Com. v. Bishop, T. ( 2017 )

J-S23023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRELL BISHOP :
:
Appellant : No. 2264 EDA 2015
Appeal from the Judgment of Sentence Dated March 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001140-2014
BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED JULY 31, 2017
Appellant Tyrell Bishop appeals from the judgment of sentence
imposed by the trial court after he was convicted by a jury of aggravated
assault, violations of the Uniform Firearms Act, and possession of an
instrument of crime (“PIC”).1 We affirm.
On November 9, 2013, at around 10:50 p.m., Kyree Silver was in the
area of 10th and Norris Streets in Philadelphia, where he had a verbal
altercation with an unidentified man. Appellant was present at that
altercation. Trial Ct. Op. at 2 (citing N.T., 12/17/14, at 26-27, 29-31). As
1
18 Pa.C.S. §§ 2702(a)(1), 6105(a)(1), 6106(a)(1), 6108, and 907(a),
respectively.
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Silver and his friend, Nasir,2 began to walk down the street, Nasir told Silver,
“Hey, bro, you are being followed.” N.T., 12/17/14, at 32. The man
following them was wearing a white thermal shirt, khaki pants, and
Timberland boots. Id. at 33-34, 37. Appellant then yelled to Silver, and
Silver turned around and walked into the middle of the street, where
Appellant began shooting at Silver. At first, Silver stood in shock, but, after
the second shot, he began to run towards an intersection, at which time he
was struck by a bullet. Silver nevertheless was able to pick himself up and
run two more blocks. Trial Ct. Op. at 3 (citing N.T., 12/17/14, at 34).
Temple University Police Officer Robert Acosta, who had received a
radio call reporting a shooting in the area, found Silver and placed him into
another officer’s patrol car to be transported for medical attention. N.T.,
12/18/14, at 24-25. Silver was taken to Temple University Hospital, where
“it was determined that [he] had been shot in his left side, and that the
bullet hit his spine.” Trial Ct. Op. at 2 (citing N.T., 12/17/14, at 39).
Officer Acosta then returned to the scene of the crime, where he
“noticed someone” inside a building, through an open door, “who was sitting
on a chair fitting the doer’s clothing,” which had been described in the radio
call as “tan boots with light color shirt, possibly a thermal.” N.T., 12/18/14,
at 29-30. The person then closed the door. Officer Acosta later testified
2
Silver testified that he could not recall Nasir’s family name. N.T.,
12/17/14, at 28. Appellant’s Brief, at 7, identifies Nasir’s last name as
Abdul-Raheem.
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that he “really can’t say” whether the person he saw was Appellant, despite
being able to recognize Appellant from “see[ing] him around the area.” Id.
at 34.
On November 14, 2013, Silver identified Appellant as the shooter after
viewing a photo array. On December 28, 2013, Philadelphia Police executed
a search warrant on Appellant’s home and recovered “a tan pair of khaki
pants, a tan pair of Timberland boots, and mail in the name of [Appellant].”
N.T., 12/18/14, at 147-49. They arrested Appellant that same day.
Appellant was indicted for the shooting on January 27, 2014, and a
jury trial ultimately was scheduled for December 2014. During that interval,
Silver received an unsigned handwritten letter addressed to him at his
home. The letter was postmarked April 2, 2014, and urged Silver not to
testify at trial and to lie if he was asked if he recognized Appellant during a
line-up. Ex. C-30.3 The Commonwealth later produced transcripts of taped
conversations by Appellant with friends and family members in which he
3
The letter said, in part:
. . . Just do the right thing . . . . You see how easy it was to get
your address . . . . I could of provoked some violence[.] My man
told me not to tho. This what I need you to do, My man trying
to get a line-up as we speak so if they grant it, Just go to da
jawn, n act like you lookin real hard then say “I dont see em[.]”
Ex. C-30 (identified at trial as part of C-25-A). The letter continued by
advising Silver that trial was scheduled for mid-December and that Silver
should “show up there” and, if called to testify, say that he identified
Appellant under police duress. It told Silver to keep his dispute with
Appellant in “the streets” and not to “take it to the courts.” Id.
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appeared to discuss trying to dissuade Silver from testifying. Exs. C-32, C-
34; N.T., 12/19/14, at 21-27.
