Com. v. Wilson, M. ( 2015 )


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  • J-S46002-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MARSEILLE WILSON
    Appellant                 No. 3593 EDA 2013
    Appeal from the Judgment of Sentence July 11, 2013
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0013135-2011
    BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
    MEMORANDUM BY MUNDY, J.:                        FILED SEPTEMBER 15, 2015
    Appellant, Marseille Wilson, appeals from the July 11, 2013 aggregate
    judgment of sentence of five to ten years’ imprisonment, plus ten years’
    probation, imposed after he was found guilty of two counts of indecent
    assault and one count each of rape and sexual assault.1           After careful
    review, we affirm.
    The trial court summarized the relevant factual and procedural history
    of this case as follows.
    [The victim,] McNeil[,] testified she was 23 years old
    and had lived in West Philadelphia her entire life.
    She testified that in October 2011 she was living on
    63rd Street with her sister Talia McNeil (“Talia”) and
    her friend Shaneia Jenkins (“Shaneia”). She stated
    that on the night of October 14, 2011, she and
    ____________________________________________
    1
    18 Pa.C.S.A. §§ 3126(a), 3121(a)(3), and 3124.1, respectively.
    J-S46002-15
    Shaneia went to a neighborhood bar, Connections,
    which was three blocks from her apartment. She
    testified that at the bar she had a few drinks and
    eventually Shaneia left. She testified that she drank
    two glasses of wine, some vodka, and some
    Hennessey. She stated that after Shaneia left, she
    spent time with Thomas, Temple, Razul and
    [Appellant].   She stated that she knew Thomas,
    Temple and Razul from elementary and/or high
    school, but that she had never met [Appellant]
    before.
    McNeil testified that she eventually got a ride
    from Razul to her apartment and in the car were
    Thomas, Temple and [Appellant]. She testified that
    they were all coming back to her place to spend time
    with Talia’s boyfriend who was at their apartment.
    She testified that on the way to the apartment the
    car stopped at a gas station. She stated that in the
    three to four hours she was at the bar she had about
    four drinks and in the car she started to feel sick.
    She testified that she did not vomit in the car and
    she did not talk to the others who were in the car.
    She stated that when they got to her house she went
    straight to the bathroom to vomit. She testified that
    after throwing up she went in the bathtub to cool off
    in the water.
    She testified that while she was in the bathtub
    she took off her shirt and was wearing a bra, and her
    tights.    She testified that eventually Talia and
    Thomas helped her out of the tub and brought her
    into the bedroom. She stated that after getting into
    bed she started vomiting again and Talia brought her
    a black bucket to vomit in. She testified that after
    vomiting, Talia closed the door and turned the lights
    off and she went to sleep. She testified that the next
    thing she remembered was waking up to [Appellant]
    in her bed with his penis inside her vagina. She
    testified that she said “get off me, stop[,] and help
    me.” She stated that Talia came into her room and
    said to [Appellant], “What are you doing to my
    sister.” To which [Appellant] responded, “My name
    is Cell. Your sister knows me,” before he ran out of
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    J-S46002-15
    the room. McNeil testified that she did not know
    [Appellant] and that she saw him earlier in the night,
    but did not have any conversations with him.
    McNeil testified that [Appellant]’s body was
    positioned behind hers and she was on her side
    when she woke up. She stated that [Appellant]’s
    hands were on her side and her panties were down
    towards her knees. She stated that she had her
    panties on when she went to sleep. She testified
    that when she told [Appellant] to stop, he kept
    having sex with her. After [Appellant] ran out, she
    testified that Shaneia and Thomas came in the room
    and they tried to call her a cab to the hospital
    because she felt pain from her tampon that was
    inside of her still. She testified that she was on her
    period that night and intentionally left the tampon
    inside her when she went to sleep. McNeil testified
    that she went to the hospital in an ambulance with
    Talia and her father.      After the hospital, McNeil
    testified that she went to the Special Victims Unit
    where a nurse performed an examination and she
    gave a statement to Detective Jenkins.
    McNeil testified that after the incident on
    October 15, 2011, she did not see [Appellant] again
    until November 4, 2011. She testified that she saw
    [Appellant] at Connections and that it was the first
    time she returned to the bar since the assault. She
    testified that she called the police and [Appellant]
    was arrested in the bar that night. Following the
    night in October 2011, McNeil testified that she had
    been back to Connections only three times. She
    testified that one of those times she saw Temple and
    Thomas. She testified that Temple said, “I ain’t
    f[**]king with you. My man was drunk. You should
    just let him go.” She testified that she started crying
    and then approached them and Temple repeated
    himself. McNeil testified that she had only been back
    to Connections once since then because she felt
    uncomfortable being there and that something might
    happen to her. She testified that the others who
    were with [Appellant] had been at her apartment
    before October 14, 2011, but that [Appellant] had
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    never been there before and she did not think
    anything would happen that night since he was with
    her other friends.
    McNeil identified different photographs showing
    her bedroom and her apartment. She testified that
    she had four drinks on the night of the … incident
    and that she was intoxicated, but that there were no
    moments which she did not remember. She testified
    that she did not invite [Appellant] to come back to
    her house, into her bedroom nor did she tell him that
    he could have sex with her.
    Trial Court Opinion, 5/30/14, at 5-7.
    On December 8, 2011, the Commonwealth filed an information,
    charging Appellant with the above-mentioned offense, plus one additional
    count of rape and one count of simple assault.2            Appellant proceeded to a
    jury trial on February 26, 2013, at the conclusion of which, Appellant was
    found guilty of two counts of indecent assault and one count each of rape
