J-S12044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYRE J. BEY                                :
                                               :
                       Appellant               :   No. 1580 EDA 2019

          Appeal from the Judgment of Sentence Entered June 4, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005948-2016


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                  FILED MAY 19, 2020

        Appellant, Tyre J. Bey, appeals from the judgment of sentence of 11 to

23 years’ incarceration, imposed for his convictions for attempted murder,

aggravated assault, simple assault, and terroristic threats.1    For the reasons

set forth below, we affirm.

        This case arises out of an assault by Appellant on his wife, Aisha Bey

(Victim), on September 8, 2016, in which he repeatedly punched and choked

her. Trial Court Opinion at 1-2, 8-9. The case was tried to a jury on April 12

and 13, 2018. At trial, the Commonwealth called two witnesses, Victim and a




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*   Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. §§ 901 (18 Pa.C.S. § 2502(a)), 2702(a)(1), 2701(a)(1), and
2706(a)(1), respectively.
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physician who treated her for her injuries. Appellant testified and was the

sole defense witness.

       Victim testified that she and Appellant moved in together in 2004 and

married in 2008. N.T. Trial, 4/12/18, at 164, 171. Victim testified that on

multiple occasions between 2004 and 2016 Appellant beat and punched her

and that after the third assault, she began to try to end the marriage. Id. at

176-79, 183-86, 194-200, 203-04.2 She testified that Appellant ultimately

agreed to leave the house and that Victim and their children could stay there

and that he left the house in approximately late August 2016, but came back

to the house in the early morning hours of September 8, 2016, after Victim

had told him that she was going to see a divorce lawyer. Id. at 200-08; N.T.

Trial, 4/13/18, at 5, 66.        Victim testified that Appellant urged her not to

divorce him and that when she yelled back at him during this discussion,

Appellant began punching and kicking her. N.T. Trial, 4/12/18, at 208-10,

213-15; N.T. Trial, 4/13/18, at 6-8.           Victim testified that Appellant then

straddled her and began choking her and continued punching her in the face,

saying “Bitch, you going to die tonight. This what you want? This how you

want me to be? This what you want? You going to fucking die tonight.” N.T.



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2 The Commonwealth provided notice four months before trial of its intent to
introduce evidence at trial of Appellant’s past violent physical abuse of Victim
in accordance with P.R.E. 404(b)(3).         12/11/17 Commonwealth Notice.
Appellant’s trial counsel did not object to this testimony and conceded that it
was admissible. See N.T., Pretrial Conference, 3/12/18, at 24-25.

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Trial, 4/12/18, at 215-16; N.T. Trial, 4/13/18, at 8-12. Victim testified that

she became dizzy and had trouble breathing, but was able to bite Appellant’s

finger and that Appellant then stopped attacking her and she was able to drive

herself to the hospital. N.T. Trial, 4/13/18, at 9-14. Victim was able to turn

her cell phone on record before Appellant began punching and choking her in

the September 8, 2016 assault and that recording was played at trial. N.T.

Trial, 4/13/18, at 5-6, 20-32.

      In response to a question on direct examination concerning the

beginning of her relationship with Appellant before any of the assaults, Victim

testified that “it was kind of shaky because he had a lot of things going on.

His mom was dying at the time. He had just gotten out of prison.” N.T. Trial,

4/12/18, at 168. Appellant’s trial counsel objected and the trial court stated

that it did not hear any reference to prison and overruled the objection, but

instructed the Commonwealth to move the case along and instructed Victim

to listen to the question asked before answering. Id. at 168-70. Appellant’s

counsel did not request any further instruction or action by the trial court. Id.

      In her testimony concerning the history of Appellant beating her up,

Victim testified, with respect to the third assault that caused her to decide to

end the    marriage, that    Appellant   liked   “anal   penetration”   and   had

“sodomize[d]” her on an anniversary trip, and that he hit her when she

confronted him about it. N.T. Trial, 4/12/18, at 192, 194. Appellant’s trial

counsel objected to the mention of anal sex as irrelevant. Id. at 192-93. The


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trial court overruled the objection and Appellant’s counsel did not request any

limiting or cautionary instruction. Id. at 194.

      The physician who treated Victim at the hospital testified that Victim had

a large contusion on the left side of her face consistent with being struck in

the face, that a tooth was knocked out, and that her neck showed redness

consistent with being choked or strangled. N.T. Trial, 4/13/18, at 104-10,

113, 119-23.

      Appellant testified that Victim physically attacked him in the earlier

incidents and that he put his hands on her in self-defense. N.T. Trial, 4/13/18,

at 150-51, 164.    Appellant testified that he and Victim had talked about

divorcing, but that he did not agree that Victim could keep the house and that

the argument in the early morning hours of September 8, 2016 was about

who would have the house. Id. at 172-80, 189. Appellant claimed that Victim

pulled a knife on him, that he put his arm on her neck trying to get the knife

away, and that he began punching her after she cut him and bit his finger.

