J.S29037/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
NICHOLAS MARTIN                             :
                                            :
                            Appellant       :
                                            :     No. 1659 WDA 2015

              Appeal from the Judgment of Sentence June 11, 2015
          in the Court of Common Pleas of Elk County Criminal Division
                       at No(s): CP-24-CR-0000140-2013

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 29, 2016

        Appellant, Nicholas Martin, appeals from the judgment of sentence

entered in the Elk County Court of Common Pleas following a jury trial and

his convictions for murder in the first degree1 and abuse of corpse.2

Appellant challenges the admission of a prior “bad act” pursuant to Pa.R.E.

404(b).     We affirm.

        Appellant’s conviction arises from the killing of his former girlfriend,

Allyssa Forsyth (“Decedent”). Three days prior to the murder, Appellant hit

Decedent on the side of the face with her cell phone, spit on her, and said,

“Next fucking time I see you, I’ll kill you.” N.T. Trial, 3/26/15, at 45. In the

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 5510.
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early morning hours of March 23, 2013, Appellant stabbed Decedent one

hundred and twelve times in his apartment. After initially stabbing Decedent

with a screwdriver, Appellant stopped, went to the kitchen to get a knife,

and continued to stab Decedent until she was dead. N.T., 3/25/15, at 66.

He disposed of Decedent’s body in a steep wooded area known as Sandy

Beach.    N.T., 3/27/15, at 90-91.      After the murder, Appellant texted

Decedent’s mother using Decedent’s phone, to conceal the murder.         Id. at

100-02.   Appellant was ultimately arrested and charged with, inter alia,

criminal homicide. At trial, Appellant did not deny the killing, but claimed he

acted under the heat of passion or was voluntarily intoxicated.              N.T.,

3/25/15, at 36-42.    Both the Commonwealth and Appellant called expert

witnesses to opine on Appellant’s mental state at the time of the killing.

      Jessie Pino, who was a mutual friend of Appellant and Decedent,

testified for the Commonwealth.     He stated, in relevant part, that he and

Appellant were together from approximately 9:00 p.m. until 2:40 a.m.,

shortly before Appellant killed Decedent. Id. at 53-59. During that time,

the two men consumed an entire bottle of Courvoisier cognac while playing

“beer pong.” Id. at 56. Pino explained that Appellant had dropped him off

at his home, but had returned in the morning hours of March 23, 2013. At

that time, Appellant told Pino he had picked up Decedent from a bar, had

sex with her, and had subsequently killed her. Id. at 64-65.         Appellant

provided Pino with graphic details of the killing. Id. at 64-67.



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     The following exchanges occurred during Pino’s direct examination by

the Commonwealth:

       [Commonwealth]. And what else -- you were playing beer
       pong. Did you -- anything else happen that night?

                                *    *    *

       A. As we were playing beer pong, [Appellant] was into
       martial arts and judo, and I was a wrestler and also into
       martial arts. As we were playing throughout the night, we
       started to wrestle a little bit. He wanted to show me a
       move, so I had locked up with him as --

       [Appellant’s counsel]. Objection, Your Honor. If we could
       approach?
                               *   *    *

       (The following discussion was had at side-bar.)

       [Appellant’s counsel]. Your Honor, I think I know where
       this testimony is going. He’s going to testify that they got
       down on the floor; [Appellant] grabbed him or wrestled
       him to the floor and then tried to lick him. And I don’t
       think that’s relevant. I think it’s prejudicial. I think it’s a
       bad act that they’re trying to get in, and I don’t see how
       it’s relevant.

       [Commonwealth]. As far as I know, kissing or licking
       another human being isn’t a crime unless it’s an indecent
       assault. It’s indicative of his state of mind that night. It
       also may be relevant in the psychiatric testimony later.

       THE COURT: Could be. So I’m going to overrule the
       objection and allow the question to be asked.

       (End of discussion at side-bar.)

                                *    *    *

       [Commonwealth]. . . . You said that you -- [Appellant]
       and you were wrestling, and you locked up and -- what
       happened?


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        A. [Appellant] had taken me down to the ground, and I
        was laying down flat on my back and he was on top of me.
        He went into like almost kissing me. And when I turned
        away, he licked my face and I got a rug burn on the side of
        my head. And I had then said, Whoa, whoa, whoa.

          And he said something about being drunk and he said,
        Oh. My bad.

           But I was very uncomfortable. That’s not something
        that ever happened before, and -- it was uncomfortable for
        me.

N.T., 3/25/15, at 56-58.

      Pino subsequently referred to the nature of his encounter with

Appellant as “homosexual” during direct examination, Appellant’s cross-

examination, and the Commonwealth’s further direct examination, after

recalling him to testify. See N.T., 3/25/15, at 62 (indicating Pino told his

brother about the “homosexual encounter” after Appellant dropped Pino off

at home),     107 (responding to Appellant’s counsel’s questions regarding

whether Pino felt uneasy around Appellant by referring to the “homosexual

encounter”); N.T., 3/26/15, at 112 (interrupting the Commonwealth’s

question by referring to the “uncomfortable homosexual encounter”).

