J-S02023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILMER COLON

                            Appellant                No. 147 EDA 2016


        Appeal from the Judgment of Sentence Entered August 5, 2015
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0008721-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                             FILED MAY 25, 2017

        Appellant Wilmer Colon appeals from the August 5, 2015 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”), following his jury convictions for third degree murder, possession of

an instrument of crime (“PIC”), firearms not to be carried without a license,

and carrying a firearm in public in Philadelphia.1 Upon review, we affirm.

        The facts and procedural history underlying this case are undisputed.

As summarized by the trial court:

        [O]n April 10, 2013, during which Appellant also known as
        “Omar” fatally shot John Jamieson (“Jamieson”) also known as
        “Stacks” multiple times on the corner of Perkiomen and Wylie
        Streets in the City and County of Philadelphia, Pennsylvania.
        Appellant, Pablo Burgos (“Burgos”) also known as “Littles,”
        Burgos’ brother Luis Roman (“Roman”), Angel Mendez
        (“Mendez”) also known as “Ace,” and Jamieson were friends
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 907(a), 6106(a)(1), and 6108, respectively.
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     prior to the incident. In April of 2013, Appellant, Roman, and
     Burgos lived in an apartment on Torresdale and Magee Avenues
     that was leased by Burgos’ girlfriend, Crystal Elliott (“Elliott”).
     The friends would spend significant amounts of time at the
     Torresdale apartment playing a PlayStation 3® video game
     console that belonged to Appellant. On the day of the incident,
     Appellant discovered that the PlayStation 3® was missing.

            Appellant, who was with Burgos, Roman, and Elliott, called
     Mendez that same evening asking him to return to the house to
     talk about the missing video game console. Appellant was
     unable to reach Jamieson. It was decided among Appellant,
     Burgos, Roman, Mendez, and Elliott that Mendez had not taken
     the PlayStation 3® and the group went to confront Jamieson.
     Someone was able to reach Jamieson by phone and learned
     Jamieson was at his grandmother’s house at 1738 Wylie Street.
     At the house was Jamieson’s grandmother, Diane Jamieson
     (“Diane”), Jamieson’s uncle, Robert Jamieson (“Robert”) and
     Jamieson’s mother.       Appellant, Burgos, Mendez, Elliott, and
     Roman got into Roman’s green Honda and Appellant directed
     Elliott to Jamieson’s location. Upon arrival, Jamieson was called
     outside and Appellant exited the car to meet Jamieson at the
     corner of Perkiomen and Wylie Streets.

            Diane awoke to hear her grandson arguing with someone
     outside. Jamieson yelled, “you want to shoot me man, that’s
     crazy,” and she heard four (4) shots. She went outside and saw
     Jamieson running from the corner of Perkiomen and Wylie
     Streets back toward her home. Jamieson collapsed into Robert’s
     arms and was carried inside the house. Jamieson said, “Omar
     did it, Omar shot me” and mentioned another name, Littles.
     Jamieson also said the person who shot him was wearing a
     hooded sweatshirt featuring the words “rise and grind” and the
     person had tattoos on his hands that read “grind hard.”
     Sergeant David DeCrosta (“Sergeant DeCrosta”) responded to
     the scene and was told by Jamieson, “I was shot by my friend,
     Omar Vega Colo . . . he’s in a green Honda . . . he’s probably
     going to the area of Torresdale and Magee. That’s where he
     lives.” Sergeant DeCrosta shared this information over the
     police radio.

           Immediately after shooting Jamieson, Appellant had
     returned to the green Honda and Elliott drove the group back to
     the Torresdale apartment where Appellant gathered clothes, put
     them in a hamper and got into Elliot’s black Honda with Mendez.
     Police officers intercepted Appellant and Mendez in the green
     Honda on the 6400 block of Hegerman Street. At that time,
     Appellant was wearing a black hooded sweatshirt featuring the
     words “rise and grind” and officers observed that Appellant had a
     tattoo of the words “grind hard” on his hand.         Appellant’s
     sweatshirt was submitted for analysis and found to have gunshot
     residue on front and back of the right sleeve, on the left sleeve
     and front right half of the garment. A twelve (12) gauge


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      shotgun with a shell in the chamber was recovered from the
      laundry basket.

             Jamieson was pronounced dead at 4:01 A.M. on April 11,
      2013 at Hahnemann University Hospital.          An autopsy was
      performed by Assistant Medical Examiner Dr. Aaron Rosen who
      determined that the cause of death was multiple gunshot
      wounds and the manner of death was found to be Homicide.
      Jamieson was shot one (1) time in the right side of the chest,
      where the bullet went through the liver, the inferior vena, and
      left kidney; one (1) time in the right side of the upper back
      where the bullet traveled through the shoulder blade and
      fractured a rib; and one (1) time in the left arm which fractured
      the humerus. Three (3) bullets were recovered from Jamieson’s
      body and submitted to the Firearms Identification Unit for
      analysis, where they were all found to be fired from the same
      gun. The gun used to shoot Jamieson was never recovered.

