Commonwealth v. Flamer

• Decision Date: 06 September 2012
• Parties: COMMONWEALTH of Pennsylvania in the Superior Court of Pennsylvania, Appellant v. Nafeast FLAMER, Appellee. Commonwealth of Pennsylvanaia, Appellant v. Nafeast Flamer. Commonwealth of Pennsylvania, Appellant v. Marvin L. Flamer. Commonwealth of Pennsylvnaia, Appellant v. Marvin L. Flamer.
• Court: Pennsylvania Superior Court

53 A.3d 82

2012 PA Super 186

COMMONWEALTH of Pennsylvania in the Superior Court of Pennsylvania, Appellant

v.Nafeast FLAMER, Appellee.

Commonwealth of Pennsylvanaia, Appellant

v.Nafeast Flamer.

Commonwealth of Pennsylvania, Appellant

v.Marvin L. Flamer.

Commonwealth of Pennsylvnaia, Appellant

v.Marvin L. Flamer.

Superior Court of Pennsylvania.

Argued June 27, 2012.

Filed Sept. 6, 2012.

Mary L. Huber, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

David M. Walker, Philadelphia, for Marvin Flamer, appellee.

BEFORE: STEVENS, P.J., GANTMAN, J., and PANELLA, J.

OPINION BY PANELLA, J.

Currently before us are two appeals by the Commonwealth from separate cases ¹ where the trial court denied part of the Commonwealth's motion in limine. Before the trial of Appellees, Marvin Flamer and Nafeast Flamer, for the murder of Allen Moment, Jr., the Commonwealth filed a motion in limine to introduce evidence of the Appellees' conspiracy to kill a Commonwealth witness, Abdul Taylor. After the trial court denied part of the Commonwealth's motion in both cases, the Commonwealth appealed. The central issue presented in these appeals is whether the trial court abused its discretion by excluding certain evidence that is capable of establishing the existence of a conspiracy between the Appellees to murder Abdul Taylor. After careful review, we reverse in part and affirm in part.

On January 20, 2006, Allen Moment, Jr. was shot multiple times in Philadelphia. Trial Court Opinion, at 1. Moment survived from this shooting for over two years, until August 6, 2008, when he eventually died from the injuries he suffered in the shooting. See id. Marvin, Nafeast, and Hakim Bond were arrested and charged with first-degree murder for killing Moment. See id., at 2.

At the Appellees' trial for the murder of Moment, the Commonwealth planned to call Abdul Taylor, who, according to the Commonwealth, had knowledge of the plot by Marvin and Nafeast to kill Moment. See Appellant's Brief, at 5. On May 6, 2010, three months before the case was scheduled for trial, Abdul Taylor was killed after being shot in the head at close range. See N.T., Motion in Limine Hearing, 4/4/11, at 27. Derrick “Heavy” White was arrested, charged, and ultimately convicted of first-degree murder for killing Taylor. See Court Summary, Commonwealthv. White,

CP–51–CR–0012991–2010, 11/29/11.

The Commonwealth had evidence that showed that both Marvin and Nafeast conspired with White to kill Taylor to prevent Taylor from testifying against them at the Moment murder trial. See Appellant's Brief, at 6. Before the Moment murder trial, the Commonwealth filed a motion in limine, where it sought to introduce fifteen pieces of evidence to establish that Nafeast and Marvin conspired with White to kill Taylor. See Commonwealth Motion to Admit Evidence, 3/24/11, at 4–6.

After considering the Commonwealth's motion, the trial court denied admission of most of the evidence referenced in the motion, granted admission of a very limited number of items, and held the remainder of the motion under advisement. See Order Granting in Part Denying in Part Motion in Limine, 4/4/11, at 2. The trial court permitted admission of (1) a photograph of Marvin and Nafeast with White, and (2) testimony of the medical examiner as to the cause and manner of Taylor's death. See id., at 1–2. The trial court stated that it admitted evidence of this conspiracy, over the Flamers' objections, to show the consciousness of guilt of Nafeast and Marvin. See Trial Court Opinion, at 6. The trial court made no judgment with regard to the admissibility of various telephone conversations made by Marvin and Nafeast, and took the admissibility of that evidence under advisement. See Order Granting in Part Denying in Part Motion in Limine, 4/4/11, at 2–3. The trial court found the remainder of the evidence connecting Marvin and Nafeast to the murder of Taylor inadmissible because it held that evidence was irrelevant, cumulative, confusing, and on balance prejudicial. See Trial Court Opinion, at 10.

