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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                  v.                        :
                                            :
JOSE OLIVO-NOBLE,                           :
                                            :     No. 1112 MDA 2013
                          Appellant         :


            Appeal from the Judgment of Sentence December 6, 2012
               In the Court of Common Pleas of Dauphin County
               Criminal Division No(s).: CP-22-CR-0000009-2012

BEFORE: BOWES, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 22, 2014

        Appellant, Jose Olivo-Noble, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas. He challenges: (1)

the weight and sufficiency of evidence for his jury convictions of murder in

the first degree and aggravated assault;1 and (2) the preclusion of the

victim’s prior bad acts as well as evidence that a neighbor heard someone

tell the victim to stop reaching for his waist. We affirm.

        We glean the following facts from the trial court opinion and trial

transcript. Appellant’s girlfriend was Jateeyia Thompson, and the victim in

this case was Eric Gunraj (“Victim”).     Victim often visited the home of his

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(a), 2702(a)(1).
J. S15036/14


friends, the Freeman family, who lived across the street from Jateeyia’s

mother’s house.   On Thanksgiving evening in 2011, Victim, along with his

friends Leonard Davis and Larry Brickhouse, went to a pub. Victim said hello

to Appellant’s girlfriend, Jateeyia, gave her a hug, and then touched or

grabbed her buttocks.2 Trial Ct. Op., 10/11/13, at 1-2, 3; N.T. at 403, 417.

Appellant confronted Victim and hit him. They both left the bar, and outside,

Appellant again approached Victim and hit him.       At trial, Jateeyia testified

that she had seen Victim “around in the clubs for [about] a month before the

incident.” N.T. Trial, 12/3/12 to12/6/12, at 404. Appellant testified that he

did not know Victim, but had “seen him once in a while when” he goes to

Jateeyia’s mother’s house.       Id. at 427.       Furthermore, at trial the

Commonwealth      played   surveillance   video   showing   both   instances   of

Appellant hitting Victim. Id. at 376-383.

     Two nights later, around 5:00 or 6:00 p.m. on November 26, 2011,

Appellant went to the house across the street from Jateeyia’s mother’s

house, where Victim visited every day.       Appellant approached Ms. Masai

Freeman, a resident of the home, and asked if Victim was around.           After

being told he was not, Appellant told Masai to tell Victim he had stopped by,

which Masai did by phone.

     Later that night, into the early morning hours, Victim was on the front

2
  On direct examination, Jateeyia testified that “at first” she did not know
Victim had touched her, but out of the corner of her eye saw Appellant rise
and confront Victim. N.T. at 403-04.



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porch of the Freeman home, along with Tanisha Freeman—who is Masai’s

sister—and Leonard Davis.       Jateeyia and her mother were at the mother’s

house across the street. Appellant

           approached the [Freeman] house from across the street,
           stopped at the bottom of the porch stairs and accused
           [Victim] of “looking for us,” as other men approached from
           the side of the porch. An argument ensued between
           [Victim] and [Appellant], in which Mr. Davis interjected
           “What are we arguing for. There’s kids in the crib.” Mr.
           Davis continued to intervene and stated “it’s all you all
           against us. We can go in the alleyway and settle our
           differences.” Meanwhile, [Victim] began pulling up his
           pants. [Appellant] warned [Victim] to “stop reaching.”
           Mr. Davis [told Victim to stop reaching] as well.

               Nevertheless, [Victim] persisted to pull at his pants, and
           [Appellant] drew his gun and began to shoot. Mr. Davis
           grabbed Tanisha Freeman and pushed her through the
           front door of the house. As Mr. Davis placed on hand on
           [Victim] to grab him, he felt the shots hit [Victim’s] body.
           Mr. Davis followed Tanisha . . . in through the door as
           [Victim’s] body dropped to the floor of the porch. After the
           first round of shots, Tanisha . . . turned toward the
           direction [Appellant] had run and shouted, “you’re going to
           jail, you’re going to jail, you shot him, I am calling the
           cops you fat expletive, you’re going to jail, you’re going to
           jail.” While shouting, Tanisha . . . looked out of the house
           and saw [Appellant] back up [and] shoot a second round
           of shots into the house. Two of the bullets from the
           second volley struck Ms. Oveta Johnson in the buttocks as
           she ran to call the police. [Johnson is Masai and Tanisha’s
           mother and was inside the house.3 Victim] died on the
           porch shortly after the shooting.