Trial Court Opinion, 6/17/16, at 2-4. Appellant was charged with the above-

mentioned crimes.    His case proceeded to a jury trial, following which he

was found guilty of third degree murder, PIC, firearms not to be carried

without a license, and carrying a firearm in public in Philadelphia. On August

5, 2015, the trial court sentenced Appellant to 20 to 40 years’ imprisonment

for third degree murder and a consecutive term of two and one-half to five

years’ imprisonment for carrying a firearm without a license.             N.T.

Sentencing, 8/5/15, at 21-22.       No additional penalty was imposed for the

remaining convictions.   Id.   Appellant filed post-sentence motions, which

were denied by operation of law on December 14, 2015. Appellant timely

appealed to this Court. The trial court directed Appellant to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. Appellant complied,

raising three evidentiary issues:

      [I.] Did the trial court err in precluding the introduction of
      testimony and exhibits regarding Instagram posts made by Pablo
      Burgos which indicated that he was in fact the shooter in the
      incident in question?


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      [II.] Did the trial court err in refusing to permit Talia Ocasio to
      testify regarding the content of Instagram posts received from
      Luis Roman when said posts had already been introduced into
      evidence during Luis Roman’s testimony?

      [III.] Did the trial court err in precluding [Appellant] from cross-
      examining Det. Harkins regarding the fact that one of the
      detectives who questioned [Appellant] had been arrested for a
      crimen falsi offense?

Rule 1925(b) Statement, 1/26/16, at 1-2. In response, the trial court issued

a   Pa.R.A.P.    1925(a)   opinion,   concluding   that   Appellant’s   evidentiary

challenges do not merit relief.

      On appeal, Appellant repeats the same three issues for our review.

It is settled:

      [a]dmission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. An abuse of discretion is not
      merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will
      or partiality, as shown by the evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015)

(internal citations omitted). Moreover, an appellant bears a “heavy burden”

to show that the trial court has abused its discretion. Commonwealth v.

Christine, 125 A.3d 394, 398 (Pa. 2015).

      Appellant first argues that the trial court abused its discretion in

excluding as hearsay any reference to Instagram posts authored by Burgos.

We disagree.

      Hearsay is defined as “an out-of-court statement offered to prove the

truth of the matter asserted in the statement.” Commonwealth v. Kuder,

62 A.3d 1038, 1055 (Pa. Super. 2013) (citation omitted), appeal denied,


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114 A.3d 416 (Pa. 2015). Hearsay is generally deemed unreliable because

“the declarant is not before the trier of fact and cannot be challenged as to

the accuracy of the statement.” Commonwealth v. Rush, 605 A.2d 792,

795 (Pa. 1992) (citation omitted).

       Instantly, Appellant sought to introduce at trial the testimony of his

cousin who would have testified that one week prior to trial, Burgos sent him

text messages, using a pre-paid cell phone. N.T. Trial, 5/26/15, at 6-7. The

messages indicated that Appellant should “stick with the game plan” and

that for doing so, he would receive “bread,” a specialized colloquialism for a

monetary reward. Id. at 6, 9. As the trial court reasoned:

       Even if these messages could have been authenticated,[2] the
       text [messages] did not fit under any exception to the hearsay
       rule and were inadmissible. These messages were offered to
       support the defense theory that Burgos was the actual shooter
       and that a plan existed for Appellant to accept blame for
       Jamieson’s death. The evidentiary value of the text messages
       depended entirely on the truth of their content.

Trial Court Opinion, 6/17/16, at 5. We cannot conclude that the trial court

abused its discretion in excluding any reference to text messages allegedly

sent by Burgos to Appellant’s cousin one week prior to trial.3

____________________________________________


2
  Based on our disposition of this issue, we, like the trial court, decline to
decide Appellant’s authentication argument.
3
  Insofar as Appellant argues that the text messages were not offered for the
truth of the matter asserted, but rather “were offered to demonstrate
Burgos’ state of mind, in particular his consciousness of guilt, such argument
is waived because he failed to raise it before the trial court or in his
Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
(Footnote Continued Next Page)


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      Appellant next argues that the trial court abused its discretion in

disallowing “Thalia Ocasio to testify regarding the content of Instagram posts

received from [Roman] when said posts already had been introduced into

evidence during [Roman’s] testimony.”4            Appellant’s Brief at 13.   We

disagree based on the trial court’s sound reasoning:

      During Roman’s cross-examination, Appellant’s trial counsel
      asked him to verify his username and profile on Instagram and
      verify a series of direct messages he sent to [Ms.] Ocasio. (N.T.
      [Trial,] 5/21/15[,] at 197-203). Roman complied and explained
      each of his responses in detail. Id. Defense counsel questioned
      Roman extensively on the meanings of each message sent by
      Roman and counsel asserted that the contents of the messages
      reflected that Burgos was the shooter. Id. [Ms.] Ocasio was
      allowed to verify that she did in fact participate in the
      conversation and that the messages as depicted were complete.
      (N.T. [Trial,] 5/26/15[,] at 119-124). [Ms.] Ocasio’s potential
      testimony of the contents of the messages sent by Roman would
      have been unnecessarily duplicative.

