J-A05023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES KING                                 :
                                               :
                       Appellant               :   No. 533 WDA 2019

         Appeal from the Judgment of Sentence Entered March 13, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0003003-2018


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                                   FILED MAY 11, 2020

        James King appeals from the March 13, 2019 judgment of sentence

imposed after a jury found him guilty of first-degree murder, carrying a

firearm without a license, recklessly endangering another person (“REAP”),

and tampering with evidence. We affirm.

        This case concerns the shooting death of James Hine (the “victim”),

which the trial court summarized as follows:

        On December 17, 2017, Appellant, the victim, and two (2)
        witnesses, Ashley Gantt and Michael Perret were at a residence
        located at 936 Angelo Drive in Baldwin[, Pennsylvania]. This is an
        adult group home for individuals with special needs, of which Mr.
        Perret was a resident and Appellant, victim, and Ms. Gantt were
        employees. A heated argument took place [among the victim,
        Appellant,] and Ms. Gantt . . . regarding the victim being late for
        his shift and other personal matters. The victim and Mr. Perret
        attempted to calm the situation, but the argument continued to

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*   Retired Senior Judge assigned to the Superior Court.
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      escalate verbally. Ms. Gantt’s minor son was present and Mr.
      Perret brought him to a company vehicle that was parked in the
      driveway. Shortly thereafter, Ms. Gantt walked out of the house
      to the car where her son was waiting. Appellant followed her out
      and stood at the end of the driveway near his vehicle, which was
      blocking her access to the street. At this point[,] the victim had
      also exited the home and was standing in the front yard. Ms.
      Gantt testified that Appellant removed a [.45 caliber] gun from a
      plastic grocery bag [he was holding at the time] and took aim at
      the victim. The victim ran away from Appellant and towards two
      (2) parked vehicles while Appellant fired multiple shots, fatally
      wounding the victim in the back.

Trial Court Opinion, 6/28/19, at 3-4. Appellant fled the scene, and Officer Milt

Mulholland of the Brentwood Police Department responded to the scene

shortly thereafter.   While awaiting medical attention, the victim named

Appellant as the shooter to Officer Mulholland.     See Affidavit of Probable

Cause, 12/17/17, at 2; N.T. Trial, 12/4/18, at 160. Appellant was eventually

apprehended and charged with the above-referenced offenses.

      As part of the investigation conducted by law enforcement,

      [t]hree (3) [spent .45 caliber] cartridge cases were recovered
      from the scene and were determined to have been discharged
      from the same firearm.

      As part of the investigation, police also searched Appellant’s
      residence [at 1204 Sunday Way, Pittsburgh, Pennsylvania, where
      he was arrested on January 9, 2018] and recovered .45 and .357
      caliber live ammunition from inside the residence, as well as three
      (3) weathered, spent cartridge casings determined to have been
      discharged from [.45 and .40 caliber firearms, respectively].

Trial Court Opinion, 6/28/19, at 4.

      At trial, the Commonwealth presented, inter alia, eyewitness testimony

from Ms. Gantt identifying Appellant as the shooter, along with Officer


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Mulholland’s testimony regarding the victim’s statements naming Appellant as

his assailant.      See N.T. Trial, 12/4/18, at 107-10, 160.        During the

presentation of its case, the Commonwealth introduced photographs of the

shell casings and live ammunition seized from 1204 Sunday Way without

objection.    See N.T. Trial, 12/5/18, at 218-20.    The Commonwealth also

sought to admit the live ammunition and shell casings, themselves, into

evidence, along with accompanying expert testimony1 that they were not fired

from or related to the murder weapon. Id. at 221-39.

       Appellant objected multiple times on the ground of relevance, arguing

that the shell casings and ammunition recovered from 1204 Sunday Way were

not sufficiently connected to the at-issue crime.      Id. at 234 (“[T]his is

irrelevant because it has nothing to do with the three casings at the scene.

. . . Any other ammunition from anywhere else is irrelevant in this particular

case.”). The Commonwealth countered that this evidence was demonstrative

of the completeness of the investigation carried out by law enforcement. Id.

at 235 (“To be honest, it is for the completion of the search.”).