Prior to trial, the parties engaged in motion practice regarding the
Commonwealth’s plan to introduce information that it contended was from
Appellant’s social media accounts. On November 18, 2014, the
Commonwealth provided Appellant with a numbered exhibit packet. Exhibits
C-37 to C-47 of the packet – which were renumbered as Exhibits C-36 to C-
46 at trial – were described by the Commonwealth as screenshots from a
Facebook account4 registered under the name “Traplife Took.” The
Commonwealth contended that “Traplife Took” was a nickname used by
Appellant and that the exhibits were from Appellant’s Facebook account. 5 At
4
We recently described Facebook as follows:
Facebook is a social networking site where “[u]sers of that Web
site may post items on their Facebook page that are accessible
to other users, including Facebook ‘friends’ who are notified
when new content is posted.” Elonis v. United States, –––
U.S. ––––, 135 S.Ct. 2001, 2004, 192 L.Ed.2d 1 (2015).
Nicolaou v. Martin, 153 A.3d 383, 387 n.2 (Pa. Super. 2016) (en banc).
Another exhibit was described as containing messages, or “tweets,” from
Appellant’s Twitter account. See generally Nixon v. Hardin Cty. Bd. of
Educ., 988 F. Supp. 2d 826, 830 n.1 (W.D. Tenn. 2013) (describing the
Twitter social media service). Although the Twitter messages were the
subjects of disputes in the trial court, Appellant’s brief does not discuss
them, and we therefore will not address them here.
5
Apart from the fact that the Facebook pages showed a number of images
of Appellant, the Commonwealth relied on the fact that, after Appellant’s
arrest, Appellant’s brother, Daryl Bishop, tweeted, “Free tookey” and “Free
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trial, Appellant challenged the authenticity of the Facebook messages, but he
has abandoned those arguments on appeal and does not contend in this
Court that the Facebook account of “Traplife Took” was not his.
The Facebook messages, including those at Exhibits C-37/36 to C-
39/38,6 contained a number of photographs of Appellant, including one
showing him a few blocks from the location of the shooting. Exhibit C-41/40
contained a message stating: “Neighborhood dangerous,, whole lotta
shootas,,,, had to keep a Mac n I ain’t talkin bout computers,,” (punctuation
in original). Exhibit C-42/41 stated, “Gotta 40 n a 9 at da SAME DAMN
TIME. . #TEAM BIZZY. . I’m on ma militant shit . . .” (capitalization and
punctuation in original). Exhibit C-43/42 stated: “Death before dishonor,,,,
don’t even bother.. Take me back to prison I don’t kno shit, ya honor.....
#snitches get stitches. . . N I don’t like stitches” (punctuation in original).
The posting dates of the messages were in May or June of 2012 (about 1½
years before the shooting of Silver).
On December 12, 2014, Appellant filed a pre-trial motion in limine to
prohibit the introduction of any social media evidence, arguing that
Appellant’s “social media accounts are irrelevant and inadmissible.” Mot. in
took,” which the Commonwealth contended was proof that “Took” was
Appellant’s nickname. N.T., 12/18/14, at 108; Ex. C-48, C-51 & C-52.
6
The number before the slash is the exhibit number in the original discovery
packet; the number after the slash is the exhibit number at trial. For
example, Exhibit C-37/36 was Exhibit C-37 in the discovery packet but
Exhibit C-36 at trial.
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Limine, 12/12/14, at 3 ¶ 7.4. Appellant stated that “[t]he entirety of the
Facebook and Twitter posts are the equivalent of braggadocio and rap lyrics
— what Tipper Gore feared in the early 90s.” Id. at 4 ¶ 10.2.7 The trial
court denied the Motion in Limine and allowed the Commonwealth to
introduce the social media evidence at trial. Trial Ct. Op. at 9.
During trial, Silver testified that he saw Appellant follow him and heard
Appellant “yell something out.” Trial Ct. Op. at 4; see also N.T., 12/17/14,
at 32-33. Throughout his testimony, Silver identified Appellant as the
individual who shot him, and Silver’s testimony was corroborated by a
surveillance video that recorded a portion of the incident. Ex. C-5; N.T.,
12/17/14, at 35; Trial Ct. Op. at 4-5, 8. During his testimony, Silver
identified himself in the video. Also during the trial, Appellant stipulated that
he had a prior felony conviction that made it unlawful for him to possess a
firearm and that he did not have a license to carry a firearm. Ex. C-24;
N.T., 12/14/14, at 84; N.T., 12/22/14, at 14.8
7
Appellant also argued that the social media evidence should be excluded
under Evidence Rule 404 (relating to character evidence). Mot. in Limine, at
4 ¶ 11. Appellant has abandoned that challenge on appeal.