Id. at 191-92.     Appellant’s trial counsel specifically advised the court,

however, that he did not request the court give a charge on self-defense. Id.

at 247.

      Because he testified, the fact that Appellant was convicted of robbery in

1996 was admitted to impeach his credibility and Appellant testified that he

was convicted of that offense. N.T. Trial, 4/13/18, at 132-33, 200-01, 248.




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The trial court instructed the jury that it could consider Appellant’s prior

criminal conviction only in evaluating his credibility. Id. at 278.

       On April 13, 2018, the jury convicted Appellant of attempted murder,

aggravated assault, simple assault, and terroristic threats. On June 4, 2018,

the trial court sentenced Appellant to 10 to 20 years’ incarceration for the

attempted murder conviction and imposed a consecutive sentence of 1 to 3

years for the terroristic threats conviction, resulting in an aggregate sentence

of 11 to 23 years’ incarceration. The trial court imposed no sentence for the

aggravated assault and simple assault convictions because they merged with

the attempted murder conviction. Appellant did not file a timely direct appeal,

but filed a petition pursuant to the Post Conviction Relief Act (PCRA) 3 on

February 12, 2019, seeking reinstatement of his appeal rights.          By order

entered on April 29, 2019, the trial court granted that PCRA petition and

reinstated Appellant’s right to file a direct appeal. This timely appeal followed.

       Appellant presents the following issues for our review in this appeal:

       I) Whether the trial court erred when it overruled Appellant’s
       objection to the complainant’s testimony about him having
       previously been incarcerated since that testimony was not
       responsive or relevant, and where its probative value was
       outweighed by the danger of unfair prejudice, confusing the
       issues, and misleading the jury?

       II) Whether the trial court erred when it overruled Appellant’s
       objection and permitted the complainant to testify that Appellant
       liked anal penetration and that he sodomized her since that
       testimony was not relevant, and where its probative value was
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3   42 Pa.C.S. §§ 9541–9546.

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      outweighed by the danger of unfair prejudice, confusing the
      issues, and misleading the jury?

      III) Whether Appellant suffered prejudice as a result of the trial
      court’s errors since there is at least a reasonable possibility each
      error could have contributed to the guilty verdicts?

Appellant’s Brief at 4.

      Our review on these issues is limited to determining whether the trial

court abused its discretion. Commonwealth v. Poplawski, 130 A.3d 697,

716 (Pa. 2015); Commonwealth v. Gad, 190 A.3d 600, 603 (Pa. Super.

2018);

      [T]he admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion that
      overrides or misapplies the law, or where the judgment exercised
      is manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.

Gad, 190 A.3d at 603 (quoting Commonwealth v. Woodard, 129 A.3d 480

(Pa. 2015)).   An abuse of discretion cannot be found merely because the

appellate court might have reached a different conclusion. Poplawski, 130

A.3d at 716; Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007).

      Neither of the rulings here constitute grounds for reversal. With respect

to Appellant’s first issue, the reference to Appellant’s imprisonment consisted

of a single, brief mention by Victim in response to a question by the

Commonwealth that did not seek information concerning Appellant’s criminal

history or prior imprisonment.     A mere, isolated, passing reference by a


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witness to the defendant’s prior imprisonment or criminal history that is not

intentionally elicited by the Commonwealth and is not in violation of a court

order in the case does not require a mistrial or new trial. Commonwealth v.

Blystone, 725 A.2d 1197, 1204–05 (Pa. 1999); Commonwealth v.

Kerrigan, 920 A.2d 190, 199-200 (Pa. Super. 2007); Commonwealth v.

Guilford, 861 A.2d 365, 370-71 (Pa. Super. 2004).           The case on which

Appellant relies, Commonwealth v. Padilla, 923 A.2d 1189 (Pa. Super.

2007), is completely distinguishable from the situation here. In Padilla a

court order had been entered barring any testimony concerning the

defendant’s prior incarceration and this Court recognized that ordinarily the

reference to prior imprisonment would not require reversal, but that a mistrial

was required because of the violation of the court order. Id. at 1192, 1995-

96.   Here, there was no pre-trial order concerning Appellant’s prior

imprisonment and no violation of any court order by the Commonwealth or

any witness.

