J-A08038-17

                                  2017 PA Super 119


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TARIQ RASHID                               :
                                               :
                      Appellant                :   No. 121 EDA 2016

           Appeal from the Judgment of Sentence December 15, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000494-2015


BEFORE:      PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED APRIL 21, 2017

        Appellant Tariq Rashid appeals from the judgment of sentence of life in

prison entered in the Court of Common Pleas of Philadelphia County on

December 15, 2015, following his jury trial convictions of one count each of

First Degree Murder, Possession of an Instrument of Crime and Firearms not

to be carried without a license.1 We affirm.

        The trial court aptly set forth the relevant facts herein as follows:

                                     FACTS
              Around 3:00 A.M. on May 23, 1999, the decedent, Warner
        Freeman ("Freeman") also known as “Hip hop” was playing a
        dice game on Landsdowne Avenue between 55th and Allison
        Streets in the City and County of Philadelphia. (N.T. 12/9/15 at
        71-76) Rashawn Holmes ("Holmes") also known as "Shawn" and
        Appellant's cousin, Harvey Meyers ("Meyers") joined the game.
        Id.; N.T 12/14/15 at 16. An argument ensued between Freeman
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa. C.S.A. §§ 2502(a), 907, 6106(a)(1), respectively.
J-A08038-17


     and Meyers, and Freeman got into a car and drove away. (N.T.
     12/9/15 at 76-88) The group was still playing dice when
     Freeman returned shortly thereafter, exited the car, resumed his
     argument with Meyers and shot him three to four (3-4) times in
     the upper body with a handgun. Id. Meyers died as a result of
     his wounds. Holmes made a statement to police and identified
     Freeman, who was unknown to him, as the shooter. Id.
            On June 13, 1999, Antonio Connor ("Connor") also known
     as "Tone" was double-parked in his Oldsmobile Cutlass at the
     1400 block of Redfield and Master Streets in the City and County
     of Philadelphia. Id. at 196-213. Freeman, seated in the
     passenger seat of the Cutlass, was to meet Kareem McBride
     ("McBride") at that location. (N.T. 2/11/15 at 103-110). Both
     Connor and Freeman lived in the area. (N.T. 12/9/15 at 191).
     Freeman had the passenger side window rolled down and was
     talking to various people he knew from the neighborhood.
     Darnell Jones ("Jones") spoke to the men briefly and walked
     southbound. (N.T. 12/1/15 at 146-147). Jones saw the Appellant
     at the end of the block and Appellant asked who was in the
     Cutlass. Id. Jones indicated it was Freeman and Connor and
     Jones watched Appellant get into his car and drive in the
     direction of the double-parked Cutlass. Id. Freeman was talking
     to his friend William Cummings ("Cummings"), a pedestrian who
     was also from the neighborhood, when Appellant pulled up
     behind Connor's Cutlass and exited his own vehicle. (N.T.
     12/9/15 at 128-129, 132-148). Cummings observed Appellant,
     who was known to him, walking towards Freeman's side of the
     car. Id. Jones could also see Appellant from his vantage point.
     Cummings saw Appellant reaching for his waistband and
     Cummings ran. (N.T. 12/9/15 at 142-144). Appellant fired three
     to four (3-4) shots at Freeman, striking him. McBride, who was
     on the 1300 Block of Redfield Street, also saw the incident. (N.T.
     12/9/15 at 108-122). Connor transported Freeman to Lankenau
     Hospital, where he was pronounced dead at 10:35 P.M. Id. at
     197.
            An autopsy was performed by Deputy Medical Examiner
     Dr. Ian Hood. (12/11/15 at 252-276). Upon reviewing the case
     file and photos of Freeman's autopsy, Chief Medical Examiner Dr.
     Sam Gulino testified as Dr. Hood was no longer with the
     Philadelphia Medical Examiner's Office. Id. Dr. Gulino determined
     the cause of death was a gunshot wound to the torso. Id. The
     manner of death was found to be homicide. Id. Freeman was
     shot approximately two (2) times, one (1) bullet went through
     the right forearm exited, and entered Freeman's right chest,

