J-S60022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    RAYMOND TORRES, JR.

                             Appellant                No. 306 MDA 2019


       Appeal from the Judgment of Sentence entered December 27, 2018
               In the Court of Common Pleas of Lancaster County
                Criminal Division at No: CP-36-CR-0001083-2018


BEFORE: SHOGAN, STABILE, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 14, 2020

        Appellant, Raymond Torres, Jr., appeals from the judgment of sentence

entered on December 27, 2018 in the Court of Common Pleas of York County

following his conviction of criminal homicide and firearms not to be carried

without a license.1 Appellant presents evidentiary challenges to two trial court

rulings. Upon review, we affirm.

        Appellant offers the following brief factual summary, which we repeat

here for context.

        The charges [against Appellant] arose out of an incident where
        the victim, Austin Peters, was found lying in front of 716 First
        Street, Lancaster with gun shot[] wounds to his upper torso and
        neck.    He was transported to the hospital where he was
        pronounced dead.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 2501(a) and 6106(a)(1).
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      A jury trial was held [] December 17, 2018 through December 20,
      2018. Evidence at trial showed that [Appellant] and the victim
      attended a party together on December 9, 2017. Later that same
      evening, both men were seen at the scene of a fire together.
      Video evidence was presented by the Commonwealth to the jury
      that pertained to a shots fired incident in the 200 block of Coral
      Street around 12:30 a.m. December 10, 2017. Two males can be
      seen in the video in that area as well as a brief muzzle flash.
      Detective Sergeant Nickel identified the male appearing in the
      video wearing a black pea coat with snow on the right shoulder as
      [Appellant] and the male with red pants and a black puffy coat
      with a gray hood as the victim using surveillance footage from
      inside the Gas Mart from a few moments later. A second shots
      fired incident was then received by police and Detective Ginder
      responded and found the victim lying the 700 block of First Street
      with gun shot wounds.

Appellant’s Brief at 7-8 (references to trial transcript omitted).

      On December 20, 2018, at the conclusion of his jury trial, Appellant was

found guilty of the aforementioned offenses. On December 27, 2018, the trial

court sentenced Appellant to life in prison without possibility of parole for the

homicide conviction, with a consecutive sentence of not less than three and a

half nor more than seven years in prison for the firearms violation. Appellant

filed post-sentence motions that were denied by order entered January 14,

2019. This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant asks us to consider two issues:

      I.    Did the trial court err in admitting Commonwealth exhibit
            22 as a prior inconsistent statement where the witness
            testified at trial that he didn’t know anything about a gun,
            and the purported prior inconsistent statement offered by
            the Commonwealth did not mention a gun?


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      II.   Did the trial court err in barring defense from introducing
            evidence of the victim being previously charged in a shots
            fired incident where the evidence was not hearsay and was
            admissible for the purpose of demonstrating what
            information the Detective was aware of and how that
            information directed the course of his investigation?

Appellant’s Brief at 6.

      Appellant’s issues present challenges to two of the trial court’s

evidentiary rulings.   As our Supreme Court reiterated in Commonwealth v.

Jacoby, 170 A.3d 1065 (Pa. 2017):

      Appellate courts review evidentiary decisions for an abuse of
      discretion. Commonwealth v. Walker, 625 Pa. 450, 92 A.3d
      766, 772 (2014) (citations omitted). “An abuse of discretion is
      not merely an error of judgment, but if in reaching a conclusion
      the law is overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice, bias
      or ill-will, as shown by the evidence or the record, discretion is
      abused.” Id. at 772–73 (internal quotation marks and citations
      omitted).

Id. at 1090.

      Appellant’s first evidentiary challenge stems from the trial court’s

admission of Commonwealth Exhibit 22 as a prior inconsistent statement.