              . . . [Victim] was not in possession of a gun. . . .

Trial Ct. Op. at 2-3 (citing N.T. at 91, 94-97, 123, 153-55, 156-57, 199,


3
    N.T.at 197, 199.



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216-17).

      Wayne Ross, a forensic pathologist who performed an autopsy on

Victim, testified to the following. N.T. at 259. Victim sustained four “distant

gunshot wounds,” all fired from “at least three to four feet away.”     Id. at

261. Two gunshots entered Victim’s belly: one went from “right to left” and

the other went from “left to right.” Id. at 264, 266. Victim “was twisting

[and] turning as he was being shot,” resulting in the “different pathways [of]

the bullets.”     Id. at 268.   The other two gunshots were to Victim’s back

shoulder and lower right leg. Id. at 265, 267. “The autopsy also revealed

that [Victim] had a blood alcohol level of .227 but no abuse of drugs.” Trial

Ct. Op. at 3 (citing N.T. at 269-70).

      We add that Appellant testified in his defense to the following. On the

day after the incident at the pub, around 6:00 or 7:00 p.m., he went to

Jateeyia’s mother’s house. Jateeyia, told him that Victim wanted to talk to

him. N.T. at 430, 432. Appellant went across the street and encountered

Masai, who was exiting her door. Appellant asked for Victim, Masai said he

was not there, and Appellant asked her to tell Victim that he was looking for

him because Victim had asked to talk to him first.         Masai agreed and

Appellant left.

      Appellant further testified to the following.    Around 2:40 a.m., he

returned to Jateeyia’s mother’s house. Id. at 437-38. As he was walking on

the sidewalk, Victim called to him from a porch and said, “I heard you [are]



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looking for me.” Id. at 438, 439. Appellant walked over, stood six to eight

feet from Victim, and said, “[N]o, I heard you was looking for me.” Id. at

439. Tanisha Freeman was also on the porch, and she said Appellant was

there earlier looking for Victim. Id. at 440. Appellant told her that he was

there earlier and spoke with a young girl.       Appellant was not angry but

wanted to “[r]esolve the situation [they] had the night before.” Id. at 441.

Appellant denied that anyone came to either side of the porch. Id. at 441-

42.

      As Appellant was talking to Tanisha, Victim reached with his right

hand, and Appellant told him to “stop reaching.”          Id. at 442.    Victim

“stopped reaching and started smiling.”    Id.   Appellant said he did not go

there for any problems, but instead because Victim said he wanted to talk.

Victim “reach[ed]” a second time, Appellant said, “[Y]o, stop reaching,” and

Victim “stopped reaching and started laughing again.” Id. at 444. At that

point, the door opened. Appellant testified as follows:

            So [Tanisha] Freeman says, whatever you all gotta do.
         So I thought, okay, that’s respectful. So come over the
         porch and we can talk. No, you can talk from there. So
         I’m like, wow, like, okay. She gets up from her seat,
         starts walking behind him.

             When she starts walking behind him, I’m just looking,
         like I’m facing the street, I’m just looking, like, what’s up
         man, what’s it going to be. Are you going to come down
         so we can talk. At that point in time he reaches.

Id. at 444-45. Victim continued to smile, smirk, and reach, and lifted his

shirt with his left hand, revealing a black gun.      Id. at 445.    Appellant


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testified, “At that point in time I fear for my life.” Id.

        Appellant grabbed his own gun, which was on his left hip and fired four

shots.    Id. at 446.   As soon as he started firing, he also ran away.       Id.

Appellant did not see whether Victim was shot. As Appellant was running,

he heard a boom, “felt something pass” him, and then, “without looking . . .

threw [his] hand back and fired four more shots.” Id. at 448.

        On December 6, 2012, the jury found Appellant guilty of murder in the

first degree for the killing of Victim, and aggravated assault for shooting

Oveta Johnson.4 Immediately thereafter, the trial court imposed a sentence

of life imprisonment on the murder conviction.5          Appellant filed a post-

sentence motion, which was denied on June 14, 2013, by operation of law.