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J-A08038-17


      where the bullet passed through Freeman's right and left lungs,
      aorta and liver. Id. The other bullet entered the left forearm. Id.
      Three (3) bullets were recovered from Freeman's body, one (1)
      was a bullet from a prior shooting. Id. Through ballistics analysis
      the bullets from the fresh wounds were found to be of .38
      caliber, and fired from the same gun. (N.T. 12/14/15 at 45, 53).
             On March 1, 2000, Jones was in federal custody and
      engaged in a proffer discussion wherein he outlined his
      knowledge of Freeman's death. (12/10/15 at 134-140). Jones
      alleged that Connor was a "drug mule" for Michael Gaffney
      ("Gaffney") also known as Mikael.4 Id. at 97-101. Jones also
      alleged that he knew Appellant to carry a .25 caliber handgun.
      Id. at 148.
             The homicide of Freeman remained stagnant for
      approximately thirteen (13) years until November 19, 2014
      when Cummings, in custody, made a statement to police
      outlining the incident. (N.T. 12/9/15 at 146-I47). It was
      stipulated by and between counsel that at the time of the
      shooting, Appellant did not have a permit to carry a firearm, and
      he had been arrested December 2, 2014. (N.T. 12/14/15 at 57-
      58).
      ____
      4
        Gaffney’s alleged drug involvement with others is what defense
      counsel refers to as the “Gaffney Organization.”

Trial Court Opinion, filed 7/14/16, at 3-5.

      Appellant filed a timely notice of appeal on December 31, 2015. On

February 24, 2016, the trial court issued its Order to File Statement of Errors

Complained of on Appeal. Appellant complied and filed the same on March

16, 2016 wherein he raised six issues.        In his appellate brief, Appellant

presents the following five questions for our review:

      1.   Did the trial court err and violate [Appellant’s] right to
      present a defense by precluding evidence that tended to prove
      that someone other than [Appellant] had a motive for
      committing the murder?




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      2.   Did the lower court err when it precluded the defense from
      impeaching a witness by concluding that the witness’ Fifth
      Amendment privilege applied when it clearly did not?

      3.   Did the lower court err when it precluded the defense from
      impeaching an alleged eyewitness with his testimony from
      another matter?

      4.    Did the trial court err by allowing the Commonwealth to
      introduce evidence that [Appellant] possessed a handgun, where
      it was physically impossible for that gun to be involved in the
      crime?

      5.    Did the trial court err in refusing to grant a mistrial after
      the prosecutor improperly attacked the defense’s character
      witnesses with irrelevant and prejudicial questions and behavior?

Brief for Appellant at 4-5.

      Appellant’s first four issues challenge the trial court’s decisions

pertaining to the admission of evidence at trial. Our standard of review for

evidentiary matters is well-established:

      The admission of evidence is a matter vested within the sound
      discretion of the trial court, and such a decision shall be reversed
      only upon a showing that the trial court abused its discretion. In
      determining whether evidence should be admitted, the trial court
      must weigh the relevant and probative value of the evidence
      against the prejudicial impact of the evidence. Evidence is
      relevant if it logically tends to establish a material fact in the
      case or tends to support a reasonable inference regarding a
      material fact. Although a court may find that evidence is
      relevant, the court may nevertheless conclude that such
      evidence is inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)

(citation omitted).

      Initially, Appellant avers that at numerous times throughout trial he

sought to introduce testimonial evidence that Connor had a motive to kill

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J-A08038-17


Freeman based upon the men’s involvement in the “Gaffney Organization.”

Appellant reasons that “if the Commonwealth was allowed to argue that

[Appellant] had a motive to kill Freeman, there is no reason why [Appellant]

should not have been allowed to do the same thing about somebody else.”

