. Id.

After Mack and Atkinson collected Appellant in a green SUV, Appellant directed

Mack to nearby Monessen, to a house Appellant claimed contained drugs and

money. Id. at 179-80. The trio waited outside the house until it appeared to

be empty. Id. at 180-81. Mack, Atkinson, and Appellant, who was armed,
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entered the house through the kitchen door after breaking a window. Id. at

182-83.    Two of the intruders proceeded upstairs and found Rebecca

Thompson asleep in her bed.

      Ms. Thompson was awakened by a hand placed over her mouth and a

gun pointed at her head. Id. at 78. The men asked her where the money

and drugs were, but she indicated that there was nothing there. Id. at 79-

83. They took her around the house, at gunpoint, demanding to know where

the contraband was located, and ransacking the place looking for it. Id. at

81-84.    Ultimately, the men left, taking an Xbox game console, a child’s

laptop, a bank card, a cell phone, a pack of cigarettes, and $40 in cash. Id.

at 88. Ms. Thompson called 911 and reported that the men left in a green

Tahoe. Id. at 89-90.

      A BOLO for three African-American men in a green SUV was issued, and

police shortly thereafter spotted the vehicle and pursued it. Id. at 121-24.

Appellant and Atkinson eluded apprehension by fleeing on foot, but the officer

took the driver, Mack, into custody. Id. at 124-27, 286. Mack admitted his

role in the burglary, identified Atkinson by name, and indicated the third man

was Atkinson’s cousin. Id. at 287-89. Items taken from Ms. Thompson’s

home, as well as Atkinson’s fingerprints, were found in the SUV. Id. at 353,

356-58.    Atkinson later was interviewed, admitted his participation, and

identified Appellant as the third participant. Id. at 193-94. A blood sample




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recovered from Ms. Thompson’s living room was tested and matched

Appellant’s DNA. Id. at 407.

      In addition to the above evidence, at trial the court admitted over

Appellant’s objection certain mobile phone records associated with Appellant

and Atkinson. Appellant offered witnesses in his defense, including Cecelia

Geyer, who lived with Appellant and Appellant’s fiancé at the time of the

incident and paid for Appellant’s mobile phone. Ms. Geyer and Appellant’s

fiancé testified that Appellant did not leave home on the night Ms. Thompson’s

home was invaded.

      A jury convicted Appellant of burglary, robbery, conspiracy to commit

burglary, theft by unlawful taking, receiving stolen property, and recklessly

endangering another person.      Appellant was sentenced, a post-sentence

motion was granted in part, and Appellant was resentenced on February 11,

2016, as indicated above. Appellant filed a timely notice of appeal, but the

appeal was discontinued based upon a procedural default. Appellant’s appeal

rights were reinstated through a PCRA petition, and a new notice of appeal

was filed.

      Appellant presents the following questions for our review.

      I.     Whether the court erred in allowing phone records to be
             introduced through Commonwealth witness John Clark?

      II.    Whether the court erred in allowing the Commonwealth to
             cross-examine Cecelia Geyer regarding telephone usage
             and/or information?

Appellant’s brief at 4.

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      Both of Appellant’s issues challenge the trial court’s evidentiary rulings.

Accordingly, the following principles apply.

      The admissibility of evidence is a matter addressed solely to the
      discretion of the trial court, and may be reversed only upon a
      showing that the court abused its discretion. For there to be abuse
      of discretion, the sentencing court must have ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Johnson, 179 A.3d 1105, 1119-20 (Pa.Super. 2018)

(internal citations and quotation marks omitted).

      However, even if the trial court erred in making an evidentiary ruling,

the judgment of sentence may be affirmed if that error was harmless. “[T]he

doctrine of harmless error is a technique of appellate review designed to

advance judicial economy by obviating the necessity for a retrial where the

appellate court is convinced that a trial error was harmless beyond a

reasonable doubt.”    Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa.