8
The notes of testimony from December 22, 2014, are mislabeled as
“November 22, 2014.” For clarity, this Court will refer to this volume by the
date the proceedings actually occurred and not by the date indicated on the
cover page.
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On December 22, 2014, a jury found Appellant not guilty of attempted
murder9 and guilty of the remaining charges enumerated above. On
March 9, 2015, Appellant was sentenced to an aggregate term of eighteen to
thirty-six years’ incarceration.
On March 18, 2015, Appellant filed a motion for reconsideration of his
sentence, which the trial court denied on July 17, 2015. On July 27, 2015,
Appellant filed a notice of appeal to this Court. Appellant’s appeal raises two
issues for our review:
1. Was there insufficient evidence to convict [A]ppellant of
the offenses of Aggravated Assault, Violation of the Uniform
Firearms Act §§6105, 6106, & 6108, and Possession of an
Instrument of Crime due to conflicting testimony and a lack of
physical evidence, such th[at] he should be granted a new trial?
2. Did the trial court err in allowing the introduction of
[A]ppellant’s social media posts belonging [sic] where the posts
were irrelevant to the charges at issue, and where the probative
value of the accounts were outweighed by the prejudice to the
[A]ppellant under Pa.R.E. 403, such that he should be granted a
new trial?
Appellant’s Brief at 4.
Sufficiency of the Evidence
Appellant first contends that “the evidence presented at trial was
insufficient to sustain a verdict of guilt[y] because responding Temple Police
Officer Robert Acosta’s testimony established that [Appellant] was not
9
18 Pa.C.S. § 901(a).
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identified on the scene of the shooting on November 9, 2013 and no physical
evidence linked Appellant to the shooting.” Appellant’s Brief at 13.10
We have explained:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt.... When reviewing a sufficiency claim the
court is required to view the evidence in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
As a reviewing court, we [may] not weigh the evidence or
substitute our judgment for that of the fact-finder, who is free to
believe all, part, or none of the evidence.
Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa. Super. 2017)
(citations omitted).
Here, Officer Acosta’s testimony is irrelevant in determining the
shooter’s identity because Silver himself identified Appellant as the shooter,
with video evidence corroborating this identification. Trial Ct. Op. at 4-5
(citing Ex. C-5). This Court cannot substitute its own judgment for that of
the fact-finder and thus cannot consider Officer Acosta’s failure to identify
Appellant of greater evidentiary value than the identification by Silver and
10
Although Appellant generally challenged the sufficiency of the evidence for
all of his convictions under Pa.R.A.P. 1925(b), at 1 ¶ 1, Appellant did not
specify in his Statement that his sufficiency challenge was based upon
Officer Acosta’s testimony or the alleged lack of physical evidence. Thus,
the trial court did not explicitly address Officer Acosta’s testimony and the
asserted absence of physical evidence in its opinion of June 6, 2016. See
Trial Ct. Op. at 4-7.
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the supporting video. See Chambers, 157 A.3d at 512; see also N.T.,
12/18/14, at 34; Trial Ct. Op. at 4-5 (citing Ex. C-5). The jury was “free to
believe all, part, or none of the evidence,” placing whatever value it
considered appropriate on Silver’s and Officer Acosta’s testimony and on the
video evidence. Chambers, 157 A.3d at 512. We cannot say that the jury
should have interpreted the evidence presented at trial in the way that
Appellant wishes. Rather, we must view the evidence “in the light most
favorable to the verdict winner,” id., which means that we must look to the
evidence identifying Appellant, rather than to that regarding Officer Acosta’s
inability to state with certainty that he saw Appellant. See also N.T.,
12/18/14, at 34; Trial Ct. Op. at 4-5 (citing Ex. C-5). We note that Officer
Acosta never identified anyone else as the person in the open door. N.T.,
12/18/14, at 29-30, 34.
Furthermore, Appellant’s general assertion that there was no physical
evidence connecting him to the crimes is undermined by the video
corroborating Silver’s testimony. Ex. C-5. See Commonwealth v.
McKellick, 24 A.3d 982, 987 (Pa. Super.) (referring to a “video tape” as
“demonstrative or physical evidence”), appeal denied, 34 A.3d 828 (Pa.
