J-A15012-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

JAMAL GLOVER,

                          Appellant                   No. 1153 EDA 2014


            Appeal from the Judgment of Sentence March 28, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008060-2012


BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 13, 2015

       Jamal Glover appeals from March 28, 2014 judgment of sentence

imposed following his January 7, 2014 conviction of third-degree murder,

possession of a firearm without a license, possessing a firearm in public in

Philadelphia, and possessing an instrument of crime (“PIC”). We affirm.

       The trial court summarized the facts of the case as follows:

       These charges arose out of a string of shootings in the City and
       County of Philadelphia between Appellant Jamal Glover, also
       known as “Fat Mal”, and decedent, Charles A. Britten, III
       (Britten), also known as “Dirt”. At approximately 5:05 P.M. on
       May 23, 2011, Appellant was walking west on Cambria Street
       when he saw Britten riding in his direction on a bicycle. As
       Appellant walked toward Britten, Britten shot at Appellant two
       (2) times with a .09mm [nine millimeter] handgun. At the
       intersection of West Cambria and North Bambrey Streets,
       Appellant returned fire at Britten with a .380mm [thirty-eight
       millimeter] handgun, shooting at Britten seven (7) times and
       striking him six (6) times. Britten was shot two (2) times in the

*
    Former Justice specially assigned to the Superior Court.
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     upper right back, one (1) time in the lower right back, one (1)
     time in the lower right flank, one (1) time in the right hip, and
     (1) time in the right elbow. Britten fell off his bicycle and ran
     west on Cambria before collapsing in the crosswalk of North
     Baily and West Cambria Streets. Appellant walked west on
     Cambria Street and entered a house on the corner of West
     Cambria and North Bambrey Streets.

     Britten was still alive but unresponsive when Police Officer
     Matthew Lally arrived on the scene at approximately 5:08 P.M.
     Officer Lally placed Britten in the back of his police car and
     transported Britten to Temple University Hospital. Britten was
     pronounced dead at 5:30 P.M. by Dr. Hughes. An autopsy was
     performed by Assistant Medical Examiner Dr. Aaron Rose, who
     determined that the cause of Britten’s death was multiple
     gunshot wounds. The manner of death was homicide. A warrant
     for Appellant’s arrest was executed on February 1, 2012, outside
     of Appellant’s home by Police Officer Cyprian Scott.

Trial Court Opinion, 10/22/2014, at 3.

     A non-jury trial commenced on January 6, 2014.            At trial, the

Commonwealth introduced videotape security footage acquired from six

cameras located in a store near the scene of the shooting. N.T., 1/6/14, at

16. Although the footage did not capture the actual shooting, Appellant was

seen wearing a white shirt and leaving the grocery store at 4:55:16 and

walking out of the view of the camera at 4:55:32. Id. at 24-25. At 5:05,

the time of the shooting, the decedent was seen coming into the view of the

camera and falling in the intersection. Id. at 25-26, 34-35.

     It was stipulated that the Medical Examiner, Dr. Aaron Rosen, would

testify to a reasonable degree of medical certainty that the victim sustained

six gunshot wounds and that the manner of death was homicide caused by



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those gunshot wounds.         Id. at 53-56.    The Commonwealth produced

eyewitness Abdon Sutton.       Sutton denied knowledge of the shooting and

was confronted with a statement he provided to homicide detectives in

January    2012.     He   then   denied    giving   the   statement,   and   the

Commonwealth impeached him with it. In the statement, Sutton stated that

he knew both Appellant and the victim and that they had been shooting at

each other.   Id. at 72-80.    On the day in question, Sutton saw Appellant

shooting at the victim, and he subsequently identified Appellant from a

photographic array. Id.

       Detective John McNamee, a detective since 1990, testified that he and

his partner received Sutton’s statement implicating Appellant in the shooting

death of Britten, and the entire statement was read into the record. Id. at

100-103.      The detective confirmed that Sutton identified Appellant’s

photograph and signed his name underneath the photograph. Id. at 105.

       The Commonwealth called Christopher Johnson, also known as

“Quest.” Johnson initially maintained that he did not see anything. Id. at

120.   He remembered hearing shots, but maintained that his back was to

the events. After Johnson was confronted with his June 26, 2011 statement

to police, he admitted knowing the man who shot the victim on the bike,

that the shooter was Appellant, and that he formerly cut Appellant’s hair.

