Com. v. Harris

• Decision Date: 30 September 2005
• Citation: 2005 Pa. Super. 335,884 A.2d 920
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Montez HARRIS, Appellant.
• Court: Pennsylvania Superior Court

884 A.2d 920

2005 Pa. Super. 335

COMMONWEALTH of Pennsylvania, Appellee, v. Montez HARRIS, Appellant.

Superior Court of Pennsylvania.

Argued February 15, 2005.

Filed September 30, 2005.

Stephen P. Patrizio, Philadelphia, for appellant.

Eva Robertson, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: GANTMAN, PANELLA, and OLSZEWSKI, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Montez Harris, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his convictions for first degree murder,¹ possessing instruments of crime ("PIC")² and carrying firearms on public streets in Philadelphia.³ Appellant asks us to review the trial court's ruling on Appellant's motion in limine to bar the use of his prior crimen falsi convictions for impeachment purposes if Appellant decided to testify at trial; whether the Commonwealth committed numerous instances of prosecutorial misconduct which constitute reversible error; and, whether the trial court erred in allowing the Commonwealth to use a videotape without a cautionary instruction to the jury. We hold the trial court correctly decided to allow evidence of Appellant's prior crimen falsi convictions, if Appellant took the stand in his own defense at trial; Appellant is not entitled to a new trial on his claims of prosecutorial misconduct; and, a cautionary instruction with regard to the videotape was not necessary in the instant case. Accordingly, we affirm.

¶ 2 The relevant facts and procedural history of this appeal are as follows. On March 24, 2001, Melvin Brown ("Decedent") and Wallace Alexander left an after-hours club located on 53rd Street and Woodland Avenue in Philadelphia. As Decedent and Alexander walked to their car, a man wearing a yellow hooded sweatshirt followed them. Alexander watched the man draw a gun. As Alexander ran away, he heard gunshots. Alexander turned around and saw Decedent lying in the street. Decedent died as a result of seven gunshot wounds. The police recovered twelve shell casings from the scene.

¶ 3 On the night of the shooting, Officers Joy Gallen-Ruiz and Raymond Rutter patrolled the area between 52nd and 58th Streets. The officers heard gunshots coming from 53rd Street and Woodland Avenue. As the officers proceeded westbound on Woodland Avenue toward 53rd Street, they saw Appellant running across Woodland Avenue toward 53rd Street. Appellant wore a yellow hooded sweatshirt. At the same time, Officer Rutter noticed Decedent's body in the street. The officers followed Appellant and watched him toss an object from his left side. Subsequently, the officers stopped and frisked Appellant. Officer Rutter found a pair of black gloves in Appellant's back right pocket. Officer Rutter also found the object Appellant had tossed away earlier, a silver semiautomatic handgun, on the property at 1729 South 53rd Street. After recovering the handgun, the officers arrested Appellant.

¶ 4 On January 20, 2004, the court conducted a pre-trial hearing. At that time, defense counsel asked the court for a ruling on the admissibility of Appellant's prior convictions as impeachment evidence. Specifically, defense counsel informed the court that Appellant had been convicted of robbery and burglary in 1984. Appellant was released from prison for these offenses in 1993. Defense counsel sought to preclude the Commonwealth from attacking Appellant's credibility by questioning him about these crimes. The court, however, determined that evidence of these convictions was highly probative and therefore admissible, in the event Appellant decided to testify, because Appellant's credibility was central to the case.

¶ 5 Trial commenced on January 21, 2004. At trial, an expert for the Commonwealth testified that the twelve shell casings found at the crime scene were discharged from the handgun found at 1729 South 53rd Street. As part of its case-in-chief, the Commonwealth also introduced into evidence a surveillance tape from a security camera affixed to a building at 53rd Street and Woodland Avenue. This tape depicted Appellant, in his yellow hooded sweatshirt, crossing 53rd Street, pulling an object from his back pocket, standing over Decedent's body and then running across Woodland Avenue. Officers Ruiz and Rutter testified that Appellant was the individual in the video.

¶ 6 The defense called Detective Thomas Kane to testify. Detective Kane investigated Decedent's homicide case. On direct examination, defense counsel asked Detective Kane whether Decedent's murder "was some type of payback" in retaliation for another shooting. (Id. at 165). Detective Kane testified that an individual named Jody Satchell had been murdered approximately three weeks before Decedent, and Decedent was a suspect in the murder. (Id. at 173). Detective Kane also stated that Appellant lived with Mr. Satchell's aunt. (Id.)

¶ 7 The jury convicted Appellant of first degree murder, PIC and the firearms offense. Appellant did not file post-trial motions. The court sentenced Appellant to life imprisonment for first degree murder. Additionally, the court sentenced Appellant to one to two years' imprisonment for the firearms offense and one to two years' imprisonment for PIC, to be served consecutive to the life sentence. This timely appeal followed. On May 19, 2004, Appellant timely filed his court-ordered Rule 1925(b) statement.