2011); Commonwealth v. Conway, 534 A.2d 541, 544 n.3 (Pa. Super.
1987) (same), appeal denied, 549 A.2d 914 (Pa. 1988). Appellant argues
that, “[t]hrough the course of [this] investigation, no firearm was ever
recovered and no gunshot residue testing was ever performed on clothing
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recovered from [Appellant]’s home.” Appellant’s Brief at 21. However, it is
the “totality of the circumstances” that is “determinative, not the presence
or absence of any particular piece of evidence.” Commonwealth v.
Harper, 611 A.2d 1211, 1217 (Pa. Super. 1992). Thus, the absence of a
recovered firearm or ballistics evidence does not make the evidence on
which Appellant’s guilt was based insufficient. See id. The jurors found the
evidence presented to be sufficient, and we will not substitute our judgment
for theirs. See Chambers, 157 A.3d at 512.
Appellant’s Social Media Postings
Appellant’s remaining issue is that the trial court abused its discretion
in admitting evidence of his social media postings.
The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation
marks and citations omitted), cert. denied, 137 S. Ct. 92 (2016).
Appellant first argues that the social media postings were not relevant,
that the trial court abused its discretion in admitting them, and that he
“suffered actual harm via unfair prejudice.” Appellant’s Brief at 25, 28. The
Commonwealth counters that “the evidence recovered from [Appellant’s]
social media accounts . . . was highly relevant as it went to [his] access to
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weapons, presence in the area of the crime, and consciousness of guilt.”
Commonwealth’s Brief at 13. The trial court stated:
“Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less
probable, or supports a reasonable inference or presumption
regarding the existence of a material fact.” Commonwealth v.
Antidormi, 84 A.3d 736, 750 (Pa. Super. 2014). In the case at
hand, the Facebook posts were relevant since they were
demonstrative of guilt. In these posts, Appellant indicates that
he is in possession of a firearm, stating: “neighborhood is
dangerous, whole lotta shooters, had to keep a Mac, and I ain’t
talking about computers” and “got a 40 and a nine at the same
damn time.” Appellant additionally posted the following: “Death
before dishonor. Don’t even bother. Take me back to prison. I
don’t know shit, Your Honor #snitches get stiches and I don’t
like stitches." This post tends to support the assertion that
Appellant had others call, text, and write letters to the witness
with the intent to intimidate. It clearly shows Appellant’s views
on snitches. This assertion was further authenticated by a letter
admitted into evidence as Commonwealth Exhibit C-30, which
was delivered to Kyrie Silver’s home and urged the complainant
to not identify the Appellant.
Trial Ct. Op. at 10-11 (footnotes omitted). We conclude that the trial court
did not err in holding that the proffered social media postings were relevant.
Under the Rules of Evidence, “All relevant evidence is admissible,
except as otherwise provided by law. Evidence that is not relevant is not
admissible.” Pa.R.E. 402. “Evidence is relevant if: (a) it has any tendency
to make a fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Pa.R.E. 401.
“[T]he threshold for relevance is low due to the liberal ‘any tendency’
prerequisite.” Brady v. Urbas, 111 A.3d 1155, 1162 (Pa. 2015) (emphasis
in original; citing Pa.R.E. 401).
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In Commonwealth v. Patterson, 91 A.3d 55, 74 (Pa. 2014), cert.
denied, 135 S. Ct. 1400 (2015), Patterson sent a letter to two friends that
included a lyric from a song entitled “Homeboyz” by Tupac Shakur: “When I
give the word tear that ass out of that frame.” Five days later, one of the
friends fatally shot another man. Id. at 61. The Commonwealth introduced
the letter as evidence that Patterson’s inclusion of the lyric in his letter pre-
dating the murder was a request to his friend to kill the victim. Id. at 74.
Appellant objected, arguing in part that the song lyric found in his letter was
not relevant. Id. at 75. The trial court allowed its admission, and the
Supreme Court of Pennsylvania found no merit to Patterson’s argument on
appeal. Id. The Supreme Court stated that Patterson’s claims went “to the
weight of the evidence, and a witness’s credibility is for the finder of fact”;
“it was for the jury to determine whether they believed Appellant” regarding
his use of the lyric; and “to the extent Appellant contends that his cross-
examination regarding the lyrics was ‘highly prejudicial,’ . . . most relevant
evidence is, in fact, prejudicial.” Id. at 75-76.
