J-S51008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OMAR ROBINSON,                             :
                                               :
                       Appellant               :   No. 2790 EDA 2017

           Appeal from the Judgment of Sentence February 28, 2017
            In the Court of Common Pleas of Northampton County
              Criminal Division at No.: CP-48-CR-0001347-2015

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 02, 2019

        Appellant, Omar Robinson, appeals from the Judgment of Sentence

entered by the Northampton County Court of Common Pleas following his

convictions after a jury trial of First-Degree Murder and Criminal Conspiracy.1

Appellant challenges the admission at trial of evidence that he was involved

in a drug deal the same day of the murder, as well as the trial court’s denial

of his Motion for a mistrial after the prosecutor identified Appellant as a drug

dealer during opening statements. We affirm.

        On November 23, 2012, the narcotics division of the Easton Police

Department was involved in an ongoing investigation targeting the home of

Corey Reavis. That day, officers conducted a controlled purchase of heroin

from Patrick Hughes using a confidential informant. Police officers observed


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1   18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 903, respectively.
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Hughes leave Reavis’s home, walk to the informant, engage in a brief hand-

to-hand transaction, and return to Reavis’s home. When Hughes returned to

Reavis’s home, police observed Hughes interact with individuals on the front

porch, including Appellant. Police took photographs of Appellant, Hughes, and

the transaction. Police also observed Appellant’s minivan parked outside the

residence.

       Later that day, Appellant and Hughes shot and killed Ervin Holton

(“Victim”) in Easton.2 A witness who was driving near the scene called 911 to

report the shooting. She stated that, after hearing the gunshots, she saw two

individuals in dark clothing running toward a nearby minivan. The Victim died

from multiple gunshot wounds; ballistics evidence confirmed that there were

two shooters.

       During the subsequent investigation, detectives from the Easton Police

Department      obtained     consistent    surveillance   video   that   showed   two

individuals exit a minivan one block from the crime scene, walk towards the

location of the shooting, and shortly thereafter, run back towards the minivan

and drive away. Police officers also learned that Appellant’s girlfriend, Lisa

Doorley, owned the minivan.




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2 The Victim and Hughes were rival drug dealers and may have been in a
dispute about Nicole Greene, the woman they both dated. N.T. Trial, 1/10/17,
at 31-32.

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      When police officers located the minivan at Appellant’s home, which he

shared with Doorley, Appellant confirmed that only he and Doorley drive the

minivan, and that he did not allow anyone else to drive the minivan. Upon

confirming that he had been driving the minivan on the night of the murder,

Appellant started crying. Police searched the minivan with Doorley’s consent

and found gunshot residue on the steering wheel and the driver’s side interior

door handle.

      Homicide detectives also learned that Appellant and Hughes had spent

much of the day together before the murder. Reavis confirmed that he had

been hanging out with Appellant and Hughes that day. Reavis admitted that

he had driven and dropped off the Victim at a store near the scene of the

murder shortly before Appellant and Hughes murdered him.

      Also, cell phone records from Appellant and Hughes confirmed their

whereabouts in south Easton, where the shooting occurred, and their close

proximity to the area and each other when they placed the calls.          The

eyewitness called 911 at 5:39 P.M., and the cell phone records showed that

Appellant and Hughes made numerous calls to Reavis before and after the

murder. All calls stopped at the precise time of the shooting, consistent with

the surveillance video.

      During   the   investigation,   Hughes   provided   several   different,

inconsistent, and unsubstantiated alibis to police investigators.    After his

arrest, Hughes made several incriminating statements to fellow inmates (1)


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regarding his motive for the murder, and (2) claiming that he and his men

were responsible for the murder.

      Thereafter, the Commonwealth charged Appellant with            Criminal

Homicide and Criminal Conspiracy. In October 2015, the trial court granted

the Commonwealth’s Motion to try Appellant and Hughes jointly.