Brief for Appellant at 12. Appellant posits our Supreme Court’s decision in

Commonwealth v. Ward, 529 Pa. 506, 605 A.2d 796 (1992) is instructive

herein. In that case, the Court held it was prejudicial error for the trial court

to exclude testimony of a police detective and a Red Cross worker which

would have supported the defense theory that other individuals had a motive

to commit the crimes of which the defendant had been convicted and

contradicted the Commonwealth’s evidence of the defendant’s own motive.

      Herein, the trial court ruled evidence regarding the operations of the

“Gaffney Organization” was inadmissible and explained its rationale in doing

so as follows:

             [ ] Appellant was not precluded from introducing an
      alternative theory or arguing motive, he was however precluded
      from introducing irrelevant evidence. In his opening statement,
      defense counsel presented the theory that the “Gaffney
      Organization[,]” a purported drug operation from the
      neighborhood, was responsible for Freeman’s murder in 1999
      and that Connor, a mule for Gaffney, had motive to kill Freeman.
      As an initial matter, determining whether Connor or other
      individuals had been involved with the Gaffney Organization in
      selling or moving illicit substances was of no moment in
      Freeman’s death as that information would not have made it less
      probable that Appellant shot Freeman. Cummings, McBride, and
      Jones identified Appellant as the shooter. (N.T. 12/9/15 at 150-
      151; 12/11/15 at 105; 12/10/15 at 143).           Appellant was
      permitted to question Connor and Cummings on cross-
      examination about their knowledge of individuals with the last

                                      -5-
J-A08038-17


      name Gaffney who were from the neighborhood. (N.T. 12/9/15
      at 167-169, 254; 12/10/15 at 85-[86]). Connor confirmed
      knowing Mikael Gaffney and Andre Gaffney. (N.T. 12/9/15 at
      167-169. Connor testified he had no business interests with
      [the] aforementioned people. Id. at 255. Trial counsel was free
      to ask Connor if he wanted Freeman dead or had any prior
      knowledge about an attempt on Freeman’s life, however counsel
      failed to do so. Any evidence Appellant wished to introduce to
      support an alternative theory was subject to the Pennsylvania
      Rules of Evidence, as such no relief is due.

Trial Court Opinion, field 7/14/16, at 6-7.

      Following a careful review of the certified record, the parties’

submissions and the trial court’s Rule 1925(a) Opinion, we find no error. A

trial court does not abuse its discretion when it precludes cross-examination

based upon inadmissible evidence. Commonwealth v. Hyland, 875 A.2d

1175, 1187 (Pa.Super. 2005).          Appellant sought to introduce evidence

pertaining to a written summary of Jones’ proffer to federal authorities in

2000. Known as a 302, the typewritten document had been prepared by the

FBI and consisted of a “little summary that they write for themselves as to

what the witness says and the information that the witness gives.”            N.T.,

12/10/15, at 97.     When the trial court questioned him whether the 302

would constitute hearsay, defense counsel responded that he was not

offering it for the truth of the matter, but rather “offering it for is this is what

they do.” Id. at 106.

      Counsel clarified that the document was necessary to develop his

defense in that it would allow Jones to testify regarding information he

learned while in jail or personally saw about the Gaffney Organization which

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J-A08038-17


he had shared in an effort to receive a reduced sentence on pending

charges.   Id. at 108-100.      Ultimately, the trial court determined that

defense counsel “will be permitted to ask some limited questions along the

line that [he] did this morning with the statement from Mr. Cummings[]”

and clarified that “[i]f at some point the Commonwealth begins to feel that it

is delving, they can raise an objection and I will rule on it as we get to it.”

Id. at 110-11.

      As the trial court observed in its Rule 1925(a) Opinion, it permitted

Appellant to cross-examine Connor based upon his alleged business dealings

with the Gaffneys, and Connor admitted to knowing some of the Gaffneys.