Appellant filed a timely notice of appeal and complied with the court’s order

to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

        In his first issue, Appellant challenges the sufficiency and weight of the

evidence for first-degree murder.6 He concedes “he was responsible for the

killing and did so with the specific intent to kill,” but he alleges the

4
    18 Pa.C.S. §§ 2705, 6106(a)(1).
5
  The court also imposed the following sentences, all to run concurrent with
the life sentence: for aggravated assault—four to eight years, for recklessly
endangering another person—one to two years, and for the firearm
violation—two to four years. N.T. at 570, 575-76.
6
  Appellant has preserved the weight of the evidence issue as he raised it in
his post-sentence motion.     See Pa.R.Crim.P. 607(A)(1)-(3); Appellant’s
Post-Sentence Mot., 12/21/12, at 8 (unpaginated).




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Commonwealth failed to disprove his theory of self-defense.          Appellant’s

Brief at 35.   Appellant reiterates his “uncontested testimony [that he saw

Victim] reach . . . three times into his pants while . . . Appellant kept telling

him to ‘stop reaching’ because he believed that [Victim] was reaching for a

gun in the waistband of his pants.”7 Id. at 25. Appellant adds that Victim’s

friend Leonard Davis, as well as his own girlfriend Jateeyia Thompson,

“confirm[ed this] testimony.” Id. at 26, 27, 29. Appellant reasons that the

Commonwealth “cannot sustain its burden of disproving . . . self-defense . . .

solely on the factfinder’s disbelief of the accused’s testimony.”     Id. at 35.

Appellant concludes he “had a well-grounded, reasonable belief that his own

life was in danger and he was legally entitled to respond with . . . deadly

force.” Id. at 30. We find no relief is due.

      We first note:

         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 as a matter
         of law no probability of fact may be drawn from the

7
  We note that while Appellant testified at trial that he saw a black gun on
Victim’s person, N.T. at 445, on appeal he avers Victim “lifted up his shirt as
if to reach for a gun.” Appellant’s Brief at 33 (emphasis added).



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        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 [finder] 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. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation

omitted).

     Our Crimes Code defines murder in the first degree as a criminal

homicide “committed by an intentional killing.”      18 Pa.C.S. § 2502(a).

Section 505 provides for self-defense: “The use of force upon or toward

another person is justifiable when the actor believes that such force is

immediately necessary for the purpose of protecting himself against the use

of unlawful force by such other person on the present occasion.” 18 Pa.C.S.

§ 505(a).

     This Court has summarized:

        The defendant has no “burden to prove” his self-defense
        claim.

                                 *    *    *

            While there is no burden on a defendant to prove the
            [self-defense] claim, before that defense is properly
            at issue at trial, there must be some evidence, from
            whatever source to justify a finding of self-defense.
            If there is any evidence that will support the claim,
            then the issue is properly before the fact finder.

        If the defendant properly raises “self-defense under
        Section 505 . . . the burden is on the Commonwealth to


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       prove beyond a reasonable doubt that the defendant’s act
       was not justifiable self-defense.”

          The Commonwealth sustains this burden if it
          establishes at least one of the following: 1) the
          accused did not reasonably believe that he was in
          danger of death or serious bodily injury; or 2) the
          accused provoked or continued the use of force; or
          3) the accused had a duty to retreat and the retreat
          was possible with complete safety.

       The Commonwealth must establish only one of these three
       elements beyond a reasonable doubt to insulate its case
       from a self-defense challenge to the evidence.         The
       Commonwealth can negate a self-defense claim if it proves
       the defendant did not reasonably believe he was in
       imminent danger of death or great bodily injury and it was
       necessary to use deadly force to save himself from that
       danger.

          The requirement of reasonable belief encompasses
          two aspects, one subjective and one objective. First,
          the defendant must have acted out of an honest,
          bona fide belief that he was in imminent danger,
          which involves consideration of the defendant’s
          subjective state of mind. Second, the defendant’s
          belief that he needed to defend himself with deadly
          force, if it existed, must be reasonable in light of the
          facts as they appeared to the defendant, a
          consideration that involves an objective analysis.