Appellant did not object to or move to strike Pino’s characterization of the

incident as a “homosexual encounter.”

     Lastly, the Commonwealth, in its closing argument, stated Appellant

“made a pass at Jessie [Pino].”   N.T., 3/30/15, at 64.   Appellant did not

object to or move to strike this characterization. The Commonwealth



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essentially argued that Appellant had killed Decedent in a despondent rage

after Pino had rejected his advances and after Decedent began to leave him

on the early morning in question. Id. at 65.

     The jury found Appellant guilty of first-degree murder and abuse of a

corpse. On June 11, 2015, the trial court sentenced Appellant to a term of

life imprisonment for murder and a concurrent term of one to two years’

imprisonment for abuse of a corpse. Appellant filed a timely post-sentence

motion challenging the admittance of Pino’s testimony regarding the

“homosexual encounter” and his lack of notice thereof pursuant to Rule

404(b).

     In an October 13, 2015 order, the trial court denied Appellant’s motion

and issued a memorandum opinion in support thereof.            The trial court

specifically found that the testimony in question was properly admitted

under Rule 404(b) because it was relevant as part of the sequence of events

on the night of the murder and because it was probative as to Appellant’s

state of mind and level of intoxication before the killing.      Trial Ct. Op,

10/13/15, at 2-3. Further, the trial court determined that Pino’s references

to a homosexual encounter was not indicative of a “bad act” and was not so

prejudicial as to require a new trial.   Id. at 3-4.   Appellant filed a timely

notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement. The trial

court issued a responsive Rule 1925(a) opinion incorporating the reasoning

set forth in its memorandum opinion.



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        Appellant raises the following issue on appeal:

           Did the trial court abuse its discretion in allowing the
           Commonwealth, during jury trial in this homicide case, to
           introduce irrelevant and prejudicial testimony, through
           Commonwealth witness, Mr. Jessie Pino, that [Appellant]
           engaged in crimes, wrongs, or other acts in violation of
           Pa.R.E. 404(b), requiring the grant of a new trial?

Appellant’s Brief at 4.3

        Appellant argues that the trial court erred by admitting evidence of his

attempt to lick or kiss Jessie Pino because such evidence was not relevant to

his state of mind at the time of the murder and constituted a “bad act”

under Rule 404(b). Appellant contends that his state of mind hours before

the killing was not relevant because his defense focused on “the heat of

passion” based on something Decedent said immediately before the killing.

Further, Appellant claims that he did not have sufficient notice, as required

under     Rule   404(b)(3),   of   the   characterization   of   the   incident   as




3
  On March 23, 2016, during the pendency of this appeal, Appellant filed a
pro se “Petition to Amend Direct Appeal Petition,” in the trial court.
Appellant, who was 22 years old at the time of the killing, sought relief
under Miller v. Alabama, 132 S. Ct. 2455 (2012). The petition was
forwarded to this Court, and this Court issued a Jette letter to Appellant’s
counsel. Counsel has not filed a petition on Appellant’s behalf.

      It is axiomatic that “there is no constitutional right to hybrid
representation either at trial or on appeal.” Commonwealth v. Jette, 23
A.3d 1031, 1038 (Pa. 2001) (quoting Commonwealth v. Ellis, 626 A.2d
1137, 1139 (Pa. 1993)). Accordingly, because Appellant was represented by
counsel, Appellant’s pro se petition is a legal nullity for the purposes of this
appeal. See id.



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“homosexual” and that such a label caused undue prejudice. We conclude

that any error in the admission of Pino’s testimony was harmless.

      It is well settled that “[r]ulings on the admissibility of evidence are

within the discretion of the trial judge, and such rulings form no basis for a

grant of appellate relief absent an abuse of discretion.” Commonwealth v.

Powell, 956 A.2d 406, 419 (Pa. 2008) (citiation omitted).         Further, “[a]n

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.”        Commonwealth v. Weakley, 972

A.2d 1182, 1188-89 (Pa. Super. 2009). “[A]n appellate court may affirm a

valid judgment based on any reason appearing as of record, regardless of

whether it is raised by appellee.”     Commonwealth v. Moore, 937 A.2d

1062, 1073 (Pa. 2007) (citations omitted).

      Pennsylvania Rule of Evidence 404(b) provides, in relevant part:

         (b) Crimes, Wrongs, or Other Acts.

         (1) Prohibited Uses. Evidence of a crime, wrong, or other
         act is not admissible to prove a person’s character in order
         to show that on a particular occasion the person acted in
         accordance with the character.

         (2) Permitted Uses. This evidence may be admissible for
         another purpose, such as proving motive, opportunity,
         intent, preparation, plan, knowledge, identity, absence of
         mistake, or lack of accident. In a criminal case this
         evidence is admissible only if the probative value of the
         evidence outweighs its potential for unfair prejudice.