On the same day the trial court entered its order, the Commonwealth filed an interlocutory appeal.²See Notice of Appeal, 4/4/11. Before filing its concise statement of matters complained of on appeal, the Commonwealth filed and was granted an application for remand, so the trial court could enter a ruling on the admissibility of the phone conversations it had held under advisement. See Order Granting Remand, 5/23/11. On July 25, 2011, the trial court heard argument on the admissibility of the recorded phone conversations and on August 11, 2011, the trial court entered its order with regard to the admissibility of that evidence. See N.T., Motion Hearing, 8/11/11, at 4. The trial court ruled that the Commonwealth could present evidence of the contents of two phone conversations between Marvin and Geneva Flamer, where Taylor was discussed, which took place on September 18, 2008, and May 7, 2010. See id., at 7, 11. The trial court also allowed the Commonwealth to present evidence that Nafeast made phone calls to Geneva and talked to White on those calls on January 16, 2010, January 25, 2010, February 14, 2010, and February 17, 2010. See id., at 8–10. However, the trial court ruled that the Commonwealth could only present evidence showing that the calls were made; the contents of those conversations were held inadmissible. See id., at 8.

From this order, the Commonwealth then filed another interlocutory appeal. ³See Notice of Appeal, 9/2/11. On appeal, the Commonwealth raises one issue: whether the trial court abused its discretion in denying part of the Commonwealth's motion in limine to admit evidence that connected Marvin and Nafeast to the murder of Commonwealth witness Taylor? See Appellant's Brief, at 3.

We note that the Commonwealth is challenging the trial court's ruling on the admissibility of evidence in a motion in limine. We review a trial court's decision to grant or deny a motion in limine with the same standard of review as admission of evidence at trial. See Commonwealth v. Reese, 31 A.3d 708, 715 (Pa.Super.2011) ( en banc ). With regard to the admission of evidence, we give the trial court broad discretion, and we will only reverse a trial court's decision to admit or deny evidence on a showing that the trial court clearly abused its discretion. See id., at 716. An abuse of discretion is not merely an error in judgment, but an “overriding 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 or the record.” Commonwealth v. Cascardo, 981 A.2d 245, 249 (Pa.Super.2009), appeal denied,608 Pa. 652, 12 A.3d 750 (2010).

With the above principles in mind, we turn to the issue raised by the Commonwealth. On appeal, the Commonwealth claims that the trial court abused its discretion in finding the following evidence that connects Marvin and Nafeast to the murder of Taylor inadmissible at the Moment murder trial:

(1) testimony of police officers who responded to the scene of Taylor's shooting;

(2) testimony of the crime scene officers who examined the scene where Taylor was shot;

(3) expert DNA testimony to identify White's DNA on evidence recovered from where Taylor was shot;

(4) White's confession to the murder of Taylor;

(5) testimony of Malik Sutton concerning a plot to kill Taylor;

(6) testimony from Taylor's mother and girlfriend regarding Taylor's fear about being killed because he came forward to police;

(7) recordings of telephone conversations made by both Marvin and Nafeast; and

(8) Nafeast's personal raps and writings recovered in his prison cell. ⁴

See Appellant's Brief, at 6–8.

As stated above, the trial court found sufficient grounds to permit the Commonwealth to present evidence of a conspiracy by Marvin and Nafeast with White to kill Taylor to prevent him from testifying at the Moment murder trial. See Trial Court Opinion, at 6. While this is evidence of a bad act or crime, the trial court was correct in admitting this evidence to show the history of the case and the guilty conscience of the defendants. Under the Pennsylvania Rules of Evidence, evidence of other bad acts or crimes that are not currently being prosecuted against the defendant are not admissible against the defendant to show his bad character or propensity to commit criminal acts. SeePa.R.E. 404(b). However, evidence of other crimes may be admissible where that evidence is used for some other purpose. See Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988). Two such purposes are applicable here. First, the evidence showing that Marvin and Nafeast conspired with White to kill Taylor is admissible to prove the history of the case, also known as the res gestae exception. See Commonwealth v. Murphy, 540 Pa. 318, 328, 657 A.2d 927, 932 (1995) (holding that evidence that the defendant killed a witness who saw the defendant commit the murder he was on trial for was so interwoven with the facts of the case to be admissible under the res gestae exception). Second, this evidence was also admissible to show the consciousness of guilt of Marvin and Nafeast for the murder of Moment. See Commonwealth v. Goldblum, 498 Pa. 455, 473, 447 A.2d 234, 243 (1982) (holding that evidence that the defendant paid a police officer to kill a witness was admissible to prove consciousness of guilt).

Despite allowing the Commonwealth to present evidence showing that there was a conspiracy by Marvin and Nafeast to kill Taylor, the trial court did not allow the Commonwealth to present most of the evidence that established this conspiracy. The trial court prevented the Commonwealth from presenting certain evidence of a conspiracy for two reasons. First, the trial court excluded certain evidence of the conspiracy between Marvin and Nafeast to kill Taylor because it believed that the admission of additional evidence of the...