       [T]he use of deadly force itself “cannot be viewed in
       isolation with [the victim] as the sole physical aggressor
       and [the defendant] acting in responsive self-defense.
       [T]his would be an incomplete and inaccurate view of the
       circumstances for self-defense purposes.” To claim self-
       defense, the defendant must be free from fault in
       provoking or escalating the altercation that led to the
       offense, before the defendant can be excused from using
       deadly force. Likewise, the Commonwealth can negate a
       self-defense claim by proving the defendant “used more
       force than reasonably necessary to protect against death
       or serious bodily injury.”



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            When the defendant’s own testimony is the only
         evidence of self-defense, the Commonwealth must still
         disprove the asserted justification and cannot simply rely
         on the jury’s disbelief of the defendant’s testimony:

            The “disbelief of a denial does not, taken alone,
            afford affirmative proof that the denied fact existed
            so as to satisfy a proponent’s burden of proving that
            fact.” The trial court’s statement that it did not
            believe Appellant’s testimony is no substitute for the
            proof the Commonwealth was required to provide to
            disprove the self-defense claim.

         If there are other witnesses, however, who provide
         accounts of the material facts, it is up to the fact finder to
         “reject or accept all, part or none of the testimony of any
         witness.” The complainant can serve as a witness to the
         incident to refute a self-defense claim. “Although the
         Commonwealth is required to disprove a claim of self-
         defense arising from any source beyond a reasonable
         doubt, a [fact-finder] is not required to believe the
         testimony of the defendant who raises the claim.”

            A number of factors, including whether complainant was
         armed, any actual physical contact, size and strength
         disparities between the parties, prior dealings between the
         parties, threatening or menacing actions on the part of
         complainant, and general circumstances surrounding the
         incident, are all relevant when determining the
         reasonableness of a defendant’s belief that the use of
         deadly force was necessary to protect against death or
         serious bodily injuries. No single factor is dispositive. . . .

Smith, 97 A.3d at 787-88 (citations omitted).

      The trial court reasoned, “The Commonwealth proved beyond a

reasonable doubt that [Appellant] did not shoot in self-defense as the

Commonwealth’s evidence demonstrated that [Appellant] did not believe it

was necessary to kill [Victim] in order to protect himself from serious bodily

injury.” Trial Ct. Op. at 4. In support, it stated:


                                     - 10 -
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            [Appellant] claims he saw [Victim] with a black gun and
            therefore he had no choice but to draw his gun and fire
            four shots. (N.T. at 445-46). . . . The Commonwealth’s
            evidence, however, demonstrated [that Appellant] came
            looking for [Victim. Id. at 209, 211-13.] When [Victim]
            was not there, [Appellant] returned . . . that same evening
            armed with a gun. [Id. at 153. Appellant] brought friends
            with him and confronted [Victim]. Then, as an argument
            escalated, [Appellant] without provocation proceeded to
            wield a gun, despite [Victim] being unarmed, and shoot
            four times including one to the back, each bullet hitting
            [Victim] and resulting in a severed aorta. [Id. at 154-57,
            264-65.] In this case, the jury found the testimony of the
            Commonwealth witnesses more credible than [Appellant’s].
            In short, the Commonwealth presented evidence that
            [Appellant] sought out and initiated the contact, only
            [Appellant] had [a] weapon, only [Appellant] drew a
            weapon, and only [Appellant] fired. The jury found that
            the Commonwealth proved beyond a reasonable doubt
            that [Appellant] did not believe that . . . at the time he
            shot [Victim, Appellant] was in imminent danger of serious
            bodily injury.

Id. at 6.

      We agree with the court’s findings.         At trial, the Commonwealth

showed surveillance video taken from the pub two nights before the

shooting. N.T. at 376. The video showed Jateeyia inside the pub hug Victim

and then Victim “strike her on the rear end” or “[give] her a little pat on the

behind.” Id. at 378-79. Appellant and Victim exchanged “some words back

and forth, and then [Appellant] punched” Victim. Id. at 379. Surveillance

video also showed Appellant and Victim outside the bar, where Appellant

“walked over towards [Victim] and struck him.” Id. at 381-82.

