J-S40026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    BRAHIM SMITH                               :
                                               :
                       Appellant               :     No. 1028 EDA 2017


            Appeal from the Judgment of Sentence February 2, 2017
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0006922-2014


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 28, 2018

        Appellant, Brahim Smith, appeals from the judgment of sentence

imposed following his conviction of firearms not to be carried without a license

and persons not to possess firearms.1 We affirm.

        The trial court aptly set forth the factual history of this case as follows:

              On April 21, 2014, at approximately 1:10pm, Officers
        Alberto Ortiz and his partner, Michael Edwards, received a radio
        call for a crime in progress in the area of 12th Street and
        Glenwood Avenue, in Philadelphia. They arrived on the scene
        within two minutes of the radio call. The flash description provided
        over police radio was of a black male, wearing a black hat, black
        polo shirt, and tan cargo pants. When Officers Ortiz and Edwards
        arrived, Sergeant Michael Soto and his partner, Police Officer
        Sylvester White, were already on location also in response to the
        radio call for a crime in progress. While on location speaking to
        the [c]omplainant[,] Sergeant Soto observed a pair of feet
        hanging out of the passenger side of a green minivan that was

____________________________________________


1   18 Pa.C.S.A. §§ 6106 and 6105(c)(1), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40026-18


        parked on 12th Street approximately halfway down the block from
        him. Within seconds of their arrival, Sergeant Soto, Officer White,
        and the complainant directed Officers Ortiz and Edwards to this
        green minivan. Police Officers Ortiz and Edwards were told
        [Appellant] was sitting in the van and matched the flash
        information.

               As a result of this information, Officers Ortiz and Edwards
        pulled up to the van in their patrol car. Officer Ortiz observed
        [Appellant] sitting on the floor in the rear sliding door well of the
        passenger side of the van with his feet hanging onto the
        sidewalk[.] He also saw that [Appellant] was the only person
        inside of the van.         As Officer Ortiz exited his vehicle and
        approached the van, [Appellant] immediately stood up from where
        he was sitting on the floor of the van and walked toward the
        officer. [Appellant] was stopped in front of the van and a frisk of
        his person was conducted. [Appellant’s] clothing did indeed
        match the flash description from the radio call. Only three
        minutes passed from the time Sargent Soto first observed
        [Appellant’s] feet sticking out of the sliding door to when Officers
        Ortiz and Edwards approached the van.              During this time,
        Sergeant Soto saw no other individuals walk up to or exit the van.
        Officer Edwards testified that he was parking his vehicle when
        Officer Ortiz initially stopped [Appellant] for investigation. He also
        testified that [Appellant] was the only person who he saw standing
        in front of and next to the van.

               Officers Brittany Kelly and Alicea[2] arrived at 12th Street
        and Glenwood Avenue approximately five minutes after Officers
        Ortiz and Edwards. They too had received the identical flash
        information as the other officers. As Officer Kelly approached the
        open van door, she saw Officer Ortiz speaking with [Appellant]
        outside the vehicle. As Officer Kelly stood next to the van, she
        looked into the vehicle and saw a firearm. From her position, she
        observed that the firearm was in a cardboard box located in the
        interior of the vehicle. The box was between the second and third
        rows and was approximately one foot away from the van door.
        Further, the lid to that box was open. The box was approximately
        two inches high and twelve inches long with auto parts in it.
        Nothing in the box covered the weapon or obstructed the officer’s
        view of it. Police Officer Kelly alerted Officer Ortiz of her finding.
____________________________________________


2   Officer Alicea’s first name is not included in the record.

                                           -2-
J-S40026-18



             Officer Kelly then held the scene. The firearm was observed
       until Officer Ortiz returned to the minivan approximately thirty
       minutes later. During that time, no one approached or acquired
       access to the van, nor did any person move the gun. Police Officer
       Ortiz testified that the box containing the gun was within arm’s
       reach of where he initially observed [Appellant] sitting in the van.
       The firearm was eventually recovered and placed on Philadelphia
       Police Department property receipt 3141781.           It was later
       determined to be a Bryco Arms 38 automatic silver and black
       handgun, with one live round in the chamber and six rounds in the
       magazine.