Id. at 123, 133, 139. Johnson confirmed during his direct testimony that he

saw Appellant shoot the victim six or seven times with a black automatic

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handgun and watched Britten jump off the bicycle before running up the

street and collapsing.   Id. at 134-136, 139.    He also testified consistently

with his statement that he did not see anyone else shooting except

Appellant.   Id. at 135.   Johnson selected Appellant’s photograph from an

array at the time and identified him again at trial. Id. at 133, 141.

      The Commonwealth advised Appellant that it intended to call Daryldre

Funchess as a witness. On January 7, 2014, prior to the commencement of

the second day of trial, Appellant filed a motion in limine seeking to admit

evidence of Funchess’ open attempted murder case.             Specifically, the

defense wished to cross-examine Funchess regarding what it maintained

were strikingly similar facts between that open case and the facts in the

instant case in order to create reasonable doubt by suggesting that

Funchess, not Appellant, was the shooter. Alternatively, Appellant sought a

ruling from the court permitting him to introduce those facts through a

police witness. The motions court heard argument on the motion, which was

recorded but not preserved, and ruled that only the fact of Funchess’s open

attempted murder charge was admissible.           Appellant’s Pa.R.A.P. 1923

Statement, at 3.

      On direct examination, Funchess acknowledged that he was currently

in the county prison, that he had been charged in an attempted murder

case, that it involved a shooting with multiple shots fired, and that at the

time of the instant shooting, he was out of jail. N.T., 1/7/14, at 60. Mr.

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Funchess testified that he was in a Chinese store at the intersection of

Cambria and Stillman on May 23, 2011 at 5:00 p.m. He heard four to six

shots and looked out the store window.     He saw Appellant, whom he had

known for ten years, running down Bambrey Street. N.T., 1/7/14, at 61-62.

Appellant had a gun. Id. at 63. He did not see Appellant shoot anybody.

Id. at 64.    Funchess also testified that he knew the decedent, Charles

Britten, and saw him “laid out on the bike” after the shooting. Id. at 63-64.

      On cross-examination, Funchess was questioned about his testimony

at the preliminary hearing that people were suggesting he was involved in

the crime. Id. at 73-74. Defense counsel reaffirmed that he had an open

case for attempted murder in which he was alleged to have fired multiple

gunshots at his victim, id. at 75-76, and that he was on probation for

assault.   After defense counsel confronted the witness with his statement

and preliminary hearing testimony in which he denied that Appellant had a

gun, he retracted his earlier testimony that Appellant had a gun. Id. at 82-

4. Funchess confirmed that prior to the May 23, 2011 shooting, the victim

had been riding around shooting at people on Bambrey Street. On re-cross,

Funchess reiterated that he heard the gunshots but did not actually see the

shooting. Id. at 89-90.

      On January 7, 2014, the trial court convicted Appellant of third-degree

murder, possessing a firearm without a license, possessing a firearm on a

street or public property in Philadelphia, and possessing an instrument of

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crime. N.T., 1/7/14, at 124. On March 28, 2014, the trial court sentenced

Appellant to an aggregate sentence of twenty to forty years. Id. at 11. He

timely appealed, complied with the court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and this matter is ripe

for disposition.

      Appellant raises the following issue on appeal:

      Was it not error, an abuse of discretion, and a constitutional
      violation to exclude evidence tending to show that an alternate
      person had committed the crime of which appellant was accused,
      especially as that person was a key witness against appellant at
      his trial, in violation of appellant’s right to present reliable
      evidence of third party guilt as guaranteed by the United States
      Constitution, Pennsylvania decisional law and the Pennsylvania
      Rules of Evidence?

Appellant’s brief at 3.

      “When reviewing a ruling on a motion in limine, we apply an

evidentiary abuse of discretion standard of review.”    Commonwealth v.

Parker, 104 A.3d 17, 21 (Pa.Super. 2014) (quoting Commonwealth v.

Orie, 88 A.3d 983, 1022 (Pa.Super. 2014)).       The law is well settled that

questions of the admission and exclusion of evidence are within the sound

discretion of the trial court and will not be reversed on appeal absent an

abuse of discretion.      Commonwealth v. Kendricks, 30 A.3d 499, 503

(Pa.Super. 2011) (citing Commonwealth v. Freidl, 834 A.2d 638, 641

(Pa.Super. 2003)).        An abuse of discretion is not merely an error of

judgment, but occurs when “the law is overridden or misapplied, or the



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judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice,    bias,   or   ill-will,   as   shown   by   the   evidence   on   record.”