      On August 16, 2016, the Commonwealth filed a Motion in Limine seeking

to introduce “prior bad acts” evidence pursuant to Pennsylvania Rule of

Evidence 404(b) of the drug transaction between the confidential informant

and Hughes earlier on the day of the murder. On November 14, 2016, the

trial court granted the Commonwealth’s Motion, concluding that the evidence

of the drug deal was relevant and admissible to show: (1) the motive of

Appellant and Hughes for the shooting; and (2) the complete story of the case.

The trial court also concluded that the probative value of the evidence

outweighed its potential for prejudice, particularly with the provision of

appropriate cautionary jury instructions. See Trial Court Opinion, 11/14/16,

at 2-7.

      In January 2017, Appellant and Hughes proceeded to an eight-day jury

trial. During opening statements, the prosecutor stated, “You’re going to hear

testimony that these two guys are drug dealers. We don’t know whether this

execution had something to do with drugs. It may very well have. We don’t

know whether this execution had something to do with drug debts.” N.T. Trial,




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1/10/17, at 32.3 Appellant moved for a mistrial based on these comments,

which the trial court denied.          The trial court provided a cautionary jury

instruction, informing jurors that the defendants were not on trial for being

drug dealers and they may not convict the defendants of homicide on this

basis. Id. at 87.

       The Commonwealth presented testimony from numerous witnesses,

including Reavis, Greene, the Northampton County coroner, and numerous

detectives and police officers.        Appellant and Hughes did not testify and

presented no evidence.

       On January 20, 2017, the jury convicted Appellant of First-Degree

Murder and Criminal Conspiracy.4

       On February 28, 2017, the trial court sentenced Appellant to life

imprisonment without parole.5 Appellant filed a timely Post-Sentence Motion,

which the trial court denied on August 4, 2017.



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3 The Commonwealth also argued that the motive for the shooting was a
romantic rivalry between the Victim and Hughes. N.T. Trial, 1/10/17, at 31-
32.
4 The jury also convicted Hughes of First-Degree Murder and Criminal

Conspiracy, and the trial court sentenced him to life imprisonment without
parole. Hughes also filed a direct appeal to this Court, which remains pending
at docket No. 2853 EDA 2017.

5 The trial court imposed a concurrent term of 20 to 40 years’ incarceration
for the Criminal Conspiracy conviction.




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         On August 17, 2017, Appellant filed a Notice of Appeal. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.6

         Appellant presents two issues for our review:

         1. Did the [t]rial [c]ourt err by permitting evidence that
         [Appellant] was present at a drug transaction earlier in the day of
         the subject homicide?

         2. Did the [t]rial [c]ourt err when it did not declare a mistrial after
         the [p]rosecutor’s opening remarks identified [Appellant] as a
         drug dealer?

Appellant’s Brief at 5.

Pa.R.E. 404(b) – Prior Bad Acts

         In his first issue, Appellant challenges the admission of evidence “that

[Hughes] participated in a drug transaction earlier in the day of the subject

homicide and that [Appellant] was present at the transaction.” Appellant’s

Brief at 10. Appellant avers that “[a]llowing the jury to see and hear evidence

that [Appellant] was at a drug transaction earlier in the day of the homicide

was not necessary to complete the story and was severely prejudicial.” Id.

at 16.




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6  Appellant filed his Rule 1925(b) Statement late, but the trial court
nonetheless addressed the issues contained in the untimely Statement,
including the two briefed issues. Accordingly, we will also address the merits
of Appellant’s two issues. See Commonwealth v. Burton, 973 A.2d 428,
433 (Pa. Super. 2009) (en banc) (explaining that “this Court may decide the
appeal on the merits if the trial court had adequate opportunity to prepare an
opinion addressing the issues being raised on appeal.”).

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      The “[a]dmission 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. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (en banc) (citation and quotation omitted).          “Accordingly, a

ruling admitting evidence will not be disturbed on appeal unless that ruling

reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or

such lack of support to be clearly erroneous.” Commonwealth v. Huggins,

68 A.3d 962, 966 (Pa. Super. 2013) (citations and internal quotations

omitted).

