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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
ANDREW SMALLWOOD,                         :          No. 726 EDA 2015
                                          :
                           Appellant      :


           Appeal from the Judgment of Sentence, February 10, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0013250-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED SEPTEMBER 12, 2016

        Andrew Smallwood appeals from the February 10, 2015 aggregate

judgment of sentence of life imprisonment imposed after a jury found him

guilty of first-degree murder and possessing instruments of crime (“PIC”).1

After careful review, we affirm.

        The underlying facts and procedural history of this case are as follows.

On March 15, 2010, appellant entered a negotiated guilty plea to one count

of firearms not to be carried without a license2 in connection with the

May 12, 2009 robbery of Malik Martin.         (Notes of testimony, 2/3/15 at




* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502 and 907, respectively.
2
    18 Pa.C.S.A. § 6106.
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127-128.)    Appellant was subsequently sentenced to 9 to 23 months’

imprisonment, followed by 24 months’ probation, and was released after

approximately seven months. (Id. at 128-129.)

     On the morning of September 16, 2010, appellant shot and killed

Martin’s best friend, Rasul Gresham.      (Id. at 130-134, 178-87.)       On

September 29, 2010, Martin voluntarily appeared at the Philadelphia

Homicide Unit and informed Detective George Pirrone that Gresham was

having problems with appellant and another man, Anthony Washington,

prior to the shooting. (Notes of testimony, 2/5/15 at 162-165.) Thereafter,

on April 6, 2011, Martin was shot multiple times in his head and left forearm

as he sat in his vehicle.   (Notes of testimony, 2/6/15 at 83-90.)    Martin

subsequently died as a result of his injuries on April 13, 2011.   (Notes of

testimony, 2/5/15 at 144-150.) Video surveillance from a nearby business

captured appellant and Washington hiding behind Martin’s vehicle moments

before the shooting. (Notes of testimony, 2/6/15 at 96-99.)

     Appellant was subsequently arrested and charged with first-degree

murder and related offenses in connection with these two homicides.

Washington was also charged in connection with the murder of Martin, but

was not charged in the murder of Gresham.       On December 3, 2013, the

Commonwealth filed a motion to consolidate these cases on the basis that

both murders stemmed from appellant’s robbery of Martin and that each

murder was relevant to prove appellant’s motive for the other.     (Notes of



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testimony, 12/6/13 at 4-9, 17-21.)         Following a hearing, the trial court

granted the Commonwealth’s motion on December 9, 2013. Thereafter, on

October 13, 2014, Washington’s counsel filed a pre-trial motion to sever his

case from that of appellant. The trial court granted this motion, in part, on

February 3, 2015.       As noted, appellant proceeded to a jury trial on the

Gresham homicide and was subsequently found guilty of first-degree murder

and PIC on February 10, 2015.         That same day, the trial court sentenced

appellant to an aggregate term of life imprisonment.3         This timely appeal

followed.4

        On appeal, appellant raises the following issues for our review:

              I.     Is [appellant] entitled to a new trial as the
                     result of an erroneous pretrial ruling by the
                     Trial Judge on December 6, 2013, which ruled
                     that hearsay would be admissible even though
                     it violated the confrontation clause?

              II.    Is [appellant] entitled to a new trial where the
                     Court over defense objection permitted
                     evidence of [appellant’s] Guilty Plea to a prior
                     violation of [the Uniform Firearms Act,
                     18 Pa.C.S.A. § 6106] as it involved a case with
                     [] Martin even though this did not establish
                     motive and was simply inadmissible?

              III.   Is [appellant] entitled to a new trial as the
                     result of Trial Court error where the Court
                     ruled that if [appellant] took the witness stand,
                     he could be cross-examined as to another

3
  The record reflects that on February 11, 2016, appellant pled guilty to
third-degree murder and related offenses with respect to the Martin
homicide. (See No. CP-51-CR-0010299-2011.)
4
    Appellant and the trial court have complied with Pa.R.A.P. 1925.


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                   outstanding homicide case for which he was
                   not currently on trial, all forcing [appellant] to
                   give up his valuable right to testify in his own
                   behalf?