N.T., 12/9/15, 254-58, 261, 268.      In addition, Appellant cross-examined

Jones and Cummings regarding the drug-related activities in which the

Gaffneys and Connor had engaged. N.T., 12/9/15, 167-69; N.T., 12/10/15,

21-13, 180-84. Moreover, during closing argument defense counsel stated

Connor had been involved in a drug organization and suggested he had a

motion to kill Freeman.    See N.T., 12/14/15, 135-36, 150-53.        As such,

Appellant’s claim the trial court’s evidentiary rulings prevented him from

introducing to the jury his theory that someone else had a motive to kill

Freeman is meritless.

      Appellant next argues the trial court erred when it precluded him from

questioning Connor regarding whether he had sold drugs for the Gaffney

Organization in 1999 on the basis that the witness’s Fifth Amendment


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J-A08038-17


privilege applied to his response. Appellant reasons that because the statute

of limitations for prosecuting an offense under the Controlled Substance,

Drug, Device and Cosmetic Act is five years under 42 Pa.C.S.A. § 5552(b)(2)

and had expired in 2004, Connor could no longer assert the Fifth

Amendment privilege at Appellant’s trial.    Brief for Appellant at 13, citing

Brown v. Walker, 161 U.S. 591[, 16 S.Ct. 644] (1896); Stogner v.

California, 539 U.S. 607, 620[, 123 S.Ct. 2446, 2455] (2003).

     Although Appellant represents in his appellate brief that Connor was

asked on cross-examination whether he ever had sold drugs for the Gaffney

Organization in 1999, the exchange at issue was as follows:

     [Defense counsel]: You never sold kilos or delivered kilos of
     cocaine for the Gaffney Family?
     [The Prosecutor]: Objection.
     The Court: Sustained.
     [Connor]: If so. That ain’t what we’re here for today.
     The Court: He does not have to answer that. That is a Fifth
     Amendment question. He does not have to answer.
     [Defense Counsel]: Judge, can I approach?
     The Court: No, sir.
     [Defense Counsel]: There’s no Fifth Amendment on a statute
     that expired in 1999.
     The Court: I’m not going to argue that with you. I’m not going
     to argue with you at all. I have sustained the objection.

N.T., 12/9/15, at 255-56 (emphasis added).

     Defense counsel’s initial question did not reference a specific point in

time, and it was only after the trial court sustained the Commonwealth’s

general objection on the ground that Connor’s response could implicate his

Fifth Amendment rights did defense counsel reference alleged drug-related


                                    -8-
J-A08038-17


activity that had occurred in 1999. It would appear, then, that the question

originally was posed for the broader purpose of suggesting that Connor’s

involvement in drug trafficking with the Gaffneys might have provided him

with a motive to kill Freeman.

      Indeed, Appellant admits that “[t]he whole thrust of the defense

theory in this case was that Connor was a drug dealer for the Gaffney

Organization, and thus had a motive to kill Freeman. . . . Of course, the

threshold item of proof to make this point was to show that Connor was in

fact a drug dealer.” Brief for Appellant at 13-14. Thus, Connor’s privilege

against self-incrimination was implicated by counsel’s question, for Appellant

sought to reveal a motive for Connor to kill Freeman, and there is no statute

of limitations for the crime of murder.          “The [Fifth Amendment] privilege

extends not only to statements that by themselves would be evidence that

the declarant has committed a crime, but also to assertions that would be ‘a

link in the chain’ of evidence needed to convict.” Commonwealth v. Treat,

848 A.2d 147, 148 (Pa.Super. 2004) (citation omitted). Consequently, the

trial court’s ruling was not in error.

      Appellant further avers he should have been permitted to impeach

Cummings with statements the latter had made during his sentencing

hearing in Delaware County following his conviction of second-degree

murder, Carrying a Firearm without a License, and Criminal Conspiracy to

Commit    Robbery.    Presumably,        at   that   time   Cummings   had   denied


                                          -9-
J-A08038-17


committing the homicide, although at Appellant’s trial he stated that the one

mistake he had made in life was “committing murder.” N.T., 12/10/15, at

43. The trial court sustained the Commonwealth’s repeated objections to

defense counsel’s questions regarding whether Cummings at any point in

time had represented in a court of law that he was not guilty of the murder.