      Although Appellant repeatedly stated he was responding to Victim’s

request to see him, Appellant does not dispute that two days after the


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incident at the pub, he twice sought out Victim at the house where he was

known   to   visit.   Additionally,   Appellant   himself   testified   that   upon

approaching Victim on the porch, Victim denied that he—Victim—was looking

for Appellant; Appellant stated, “We went back and forth probably like three

or four times.” N.T. at 440. Another fact that Appellant emphasizes is that

he told Victim three separate times to stop reaching for his pants or

waistband. In response to the first two commands to “stop reaching,” Victim

allegedly smiled or smirked. Id. at 442. Appellant could have left at that

time, but instead continued talking to Victim and Tanisha.

      We also note the Commonwealth’s argument that despite Appellant’s

testimony that he fired his gun while ducking his head and running away, he

“managed to fire four shots,” all of which struck Victim.       Commonwealth’s

Brief at 16 (citing N.T. at 465-66).    The record supports this observation:

Appellant testified that he fired three shots, but was not “looking where [he

was] firing” because he did not want to be hit himself. N.T. at 465. The

forensic pathologist testified that Victim suffered four gunshots, two of which

were to his belly from different directions, which indicated Victim was

“twisting” and “turning as he was being shot.” Id. at 264, 268.

      The above evidence establishes that Appellant provoked and continued

the use of force and failed to retreat. See Smith, 97 A.3d at 787. The jury

was free to believe the above evidence, and we decline to find the trial court

abused its discretion in denying Appellant’s challenges to the sufficiency and



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weight of the evidence.    See id. at 790.      Accordingly, we do not disturb

Appellant’s conviction for murder in the first degree.

      In his second issue, Appellant challenges the sufficiency and weight of

the evidence for his aggravated assault conviction, which arises from

shooting Oveta Johnson twice in the buttocks.            Specifically, he claims

Johnson did not suffer serious bodily injury. In support, Appellant recounts

that Johnson was treated at a local hospital and released without any

surgery.8 He claims that there are no “Pennsylvania decisions on point,” but

cites several out-of-state cases that hold “a mere gunshot wound—without

more—does not a serious bodily injury make.”9            Appellant’s Brief at 36.

Appellant also contends there was insufficient evidence that he intended to

inflict serious bodily injury on Johnson. He maintains that “[s]he was hit by

bullets [fired] as he ran from the scene” and “[h]e was not firing at anyone

specifically . . . but rather in the general direction of” Victim.     Id. at 40.

Finally, Appellant reiterates his claim that he was acting in self-defense and

thus his use of force was justified. We find no relief is due.

      “[U]nder   the   doctrine   of   transferred   intent,   an   offender   who

intentionally acts to harm someone but ends up accidentally harming


8
  Appellant also reasons that the scars on Johnson’s buttocks are “not
exactly visible, and while Johnson testified that she has pain, “it hardly
sounds severe.” Appellant’s Brief at 39.
9
  In support, Appellant cites decisions from Tennessee, the District of
Columbia Court of Appeals, and Alabama.



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another is criminally liable as if the offender had intended to harm the actual

victim.”   Commonwealth v. Bullock, 913 A.2d 207, 218 n.11 (citation

omitted); see also 18 Pa.C.S. § 303(b)(1).        The doctrine of transferred

intent applies to a charge of aggravated assault.        Commonwealth v.

Jackson, 955 A.2d 441, 449-50 (Pa. Super. 2008).

      As stated above, Appellant concedes he intended to cause serious

bodily injury to Victim: “It was never . . . Appellant’s conscious object to

cause serious bodily injury to anyone other than [Victim], and certainly not

to Ms. Johnson or any other occupant of the home.” Id. at 41. Johnson was

on the porch with Victim, and she was hit by two gunshots which, as

Appellant himself explains, were meant to hit Victim. Furthermore, we have

held above that Appellant’s reliance on his self-defense theory is meritless.

Accordingly, we hold that under the transferred intent doctrine, Appellant is

liable for the harm caused to the accidental victim, Johnson. See Jackson,

955 A.2d at 449-50; Bullock, 913 A.2d at 218 n.11. We affirm the court’s

denial of the sufficiency and weight of the evidence claims.10

      In this third issue, Appellant avers the trial court erred in denying his

motion in limine to admit evidence tending to show Victim had a “violent

character and that he was the aggressor.”           Appellant’s Brief at 44.

Specifically, Appellant sought to present evidence that in the pub, Victim had

10
   Although the trial court did not base its ruling on a transferred intent
analysis, we may affirm on any basis. See Commonwealth v. Dixon, 997
A.2d 368, 374 n.9 (Pa. Super. 2010) (en banc).