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009). Additionally,

evidentiary errors are subject to the harmless error doctrine. Judgment of

sentence will be affirmed despite an evidentiary error if the reviewing court

concludes beyond a reasonable doubt that the error did not contribute to the

verdict. Commonwealth v. Moran, 104 A.3d 1136 (Pa. 2014).

      Appellant contends that the motions court erred in precluding him

from demonstrating the similarity between the facts of the instant crime and

the facts of a pending attempted murder charge against Daryldre Funchess.

He maintains that such evidence tended to show that Funchess was the

shooter.     Appellant filed a statement in absence of transcript pursuant to

Pa.R.A.P. 1923, in which set forth the following account of the argument

presented to the motions court regarding this evidence:

      The facts presented to the motion court were that in both Mr.
      Funchess’ and appellant’s cases, there was an on-the-street
      shooting involving approximately 6 shots fired. Both involved
      automatic or semi-automatic hand guns (the gun in appellant’s
      case was not recovered but the evidence of fired cartridge
      casings indicated an automatic or semi automatic weapon). In
      both instances, the victim was shot at least once in the torso
      area. Both instances happened within less than a half mile of
      each other in the same North Philadelphia neighborhood. In both
      cases, the victim and the alleged shooter knew each other. Mr.
      Funchess also knew the victim in appellant’s case.

Appellant’s Pa.R.A.P. 1923 Statement, at 3.




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       Appellant claims that the facts of the offense with which Funchess was

charged are “remarkably similar” to the facts of the crime for which

Appellant was convicted.          He argues that the similarity simultaneously

supports a defense theory of innocence as well as his theory that Funchess

was the real perpetrator, and he contends that this evidence was admissible

under Pa.R.E. 404(b).1         In that regard, Appellant maintains that a more

relaxed standard of admissibility applies where it is offered by the defense

and there is no potential prejudice to the defendant. See Commonwealth

v. Thompson, 779 A.2d 1195 (Pa.Super. 2001) (holding evidence which

tends to show that the crime of which the accused stands trial is relevant

and admissible) (citing Commonwealth v. McGowan, 635 A.2d 113 (Pa.

1993)). The evidence need not rise to the level of a “signature crime,” the

standard adopted in Commonwealth v. Nocera, 582 A.2d 376 (Pa.Super.

1990), and applied recently in Commonwealth v. Palagonia, 868 A.2d

1212 (Pa.Super. 2005).

       Appellant cites Holmes v. South Carolina, 547 U.S. 319 (2006)

(exclusion of evidence of third-party guilt denied defendant fair trial), and
____________________________________________


1
    Appellant characterizes the proffered evidence as “reverse 404(b)
evidence,” a term employed by the federal courts when referring to other
crimes evidence offered by the defense to suggest that another is the actual
perpetrator. Pa.R.E. 404(b) provides that evidence may be admissible for
the purposes of proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.        Pa.R.E.
404(b)(2).



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Chambers v. Mississippi,             410       U.S.   284,   302   (1973)   (recognizing

fundamental right of accused to present defensive evidence as long as it is

relevant and not excluded by an established evidentiary rule), in support of

his contention that exclusion of the proffered evidence deprived him of his

right to due process and a fair trial.2                 Finally, in response to the

Commonwealth’s contention that any error was harmless, Appellant counters

that Funchess was his “main accuser,” and the error substantially prejudiced

him as the evidence of guilt was not “uncontradicted” and “overwhelming.”

       The Commonwealth counters that the evidence was irrelevant.

Funchess had not been convicted of the other crime, and furthermore, the

facts of Funchess’s underlying case and the case at issue were not

sufficiently similar in distinctive details as to tend to suggest that he rather

than Appellant was the perpetrator. In demonstrating similarity in the two

crimes, the Commonwealth charges “[t]he defendant is reduced to relying

on common factors that are so generic as to be virtually meaningless.”

Commonwealth’s brief at 12.                The Commonwealth           summarizes and




____________________________________________


2
    Appellant does not argue that the exclusion of the proffered evidence
violated his Sixth Amendment right to confrontation. It is well settled that a
the right to cross-examine is circumscribed by considerations of relevancy,
i.e., evidence tending to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.



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compares the facts of the two crimes in order to demonstrate that they were

not similar.