Id. at 46.

      In claiming that this was in error, Appellant reasons that this Court’s

decision in Commonwealth v. Hensley, 441 A.2d 431 (Pa.Super. 1982) is

controlling.   Therein, we reiterated the long-settled principle that a prior

inconsistent statement may be used to impeach a witness.           In a split

decision, we ultimately found that the defendant was entitled to a new trial

as he had been denied the opportunity to impeach an important witness at

his second murder trial concerning prior inconsistent testimony from that

witness at the first trial regarding the location of shotgun shells recovered

near the victim’s body. Id. at 434-35.

      Clearly, Appellant’s reliance upon Hensley is misplaced.        Herein,

Appellant sought to impeach Cummings regarding Cummings’ own criminal

history, whereas the defendant in Hensley was prohibited from presenting

evidence directly connected to the murder for which he was on trial.     “[A]

defendant's right of confrontation includes the right to cross-examine

witnesses about possible motives to testify. However, a witness may not be

contradicted on ‘collateral’ matters, ... and a collateral matter is one which


                                    - 10 -
J-A08038-17


has no relationship to the case at trial. The scope of cross-examination is a

matter within the discretion of the trial court and will not be reversed absent

an abuse of that discretion.” Commonwealth v. Saunders, 946 A.2d 776,

786 (Pa.Super. 2008) (citations omitted).

      Herein, the trial court determined that Cummings’ convictions were not

the result of crimes of dishonesty, and, therefore, the admission of the notes

of testimony from the sentencing hearing therein was within its discretion.

The trial court further found the “[a]dmission of these notes would have

diverted the jury’s attention away from its duty of weighing the evidence

impartially by emphasizing the fact that Cummings had been convicted of

these crimes and delving into the circumstances under which he was found

guilty.” Trial Court Opinion, filed 7/14/16, at 10.

      In addition, our review of the trial transcript reveals defense counsel

repeatedly attacked Cummings’ veracity and character and highlighted his

crime-ridden past on cross-examination.         N.T., 12/9/15, at 159-180;

12/10/15, at 9-44, 78-91. Again, during closing argument, defense counsel

referred to Cummings as a “serial manipulator” and “serial fabricator of

information   and   evidence,”   N.T.,   12/14/15,    at   136,   and   reiterated

information elicited on cross-examination to illustrate this point as well as

Cummings’ motive for working with authorities. Id. at 136-145. As such,

even had Appellant been permitted to impeach Cummings’ credibility with

his prior, sworn inconsistent statement from his sentencing hearing, such


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impeachment testimony would have been cumulative of the multitude of

inconsistencies previously revealed. No relief is due.

       Appellant next contends the trial court erroneously had permitted the

Commonwealth to introduce testimony from Jones that Appellant typically

carried a .25 caliber handgun, despite uncontradicted evidence that the

murder weapon was a .38 or a .380. Brief for Appellant at 16 citing N.T.,

12/10/15, at 148. Appellant maintains that any probative value arising from

the trial court’s decision to allow such testimony was outweighed by its

“crippling” prejudicial effect as “the Commonwealth used the evidence to

portray [Appellant] as someone who wields firearms.” Id. at 19.2

       Initially, we note that “for a ruling on evidence to constitute reversible

error, it must have been harmful or prejudicial to the complaining party. A

party suffers prejudice when the trial court's error could have affected the


____________________________________________


2
  The Commonwealth avers Appellant has waived this claim for his failure to
place a contemporaneous objection on the record because he neither asked
that Jones’ statement be redacted nor objected to it at the time it was
introduced as a prior inconsistent statement through the testimony of
Special Agent Vito Roselli of the FBI. In addition, the Commonwealth states
Appellant “did not object at all” when Jones indicated he did not remember
saying that Appellant shot the victim with a .25-caliber shotgun. Brief for
the Commonwealth as Appellee at 27-29. However, Appellant stated
“Objection. Objection to the answer” to the prior query at which time the
prosecution asked Jones, apparently incorrectly, whether he remembered
“the detective asking, ‘How did you know that [Appellant] has a .45
caliber?’” See N.T., 12/10/15, at 147-48. For this reason, we decline to
find Appellant did not raise this issue in a timely fashion before the trial
court.