Appellant’s brief at 3.   For the ease of our discussion, we have elected to

address appellant’s claims in a slightly different order than presented in his

appellate brief.

      We begin by addressing appellant’s claim that the trial court abused its

discretion by permitting the Commonwealth to introduce evidence that he

had previously robbed Martin, Gresham’s best friend. (Id. at 15.) Appellant

maintains that this “prior bad act” testimony was inadmissible under

Pennsylvania Rule of Evidence 404(b)(1) because there was no logical

connection between the robbery of Martin and Gresham’s murder. (Id. at

16-17.) We disagree.

      “[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation

omitted). “An abuse of discretion is not merely an error of judgment; rather

discretion is abused 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 or the record.”

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).


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      Generally, “evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity

therewith.” Pa.R.E. 404(b)(1); see also Commonwealth v. Weakley, 972

A.2d 1182, 1189 (Pa.Super. 2009), appeal denied, 986 A.2d 150 (Pa.

2009) (stating, “[e]vidence of distinct crimes is not admissible against a

defendant being prosecuted for another crime solely to show his bad

character and his propensity for committing criminal acts.”) (citation

omitted; emphasis in original).        Evidence of prior bad acts may be

admissible, however, “when offered to prove some other relevant fact, such

as motive, opportunity, intent, preparation, plan, knowledge, identity, and

absence of mistake or accident.” Commonwealth v. Ross, 57 A.3d 85, 98

(Pa.Super. 2012), appeal denied, 72 A.3d 603 (Pa. 2013) (citations

omitted). Prior bad acts evidence “may also be admissible . . . in situations

where the bad acts were part of a chain or sequence of events that formed

the history of the case and were part of its natural development.”

Commonwealth        v.   Melendez-Rodriguez,      856   A.2d   1278,    1283

(Pa.Super. 2004) (citation omitted).    “In determining whether evidence of

other prior bad acts is admissible, the trial court is obliged to balance the

probative value of such evidence against its prejudicial impact.”   Ross, 57

A.3d at 98 (citation omitted).

      Upon review, we conclude that the evidence that appellant previously

robbed Martin was admissible because it was relevant to establish



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appellant’s motive for murdering Gresham and was part of the sequence of

events that formed the history of this case. The record establishes that on

May 12, 2009, appellant robbed Martin at gunpoint.      (Notes of testimony,

2/3/15 at 86-95.)     Following appellant’s subsequent apprehension and

arrest, Martin positively identified appellant as the perpetrator and provided

the police with a formal statement confirming that fact. (Id. at 95-96, 109-

113.) In September 2010, seven months after his release from prison in the

robbery case, appellant approached Martin’s best friend, Gresham, and

repeatedly shot him in the head, killing him.     (Id. at 128-134, 169-191.)

Less than two weeks later, Martin voluntarily informed the police that

Gresham was having problems with appellant and another man prior to the

shooting.   (Notes of testimony, 2/5/15 at 162-165.)      Thereafter, in April

2011, appellant and an accomplice shot and killed Martin as he sat in his

vehicle. (Notes of testimony, 2/6/15 at 82-99.)

      This court has repeatedly recognized that “[i]n order for evidence of

prior bad acts to be admissible as evidence of motive, the prior bad acts

must give sufficient ground to believe that the crime currently being

considered grew out of or was in any way caused by the prior set of facts

and circumstances.”    Commonwealth v. Ferguson, 107 A.3d 206, 211

(Pa.Super. 2015) (citation and internal quotation marks omitted).     Herein,

the jury could have reasonably concluded that appellant murdered Gresham

in retaliation for Martin’s cooperation in the May 2009 robbery case.



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Accordingly, we discern no abuse of discretion on the part of the trial court

in permitting evidence that appellant robbed Martin to be introduced at trial.

      We further note that, at the conclusion of trial, the trial court provided

a limiting instruction to the jury with regard to how the evidence of

appellant’s robbery of Martin should be considered.         Specifically, the trial

court instructed the jury as follows:

                  You have heard evidence tending to prove that
            [appellant] was charged with the robbery of
            Malik Martin and the subsequent murder of
            Malik Martin for which [appellant] is not on trial
            before you. I am speaking of the evidence you have
            heard regarding the prior robbery charge for which
            [appellant] pled guilty to gun possession and the
            evidence regarding the murder of Malik Martin.