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         (3) Notice in a Criminal Case. In a criminal case the
         prosecutor must provide reasonable notice in advance of
         trial, or during trial if the court excuses pretrial notice on
         good cause shown, of the general nature of any such
         evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b)(1)-(3).

      In the context of a Rule 404(b) analysis, we note:

         While it is true that evidence of prior crimes and bad acts
         is generally inadmissible if offered for the sole purpose of
         demonstrating the defendant’s bad character or criminal
         propensity, the same evidence may be admissible where
         relevant for another purpose. Examples of other such
         relevant purposes include showing the defendant’s motive
         in committing the crime on trial, the absence of mistake or
         accident, a common scheme or design, or to establish
         identity. . . . [T]he evidence may also be admitted where
         the acts were part of a chain or sequence of events that
         formed the history of the case and were part of its natural
         development. Of course, in addition to the relevance
         requirement, any ruling on the admissibility of evidence is
         subject to the probative value/prejudicial effect balancing
         that attends evidentiary ruling.

Powell, 956 A.2d at 420 (citations omitted).

      The Commonwealth must provide reasonable notice of the bad acts

evidence it intends to introduce. Pa.R.E. 404(b)(3); Commonwealth v.

Lynch, 57 A.3d 120, 125 (Pa. Super. 2012). However, “[t]here is no

requirement that the ‘notice’ must be formally given or be in writing in order

for the evidence to be admissible.” Id. at 126.

       Further, we note that even erroneously admitted evidence of “bad

acts,” will not necessarily require a new trial:

         Not all improper references to prior bad acts will mandate
         a new trial, however. Mere passing reference to criminal


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         activity will not require reversal unless the record indicates
         that prejudice resulted from the reference. Harmless error
         is present when the properly admitted evidence of guilt is
         so overwhelming and the prejudicial effect of the error is
         so insignificant by comparison that it is clear beyond a
         reasonable doubt that the error could not have contributed
         to the verdict.

Commonwealth v. Stafford, 749 A.2d 489, 496-97 (Pa. Super. 2000)

(internal citations omitted).

      Significantly, “the harmless error doctrine, as adopted in Pennsylvania,

reflects the reality that the accused is entitled to a fair trial, not a perfect

trial.” Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (citations

omitted). Specifically:

         Harmless error exists if the record demonstrates either:
         (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 was so insignificant by
         comparison that the error could not have contributed to
         the verdict.

Id. at 671-72 (citations omitted).

      In the case sub judice, even assuming the evidence that Appellant

attempted to kiss or lick Pino was admitted in error, we conclude that the

harmless error doctrine applies.4     See Hairston, 84 A.3d at 671.         The



4
  Although the Commonwealth did not present a specific harmless error
argument on appeal, this Court may consider such argument sua sponte as



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substantial evidence presented at trial established that Appellant threatened

to kill the Decedent three days prior to the murder. N.T., 3/26/15, at 45.

Appellant admitted stabbing Decedent over one hundred times with both a

screwdriver, and after a break in the violent act, a knife. N.T., 3/25/15, at

66. Thereafter, Appellant attempted to conceal the crime via impersonating

Decedent by texting Decedent’s mother with Decedent’s cell phone.         N.T.,

3/27/15, at 100-02. Appellant also admitted disposing of Decedent’s body

in a remote area. Id. at 90-91. Given the substantial, properly admitted,

and uncontradicted evidence of Appellant’s guilt, it strains reason to

conclude that the admission of Pino’s characterization of his encounter with

Appellant as “homosexual” contributed to the verdict.       See Hairston, 84

A.3d at 671.     Accordingly, we decline to conclude that a new trial is

warranted because any error in the admission of the evidence in question

constituted harmless error. See Stafford, 749 A.2d at 496-97.

      In addition, we conclude that Appellant’s argument that he did not

have sufficient notice of the Commonwealth’s intention to bring forth

evidence regarding the face licking/kissing incident is also without merit.

Appellant acknowledges that he did have evidence of the incident in general,

as evidenced by his objection prior to Pino’s testimony at trial, but avers that

he did not have sufficient evidence of Pino’s characterization of the incident



we may affirm a valid judgment based upon any reason appearing of record.
See Moore, 937 A.2d at 1073.



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as “homosexual.”    Appellant’s Brief at 15.   However, the Commonwealth

need only provide information regarding the general nature of the intended

testimony. See Lynch, 57 A.3d at 125. Here, Appellant had ample notice

of the general nature of Pino’s intended testimony, specifically regarding

Appellant’s attempt to kiss or lick Pino. N.T., 3/25/15, at 56-58. Therefore,

we decline to conclude that the trial court erred by determining that

Appellant had proper notice of Pino’s intended testimony. Thus, we affirm

Appellant’s judgment of sentence, albeit partially on other grounds.    See

Moore, 937 A.2d at 1073.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2016




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