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verdict.” Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa.Super. 2015)

(citation omitted).

      A review of the relevant exchange at trial reveals that despite

Appellant’s argument, Jones never told the jury that Appellant carried a .25

caliber handgun. In fact, he testified that he did not remember ever making

such a statement.

            [The prosecutor]: Do you remember the detective asking,
      How did you know that [Appellant] has a .45-caliber?
            [Defense counsel]: Objection. Objection to the answer.
            [The Court]: Overruled.
             [The prosecutor]: Do you remember answering that
      question?
            [Jones]: No.
            [The prosecutor]: I want you to look at page four for me.
      Are you at the top?
                  Q: “How do you know [Appellant] had a .25-cal?
                  A: That was the gun he carried.”
                  Do you see that answer?
            [Jones]: Yes.
            [The prosecutor]: Do you remember giving that answer?
            [Jones]: No.

N.T. 12/10/15, 147-48.

      Clearly, Jones’ testifying as to his inability to recall having said

Appellant possessed a .25-caliber handgun was not harmful to Appellant. To

the contrary, Jones’ memory lapse worked to Appellant’s advantage as it

called into question whether Appellant possessed a firearm at all and

suggested to the jury the murder weapon was not his. This is especially true

in light of the fact the Commonwealth did not introduce a .25 caliber

handgun into evidence and ballistic evidence revealed the bullets recovered


                                   - 13 -
J-A08038-17


from the crime scene could have been expelled from either a .380 caliber or

a nine-millimeter. N.T., 12/14/15, at 54. In addition, Appellant questioned

Jones’ credibility during closing argument. Id. at 153-162, 163-170. In light

of the foregoing, Appellant’s claim Jones’ perceived testimony in this regard

was “crippling” in its prejudicial effect is without merit.

      Lastly, Appellant maintains the trial court abused its discretion in

denying his motion for a mistrial following the Commonwealth’s alleged

improper questioning of Appellant’s character witnesses regarding his prior

drug activity.   Appellant asserts that “drug dealing in and of itself is not

pertinent to the issue of whether someone is peaceful and non-violent” and

that such queries violated the trial court’s pretrial order specifically excluding

any mention of these alleged activities. Brief for Appellant at 21. In support

of his claim the questions deprived him of a fair trial, Appellant states “[t]he

prosecutor’s smear of [Appellant] was bolstered by her tactics of waving her

file around and asking questions about specific dates, locations and aliases

so as to allow the jury to infer that she was reading from [Appellant’s] rap

sheet.”   Appellant concludes that a mistrial was the sole remedy for such

“outrageous conduct.” Id. at 22.

      In considering this argument, we are governed by the following well-

settled standard:

      In criminal trials, declaration of a mistrial serves to eliminate the
      negative effect wrought upon a defendant when prejudicial
      elements are injected into the case or otherwise discovered at
      trial. By nullifying the tainted process of the former trial and

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      allowing a new trial to convene, declaration of a mistrial serves
      not only the defendant's interest but, equally important, the
      public's interest in fair trials designed to end in just judgments.
      Accordingly, the trial court is vested with discretion to grant a
      mistrial whenever the alleged prejudicial event may reasonably
      be said to deprive the defendant of a fair and impartial trial. In
      making its determination, the court must discern whether
      misconduct or prejudicial error actually occurred, and if so, ...
      assess the degree of any resulting prejudice. Our review of the
      resulting order is constrained to determining whether the court
      abused its discretion. Judicial discretion requires action in
      conformity with [the] law on facts and circumstances before the
      trial court after hearing and consideration. Consequently, the
      court abuses its discretion if, in resolving the issue for decision,
      it misapplies the law or exercises its discretion in a manner
      lacking reason.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa.Super. 2009) (citation

omitted). The remedy of a mistrial is an extreme one and is required only

when an incident is of such a nature that its unavoidable effect deprives a

defendant of a fair and impartial tribunal. Id.