       Over Appellant’s objections, the trial court permitted the Commonwealth

to present both the casings and the accompanying testimony to the jury. At



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1  Specifically, the Commonwealth offered expert testimony from Raymond
Everett as an examiner in tool marks and firearms. See N.T. Trial, 12/5/18,
at 226. In relevant part, he testified that he had examined the shell casings
recovered from 1204 Sunday Way. He did not testify regarding a direct
connection between the shell casings and the underlying shooting in this case.

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the conclusion of that testimony, the trial court issued a cautionary instruction

to the jury emphasizing that there was no direct connection between the

ammunition and shell casings seized from 1204 Sunday Way and Appellant.

Id. at 244-46 (instructing that the “only purpose” of this evidence is “to

demonstrate the thoroughness of the investigation”).           With respect to

Appellant’s character and guilt, the trial court instructed the jury as follows:

“Specifically, you’re forbidden from using this evidence as showing that

[Appellant] is a person of bad character or criminal tendencies from which you

could infer guilt in this case. You simply cannot concern yourselves with that

evidence in that context.” Id. at 245.

      Appellant testified on his own behalf, wherein he admitted to shooting

the victim, but alleged self-defense by asserting that the victim had

threatened to retrieve a gun and shoot Appellant. Id. at 300-303. Ultimately,

the jury convicted Appellant on the above-referenced charges.          After the

conclusion of post-verdict motions practice, Appellant filed a timely notice of

appeal. Both Appellant and the trial court have timely complied with their

obligations pursuant to Pa.R.A.P. 1925.

      Appellant raises a single issue for our consideration in his brief:

      Did the trial court err in admitting irrelevant and prejudicial
      evidence at [Appellant’s] trial? Specifically, as the bullets and
      casings found at and around 1204 Sunday Way could not be
      proven to have been fired by [Appellant], and they were not the
      same caliber as those used in the shooting and therefore unrelated
      to the shooting, is not the evidence wholly irrelevant to any issues
      related to [Appellant’s] guilt or innocence? Did this evidence
      mistakenly give the impression to the jury that [Appellant] was

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      prone to violence and a person of bad character, suggesting a
      guilty verdict based upon improper criminal propensity evidence?
      Finally, was not the limiting instruction given insufficient to cure
      the prejudice that resulted from testimony surrounding this
      evidence, and, in fact, constituted a further violation of
      [Appellant’s] due process rights?

Appellant’s brief at 6.   This issue implicates the admissibility of evidence,

which “is a matter solely within the discretion of the trial court.”

Commonwealth v. Woeber, 174 A.3d 1096, 1100 (Pa.Super. 2017).

“Generally, an appellate court’s standard of review of a trial court’s evidentiary

rulings is whether the trial court abused its discretion; however, where the

evidentiary ruling turns on a question of law our review is plenary.” Id.

      Appellant argues that the evidence of the shell casings and ammunition

seized from 1204 Sunday Way have “no rational relationship to the shooting

incident,” and asserts that the evidence was introduced by the Commonwealth

for the inappropriate purpose of demonstrating that Appellant is a “‘bad’ man

with a propensity for violence; and that he must have acted in conformity with

that propensity in this case.” Appellant’s brief at 26. He maintains that he

was prejudiced because this allegedly irrelevant evidence strengthened the

likelihood that the jury would convict him of first-degree murder. Id. at 27.

Appellant also alleges that the curative instruction issued by the trial court

was insufficient to cure this prejudicial effect. Id. at 28-33.

      In its Rule 1925(a) opinion, the trial court maintains that the evidence

was “relevant to permit the jury the full and complete picture of how the case

was investigated.” Trial Court Opinion, 6/28/19, at 5. In the alternative, the

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trial court argues that any error in admitting this evidence was harmless in

light of the additional evidence speaking to Appellant’s actions and nature:

       The uncontradicted evidence in this case was that Appellant fired
       the shot that killed the victim. Appellant admitted to the shooting
       and it was also witnessed by Ms. Gantt. Viewing this evidence,
       and comparing it in weight of the impact of any alleged error, it is
       not reasonable to conclude that the admission of the ballistic
       evidence recovered from Appellant’s residence could have
       contributed to the verdict. Therefore, any error is harmless.

Id. at 6. Upon review of the certified record and governing law, we agree.