                  This evidence was before you for a limited
            purpose, that is, for the purpose of tending to show
            the motive and intent for the murder of
            Rasul Gresham and to give you the entire story of
            the case and the relationships between the parties.

                   This evidence must not be considered by you
            in any other way than for the purpose I just stated.
            You must not regard this evidence as showing that
            [appellant] is a person of bad character or criminal
            tendencies from which you might be inclined to infer
            guilt in this case.

Notes of testimony, 2/10/15 at 28-29.

      Courts in this Commonwealth have repeatedly recognized that “when

examining the potential for undue prejudice, a cautionary jury instruction

may   ameliorate    the   prejudicial   effect   of   the   proffered   evidence.”

Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014), cert. denied,



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135 S.Ct. 164 (2014) (citations omitted); see also Commonwealth v.

Sherwood, 982 A.2d 483, 497-498 (Pa. 2009), cert. denied, 559 U.S.

1111   (2010) (finding    that cautionary instructions     were   sufficient   to

overcome the prejudicial effect of prior bad acts evidence).         Jurors are

presumed to follow the trial court’s instructions.        Commonwealth v.

Elliott, 80 A.3d 415, 445 (Pa. 2013), cert. denied, 135 S.Ct. 50 (2014).

Thus, any potential prejudice that may have resulted from the introduction

of Martin’s robbery at trial was cured by the trial court’s limiting instruction

to the jury.

       We now turn to appellant’s claim that the trial court abused its

discretion by permitting the Commonwealth to introduce “blatant hearsay”

testimony of Gresham’s girlfriend, Tianna Woodson. (Appellant’s brief at 9.)

Specifically, appellant cites several instances in his brief where Woodson

testified at trial as to what both Gresham and Martin communicated to her.

(Id. at 9-10, citing notes of testimony, 2/5/15 at 98, 101.) Appellant also

argues that Woodson’s testimony that Gresham was having a problem with

appellant prior to the shooting should have been deemed inadmissible. (Id.

at 10-11, citing notes of testimony, 2/5/15 at 103-104.) Upon review, we

conclude that appellant has waived these claims.

       Hearsay is defined as 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).   Hearsay is generally



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inadmissible at trial unless it falls into an exception to the hearsay rule. See

Pa.R.E. 802.

      In the instant matter, the record reflects that at the beginning of

appellant’s jury trial, the trial court addressed whether Woodson’s statement

that Gresham had informed her that he was having problems with appellant

could be admitted into evidence.        (Notes of testimony, 2/3/15 at 9-16.)

Appellant’s counsel indicated to the trial court that he had no objection to

Woodson’s statement being admitted to “show[] a relationship really [sic]

between the parties.” (Id. at 16-17.)

             [Appellant’s Counsel]: I don’t have a problem with
             that concept. If that is all they are admitting it for, if
             they are saying [Woodson] says [Gresham] has a
             problem with these guys, even though that is
             hearsay, I don’t have a problem with it but what
             they are trying to do, though, I fear, is bring in all of
             these other crimes evidence on that tail.

                   Perhaps the jury could know that [Gresham],
             who died, did not like [appellant], among others, but
             that doesn’t open the floodgates to allow them to
             bring in all the evidence of the [Martin] trial that is
             supposed to happen a year from now.

Id. at 17.

      Thereafter, during the Commonwealth’s case-in-chief, appellant’s

counsel then reaffirmed that he had “no problem” with the testimony that

the Commonwealth would elicit from Woodson. (Notes of testimony, 2/5/15

at 87.) Additionally, appellant’s counsel did not object to any of Woodson’s

testimony that he cites in his brief.      (See notes of testimony, 2/5/15 at



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98-104.)     Accordingly,   appellant   has   waived   these    claims.      See

Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014) (stating,

“the failure to make a timely and specific objection before the trial court at

the appropriate stage of the proceedings will result in waiver of the issue.”

(citation omitted)); Pa.R.A.P. 302(a) (stating an issue not raised in the trial

court is considered waived for purposes of appellate review).

