Commonwealth v. Rose, 3471 EDA 2014

• Decision Date: 29 September 2017
• Docket Number: No. 3471 EDA 2014,3471 EDA 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Manuel ROSE, Appellant
• Court: Pennsylvania Superior Court

172 A.3d 1121

COMMONWEALTH of Pennsylvania, Appellee

v.Manuel ROSE, Appellant

No. 3471 EDA 2014

Superior Court of Pennsylvania.

Argued September 27, 2016

Filed September 29, 2017

Reargument Denied December 6, 2017

Emily Mirsky, Public Defender, Philadelphia, for appellant.

Christopher P. Lynett, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.^*

OPINION BY LAZARUS, J.:

Manuel Rose appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, following his conviction for burglary¹ and simple assault.² After careful review, we affirm.

At approximately 4:00 a.m. on May 21, 2013, Ralph Sheridan was asleep on the couch of the first floor of Georgette Walton's home at 3132 Tasker Street, Philadelphia, where he was renting a room. While Sheridan was sleeping, Rose forced his way into the home through the window by the couch. Once inside the house, Rose approached Sheridan and sat on top of him. As Sheridan awoke, he became aware that Rose was pushing the covers over his face and had placed a silver firearm against his head behind his left ear. Rose demanded that Sheridan give him all his "F-in money." N.T. Trial, 4/8/14, at 20. Sheridan pulled the covers away from his face and immediately recognized Rose, whom he knew as "Moe," since Sheridan was friends with Rose's brother, Mack. An altercation between Sheridan and Rose followed, in which Sheridan grabbed for the gun and threw Rose off of him. Rose attempted to hit Sheridan with the gun, but Sheridan pushed Rose and ran out of the house. During the fight, Rose told Sheridan he would kill him if he called the police.

Sheridan ran to his next door neighbor's house and was allowed inside. His neighbor, Lawrence Smith, listened while Sheridan told him what had happened. While they were talking, Sheridan looked out Smith's window and saw Rose running up the street towards an alley. Smith also looked out his window and saw Walton's Cadillac being driven away by a man with a bald head. Smith told the police later that evening that he was 70% sure that the man he saw in the car was Rose.

Smith called Walton on the phone; she had remained asleep upstairs and did not know her house had been burglarized. She walked to her stairs and saw that her windows and front door were open. Immediately thereafter, at approximately 4:25 a.m., Walton sat on the steps and called 911 because she was too afraid to go downstairs. While she was on the 911 call, Walton looked outside through the open front door and confirmed that her 2006 Cadillac was missing. It was later learned that Sheridan's keys for the Cadillac were also missing from the house. When he fled from the house, Sheridan had left his set of the keys on the table near the couch where Rose had threatened him.

After she called the police, Walton spoke with Sheridan about what had happened. According to Walton, Sheridan told her that Rose broke in through the window, opened the door to let another individual, named Frizz, into the house, attacked Rose and then fled the scene. Walton then got dressed, walked downstairs to make sure nobody was in the house, and shut the door and the window where Rose had entered the house. When Walton closed the window, she noticed that the screen to the window was up and that the blinds to the windows had become disheveled.

After arriving on scene shortly thereafter, a police officer transported Walton and Sheridan to the police station where they were interviewed. Walton was interviewed by Detective Darnell Hobbs and Sheridan was interviewed by Detective John Frei. Walton told Detective Hobbs that she had seen Rose the previous Saturday. Based on Walton's description of Rose, Detective Hobbs prepared an eight-person photo array that included Rose's picture. Meanwhile, Detective Frei interviewed Sheridan for approximately an hour. Detective Frei noticed that he was visibly shaken and nervous throughout the interview. Detective Frei showed the photo array prepared by Detective Hobbs to Sheridan; he unequivocally identified Rose as the burglar. Detective Hobbs prepared a search warrant for Rose's house and an arrest warrant for Rose. Detective Frei traveled to Walton's house to process the crime scene, where he noticed that the screen to the window where Rose broke in was all the way up and that the blinds by the window were disheveled.