       Although not explicitly cited as such, we discern that Appellant is

characterizing this evidence as inappropriate propensity evidence pursuant to

Pa.R.E. 404(b)(1) (“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.”).          In general, such

evidence is inadmissible. Id.; see also Commonwealth v. Grzegorzewski,

945 A.2d 237, 239 (Pa.Super. 2008) (“It is axiomatic that evidence of prior

crimes is not admissible for the sole purpose of demonstrating a criminal

defendant’s propensity to commit crimes.”).

       Assuming, arguendo, that Appellant’s characterization of the shell

casings, ammunition, and accompanying testimony is accurate,2 an erroneous

admission of evidence by the trial court is still subject to harmless error


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2  We note that both the trial court’s instruction and the Commonwealth’s
evidence bespoke the lack of a direct connection between this evidence and
Appellant. Although our analysis presumes that it is irrelevant, that does not
mean that we presume the same evidence is also prejudicial.

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analysis. See Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005)

("[A]n erroneous ruling by a trial court on an evidentiary issue does not

require us to grant relief where the error was harmless.”). Our Supreme Court

has discussed the issue, as follows:

       Harmless error exists where: (1) the error did not prejudice the
       defendant or the prejudice was de minmis; (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 guilty 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. (quoting Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)).

We also emphasize that “[n]ot all errors at trial, . . ., entitle an appellant to a

new trial and [t]he 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. Fransen, 42 A.3d 1100, 1113 (Pa.Super. 2012).

       Appellant’s allegations of prejudice center on his claim of justification

and the severity of his conviction. See Appellant’s brief at 27 (“Without the

evidence about shooting off other weapons, the jury may have found

[Appellant’s] justification defense more reasonable and, instead of first-

degree murder, convicted [Appellant] of one of the lesser included offenses.”).

Appellant claims these physical shell casings and live ammunition3 found at

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3 Prior to the admission of the shell casings and live ammunition, the
Commonwealth introduced a series of photographs into evidence that showed



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1204 Sunday Way created improper associations between Appellant and

firearms in the minds of the jury.

       As a general matter, Appellant does not dispute that he shot the victim

on the day in question.4             Including Appellant’s frank admission, the

Commonwealth presented eyewitness testimony from Ms. Gantt and the dying

declaration of the victim to Officer Mulholland to independently establish that

Appellant shot the victim. See N.T. Trial, 12/4/18, at 107-10, 160; N.T. Trial,


____________________________________________


the shell casings and live ammunition, in situ, at 1204 Sunday Way. See N.T.
Trial, 12/5/18, at 218-21.      These photographs were supplemented by
testimony from Detective Anthony Perry of the Allegheny County Police
Department, who described the items found at 1204 Sunday Way, including
the spent shell casings and live ammunition. Id. Both the photographs and
the testimony were adduced without objection from Appellant. Id. We also
note that these photographs and accompanying testimony were presented
before the physical shell casings and ammunition were offered for admission
into evidence. Id. at 218-39. As such, the physical shell casings and live
ammunition were largely duplicative of other evidence successfully adduced
by the Commonwealth earlier in the proceedings.
4  Appellant was convicted of first-degree murder. See 18 Pa.C.S. § 2502(a)
(indicating any “[k]illing by means of poison, or by lying in wait, or by any
other kind of willful, deliberate and premediated killing.”). “To sustain a
conviction for first-degree murder, the Commonwealth must prove that: (1) a
human being was unlawfully killed; (2) the accused was responsible for the
killing; and (3) the accused acted with malice and a specific intent to kill.”
Commonwealth v. Williams, 176 A.3d 298, 306-07 (Pa.Super. 2017).
Instantly, Appellant has conceded that he shot the victim. Furthermore,
Appellant’s act of shooting the victim permits an unrebutted inference that he
possessed both malice and the specific intent to kill the victim. See
Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013). We also note that
premeditation exists “whenever the assailant possesses the conscious purpose
to bring about death,” and “can be formulated in a fraction of a second.” Id.
(citing Commonwealth v. Drumheller, 808 A.2d 893, 910 (Pa. 2002)).