Trial Court Opinion, 6/17/16, at 6. It is settled that:

      Evidence may be excluded if its probative value is outweighed by
      the “needless presentation of cumulative evidence.” Pa.R.E.
      403. We define cumulative evidence as “additional evidence of
      the same character as existing evidence and that supports a fact
      established by the existing evidence.” Commonwealth v.
      G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super. 2007) (quoting

                       _______________________
(Footnote Continued)

appeal”); Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa.
Super. 2007) (noting that “new theories ordinarily cannot be raised for the
first time on appeal[.]”); see also Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not
included in the [Rule 1925(b) s]tatement . . . are waived”).
4
  Appellant’s argument that the trial court should have admitted Ms. Ocasio’s
testimony about Roman’s statements under Pa.R.E. 613 is waived because
he failed to raise it before the trial court or in his Rule 1925(b) statement.
See supra at n.3. Similarly, Appellant’s argument that the trial court
should have allowed Ms. Ocasio to testify for purposes of establishing “the
meaning of the conversation” is waived for the same reasons. See id.



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       Black’s Law Dictionary, Seventh Edition, at 577), appeal
       denied, []944 A.2d 756 ([Pa.] 2008).

Commonwealth v. Flamer, 53 A.3d 82, 88 n.6. (Pa. Super. 2012). Given

the trial court’s sound reasoning and consistent with the foregoing principles

of law, we conclude that the trial court did not abuse its discretion in ruling

that Ms. Ocasio’s testimony about the Instagram messages received from

Roman would have been cumulative. Appellant is not entitled to relief.

       Finally, Appellant argues that the trial court abused its discretion in

disallowing Appellant “from cross-examining Detective Harkins regarding the

fact that one of the detectives who questioned [Appellant] had been arrested

for a crimen falsi offense.” Appellant’s Brief at 14.

       Instantly, we note that Appellant confessed to Detective John Harkins

after being Mirandized.5            At trial, Appellant asked Detective Harkins

whether his former colleague Detective Ronald Dove was charged with any

crimes. N.T. Trial, 5/22/15, at 204. The Commonwealth objected. The trial

court sustained the objection. Our review of the trial transcript reveals that

Appellant’s reasons for asking this question are unclear. Nonetheless, as the

Commonwealth points out, “even on appeal,” Appellant does not allege that

“former Detective Dove’s arrest had anything to do with obtaining a

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5
   Miranda v. Arizona, 384 U.S. 436 (1966) (holding that statements
obtained from defendants during interrogation in police-dominated
atmosphere, made without full warning of applicable constitutional rights,
were inadmissible as having been obtained in violation of Fifth Amendment
privilege against self-incrimination).



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confession from [Appellant] or anyone else related in any other way to the

facts of the instant case.”          Commonwealth’s Brief at 13-14.    Indeed,

Appellant argues only that he was denied an opportunity to conduct

impeachment with crimen falsi offenses. Appellant’s Brief at 14. As the trial

court and the Commonwealth aptly observe, former Detective Dove was not

a witness in Appellant’s trial and, importantly, the former Detective’s

veracity was not at issue here. More important, the trial court noted that

“the crimen falsi behavior defense counsel was attempting to highlight was

an arrest, not a conviction, and that behavior was attached to a Detective

who was not a witness in Appellant’s trial.” Trial Court Opinion, 6/17/16, at

7 (emphasis added).         Under Rule of Evidence 609, crimen falsi evidence

resulting only from a criminal conviction may be admitted at trial. Pa.R.E.

609(a) (“For the purpose of attacking the credibility of any witness, evidence

that the witness has been convicted of a crime, whether by verdict or by

plea of guilty or nolo contendere, must be admitted if it involved dishonesty

or false statement.”).       Accordingly, Appellant’s argument does not merit

relief.6

       Judgment of sentence affirmed. Petition to withdraw denied.
____________________________________________


6
   During the pendency of this appeal, on May 15, 2017, Appellant’s counsel
filed a petition to withdraw indicating that he will be assuming a new position
with the Office of Attorney General commencing June 5, 2017. We deny the
motion. Counsel shall immediately consult with Appellant as to whether he
wishes to appeal further his case, and if so, he shall immediately petition the
trial court for appointment of new counsel.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2017




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