      Pennsylvania Rule      of Evidence     404(b) prohibits evidence       of a

defendant’s prior bad acts “to prove a person’s character” or demonstrate

“that on a particular occasion the person acted in accordance with the

character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule also provides that prior

bad acts evidence “may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” Pa.R.E. 404(b)(2).

      “In 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. Knox, 142 A.3d 863,

866-67 (Pa. Super. 2016) (quotation marks and citations omitted). Although

consideration of these claims is often very fact dependent, this Court has


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previously admitted evidence of prior drug deals to establish motive for a

subsequent crime. See, e.g., id. at 867 (concluding the trial court properly

admitted evidence of a prior drug transaction between defendant and victim

as relevant and probative of defendant-shooter’s identity and motive of

revenge); Commonwealth v. Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013)

(concluding trial court did not abuse its discretion in admitting evidence that

co-defendants    and   victim    were   members    of   rival   drug   distribution

organizations in order to link them and suggest a motive for the killing,

particularly where the trial court issued a cautionary jury instruction).

      In addition, Rule 404(b)(2) provides a res gestae exception to prior bad

acts evidence that “permits the admission of evidence where it became part

of the history of the case and formed part of the natural development of facts.”

Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016). “In a criminal

case[,] this evidence is admissible only if the probative value of the evidence

outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2). See also

Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 404.11 et

seq. (2019 ed. LexisNexis Matthew Bender). “Where evidence of prior bad

acts is admitted, the defendant is entitled to a jury instruction that the

evidence is admissible only for a limited purpose.”       Ivy, 146 A.3d at 251

(citation omitted). “It is well settled that the jury is presumed to follow the

trial court’s instructions[.]” Commonwealth v. Cash, 137 A.3d 1262, 1280

(Pa. 2016) (citation omitted).


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      In this case, the Commonwealth presented evidence that, on the same

day of the murder, Appellant and Hughes were together for much of the day.

The narcotics division police officers watched as Hughes left Reavis’s home,

walked to the informant, engaged in a brief hand-to-hand transaction, and

returned to Reavis’s home where police officers observed Hughes interact with

individuals on the front porch, including Appellant.      Police officers took

photographs of Hughes, the transaction, Appellant, and Appellant’s minivan

parked outside Reavis’s residence.

      The trial court concluded that the evidence of the drug transaction was

relevant and admissible to show the defendants’ motive for the shooting and

to complete the story of the case. See Trial Court Opinion, 11/14/16, at 2-7.

      We agree with the trial court’s analysis and conclude that this evidence

was admissible under Pa.R.E. 404(b)(2) as both motive for the shooting and

as res gestae evidence. The drug transaction evidence, combined with the

cell phone records, showed that Appellant and Hughes were together on the

date of the murder with the minivan at a location targeted by the narcotics

division for suspected drug activity. Evidence of their coordinated movements

throughout the day supported the Commonwealth’s conspiracy allegations

against Appellant. Appellant’s relationship with Hughes was consistent with

the Commonwealth’s theory that Hughes enlisted Appellant to help him kill

the Victim. Moreover, the evidence was relevant to the circumstances leading

up to and including the shooting, i.e., the res gestae.


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      The trial court properly weighed the probative value of the evidence in

the light of the potential for unfair prejudice in accordance with Pa.R.E.

404(b)(2). Moreover, the trial court provided a cautionary jury instruction

explaining the limited purpose of this evidence. See N.T. Trial, 1/10/17, at

87-88. We, thus, discern no abuse of the trial court’s discretion in admitting

this evidence. Appellant is not entitled to relief.

Prosecutorial Misconduct

      Appellant next contends that the trial court erred in refusing to grant his

motion for a mistrial alleging prosecutorial misconduct during the opening

statement when the prosecutor called him a drug dealer. Appellant’s Brief at

19-21.