    and sexual assault.      The simple assault charge and the second rape count
    were nolle prossed. On July 11, 2013, the trial court imposed a sentence of
    five to ten years’ imprisonment, plus ten years’ probation, for rape but no
    further penalty on the remaining charges. On July 19, 2013, Appellant filed
    a timely post-sentence motion.                 The trial court entered an order on
    November 19, 2013 denying Appellant’s post-sentence motion by operation
    ____________________________________________
    2
    18 Pa.C.S.A. §§ 3121(a)(1) and 2701(a), respectively.
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    of law. See generally Pa.R.Crim.P. 720(B)(3)(c). On November 20, 2013,
    Appellant filed a timely notice of appeal.3
    On appeal, Appellant raises one issue for our review.
    Did not the trial court err when it admitted an out-
    of-court statement in evidence for its effect on the
    listener where the listener’s reaction to the
    statement was irrelevant to the case and the trial
    court’s refusal to give a limiting instruction
    restricting the jury from considering the evidence for
    its truth unfairly prejudiced … [A]ppellant?
    Appellant’s Brief at 4.
    Although presented as a single issue, Appellant’s argument on appeal
    contains two sub-issues.        First, Appellant avers the trial court abused its
    discretion in allowing McNeil to testify to a statement made by Temple, “I
    ain’t f[**]king with you. My man was drunk. You should just let him go.”
    N.T., 2/27/13, at 39.        Specifically, Appellant argues that statement was
    irrelevant under Pennsylvania Rule of Evidence 401 and its probative value
    was outweighed by its prejudicial effect under Rule 403. Appellant’s Brief at
    13, 22. In his second sub-issue, Appellant argues the trial court erred in not
    instructing the jury that it may not consider said statement for its truth. 
    Id. at 19.
    We begin by noting our well-settled standard of review regarding these
    issues.
    ____________________________________________
    3
    Appellant and the trial court have complied with Pennsylvania Rule of
    Appellate Procedure 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. 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. Furthermore, if in
    reaching a conclusion the trial court over-rides or
    misapplies the law, discretion is then abused and it is
    the duty of the appellate court to correct the error.
    Commonwealth v. Fischere, 
    70 A.3d 1270
    , 1275 (Pa. Super. 2013) (en
    banc) (internal quotation marks and citations omitted), appeal denied, 
    83 A.3d 167
    (Pa. 2013). Likewise, “[i]n deciding whether a trial court erred in
    refusing to give a jury instruction, we must determine whether the court
    abused its discretion or committed an error of law.”      Commonwealth v.
    Clouser, 
    998 A.2d 656
    , 658 (Pa. Super. 2010) (citation omitted), appeal
    denied, 
    26 A.3d 1100
    (Pa. 2011).
    Assuming, arguendo, that the trial court erred by allowing Temple’s
    statement and in not giving the requested limiting instruction to the jury, we
    nevertheless conclude that its errors were harmless.
    [A]n error will be deemed harmless where the
    appellate court is convinced beyond a reasonable
    doubt that the error could not have contributed to
    the verdict. Guidelines for determining whether an
    error is harmless include: (1) whether the error was
    prejudicial to the defendant or if prejudicial, whether
    the prejudice was de minimis; (2) whether the
    erroneously     admitted   evidence      was     merely
    cumulative of other, untainted evidence which was
    substantially similar to the erroneously admitted
    evidence; or (3) whether the evidence of guilt was so
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    overwhelming as established by properly admitted
    and uncontradicted evidence that the prejudicial
    effect of the error was so insignificant by comparison
    to the verdict.
    Commonwealth v. Molina, 
    33 A.3d 51
    , 67 (Pa. Super. 2011) (en banc)
    (citation omitted), affirmed, 
    104 A.3d 430
    (Pa. 2014).
    As part of his defense, Appellant called Miguel Thomas who testified
    that Temple told McNeil the following.
    Like, I don’t want to speak to you because you got
    one of my friends locked up and you know that’s not
    what happened. You know that’s not how it went
    down. Like, he didn’t rape you. He didn’t hold you
    down and rape you or anything like that. It was just
    like we were drunk and we tried -- he tried to do it to
    you. Now, that’s how you should put it. Don’t try to
    put it like he raped you because that’s not how it
    went down.
    N.T., 2/28/13, at 26-27.    Here, because Temple’s statements came in as
    part of Appellant’s own defense, they were introduced to establish the
    substance of Temple’s statements, not for the limited purpose of their effect
    on the listener such as during the Commonwealth’s case-in-chief. Cf. N.T.,
    2/26/13, at 5-9.    Since Appellant’s own defense witness testified to the
    same statements as those Appellant complains of on appeal, but in greater
    detail, which were admitted for their substance, any potential prejudice was
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    J-S46002-15
    de minimis, rendering any potential errors by the trial court harmless. 4 See
    
    Molina, supra
    .
    Based on the foregoing, we conclude Appellant’s issue is devoid of
    merit. Accordingly, the trial court’s July 11, 2013 judgment of sentence is
    affirmed.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/15/2015
    ____________________________________________
    4
    Appellant acknowledges his eliciting of Temple’s statements from his own
    witness, but blames the trial court for not giving the limiting instruction.
    Appellant’s Brief at 25. Appellant argues that he was “trying to make the
    best of a bad situation.” 
    Id. However, in
    our view, it appears odd that
    Appellant would wish for the jury to hear testimony, that according to
    Appellant undermines his own credibility, for a second time. Further, we
    agree with the Commonwealth that Appellant’s intentional elicitation of
    Temple statements reflects a belief that the statement could have been
    beneficial to him, such as to undermine Temple or the victim’s credibility by
    suggesting to the jury that they were all intoxicated and could not remember
    the events correctly. See generally Commonwealth’s Brief at 9 n.3.
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Document Info

Docket Number: 3593 EDA 2013

Filed Date: 9/15/2015

Precedential Status: Precedential

Modified Date: 9/16/2015