Pennsylvania Rule of Evidence 613(a) provides:

      (a) Witness’s Prior Inconsistent Statement to Impeach. A
      witness may be examined concerning a prior inconsistent
      statement made by the witness to impeach the witness’s
      credibility. The statement need not be shown or its contents
      disclosed to the witness at that time, but on request, the
      statement or contents must be shown or disclosed to an adverse
      party’s attorney.

Pa.R.E. 613(a). “A party may impeach the credibility of an adverse witness

by introducing evidence that the witness has made one or more statements

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inconsistent with his trial testimony.” McManamon v. Washko, 906 A.2d

1259, 1268 (Pa. Super. 2006) (quoting Commonwealth v. Bailey, 469 A.2d

603, 611 (Pa. Super. 1983)).       “Mere dissimilarities or omissions in prior

statements . . . do not suffice as impeaching evidence; the dissimilarities or

omissions must be substantial enough to cast doubt on a witness’ testimony

to be admissible as prior inconsistent statements.” Id.

      At issue here is Exhibit 22, a recorded telephone conversation between

Commonwealth witness Ryan Mahler and his friend, Devante Madison, that

took place on December 17, 2017 when Mahler was in the York County Prison.

Notes of Testimony (“N.T.”), Trial, at 383.     The trial court permitted the

prosecution to treat Mahler as an adverse witness.           In the recorded

conversation, Mahler talked about Appellant being arrested and told Madison

that he had to get rid of the “jaunt,” which the Commonwealth contends was

a reference to the murder weapon that Appellant gave to Mahler following the

shooting. Id. At trial, Mahler testified that “[j]aunt means anything,” and

said he was referring to marijuana when he used the term in his conversation

with Madison.    In contrast, however, Detective Nickel, the prosecuting

detective, testified that jaunt is “slang for a firearm.” Id. at 389; 540. The

trial court permitted introduction of the exhibit as a prior inconsistent

statement in light of Mahler’s previous statement to police that he knew

nothing about a gun. Id. at 380.




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      Appellant’s counsel objected to admission of the exhibit—and the

playing of the recording to the jury—claiming it was not “established the jaunt

is a gun, which is what you need to [] impeach a witness.” Id. at 384-85.

The trial court ultimately allowed admission of the exhibit and explained:

      Upon consideration, of the totality of the context and
      circumstances surrounding the discussion between Mr. Mahler and
      Mr. Madison, it is clear that the term [jaunt] sic may likely be
      jargon for a firearm. Mr. Mahler referenced [Appellant] getting
      locked up for his homicide and Mr. Mahler then immediately
      directed Mr. Madison to get rid of the [jaunt] that was hidden in
      Mr. Madison’s kitchen. Acceptance of the argument presently
      advanced by [Appellant] would serve to shield participants in
      criminal enterprises with liability from any inculpatory statements
      that they choose to make so long as they choose to speak in
      jargon, as opposed to formal English. The court properly admitted
      the recorded telephone conversation between Mr. Mahler and Mr.
      Madison, which was marked as Commonwealth exhibit 22, as a
      prior inconstant statement which was used by the Commonwealth
      to impeach Mr. Mahler’s testimony that he did not know anything
      about a gun.

Trial Court Opinion, 5/15/19, at 9.

      Again, we review evidentiary decisions for an abuse of discretion.

Jacoby, 170 A.3d at 1090. We find no abuse of discretion in the trial court’s

admission of Exhibit 22. Therefore, Appellant’s first issue fails.

      Appellant next challenges the trial court’s exclusion of evidence that the

victim in this case was previously charged in an October 2017 shots fired

incident involving an individual named Fuentes, the then-current boyfriend of

Appellant’s ex-girlfriend.   The defense sought to cross-examine Detective

Sergeant Nickels about two separate reports written by other officers following

an interview with a woman named Cindel Peters. The suggestion was that

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Fuentes had both motive and opportunity to harm the victim. The trial court

determined that the evidence was properly excluded as hearsay.