      We review a trial court’s denial of a mistrial motion based on

prosecutorial misconduct for abuse of discretion. Commonwealth v. Bryant,

67 A.3d 716, 728 (Pa. 2013).       When considering a claim of prosecutorial

misconduct, “our attention is focused on whether the defendant was deprived

of a fair trial, not a perfect one[.]” Commonwealth v. Noel, 53 A.3d 848,

858 (Pa. Super. 2012) (citation omitted). See also Bryant, 67 A.3d at 728

(stating that “a trial court may grant a mistrial only where the incident upon

which the motion is based is of such a nature that its unavoidable effect is to

deprive the defendant of a fair trial by preventing the jury from weighing and

rendering a true verdict.” (quotation marks and citation omitted)). “[N]ot




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every inappropriate remark by a prosecutor constitutes reversible error.”

Noel, 53 A.3d at 858 (citation omitted).

       “While it is improper for a prosecutor to offer any personal opinion as to

the guilt of the defendant or the credibility of the witnesses, it is entirely

proper for the prosecutor to summarize the evidence presented, to offer

reasonable deductions and inferences from the evidence, and to argue that

the evidence establishes the defendant’s guilt[.]” Commonwealth v. Burno,

94 A.3d 956, 974 (Pa. 2014) (citation omitted).

       Appellant claims the court should have declared a mistrial based on the

following assertions made by the prosecutor in his opening statement:

       This is a homicide. The Commonwealth alleges that on November
       23[,] 2012, these two guys executed someone. They shot him
       down. Ervin Holton was shot to death because, at least the
       Commonwealth alleges, he was dating, intimate with a girl that
       Mr. Hughes believed belonged to him.

       You’re going to hear testimony that these two guys are drug
       dealers. We don’t know whether this execution had something
       to do with drugs. It may very well have. We don’t know whether
       this execution had something to do with drug debts.

N.T. Trial, 1/10/17, at 31-32.7

       Appellant claims that “the prosecutor knew that he had no evidence that

[Appellant] was a ‘drug dealer[.’] He only had evidence that he was present



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7 We acknowledge the language here is ambiguous and imprecise and the
prosecutor’s statement “these two guys” could refer to either Appellant and
Hughes or Hughes and the Victim. The prosecutor’s subsequent statements
suggest he was referring to Appellant and Hughes.

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at a drug deal. As such he had no reasonable basis to believe he could prove

that fact.”   Appellant’s Brief at 21.   Appellant avers that the trial court’s

cautionary jury instructions could not cure the resulting unfair prejudice

because the prosecutor “caused the jury to form an unlawful bias toward him

throughout the rest of the trial.” Id.

      Contrary to Appellant’s contention, this statement does not represent

actionable prosecutorial misconduct.      Our review of the record and the

prosecutor’s entire statement shows that he was explaining to the jury what

he expected the evidence to show, namely, that police photographed both

Appellant and Hughes together at Reavis’s home, which the narcotics division

had targeted for drug surveillance, on the same day as the murder. Because

the trial court had previously granted the Commonwealth’s Motion to admit

the evidence of the drug deal to show the defendants’ motive for the shooting

and the complete story of the case, it was not misconduct for the prosecutor

to state in his opening statement what he expected the evidence to show.

      Moreover, the trial court’s curative instructions before and after the

opening statements appropriately cautioned the jury that the statements of

counsel did not constitute evidence and explained the limited use of the

evidence about the drug deal. See N.T. Trial, 1/10/17, at 27 (“statements

and argument of the attorneys . . . are not binding on you and they’re not

evidence . . .”); id. at 29 (“Statements, arguments, questions, and comments

by lawyers are not evidence.”); id. at 87-88 (explaining, inter alia, “This


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evidence may be considered as possible motive. However, the defendants are

not on trial for being drug dealers. You may not convict the defendants merely

because you may find that they may have been involved with drug activity.”).

      In light of the foregoing, we conclude that the trial court did not abuse

its discretion in denying Appellant’s request for a mistrial based on his claims

of prosecutorial misconduct.

      Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/19




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