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said, “I’m Blood, I’m Blood,” had a tattoo on his forearm that said “sex,

murder, drugs,” and had a 2004 conviction for sexual assault.           Appellant

claims that Victim was in “a violent Harrisburg city street gang called ‘Blood’”

and his nickname was ‘Blood.’”        Id. at 44, 45.     Furthermore, Appellant

asserts the court erred in holding a defendant must be aware of a victim’s

violent past for admission of evidence of that violent past. We hold no relief

is due.

      We set forth the relevant standard of review:

          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.

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (citation

omitted).

      In the instant matter, the trial court excluded evidence of Victim’s

alleged gang membership “as irrelevant because [Appellant] had no

knowledge of [these] underlying facts at the time of the incident.” Trial Ct.

Op. at 12.     The court opined that Appellant had to have been aware of

Victim’s alleged violent propensities for this evidence to have probative value

for self-defense purposes.      Both the trial court and Appellant cite the

Pennsylvania Supreme Court’s decision in Commonwealth v. Amos, 284

A.2d 748 (Pa. 1971), in support of their positions.


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      An equally divided en banc panel of this Court considered Amos in

Commonwealth v. Christine, 78 A.3d 1 (Pa. Super. 2013) (en banc),

appeal granted, 86 A.3d 831 (2014). One issue in Christine was whether

the trial court erred in precluding evidence of the victim’s simple assault

conviction incurred after the incident giving rise to the defendant’s charges.

Id. at 4. The opinion in support of affirmance stated:

            Our Supreme Court has held that “as far back as 1884,
         [Pennsylvania courts have] permitted the introduction of
         character evidence to prove the decedent’s violent
         propensities, where self-defense is asserted and where
         there is an issue as to who was the aggressor.” Further,
         our Supreme Court has specifically held that the victim’s
         criminal record can be admissible on two distinct
         grounds[:]

            (1) to corroborate [the defendant’s] alleged
            knowledge of the victim’s quarrelsome and violent
            character to show that the defendant reasonably
            believed that his life was in danger; or (2) to
            prove the allegedly violent propensities of the victim
            to show that the victim was in fact the aggressor.

                                 *     *      *

            Nor do we mean to suggest that our decision
            here abandons the rule. . . that the defendant
            must first establish a foundation of his
            knowledge of the victim’s convictions before he
            can introduce the corroboratory record when
            the defendant is seeking to prove his belief that
            he was in imminent danger of bodily harm.
            Here again, the determination whether or not the
            defendant demonstrates a sufficiently particular
            knowledge of the victim’s record rests within the
            sound discretion of the trial court.

         [Amos, 284 A.2d at 752.]   We highlight that our
         Supreme Court held that a defendant must lay a


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         foundation for his knowledge of the victim’s
         convictions only when he “is seeking to prove his
         belief that he was in imminent danger of bodily
         harm.”     [Id.]    It therefore logically follows that a
         defendant need not establish knowledge of the victim’s
         record in order “to prove the allegedly violent propensities
         of the victim to show that the victim was in fact the
         aggressor.” [Id. at 750.] In every case, the defendant is
         also required to show that the convictions sought to be
         introduced “are similar in nature and not too distant in
         time” from the underlying incident.          Because [the
         defendant] wished to use [the victim’s] subsequent
         conviction to establish the second Amos ground as
         opposed to the first, [the defendant] was not required to
         show specific knowledge of the conviction. See [id. at
         750, 752.]

Christine, 78 A.3d at 4-5 (emphases added) (some citations omitted).

      The opinion in support of reversal stated,

         Although I agree that the trial court properly
         precluded cross examination questioning of the
         victim . . . regarding his simple assault conviction, I
         write separately to express my view that the conviction
         was not relevant because the conviction and underlying
         conduct occurred subsequent to the prison incident. . . .

Id. at 11.

      Although neither opinion in Christine is binding precedent, we find

they provide guidance in the instant matter.       The latter opinion did not

disagree with the first opinion’s synopsis of Amos.     Both opinions agreed

that pursuant to Amos, a defendant must establish knowledge of the

victim’s prior convictions when the defendant seeks to prove his own belief




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that he was in imminent danger of bodily harm.11 Id. at 5, 11. Instead, the

basis of the disagreement was whether the victim’s subsequent conviction

of simple assault was relevant to prove the victim’s allegedly violent

propensities and to show the victim was in fact the aggressor. See id. Such

an issue—the admission of the victim’s subsequent bad acts—is absent in

the instant case.

