J-S65040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOEL GAMBLE,

                            Appellant                  No. 1029 EDA 2014


            Appeal from the Judgment of Sentence March 21, 2014
                 in the Court of Common Pleas of Pike County
              Criminal Division at No.: CP-52-CR-0000207-2013


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED FEBRUARY 13, 2015

        Appellant, Joel Gamble, appeals from the judgment of sentence

imposed following his jury conviction of fleeing or attempting to elude a

police officer and recklessly endangering another person.1 We affirm.

        The trial court summarized the factual history of this case as follows:

              . . . [O]n March 5, 2013 [Appellant] was at a Wal-Mart in
        Milford Pennsylvania when an asset protection employee of Wal-
        Mart suspected [him] of stealing merchandise.         The asset
        protection employee approached [Appellant] regarding the
        suspicions and informed [him] that the police would be called.
        [Appellant] subsequently left Wal-Mart and the asset protection
        employee retrieved [Appellant’s] vehicle information, called 911
        and provided [Appellant’s] information to the police.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3733(a) and 18 Pa.C.S.A. § 2705, respectively.
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             Sergeant [David] Zegarski and Officer [Joseph] Ostrom
      from the Eastern Pike Regional Police Department responded to
      the call. While heading to Wal-Mart Sergeant Zegarski noticed
      [Appellant’s] vehicle traveling in the opposite direction heading
      north on 209.      Sergeant Zegarski then communicated with
      Officer Ostrom and asked him to pursue the vehicle. Officer
      Ostrom observed [Appellant] heading north on 209 and
      subsequently stop at a red light. Officer Ostrom then activated
      his lights and sirens [and the dashboard video camera in his
      vehicle activated automatically]. [Appellant] then began to cross
      209 and proceeded to move into the left lane and onto interstate
      84. Officer Ostrom continued to have his lights and sirens
      activated and proceeded to chase [Appellant] on interstate 84
      eastbound and noticed [Appellant] accelerating. It was at that
      point    that   Officer  Ostrom     noticed   [Appellant]   going
      approximately a hundred miles per hour.           Officer Ostrom
      followed [Appellant at speeds approaching one hundred miles
      per hour] for approximately three miles before reaching the New
      York border. At that point Sergeant Zegarski instructed Officer
      Ostrom to terminate the pursuit for safety reasons. Officer
      Ostrom terminated the pursuit for safety reasons and because
      [Appellant] had crossed the New York border.

                                   *   *     *
      The video footage [retrieved from Officer Ostrom’s vehicle]
      showed that once [Appellant] entered New York Officer Ostrom
      continued to follow [him]. [Appellant] turned into a residential
      driveway and Officer Ostrom activated his lights again thinking
      [Appellant] was going to stop. However, [Appellant] backed out
      of the driveway and traveled in the opposite direction, stopped
      at a red light and quickly turned left toward New Jersey.

(Trial Court Opinion, 5/30/14, at 2-3, 5) (record citations omitted).

      On January 14, 2014, Appellant filed a motion in limine seeking

exclusion of the portion of the police dashboard video footage depicting

events in New York, on grounds that it was irrelevant to the charges and

prejudicial to him. On January 16, 2014, Appellant proceeded to a jury trial

and the court heard argument on Appellant’s motion in limine.           The court

denied Appellant’s motion, and the Commonwealth published the videotape

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footage during direct examination of Officer Ostrom.     Immediately before

the jury viewed the video, the court gave the following cautionary

instruction:

       Ladies and gentlemen, the video that you are going to view, of
       [Appellant’s] actions once he crosses the bridge into New York is
       admitted for certain limited purposes. Those purposes are for
       the credibility of witnesses, to evidence or confirm the state of
       mind of [Appellant] and to define [Appellant’s] actions.

             However, any actual crime charged in this matter must be
       limited to actions taken by [Appellant] in Pennsylvania, so you
       cannot convict [Appellant] for fleeing or attempting to elude
       based upon actions that occurred only in New York.

             Similarly, you cannot convict [Appellant] of reckless
       endangerment based upon the actions in New York.             The
       evidence of the actual crimes must be evidence in Pennsylvania,
       because that’s the only area we have jurisdiction over, so I ask
       you to keep that in . . . mind as we review the video, okay.

(N.T. Trial, 1/16/14, at 138-39).

       Appellant testified in his defense and stated that he was not aware

that police were pursuing him when he left the Wal-Mart and that he did not

speed in order to flee. (See id. at 156-57, 159-60).2 At the conclusion of

trial, the jury found Appellant guilty of the above-mentioned offenses.3 On

____________________________________________


2
  In order to sustain a conviction for fleeing or attempting to elude a police
officer, the Commonwealth must prove that a driver “willfully fail[ed] or
refuse[d] to bring his vehicle to a stop, or . . . otherwise fle[d] or
attempt[ed] to elude a pursuing police officer, when given a visual and
audible signal to bring the vehicle to a stop[.]” 75 Pa.C.S.A. § 3733(a).
3
  The trial court found Appellant guilty of four related summary traffic
offenses. (See Criminal Docket at 3-4).



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March 21, 2014, the trial court sentenced Appellant to an aggregate term of

not less than twenty-four months nor more than five years’ incarceration.