(Trial Court Opinion, 10/05/17, at 1-4) (record citations and footnotes

omitted).

       Appellant proceeded to a bifurcated trial on October 12, 2016. During

trial, the Commonwealth twice mistakenly played a portion of a recorded

prison phone call between Appellant and a female who was not identified for

the jury, in which the female states: “You never slip up like that[.]” (N.T.

Trial, 10/12/16, at 13; see Trial Ct. Op., at 4).3 The court sustained defense

counsel’s objection, and instructed the jurors “to disregard the last portion of

the conversation that was just played by the Commonwealth. You are not to

consider it in your deliberations at all. That will be stricken from the record.”

(N.T. Trial, 10/12/16, at 147; see id. at 148). Defense counsel moved for a

mistrial, arguing that the statement was prejudicial, and implied that

Appellant was involved in prior criminal activity that “he has gotten away


____________________________________________


3The court had excluded this portion of the call from evidence. However, the
court permitted the sentence on the call immediately before this statement to
come into evidence, and it was difficult to isolate the statements. (See N.T.
Trial, 10/12/16, at 13-14, 149; Trial Ct. Op., at 4, 9).

                                           -3-
J-S40026-18



with.” (Id. at 150). The court denied the motion, explaining that although it

had precluded the statement, the statement itself was subject to multiple

interpretations. (See id. at 152-53). The court had instructed the jury to

disregard it, and also advised defense counsel that it was willing to issue

another curative instruction to the jury in the final charge, but counsel

declined, electing not to bring attention to the statement. (See id.).

       On October 14, 2016, the jury found Appellant guilty of firearms not to

be carried without a license, and the trial court found him guilty of persons

not to possess firearms.4 On February 2, 2017, the court sentenced Appellant

to an aggregate term of not less than three nor more than six years’

incarceration, followed by four years of probation. It denied Appellant’s timely

post-sentence motion on February 17, 2017. This timely appeal followed.5

       Appellant raises two questions for our review:

       1. Did not the court err in denying Appellant’s motion for a mistrial
       where the prosecutor, several times, played to the jury a highly
       prejudicial portion of prison tapes containing a statement by a
       non-testifying declarant, to wit: “You never slip up like that,” by a
       non-testifying declarant [sic], that had previously been excluded
       by the court after a pre-trial hearing?



____________________________________________


4Relevant to this appeal, the parties stipulated at trial that, at the time of his
offense on April 21, 2014, Appellant had an active bench warrant for a
probation violation. (See Trial Ct. Op., at 5-6, 11-12; see also N.T. Trial,
10/14/16, at 20-22).

5Appellant timely filed a concise statement of errors complained of on appeal
on May 18, 2017. The trial court entered an opinion on October 5, 2017. See
Pa.R.A.P. 1925.

                                           -4-
J-S40026-18


      2. Was not the evidence insufficient to convict Appellant for
      violating 18 Pa.C.S.A. § 6105 because he was specifically
      convicted under § 6105 (c), and the Commonwealth failed to
      prove that he was a “fugitive from justice” as that term is meant
      in § 6105(c)?

(Appellant’s Brief, at 4).

      Appellant first challenges the trial court’s denial of his motion for a

mistrial, made after the prosecutor inadvertently played a portion of a

recorded prison phone call that the court had previously excluded from

evidence. (See id. at 11-14; see also this Memorandum, supra at *3; N.T.

Trial, 10/12/16, at 13-14, 147; Trial Ct. Op., at 4). This issue lacks merit.

                  It is well–settled that the review of a trial court’s
            denial of a motion for a mistrial is limited to
            determining whether the trial court abused its
            discretion. 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 . . . discretion is
            abused. 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. A mistrial is
            not necessary where cautionary instructions are
            adequate to overcome prejudice.

      See Commonwealth v. Jemison, 98 A.3d 1254, 1263 (Pa.
      2014) (observing that “the jury is presumed to follow the court’s
      instructions.”) (citation omitted).