      We next must review the purpose for which Appellant intended to

introduce this evidence about Victim. Pursuant to Christine and Amos, if

Appellant sought to corroborate his testimony that he “reasonably believed

that his life was in danger” or he was in imminent danger of bodily harm,

then Appellant had to establish his prior knowledge of Victim’s violent

character.   See Amos, 284 A.2d at 750; Christine, 78 A.3d at 5.          If,

however, Appellant sought only to show Victim was the initial aggressor,

without any other inference, then he was not required to show he knew of


11
   See also Commonwealth v. Beck, 402 A.2d 1371, 1373 (Pa. 1979) (“A
defendant . . . need not have knowledge of a victim’s criminal conviction in
order to introduce the prior conviction showing the aggressive propensities
of the victim.”); Commonwealth v. Horne, 388 A.2d 1040, 1042 (Pa.
1978) (“When a defendant alleges self defense, he may under proper
circumstances introduce the victim’s conviction and arrest records to
corroborate his alleged knowledge of the victim’s violent character or his
alleged belief that his life was in danger. . . . [H]owever, it is the
defendant’s knowledge of the charges contained in that record that makes
the record admissible because [it is] probative of the defendant’s state of
mind.”); Commonwealth v. Brown, 477 A.2d 1364, 1372 (Pa. Super.
1984) (“Appellant must be aware of the alleged violent propensities of the
victim, for testimony concerning the alleged violence to have probative value
for self-defense purposes.”).



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Victim’s prior bad acts. See Amos, 284 A.2d at 750; Christine, 78 A.3d at

5.

      The relevant portion of Appellant’s motion in limine was comprised of

four numbered sentences. The first two sentences pertained to Appellant’s

intent to raise self-defense at trial and argue “he reasonably believed that he

was in danger of suffering serious bodily injury or death.” Appellatn’s Mot.

In Limine, 11/27/12, at 1. The third sentence was the Victim’s membership

in a violent street gang was “relevant to establish [his] propensity for

violence/aggressive behavior[.]”     Id.      The last sentence was, “There is

authority that evidence of membership in a gang is admissible.”              Id.

(citations omitted). When read together, Appellant’s motion in limine, while

short, invoked both bases to admit the evidence: Appellant’s self-defense

and Victim’s role as the initial aggressor.

      The trial court briefly addressed Appellant’s motions in limine just

before the start of trial. The parties acknowledged the court’s prior ruling

that Victim’s alleged gang membership, his nickname “Blood,” and his “sex,

murder, drugs” tattoo were irrelevant because Appellant was not aware of

it. N.T. at 9, 10. Appellant then argued that the information would not be

offered to establish his fear at the time of the shooting, but instead to

establish the fact that Victim was the aggressor.       Id. at 9-10.   The court




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again stated that Appellant was not previously aware of these things.12 Id.

at 10.   On appeal, Appellant advances both proffers: the evidence would

have “establish[ed Victim’s] propensity for violence and . . . support[ ]

Appellant’s affirmative defense of self-defense. Appellant’s Brief at 44.

      Despite Appellant’s assertion just before trial that his proffer was

merely to establish Victim’s role as the aggressor, we hold the trial court

properly required Appellant to show he had prior knowledge of Victim’s

violent character or prior bad acts. The central issue at trial, advanced by

both Appellant’s testimony and argument, was self-defense: whether

Appellant reasonably believed Victim was reaching for a gun and that he—

Appellant—he was in imminent danger of death or serious bodily harm.

Thus, we agree, pursuant to Christine and Amos, that Appellant had to

establish he was aware of Victim’s alleged membership in a gang.            See

Amos, 284 A.2d at 750; Christine, 78 A.3d at 5. We affirm the trial court’s

preclusion of this evidence.