¶ 8 Appellant raises eight issues for our review:

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR THROUGH ITS PRETRIAL RULING THAT A TWENTY YEAR OLD CONVICTION FOR ROBBERY AND BURGLARY THAT WAS COMMITTED WHEN [APPELLANT] WAS ONLY FIFTEEN YEARS OF AGE COULD BE USED TO IMPEACH HIM IF HE TESTIFIED?

WHETHER A NEW TRIAL IS WARRANTED BASED UPON QUESTIONING BY THE PROSECUTOR AND PROSECUTORIAL MISCONDUCT WHEREBY THE JURY WAS ADVISED THAT [APPELLANT] REFUSED TO MAKE A STATEMENT AFTER THE HOMICIDE WHEN QUESTIONED BY DETECTIVES AND THROUGH REFERENCE TO [APPELLANT'S] POST-ARREST SILENCE?

WHETHER THE COMMONWEALTH WITHHELD CRITICAL DISCOVERY INVOLVING FINGERPRINT LIFTS IN VIOLATION OF BRADY, THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE AND [APPELLANT'S] CONSTITUTIONAL RIGHTS?

WHETHER PROSECUTORIAL MISCONDUCT RESULTING IN REVERSIBLE ERROR AND A MISTRIAL OCCURRED THROUGH MISINFORMATION WHICH LED THE JURY TO INFER THAT THE DECEDENT MURDERED A COUSIN OF [APPELLANT]?

WHETHER PROSECUTORIAL MISCONDUCT AND REVERSIBLE ERROR

OCCURRED THROUGH UNSUBSTANTIATED STATEMENTS BY THE PROSECUTOR ABOUT HIS EXPERIENCE INVOLVING EVIDENCE IN OTHER CASES THROUGHOUT HIS CAREER AND THROUGH PERSONAL OPINIONS AS TO THE GUILT OF [APPELLANT]?

WHETHER PROSECUTORIAL MISCONDUCT AND REVERSIBLE ERROR OCCURRED THROUGH REPETITIVE PERSONAL ATTACKS UPON DEFENSE COUNSEL, ACCUSATIONS THAT DEFENSE COUNSEL WAS HIDING EVIDENCE, AND THROUGH THE PROSECUTOR'S REPREHENSIBLE CONDUCT WHICH UNDERMINED [APPELLANT'S] RIGHT TO A FAIR TRIAL?

WHETHER PROSECUTORIAL MISCONDUCT AND REVERSIBLE ERROR OCCURRED WHEN THE PROSECUTOR ADVISED THE JURY WITHOUT ANY BASIS THAT WALLACE ALEXANDER DID NOT WANT TO PROVIDE INFORMATION AGAINST THE ASSAILANT BECAUSE HE WAS THREATENED?

WHETHER THE TRIAL COURT COMMITTED ERROR BY ALLOWING THE PROSECUTION TO RELY UPON A VIDEOTAPE, AND TO DO SO WITHOUT ANY FORM OF CAUTIONARY/KLOIBER INSTRUCTION?

(Appellant's Brief at 3-4).

¶ 9 In issue one, Appellant asserts the trial court issued a pre-trial ruling which determined that evidence of his 1984 convictions for robbery and burglary could be used to impeach Appellant, if he decided to testify at trial. Appellant contends he decided not to testify because he did not want to bring these offenses to the attention of the jury. Appellant insists, however, that Pennsylvania Rule of Evidence 609 prevents the use of his prior convictions as impeachment evidence where the convictions at issue were more than ten years old. Appellant further contends the convictions were subject to the Rule 609 balancing test; had the court applied the test properly, the end result would have been in Appellant's favor and against admissibility. Appellant concludes the trial court erred in its pre-trial evidentiary ruling, and he is entitled to a new trial.⁴ We disagree.

¶ 10 "Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the court's decision on such a question absent a clear abuse of discretion." Commonwealth v. Hyland, 875 A.2d 1175, 1185-86 (Pa.Super.2005) (quoting Commonwealth v. Hernandez, 862 A.2d 647, 650 (Pa.Super.2004)). "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." Hyland, supra at 1186 (quoting Commonwealth v. Cader, 861 A.2d 957, 961 (Pa.Super.2004) (en banc)). ¶ 11 Pennsylvania Rule of Evidence 609 provides, in pertinent part:

Rule 609. Impeachment by evidence of conviction of crime

(a) General Rule. 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, shall be admitted if it involved dishonesty or false statement.

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein in not admissible unless the proponent gives to e adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest

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