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12/5/18, at 300-03. Instead, Appellant focused his efforts on alleging that he

had acted in self-defense.5 At trial, Appellant testified that immediately prior

to the shooting, the victim had threatened to shoot Appellant in retaliation for

the heated and prolonged argument with Ms. Gantt. See N.T. Trial, 12/5/18,

at 299-30. Thus, Appellant’s self-defense claim is predicated upon the sheer

possibility that the victim was attempting to retrieve a gun from Ms. Gantt’s

car. Id. at 300 (stating that Appellant shot the victim when he reached the

door of Ms. Gantt’s car).

       Appellant’s testimony concerning the victim’s alleged threats of violence

are in direct conflict with the testimony of Ms. Gantt, who stated that the

victim never threatened Appellant, and only ran towards a number of parked

cars (including hers) once Appellant menaced him with the murder weapon.

See N.T. Trial, 12/4/18, at 106-07, 112-13. Ms. Gantt’s version of events

was corroborated by the testimony of Mr. Perret, who also stated that

Appellant was solely responsible for “escalating” the situation. Id. at 137-39.

No firearm was ever found inside of Ms. Gantt’s car.6 See N.T. Trial, 12/5/18,


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5  Tellingly, Appellant has not offered a detailed discussion of the legal
contours of his justification defense. See 18 Pa.C.S. § 505.

6  There was testimony at trial establishing that the victim sometimes carried
a gun on his person. See N.T. Trial, 12/4/18, at 118, 141. In particular, Ms.
Gantt and Mr. Perret testified that a gun “fell out” of the victim’s backpack
while all three of them were traveling in Ms. Gantt’s car one day prior to the
shooting. Id. at 151. Appellant testified that the victim had begun carrying
a firearm in response to a separate incident several months prior to his death.
See N.T. Trial, 12/5/18, at 300-02.

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at 211-12. Appellant testified that he never saw the victim in possession of a

handgun, or any other weapon, on the day of the shooting.          Id. at 330.

Overall, Appellant characterized his shooting of the victim as anticipatory. Id.

at 332 (“I didn’t know where he was running to.       I didn’t know if he had

anything in his hands. I just know he went to the car after threatening me.”).

      In evaluating this case, we find the holding in Commonwealth v.

Thornton, 431 A.2d 248 (Pa. 1981), to be instructive.        Mr. Thornton was

accused of killing his common law brother-in-law as a result of a domestic

dispute. Mr. Thornton admitted to killing his brother-in-law with a shotgun

while he was sitting in the front seat of his car. Mr. Thornton claimed self-

defense by arguing that he had killed the victim due to a belief that he “was

going for his gun.” Id. at 252. No weapon was located on or near the brother-

in-law’s body after the shooting. Id.

      At trial, the Commonwealth erroneously adduced hearsay testimony

establishing that the victim sometimes carried a handgun out of fear of Mr.

Thornton. Id. at 250-51. On appeal, Mr. Thornton argued that the admission

of this testimony was prejudicial and warranted a new trial because it was

suggestive of Mr. Thornton’s intent to kill.   Our Supreme Court disagreed,

concluding that “[t]he only evidence to support [Mr. Thornton’s] theories of

self-defense and provocation was his own self-serving testimony that he was

“upset” . . . and that when he shot [his brother-in-law] he thought [his

brother-in-law] ‘was going for a gun.’” Id. at 252.


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      In light of the undisputed evidence that Mr. Thornton had shot the victim

and the lack of any support for Mr. Thornton’s theory of justification, our

Supreme Court held that the error was harmless.             Id.     (“Given the

overwhelming evidence of an intentional killing and the lack of support on this

record for [A]ppellant’s theories of self-defense and provocation, there is no

reasonable possibility that the trial court’s erroneous evidentiary ruling could

have contributed to the jury’s verdict.”).

      Turning to the facts of the instant case, Appellant’s argument rings

hollow in precisely the same way that Mr. Thornton’s argument did. The only

arguable support for Appellant’s claim of self-defense is his own “self-serving”

testimony. As in Thornton, Appellant’s actions are not in reasonable dispute,

and there is no credible evidence to support his self-defense claim. As such,

any arguable prejudice arising from the admission of the shell casings and live

ammunition pales significantly in comparison to the overwhelming and

uncontradicted evidence of Appellant’s guilt.

      As such, Appellant’s claim for relief is without merit. Id.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2020




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