      With respect to Victim’s 2004 conviction for sexual assault, the trial

court excluded it on the basis that it was too remote to have probative

value. We do not find an abuse of discretion in this ruling. We add that the

sexual assault conviction is not “similar in nature” to the actions Appellant


12
    Appellant’s counsel then made the following seemingly inconstant
statement: “For the record, for whatever it’s worth, [Appellant] was aware of
that [sic] but he will not come into this courtroom, take the stand and lie, for
whatever that’s worth.” N.T. at 11.



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attributed to Victim at trial—that Victim was reaching into his pants for a

gun. See id.

      Appellant’s final claim in this appeal is that the trial court erred in

excluding this testimony “Shirley Thompson, a neighbor from across the

street[:] I heard someone say don’t reach.” Appellant’s Brief at 55-56. See

N.T. at 393.   At this juncture, we summarize that Shirley was a defense

witness, the Commonwealth objected to the above testimony, the parties

argued at sidebar, and the trial court sustained the objection on hearsay

grounds.   N.T. at 393-94.   In its opinion, the trial court opined that “the

proferred statement [did] not address” Appellant’s state of mind, and

instead was an assertion of Victim’s conduct at that time—that Victim was

reaching. Trial Ct. Op. at 14. The trial court also reasoned that even if the

testimony were admissible, its ruling was harmless error because evidence

that Appellant told Victim, “Stop reaching,” was already introduced through

other witnesses.

      On   appeal,   Appellant   maintains   that   Shirley’s   testimony   was

admissible under the hearsay exception at Pa.R.E. 803(3) to establish his—

Appellant’s—state of mind at the time of the incident.           Appellant also

challenges the court’s finding that he did not suffer prejudice, as this “was a

very important point: that [Victim] kept ignoring warnings from Appellant

and [Victim’s] friend to stop reaching into his pants because it seemed

[Victim] was about to draw and fire a weapon.” Appellant’s Brief at 56-57.



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Appellant asserts that Shirley “was a completely disinterested witness” and

“was not known to . . . Appellant,” and thus her corroboration of Appellant’s

repeated warnings “were critically important for the jury’s consideration.”

Id. at 57. We find no relief is due.

      As stated above, our standard of review for an evidentiary ruling is

abuse of discretion. Akbar, 91 A.3d at 235. “Hearsay is ‘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.E.

801(c).”     Id. at 236.      The comment to Rule 801 states in part,

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

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

instructions, warnings, etc.”      Pa.R.E. 801, cmt. (emphasis added).    “A

statement is hearsay only if it is offered to prove the truth of the matter

asserted in the statement. There are many situations in which evidence of a

statement is offered for a purpose other than to prove the truth of the

matter asserted.” Id.

      With respect to harmless error, our Supreme Court has stated:

           Harmless error exists where: (1) the error did not
           prejudice the defendant or the prejudice was de minimis;
           (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 was so insignificant by comparison that the error
           could not have contributed to the verdict.”



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Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (citation

omitted).

     We first reject Appellant’s claim that the witness, Shirley Thompson,

was not known to him and was a disinterested witness.         At trial, Shirley

testified she was the mother of Jateeyia Thompson and that she—Shirley—

had known Appellant for almost thirteen years and had worked with him for

three or four years. N.T. at 390-91.

     Next, we hold Shirley’s statement was not hearsay.         Her testimony

was that she “heard someone say don’t reach.” Id. at 393. The statement,

“Don’t reach,” was a warning or a command, and was not intended to show

the truth of whether anyone was reaching.        See Pa.R.E. 801(c) & cmt.

Accordingly, the trial court erred in excluding that testimony on hearsay

grounds. However, we agree with the trial court’s alternate reasoning that

its ruling was harmless error.    As the trial court observed, and Appellant

himself notes elsewhere in his brief, testimony that Appellant told Victim to

stop reaching was presented by Appellant himself and his girlfriend Jateeyia.

See N.T. at 413, 442, 444.       Additionally, Victim’s friend, Leonard Davis,

testified that both he and Appellant told Victim to stop reaching. Id. at 153,

154. Furthermore, Shirley testified only that she “heard someone say don’t

reach,” and did not identify the speaker.     See id. at 393.     Accordingly,

Shirley’s testimony would have been “merely cumulative of other untainted

evidence.” See Hutchinson, 811 A.2d at 561. Thus, we decline to grant



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relief on this issue.

      Finding no relief due on Appellant’s claims, we affirm his judgment of

sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2014




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