Commonwealth v. Rayner, 153 A.3d 1049, 1056-57 (Pa. Super. 2016),

appeal denied, 169 A.3d 1046 (Pa. 2017), cert. denied sub nom. Rayner v.




                                       -5-
J-S40026-18



Pennsylvania, 138 S.Ct. 976 (2018) (one citation omitted; citation

formatting provided).

          Here, as discussed above, the trial court sustained defense counsel’s

objection to the playing of the portion of the phone call, and instructed the

jury not to consider the statement at all in its deliberations. After review, we

conclude that the cautionary instruction provided by the trial court was

sufficient to overcome any potential prejudice caused by the Commonwealth’s

inadvertent playing of the ambiguous statement.          See Rayner, supra at

1056-57.        Therefore, the court did not abuse its discretion in denying

Appellant’s motion for a mistrial. See id. Appellant’s first issue merits no

relief.

          Appellant next challenges the sufficiency of the evidence supporting his

conviction of persons not to possess firearms. (See Appellant’s Brief, at 14-

17).      He maintains that the Commonwealth failed to prove that he was a

“fugitive from justice” as required for conviction under section 6105(c)(1),

where the outstanding warrant was for a probation violation. (Id. at 14-15;

see id. at 17; see also this Memorandum supra, at *4 n.4). We disagree.

          When reviewing sufficiency claims:

                 Our standard of review is whether the evidence admitted at
          trial, and all reasonable inferences drawn from that evidence,
          when viewed in the light most favorable to the Commonwealth as
          verdict winner, were sufficient to enable the fact[-]finder to
          conclude that the Commonwealth established all of the elements
          of the offense beyond a reasonable doubt.




                                        -6-
J-S40026-18


            In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that as a matter of law no probability of fact may
      be drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. . . . Furthermore, when reviewing a sufficiency claim,
      our Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

            Finally, the finder of fact[,] while passing upon the credibility
      of witnesses and the weight of the evidence produced, is free to
      believe all, part or none of the evidence.

Commonwealth v. Crosley, 180 A.3d 761, 767 (Pa. Super. 2018) (citations

and quotation marks omitted).

      Here, Appellant was found guilty of section 6105(c)(1), which provides,

in pertinent part:

      (a) Offense defined.—

      (1) A person . . . whose conduct meets the criteria in subsection
      (c) shall not possess, use, control, sell, transfer or manufacture
      or obtain a license to possess, use, control, sell, transfer or
      manufacture a firearm in this Commonwealth.

                                   *     *    *

      (c) Other persons.—In addition to any person who has been
      convicted of any offense listed under subsection (b), the following
      persons shall be subject to the prohibition of subsection (a):

            (1) A person who is a fugitive from justice. This
            paragraph does not apply to an individual whose
            fugitive status is based upon a nonmoving or moving
            summary offense under Title 75 (relating to vehicles).

18 Pa.C.S.A. § 6105(a)(1), (c)(1).



                                       -7-
J-S40026-18



       Thus, as the trial court and the Commonwealth point out, the statute

specifically carves out from fugitive status only those individuals charged with

summary traffic offenses. (See Trial Ct. Op., at 12; Commonwealth’s Brief,

at 23). It is undisputed that, at the time of his offense in this case, Appellant

had an outstanding bench warrant for a probation violation in a separate

matter.     (See this Memorandum, supra, at *4 n.4).               Under these

circumstances, we agree with the trial court’s conclusion that “[Appellant] who

had a violation of probation that led to a bench warrant being issued by his

supervising judge was a fugitive from justice.”        (Trial Ct. Op., at 12). 6

Therefore, Appellant’s sufficiency claim merits no relief.     Accordingly, we

affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/18


____________________________________________


6 We note that we find Appellant’s discussion of the phrase “fugitive from
justice” as used in caselaw and statutory authority relating to extradition
legally unpersuasive, because this case does not involve extradition. (See
Appellant’s Brief, at 16). We further note that Black’s Law Dictionary defines
the term “fugitive” broadly, in pertinent part as: “A criminal suspect . . . in a
criminal case who flees, evades, or escapes arrest[.]” Black’s Law Dictionary
(10th ed. 2014).


                                           -8-