      As the trial court explained, Rules 801 and 802 of the Pennsylvania Rules

of evidence define hearsay and generally direct that hearsay is not admissible

except as provided by the Rules of Evidence. Trial Court Opinion, 5/15/19, at

10. “The rationale for the hearsay rule is that hearsay is too untrustworthy to

be considered by the trier of fact.” Id. (citing Commonwealth v. Charlton,

902 A.2d 554, 559 (Pa. Super. 2006)).           “An out-of-court declaration

containing    another   out-of-court    declaration   is   double    hearsay.”

Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa. 2001) (quoting

Commonwealth v. Chmiel, 738 A.2d 406, 417 (Pa. 1999)). “In order for

double hearsay to be admissible, the reliability and trustworthiness of each

declarant must be independently established. This requirement is satisfied

when each statement comes within an exception to the hearsay rule.” Id.

(citation omitted). “A police report containing statements from persons who

witnessed an incident is double hearsay and, therefore, is only admissible if

there is a separate hearsay exception for each statement in the chain.” Trial

Court Opionion, 5/15/19, at 11 (citing Commonwealth v. May, 898 A.2d

559, 566 (Pa. 2006)).

      Appellant contends he was not attempting to elicit hearsay from

Detective Sergeant Nickels. Rather, he simply wanted to determine whether

Detective Sergeant Nickels was aware of the victim’s prior charges.


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Appellant’s Brief at 28. If so, the line of questioning would focus “on how that

information played into the investigation or what he did, if anything as a result

of knowing about those charges.” Id. at 29.

      The Commonwealth counters that the defense was not barred from

exploring whether Detective Sergeant Nickels interviewed other suspects,

including Fuentes, in the course of his investigation. “However, the line of

questions pursued by [the defense] attempted to elicit out-of-court

statements of Ms. Peters to circumvent having to call unfavorable witnesses.

Nothing in the trial court’s ruling barred [Appellant] from bringing in the

appropriate witnesses to testify to the shots-fired incident if it would have

been deemed to be relevant.” Commonwealth Brief, at 20-21.

      The trial court explained:

      In this matter, the trial court not abuse its discretion by excluding
      the reports of [the officers] regarding their interview with Cindel
      Peters. Said reports included multiple levels of hearsay, namely,
      the statements of Cindel Peters to the officers and the officer[s’]
      subsequent recitation of the information they received from Cindel
      Peters. [Appellant] did not produce either officer or Cindel Peters
      to testify at trial. [Appellant] sought to introduce the statements
      of Cindel Peters to the officers, which [were] contained in the
      officer[s’] reports to prove the truth of the matter asserted, that
      is that there was another individual who had a possible motive to
      have committed the instant homicide. Specifically, Cindel Peters
      made the officers [] aware of an incident in October of 2017 where
      the Victim was charged with four counts of simple assault and a
      count of discharging a firearm in public after he shot a firearm in
      the direction of a vehicle that contained his ex-girlfriend and her
      current boyfriend. Defense counsel’s original argument is that this
      information was relevant to show there was animosity between
      the Victim and his ex-girlfriend and her current boyfriend. Despite
      defense counsel’s relevancy argument, which the trial court
      properly deferred ruling upon in the event defense counsel

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      produced the proper witnesses, such a statement does not fall
      within any exception to the rule against hearsay. Accordingly, the
      trial court properly excluded the reports of [the officers].

Trial Court Opinion, 5/15/19, at 17. While concluding there was no error in

its ruling, the trial court went on to explain that any error in excluding the

evidence must be considered harmless in light of the overwhelming evidence

of Appellant’s guilt. Id. at 17-21. “Any prejudicial effect of the purported

error not to allow the defense to introduce evidence of the Victim being

previously involved in a shots fired incident was so insignificant by comparison

that any alleged error could not have contributed to the verdict.” Id. at 21.

      Mindful of our standard of review, we conclude the trial court did not

abuse its discretion in excluding the evidence at issue. Therefore, we shall

not disturb its ruling.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/14/2020




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