      Mr. Britten was shot on the 2500 block of West Cambria Street in a

violent neighborhood.        N.T., 1/6/14, at 15, 143.             The crime with which

Funchess was charged occurred a year earlier on an unidentified street in

North Philadelphia purportedly one-half-mile away. Seven shots were fired

at Mr. Britten, six of which struck him. Britten was shot twice in the upper

right back, and once in the lower right back, lower right flank, right hip, and

right elbow.   Id. at 53-59; N.T., 1/7/14, at 9.                 Appellant proffered that

multiple shots also were fired in the other case, and that the victim was hit

once in the torso. An automatic or semi-automatic handgun was used in the

first crime; an automatic or semi-automatic weapon of some kind was used

in the instant crime.      Finally, Appellant suggests that Funchess knew both

victims,   although      Funchess    testified      that   he    did     not    know    Britten

“personally”   but    only   recognized      him      from      seeing    him    around     the

neighborhood. Id. at 63.

      The Commonwealth argues that any similarities between the two

crimes are so generic and indistinctive as to lack any probative value.                       It

contends    that   the    cases     upon    which     Appellant        relies   are    factually

distinguishable as they involved crimes with distinct details that were similar

and thus probative in showing that the crimes were committed by the same

person.    The Commonwealth concludes that since the evidence was not


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relevant, its exclusion did not violate Appellant’s right to due process.

Furthermore, any error in excluding the evidence was harmless in light of

the testimony from two eyewitnesses identifying Appellant as the shooter

and videotape showing that Appellant was at the scene.

      The following principles inform our review.       Our rules of evidence

preclude testimony if it “does not tend to prove or disprove a material fact in

issue, or to make such a fact more or less probable, or if it does not afford

the basis for a logical or reasonable inference or presumption as to the

existence of a material fact in issue.” Commonwealth v. Thompson, 779

A.2d 1195, 1200-1201 (Pa.Super. 2001).          Evidence is only relevant if it

logically tends to establish a material fact in the case or tends to make a fact

at issue more or less probable or supports a reasonable inference or

presumption regarding a material fact.        Commonwealth v. Drumheller,

846 A.2d 747 (Pa. 2002). Evidence which tends to show that the crime for

which an accused stands trial was committed by someone else is relevant

and admissible. McGowan, supra; Commonwealth v. Ward, 5 605 A.2d

796 (Pa. 1992). Such evidence is evidence that “someone else committed a

crime that bears a highly detailed similarity to the crime with which [he] is

charged.”   Commonwealth v. Patterson, 91 A.3d 55, 72 (Pa. 2014)

(emphasis added) (quoting Commonwealth v. Weiss, 81 A.3d 767, 806-

07 (Pa. 2013)); Commonwealth v. Rini, 427 A.2d 1385, 1388 (Pa.Super.

1981).


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     What constitutes “detailed similarity” is best illustrated by examining

the cases making that determination.     In Rini, supra, the defendant was

charged   with   indecent   exposure.     The   evidence   revealed    that   at

approximately 9:00 a.m., as two girls were crossing a bridge on their way to

school, a comment uttered by an individual on the railroad tracks below

prompted them to look down. They saw a man with his pants pulled down

to mid-thigh, exposing his genitals.    The girls reported the incident when

they arrived at school and police were called.       The girls identified the

defendant as the perpetrator.

     At trial, the defense sought to introduce testimony from a young girl

who attended the same high school as the complainants to the effect that,

six days prior to the incident, she and two friends were crossing the same

bridge at the same time and their attention was drawn to a man on the

tracks below who was exposing himself.      Initially, this girl and her friends

identified the defendant as the perpetrator from his mug shot, but at the

preliminary hearing on charges arising from that incident, two of the three

girls stated that, while the defendant closely resembled the man they had

seen, he was not the same man.

     The defense offer of proof was simply that the defendant was arrested

on a similar charge, that he looked like the perpetrator but was not the

perpetrator, and that this was relevant to show that the girls could be




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mistaken in their identification of defendant.   The trial court excluded the

evidence on relevancy grounds, a ruling that was challenged on appeal.

     This Court vacated judgment of sentence and remanded for further

proceedings. We concluded that, “[w]hen the defense offers evidence that

someone other than the defendant committed a crime with a detailed

similarity to the one charged, the probative value is equally strong in

showing that the defendant did not commit the crime charged, and the

argument for admissibility is even stronger, because there is no prejudice to

weigh against this equally strong probative value.”      Id. at 1388.    The

evidence was “unquestionably relevant.” Id.