      Pa.R.E. 405, entitled “Methods of Proving Character,” provides, in

relevant part:

      (a) By Reputation. When evidence of a person's character or
      character trait is admissible, it may be proved by testimony
      about the person's reputation. Testimony about the witness's
      opinion as to the character or character trait of the person is not
      admissible.
      (1) On cross-examination of the character witness, the court
      may allow an inquiry into relevant specific instances of the
      person's conduct probative of the character trait in question.
      (2) In a criminal case, on cross-examination of a character
      witness, inquiry into allegations of other criminal conduct by the
      defendant, not resulting in conviction, is not permissible.

Pa.R.E. 405(a).




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        Appellant’s sister Sharon Woods-Ruffin testified that Appellant had a

reputation of “being a peaceful and respectable individual.” N.T. 12/14/15,

at 62.     On cross-examination, the Commonwealth asked Ms. Woods-Ruffin

whether “as far as [her] understanding of peacefulness, would [she]

consider a person who deals crack-cocaine to be peaceful?”                  Appellant’s

objection to the query was sustained, and the Commonwealth next inquired

as to whether Ms. Woods-Ruffin would “consider a drug dealer to be

peaceful?” Id. at 66. Appellant’s objection was overruled, and Ms. Woods-

Ruffin responded in the negative. Id. at 67, 68. Next, Tracy Lamont Ruffin,

Appellant’s    brother-in-law,     testified   he   was   familiar   with   Appellant’s

reputation as a peaceful person.           Id. at 75-76.    When questioned as to

whether he believed a drug dealer to be a peaceful person, Mr. Ruffin replied

“No.”     Id. at 81-82.3        Similarly, Shaheedah Tinsley, a family friend,

explained that Appellant had “an excellent reputation” for peacefulness. Id.

at 86-87. On cross-examination, the Commonwealth asked Ms. Tinsley if a

drug dealer in her view is a peaceful person,4 to which Ms. Tinsley replied,

“It depends on the person. In my opinion just from what I grew up around,

I’ve seen peaceful drug dealers and I’ve seen violent ones.” Id. at 93-94.

        Initially, we note that Appellant seems to have misconstrued the trial

court’s pretrial order as specifically excluding any mention of Appellant’s
____________________________________________


3
    Defense counsel noted his objection. Id. at 81.
4
    No objection was noted. Id.



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prior drug dealing. In its Rule 1925(a) Opinion, the trial court cites to the

notes of testimony from November 9, 2015, wherein it apparently denied

Appellant’s motion in limine pertaining to the ability of the Commonwealth to

cross-examine character witnesses about drug dealing.         See Trial Court

Opinion, filed 7/16/16, at 14 citing N.T., 11/9/15, at 10-14.      However, a

copy of the transcript of the pre-trial hearing held on November 9, 2015,

does not appear in the certified record. “It is an appellant's duty to ensure

that   the   certified   record   is   complete   for   purposes   of   review.”

Commonwealth v. Reed, 601 Pa. 257, 263, 971 A.2d 1216, 1219 (2009)

(citation omitted). “[A]n appellate court cannot consider anything which is

not part of the record in the case ... because for purposes of appellate

review, what is not of record does not exist.” Commonwealth v. Johnson,

33 A.3d 122, 126 n. 6 (Pa.Super. 2011), appeal denied, 47 A.3d 845 (Pa.

2012) (citations and internal quotation marks omitted). Accordingly,

Appellant waived this basis for challenging the trial court’s denial of his

motion for a mistrial.

       With regard to Appellant’s position that drug dealing is irrelevant to a

consideration of the whether one is peaceful and nonviolent, we note that:

       [t]his Court has consistently repeated the principle that although
       evidence of good character may not be rebutted by evidence of
       specific acts of misconduct, a character witness may be cross-
       examined regarding his or her knowledge of particular acts of
       misconduct by the defendant to test the accuracy of his or her
       testimony and the standard by which he or she measures
       reputation.