      To the extent that Appellant contends that the trial court erred in failing

to instruct the jury to disregard Victim’s remark concerning his imprisonment,

that argument is waived. The trial court did not hold that the statement was

admissible, rather it overruled the objection because it erroneously believed

that the statement had not occurred. N.T. Trial, 4/12/18, at 168-70. Although

Appellant’s trial counsel objected immediately, he neither requested that the

testimony be read back at side bar nor requested any relief, such as striking


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the testimony or instructing the jury to disregard it. Instead, after the trial

court at side bar instructed the Commonwealth to move the testimony along,

Appellant’s trial counsel was satisfied with that action, stating, “That’s why I

objected and called sidebar,” and sought no further action by the trial court.

Id. at 169-70. An objection to an improper statement without any request

for a remedy is insufficient to preserve the issue for appellate review.

Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013).

      In any event, any error with respect to Victim’s reference to Appellant’s

prior imprisonment was harmless.        An error is harmless and does not

constitute grounds for reversal if it could not have contributed to the verdict.

Poplawski, 130 A.3d at 716; Commonwealth v. Radecki, 180 A.3d 441,

461 (Pa. Super. 2018).     Erroneous admission of evidence that is merely

cumulative of other, admissible evidence that is before the jury is harmless

error. Poplawski, 130 A.3d at 716; Radecki, 180 A.3d at 461. Here, as a

result of his decision to testify to his version of the events on September 8,

2016, Appellant’s prior conviction for robbery was properly introduced in

evidence. The jury therefore knew that Appellant was convicted of a serious

crime and the reference to his imprisonment gave them no additional

information that he had prior criminal history.

      With respect to Appellant’s second issue, we conclude that the trial court

did not abuse its discretion in permitting Victim to briefly reference anal sex

as the reason for her confrontation with Appellant that led to one of the


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assaults that Appellant inflicted on her.    Under the res gestae exception,

evidence of other acts by the defendant may be admissible to tell the complete

story of the events relevant to the crime. Commonwealth v. Hairston, 84

A.3d 657, 665 (Pa. 2014); Commonwealth v. Lark, 543 A.2d 491, 497 (Pa.

1988); Gad, 190 A.3d at 603; Commonwealth v. Hicks, 151 A.3d 216, 226

(Pa. Super. 2016).   “The trial court is not ‘required to sanitize the trial to

eliminate all unpleasant facts from the jury’s consideration where those facts

are relevant to the issues at hand and form part of the history and natural

development of the events and offenses for which the defendant is charged.’”

Hairston, 84 A.3d at 666 (quoting Lark). This brief testimony was part of

the complete story of the events that led to Appellant’s September 8, 2016

assault as the explanation of the argument that was the precipitating event of

the third assault that caused Victim to decide to end the marriage, which in

turn led to the September 8, 2016 assault.

      Moreover, any error in the admission of this limited testimony was

harmless. Even if erroneously admitted evidence is not duplicative of other

evidence properly before the jury, the error is harmless where any prejudice

to the defendant from the evidence was de minimis or where the properly

admitted and uncontradicted evidence of guilt was so overwhelming and the

prejudicial effect of the evidence was so insignificant by comparison that the

error could not have contributed to the verdict. Poplawski, 130 A.3d at 716-

17 (any error in admission of racial slurs used by defendant was harmless


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where evidence that defendant committed the murders was overwhelming and

essentially undisputed).

      Here, the fact that Appellant beat Victim up on September 8, 2016 and

the injuries that she suffered were essentially undisputed. While Appellant

disputed that he intended to kill Victim and gave a different version of how

the assault occurred, Victim’s testimony concerning the assault and

Appellant’s statements that he would kill her were corroborated by the cell

phone audio recording. In addition, none of the charges against Appellant

involved sexual offenses and it was undisputed that no sexual act was involved

in the September 8, 2016 assault. There was no further mention of anal sex

or sodomy by the Commonwealth or its witnesses at trial and the

Commonwealth made no reference to this testimony in its closing. While the

jury asked several questions during its deliberations and at one point indicated

a lack of unanimity on one charge, its questions all related to the specific

charges against Appellant and their elements and the only evidence that the

jury asked to hear, which it requested after its note concerning non-unanimity,

was the cell phone audio recording of the assault. N.T. Trial, 4/13/18, at 294-

300; Jury Questions 1-4.       Given these facts, any possible prejudice to

Appellant was de minimis or so insignificant that it could not have contributed

to the verdict.

      Because we conclude that Appellant has not shown any abuse of

discretion by the trial court, his third argument of cumulative error necessarily


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fails. “[N]o number of failed claims may collectively warrant relief if they fail

to do so individually.” Commonwealth v. Sherwood, 982 A.2d 483, 507

(Pa. 2009) (quoting Commonwealth v. Washington, 927 A.2d 586 (Pa.

2007)).

      For the foregoing reasons, we conclude that the trial court did not abuse

its discretion or commit any reversible error in the rulings challenged by

Appellant. Accordingly, we affirm the trial court’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2020




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