The next day, Walton received a phone call from an unidentified individual notifying her that her car was parked in North Philadelphia. Walton informed the police and then traveled with Mack and Sheridan to retrieve the car, which was abandoned and parked on the street, with the keys inside. After they waited about an hour, a police officer arrived and told Walton to drive her car home. Officer Kimyatta Davies was immediately dispatched to Walton's home to guard to preserve possible fingerprints until it was taken into police custody. Detective Hobbs lifted three fingerprints from the outside of the car. Fingerprint examiner Andrea Williams later concluded to a reasonable degree of scientific certainty that the fingerprint lifted from the passenger side front door of the car matched Rose's fingerprints. Sometime thereafter, Rose turned himself into the police and was arrested.

Prior to trial, Rose's preliminary hearing was scheduled on three separate occasions. Sheridan failed to appear at the first scheduled preliminary hearing because he had moved and failed to receive notice of the hearing. For the second preliminary hearing, however, Sheridan was notified but failed to appear because he was scared he would be harmed. Sheridan later testified at the third preliminary hearing. After the third preliminary hearing, Rose made a number of prison calls revealing, among other things, that he had worked with others to prevent Sheridan from testifying at the preliminary hearing and trial. Rose also admitted to his knowledge of and involvement in the burglary. At trial, the jury was provided with an agreed-upon transcript of the prison phone calls, and Detective Frei was permitted to testify as a lay witness regarding the meaning of the street language used in the conversations. See N.T. Trial, 4/10/14, at 153–87; N.T. Trial, 4/11/14, at 30–31; Exhibit G (Prison Phone Call Transcripts).

Also at trial, the prosecutor broke the sequestration order that was in place for the witnesses of the incident. Specifically, Assistant District Attorney (ADA) Kevin Harden informed Sheridan that Walton had testified that two people had been present during the burglary, when Sheridan had always indicated to police that Rose was acting alone. Walton's testimony occurred on a Friday; ADA Harden immediately initiated an investigation of the second person, whom Walton knew as "Frizz," over the weekend. Through this investigation, Frizz was identified as Dawu, a person mentioned in some of the prison phone calls Rose had made.

ADA Harden disclosed his violation of the sequestration order the following Monday. Rose moved for a mistrial, which the court denied. Instead, the court permitted Rose's counsel to have an overnight period of investigation regarding the revelation that Frizz was present during the burglary. Defense counsel interviewed Sheridan during the investigation period, and Sheridan indicated that he had not wanted to reveal Frizz's identity because he was afraid for his life and did not want to testify against him. When trial resumed, Sheridan changed his testimony from his previous accounts of the burglary to indicate that two people, Rose and Frizz, had actually been present. In Sheridan's version of events, Frizz had not entered Walton's residence, but had been outside and had recovered the gun from Rose when he fled the scene.

On April 16, 2014, the jury convicted Rose of burglary and simple assault. The court sentenced Rose on August 14, 2014, to 25 to 50 years' imprisonment because his burglary conviction had a 25–year mandatory minimum as a "third strike" conviction for a crime of violence. See 42 Pa.C.S. § 9714. Rose filed a timely post-sentence motion, which the court denied on November 21, 2014. Thereafter, Rose filed a timely notice of appeal followed by a court-ordered concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).³

Rose raises the following issues for our review:

1. Did not the trial court err in denying [Rose's] motion for mistrial or to preclude the testimony of Ralph Sheridan, where the prosecutor intentionally violated the court's sequestration order and disclosed the content of another witness'[ ] testimony to Ralph Sheridan in the middle of trial, which resulted in [Sheridan] altering his testimony and significantly impacting the outcome of the trial, and a jury instruction was not sufficient to cure the taint of the violation?

2. Did not the trial court err in permitting Ralph Sheridan to testify to incidents of intimidation, where there was no evidence that those incidents occurred at [Rose's] behest, where [Sheridan] was cooperative with the prosecution both at the time of his initial statement and at trial, and where such evidence was therefore both irrelevant and grossly prejudicial?

3. Did not the trial court err by admitting recorded calls and the lay testimony interpreting them, where: 1) the lay witness testimony of Detective Frei "interpreting" "street language" in recorded prison phone calls invaded the province of the jury, his "interpretations" were based on pure speculation and the language in the calls required no interpretation; and 2) the content of the calls themselves were inadmissible in that they contained inadmissible hearsay?

4. Did not the lower court err by imposing a "third strike" sentence under 42 Pa.C.S. § 9714 where [Rose's] prior conviction for robbery under New Jersey [law] was not an "equivalent crime" as defined in 42 Pa.C.S. § 9714(g) ?

Brief for Appellant, at 4–5.

In his first issue, Rose asserts that ...