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Commonwealth v. Kouma, 53 A.3d 760, 769 (Pa.Super. 2012) (citation

omitted).

      Herein, Appellant presented reputation evidence from three witnesses

each of whom made a blanket assertion he had a reputation for being

peaceful. In doing so, Appellant “opened the door” for the Commonwealth

to cross-examine those character witnesses regarding specific instances of

conduct which are probative of the peacefulness trait in question. Kouma,

supra; Pa.R.E. 405(a).    The prosecutor did not inquire as to whether the

witnesses knew Appellant to be a drug dealer or whether they were aware of

any specific, prior drug-related conviction he might have had. Therefore, we

must determine whether the Commonwealth’s general inquiries as to

whether the witnesses deemed a drug dealer to be a peaceful person were

probative as they relate to the witnesses’ standard by which they measure

peacefulness.

      Clearly, one involved in drug trafficking is in violation of the laws of

this Commonwealth, yet the manner in which each of Appellant’s character

witnesses perceived an individual involved in illicit drug trade varied. While

Ms. Woods-Ruffin and Mr. Ruffin indicated they did not view a drug dealer as

a peaceful person, Ms. Tinsley’s response was more cryptic and had been

preceded by a statement that, in her view, only the Pope and Mother

Theresa were peaceful individuals.      N.T., 12/14/15, at 92.      She also

indicated that she believed “a crack dealer” and “a college dorm marijuana


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J-A08038-17


dealer” are on the same level. Id. at 93. Thus, with these questions, the

prosecutor properly probed the standard by which the witnesses evaluated

the peacefulness of a drug dealer generally which shed light upon Appellant's

character trait which he, himself, had put at issue.    Such cross-examination

is permissible under Pa.R.E. 405(a) and the trial court properly permitted it.

         Furthermore, when considering whether the prosecutor’s comments

along with her manipulation of files and paperwork during her cross-

examination      of   the   character   witnesses   amounted   to   prosecutorial

misconduct, the trial court noted that in trying to determine Ms. Tinsley’s

standard of what constitutes peacefulness, the prosecutor inquired about

drug dealing at a specific location only in direct response to defense

counsel’s statement following his objection that: “She may need some more

facts.    I know I would.”     Trial Court Opinion, 7/14/16, at 15 citing N.T.,

12/14/15, at 94. The trial court opined that:

         The prosecutor’s gestures and statements in tandem with
         questioning character witnesses constituted a proper use of
         oratorical   flair and   “vigorous    prosecutorial   advocacy.”
         Commonwealth v. Miles, 681 A.2d 1295, 1302 (Pa. 1996).
         Moreover, the jury was instructed on at least two (2) occasions
         that the statements of counsel do not constitute evidence. (N.T.
         12/9/15 at 19; N.T. 12/15/15 at 38). The extreme remedy of a
         mistrial was not warranted.

Id. at 15.

         Upon a review of the trial transcripts and defense counsel’s own

description of the prosecutor’s behavior, we agree with the trial court that

the prosecutor’s actions and comments did not amount to prosecutorial

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misconduct when viewed in proper context. Counsel stated the prosecutor:

“pulled out her file and looked at it. At the time she talked about the dates

of arrests. And she also looked at the file when she described drug activity

not just generally but at a specific location, your Honor.” Defense counsel

also complained the prosecutor:      “march[ed] in front of a jury and [ ]

[looked] at it and [ ] [pointed] out dates of birth and then [ ] [talked] about

drug dealing as [she was] talking about specific locations[.]”            N.T.,

12/14/15, at 100-01.      We find the prosecutor acted well within the bounds

of proper advocacy in so questioning Ms. Tinsley.      See Miles, 545 Pa. at

514, 681 A.2d at 1302. In light of the foregoing, the trial court’s denial of

Appellant’s motion for a mistrial was not an abuse of discretion.

     Judgment of Sentence Affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




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