2012) (internal quotation marks omitted). Harmless error exists when the

Commonwealth shows one of the following:

      (1) the error did not prejudice the defendant or the prejudice was
      de minimis; or (2) the erroneously admitted evidence was merely
      cumulative of other untainted evidence which was substantially
      similar to the erroneously admitted evidence; or (3) the properly
      admitted and uncontradicted evidence of guilt was so
      overwhelming and the prejudicial effect of the error so
      insignificant by comparison that the error could not have
      contributed to the verdict.




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Commonwealth v. Green, 162 A.3d 509, 519 (Pa.Super. 2017) (en banc)

(quoting Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa.Super.

2004)) (emphasis omitted).

     Appellant’s claims of error both relate to the Commonwealth’s use of

phone records. His argument is as follows.

            The Commonwealth developed Mack and Atkinson as
     suspects . . . before they were able to charge Appellant as the
     third participant in the crime. The Commonwealth was able to do
     so through interviews conducted by Westmoreland County
     Detective John Clark, and statements provided by Mack and
     Atkinson. As a result of those interviews, the Commonwealth was
     able to obtain cell phone records for 412-478-6744, a number
     connected to Atkinson, and 724-708-2305 (AT&T), the number of
     the phone that Appellant had with him when arrested. Through
     the interview of Mack, the Commonwealth was able to determine
     that his cell phone number was 412-225-1237. The phone
     numbers for Appellant and Atkinson both belonged to women that
     the Commonwealth connected each to. In Appellant’s case, the
     phone number for the phone that he had when arrested, was that
     of Cecelia Geyer.

           ....

           The Commonwealth then sought to introduce phone records
     for 412-478-6744 (Atkinson) and 724-708-2305 (Appellant).
     Appellant objected on the grounds that the records showed no
     contact between Appellant and Atkinson or Mack. Said records
     did not show any direct contact between Appellant and Atkinson
     or Mack, at any relevant time.        It is unclear why the
     Commonwealth introduced these records.

           Though introduction of said records, or in an effort to make
     such relevant, Detective John Clark testified that the records
     showed “indirect contact” between Appellant and Atkinson; that
     Appellant could have talked with Atkinson through an Xbox; that
     the use of multiple cell phones is common in the “drug trade”; and
     then Detective Clark strangely referenced 724-470-7072 as a
     number Appellant could have made contact with Atkinson with.


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             On the evening before the last day of trial, Detective Clark
      obtained records for 724-470-7072 (AT&T), which the
      Commonwealth then sought to introduce somehow. The trial
      court ruled such inadmissible. When Appellant called Cecelia
      Geyer as an alibi witness, the trial court then ruled that while
      these records could not be introduced, Geyer could be impeached
      with such to demonstrate her bias. The Commonwealth then
      utilized said records, in cross-examining Geyer to demonstrate
      only that she had a phone with the number 724-470-7072,
      inviting further speculation that Appellant could have called
      Atkinson from that phone.

            The cell phone records were simply irrelevant. Had they not
      been introduced or cross examination with the records, actually
      ruled inadmissible, not been permitted, the hearsay, speculation
      and conjecture permitted, or invited, by their improper
      introduction, would have been avoided.

Appellant’s brief at 16-18.

      From our review of the evidence, we tend to agree with Appellant that

the phone records were of questionable relevance. However, we also agree

with the Commonwealth that any error in their admission was harmless.

Commonwealth’s brief at 5-6. We are convinced that any error regarding the

phone records could not have contributed to the verdict in this case.

      The jury heard from both Mack and Atkinson that Appellant was the third

co-conspirator, and, most significantly, Appellant’s blood was on the wall

in Ms. Thompson’s home. With this evidence, we simply cannot conclude

that the jury’s verdict was based upon evidence that was either irrelevant or

prejudicial.

      “[A] defendant is entitled to a fair trial but not a perfect one.”

Allshouse, supra at 182.      In the absence of any indication that the trial


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court’s rulings regarding the phone records deprived Appellant of his right to

a fair trial, we hold that Appellant is entitled to no relief from this Court.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2018




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