      Additionally, we note that appellant failed to raise the aforementioned

hearsay claims with specificity in his Rule 1925(b) concise statement,

thereby preventing the trial court from addressing them in its Rule 1925(a)

opinion.   (See trial court opinion, 8/21/15 at 12.)      Notably, appellant’s

Rule 1925(b) statement made no mention of Woodson or any of the specific

testimony he wished to challenge as inadmissible hearsay.                 Rather,

appellant’s Rule 1925(b) statement baldly stated that, “[appellant] must be

awarded a new trial as the result of a pretrial ruling, by the Honorable

Jeffrey P. Minehart, rendered on December 6, 2013, where the Court ruled

that hearsay, which was inadmissible hearsay, would be admissible in the

case, even though it violated the [C]onfrontation [C]lause.”       (Appellant’s

Statement of Matters Complained of Pursuant to Rule of Appellate Procedure

1925(b), 6/10/15 at 2, ¶3.)

      It is well-settled that all issues raised in a Rule 1925(b) statement

“must indicate, with specificity, the error to be addressed on appeal” or

they will be deemed waived. Commonwealth v. McCree, 857 A.2d 188,



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192 (Pa.Super. 2004), affirmed, 924 A.2d 621 (Pa. 2007) (citation omitted;

emphasis added); see also Pa.R.A.P. 1925(b)(4)(ii) (stating, the “statement

shall concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the

judge.”); Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011),

appeal denied, 32 A.3d 1275 (Pa. 2011) (stating, “the Rule 1925(b)

statement must be specific enough for the trial court to identify and address

the issue an appellant wishes to raise on appeal.” (internal quotation marks

and brackets omitted)). “A [Rule 1925(b)] Statement which is too vague to

allow the court to identify the issue raised on appeal is the functional

equivalent of no Concise Statement at all.”       McCree, 857 A.2d at 192

(citation omitted). Accordingly, appellant’s claims in this regard are waived

on this basis as well.

      Lastly, appellant argues that the trial court erred in ruling that if

appellant chose to testify, the Commonwealth was permitted to cross-

examine him about his involvement in the April 6, 2011 murder of Martin.

(Appellant’s brief at 18.) Upon review, we conclude that appellant has also

waived this issue on appeal.

      In the instant matter, the trial court conducted a colloquy of appellant

at trial to determine whether he understood his right to testify or remain

silent.   During the course of this colloquy, appellant’s counsel inquired, “I

assume that if [appellant] took the stand in this case, and we did discuss



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this, if he took the stand in this case, he could be cross-examined about

Malik Martin[?]”    (Notes of testimony, 2/9/15 at 11.)              The trial court

responded in the affirmative, concluding that evidence of Martin’s murder

was relevant to prove appellant’s motive to kill Gresham, and was necessary

to provide the jury with the complete history of the case:

                   Because of the way this case worked out in
             that the two cases were separated, so that the
             charges which you face here before this jury are only
             for the murder of Rasul Gresham, this Court has
             decided that the Commonwealth can still enter all
             the evidence about the second murder because it is
             relevant to show motive and intent and to tell the full
             story of the case. It proves the motive for murder of
             Rasul Gresham and because of that, they can ask
             any questions that they need to ask to establish a
             motive in this case for the murder of Rasul Gresham.

Id. at 17-18.      Thereafter, appellant informed the trial court that he

understood his rights and was electing not to testify on his own behalf. (Id.

at 19-20.)

      Our review of the record reveals that at no point during the course of

this colloquy did appellant’s counsel object to or contest the trial court’s

ruling.      Accordingly,     appellant’s   claim   is    waived.       See,   e.g.,

Commonwealth v. Nunn, 947 A.2d 756, 762 (Pa.Super. 2008), appeal

denied, 960 A.2d 838 (Pa. 2008) (holding, inter alia, that a defendant

waived    his    challenges     to   the    scope    of    the      Commonwealth’s

cross-examination by failing to properly object at trial); Pa.R.A.P. 302(a)




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(stating an issue not raised in the trial court is considered waived for

purposes of appellate review).

     Based on the foregoing, we affirm the trial court’s February 10, 2015

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2016




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