     In contrast, in Palagonia, supra, other crimes evidence was not

relevant as the facts were not sufficiently similar.      In that case, the

complainant called police to report that two young men had been on her

second floor apartment balcony but fled when they saw her. A short time

later, two young males matching the description were apprehended by police

and the complainant identified them as the men she had seen earlier on her

balcony. Palagonia, one of the men, was convicted of criminal trespass and

conspiracy to commit criminal trespass.     At trial, he sought to introduce

testimony from persons living in a neighboring housing complex that a rash

of burglaries occurred sometime during that same night.       The trial court

excluded the testimony as irrelevant. Palagonia argued on appeal, based on

Rini, that he should have been permitted to inform the jury about the other


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burglaries in an effort to show that someone else, not him, was on the

balcony that night.

      This Court acknowledged that Rini stands for the proposition that

criminal defendants are entitled to offer evidence that some other person

committed a similar crime at or around the same time they are alleged to

have committed the crime for which they stand accused.                However, in

determining whether the proffered evidence actually establishes this fact, we

considered the two factors identified in Nocero, supra, “that coalesce to

establish its relevance and probative value.”     Palagonia, at 1216.      Those

factors are 1) the lapse of time between the commission of the two crimes,

and 2) the resemblance between the methodologies of the two crimes. Id.

We held that although the time lapse between the crimes was brief, the

nature of the crimes was not “so distinctive or unusual as to be like a

signature or the handiwork of the same individual." Id. The burglaries in

the other complex were similarly distinctive as in all those cases, the

perpetrators pried open garage doors with tools and removed items from the

garages.   The conduct in this crime was vastly different since it did not

involve forced entry, tools, or a garage.      This Court found no abuse of

discretion in the trial court’s exclusion of the burglary evidence.

      Appellant urges us to follow the lead of the federal courts in their

application of F.R.E. 404(b) other crimes evidence offered by a defendant.

He cites Professor Weinstein for the proposition that the admissibility of such


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evidence is “solely dependent on its passing the relevance test of [F.R.E.]

Rule 402 and the balancing test of [F.R.E.] Rule 403.”       1-7 Weinstein’s

Evidence Manual § 7.01.     Appellant’s reply brief at 16.    He relies upon

United States v. Montelongo, 420 F.3d 1169, 1174 (10th Cir. 2005),

where the court identified “the similarities between the two crimes and their

temporal proximity” as “two especially pertinent factors” in making such

evidence probative. Appellant’s brief at 16.

     We see little difference between the federal courts’ treatment of

reverse 404(b) evidence and our own approach.         In each instance, the

evidence must be probative.    Similarity and temporal proximity in the two

crimes are factors that tend to make the evidence relevant.       Appellant’s

proffered evidence herein simply was not probative.      The crimes at issue

herein occurred more than one year apart at locations one-half mile away

from each other. N.T., 1/7/14, 65-66, 74. The fact that at least six shots

were fired from automatic or semi-automatic weapons, one of which struck

the torso of the victim in both cases, does not make it likely that the same

person was the shooter. Missing herein was the type of distinctive similarity

in the details and proximity in time that is probative of a common identity

among the perpetrators of the two crimes.      In precluding the underlying

facts of the case involving Funchess, the motions court properly applied

Pennsylvania decisional and evidentiary law and did not violate Appellant’s

right to present a defense. Accordingly, we find no abuse of discretion.


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       Appellant’s due process claims are without merit.        In Holmes, the

state rule required the judge to focus on the strength of the prosecution’s

case rather than the probative value of the evidence. The effect of the state

rule therein was to exclude evidence of third party guilt even if it had

probative value, as long as the prosecution’s case was strong enough. Id.

This created a state rule that was illogical, irrational and/or arbitrary.   Id.

That is not the situation here.          Had the proffered evidence herein been

relevant, it would have been admitted.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2015


____________________________________________


3
   Since we found no error in the exclusion of the evidence, we do not reach
the issue of whether any error was harmless. We note, however, that
Funchess was not Appellant’s main accuser as Appellant contends. Funchess
heard the shots, saw Appellant run from the area, but did not see the
shooting. Two eyewitnesses to the shooting identified Appellant as the
shooter. Furthermore, several of the underlying details of the crime with
which Funchess was charged were elicited at trial. The court heard that
Funchess was charged with attempted murder, that multiple shots were fired
in that case, and that Funchess was familiar with the victim in this case from
the neighborhood.



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