On March 31, 2014, Appellant filed a timely motion to modify sentence,

which the trial court denied on April 2, 2014. This timely appeal followed.4

       Appellant raises one issue for our review:

       Whether the trial court erred and abused its discretion by
       permitting the jury in Appellant’s trial on a charge of fleeing [or
       attempting to elude a police officer] to view unfairly prejudicial
       police in-car video footage of Appellant appearing to drive
       evasively in New York State, after the officer had earlier
       terminated pursuit while still in Pennsylvania[?]

(Appellant’s Brief, at 7).

       In his issue on appeal, Appellant challenges the trial court’s admission

of the police dashboard video footage showing his evasive driving in New

York after police terminated the pursuit in Pennsylvania. (See id. at 11-20).

Appellant argues that the court should have excluded the footage because it

is irrelevant to any action that he took in Pennsylvania. (See id. at 11, 18).

He also contends that admission of the footage unfairly prejudiced him

because there is no evidence that he similarly avoided Officer Ostrom in

Pennsylvania. (See id.). We disagree.

       Our standard of review is as follows:


____________________________________________


4
    Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on April 15, 2014. The court
filed a Rule 1925(a) opinion on May 30, 2014. See Pa.R.A.P. 1925.



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            The admissibility of evidence is at the discretion of the trial
     court and only a showing of an abuse of that discretion, and
     resulting prejudice, constitutes reversible error.          Abuse of
     discretion is not merely an error of judgment, but rather where
     the judgment is manifestly unreasonable or where the law is not
     applied or where the record shows that the action is a result of
     partiality, prejudice, bias or ill will. Furthermore, [where] the
     trial court indicate[s] the reason for its decision . . . our scope of
     review is limited to an examination of the stated reason.

Commonwealth v. Stephens, 74 A.3d 1034, 1037 (Pa. Super. 2013)

(citations and quotation marks omitted).

            The overriding principle in determining if any evidence [ ]
     should be admitted involves a weighing of the probative value
     versus prejudicial effect. [Our Supreme Court has] held that the
     trial court must decide first if the evidence is relevant and, if so,
     whether its probative value outweighs its prejudicial effect. This
     Commonwealth defines relevant evidence as “having any
     tendency to make the existence of any fact that is of
     consequence to the determination of the action more probable or
     less probable than it would be without the evidence.” Pa.R.E.
     401. Relevant evidence may nevertheless be excluded “if its
     probative value is outweighed by the danger of unfair prejudice,
     confusion of the issues, or misleading the jury, or by
     considerations of undue delay, waste of time, or needless
     presentation of cumulative evidence.” Pa.R.E. 403.

Commonwealth v. Johnson, 2014 WL 7392218, at *37 (Pa. filed Dec. 30,

2014) (case citations omitted).

     With respect to admission of evidence of other bad acts, this Court has

stated:

     It is settled law in this Commonwealth that other bad acts
     evidence is inadmissible to prove a defendant’s propensity to
     commit crime.      Nonetheless, bad acts evidence may be
     introduced for other limited purposes, including, but not limited
     to, establishing motive, opportunity, intent, preparation, plan,
     knowledge, identity or absence of mistake or accident, common
     scheme or design, modus operandi, and the natural history of


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      the case. Pa.R.E. 404(b)(2). This evidence is admissible only if
      the probative value of the evidence outweighs its potential for
      unfair prejudice.

Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en banc)

(case citation omitted).

      Here, the trial court found that the videotape footage of Appellant’s

evasive actions in New York, recorded immediately after police terminated

the high-speed chase in Pennsylvania, was relevant to assess the credibility

of his testimony and that of the police officers. (See Trial Ct. Op., at 4-5).

It also found that the footage was relevant to shed light on Appellant’s state

of mind and to determine whether he intentionally fled from police in

Pennsylvania. (See id.). After review of the record, we conclude that the

trial court’s ruling was not an abuse of its discretion. See Stephens, supra

at 1037.   The footage depicting Appellant’s evasive behavior in New York

immediately after police terminated the chase tended to demonstrate

Appellant’s knowledge that police were pursuing him when he drove at a

speed of approximately one hundred miles per hour in Pennsylvania and that

he “willfully fail[ed] or refuse[d] to bring his vehicle to a stop.” 75 Pa.C.S.A.

3733(a). The footage undermined the credibility of Appellant’s testimony to

the contrary, in which he stated that he was not aware that police were

pursuing him when he left the Wal-Mart and that he did not speed toward

the New York border in order to flee. (See N.T. Trial, 1/16/14, at 156-57,

159-60).




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      Further, before the jury viewed the footage, the court gave a detailed

instruction explaining that the portion of the video showing Appellant’s

actions in New York did not serve as the basis for the prosecution, that it

could not convict Appellant based on those actions, and that it could

consider the footage only for certain limited purposes. (See id. at 138-39).

This instruction, which the jury is presumed to have followed, eliminated any

risk of unfair prejudice. See Commonwealth v. Burno, 94 A.3d 956, 977

(Pa. 2014) (stating juries are presumed to follow trial court’s instructions);

see also Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009),

cert. denied, 559 U.S. 1111 (2010) (concluding cautionary instructions

ameliorated any undue prejudice caused by introduction of bad acts

evidence).   Accordingly, because we discern no abuse of discretion in the

trial court’s admission of the videotape footage, Appellant’s sole issue on

appeal does not merit relief.

      Judgment of sentence affirmed.

      Judge Panella joins the Memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2015


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