In Commonwealth v. Ragan, 645 A.2d 811, 820 (Pa. 1994), lyrics to
a rap song recorded by Ragan’s musical group were held to have been
properly admitted, because the lyrics were introduced in response to
testimony on direct examination in which the appellant had portrayed
himself as a college student and artist. The Supreme Court stated, “fruits of
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appellant’s artistic leanings were clearly relevant to rebut this testimony.”
Id.For similar reasons, the social media evidence at issue here was
relevant. First, because Appellant was on trial for firearms violations, his
ownership of guns and his statements about access to guns were relevant to
the Commonwealth’s case. See Pa.R.E. 401-402. The Commonwealth
presented evidence by James Stinsman, an assistant district attorney with
experience in the Gun Violence Task Force, that the postings’ references to
keeping a “Mac” and having a “40 [and] a 9” pertained to possession of
handguns. N.T., 12/18/14, at 103-04. In addition, Appellant’s postings
were admissible to rebut any argument that Appellant had not obtained a
firearm until after the date of the shooting. See Ragan, 645 A.2d at 820.
The postings also were evidence that Appellant may have sought to
intimidate Silver from testifying — evidence that is relevant to show
consciousness of guilt. See Commonwealth v. Rega, 933 A.2d 997, 1009
(Pa. 2007), cert. denied, 552 U.S. 1316 (2008). The Commonwealth
submitted evidence of possible intimidation, including the letter that Silver
received at his home prior to trial.11 Appellant’s Facebook posting
expressing his view about the adverse consequences of being a “snitch”
11
Appellant does not challenge the admissibility of that letter or other
evidence of possible intimidation in his appeal.
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supported the contention that Appellant might wish to deter Silver from
being a witness against him.
Appellant also argues that the social media postings were more
prejudicial than probative. Appellant’s Brief at 25, 28-31. In this
connection, he emphasizes that the postings were rap lyrics, a form of
artistic expression, and posits that, if “[A]ppellant had posted to his
Facebook wall, ‘I shot a man in Reno, just to watch him die’ the trial court
would not have considered those lyrics to have been probative of the fact
that [A]ppellant had a gun and he shot someone.” Id. at 28-30.12
Appellant recognizes that the mere fact the postings may be song lyrics does
not make them inadmissible, and he acknowledges that we held rap lyrics
admissible in Commonwealth v. Talbert, 129 A.3d 536 (Pa. Super. 2015),
appeal denied, 138 A.3d 4 (Pa. 2016).13 But he claims that, unlike the
12
Appellant’s reference is to a famous lyric in “Folsom Prison Blues” by
Johnny Cash. See John R. Cash, Folsom Prison Blues (Sun Records 1955).
13
In Talbert, 129 A.3d at 538, 540, the appellant asserted “that the trial
court erred in admitting as evidence a rap music video [that appellant had
uploaded to YouTube approximately a month after the crime] that allegedly
contained lyrics describing a crime similar to the murders at issue in this
case.” The Commonwealth proffered the appellant’s rap lyrics to corroborate
his role as one of the shooters. Id. at 544. The appellant “suggest[ed] that
there were inconsistencies between the facts of the crime and the common
slang meaning of the words in the rap song” that should preclude their
admissibility. Id. at 541. This Court disagreed, concluding that any
inconsistencies were “not enough to change the overall meaning of the rap
lyrics.” Id. at 541. We asserted that the rap video was relevant and
admissible to show the appellant’s involvement in the murders, “despite the
potentially prejudicial impact of artistic works.” Id. at 542.
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lyrics in Talbert, the postings here were not original14 and did not show any
clear relation to the events of the crime. He also contends that “the trial
court either glosses over or ignores the fact that [A]ppellant posted a rap
artist’s lyrics to his Facebook wall nearly 18 months before . . . the events
in this case.” Appellant’s Brief at 28 (emphasis in original).
“The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403. “Evidence is not
unfairly prejudicial simply because it is harmful to the defendant’s case.
Rather, exclusion of evidence on this ground is limited to evidence so
prejudicial that it would inflame the jury to make a decision based upon
something other than the legal propositions relevant to the case.”
Commonwealth v. Foley, 38 A.3d 882, 891 (Pa. Super. 2012) (internal
quotation marks and citation omitted), appeal denied, 60 A.3d 535 (Pa.
2013).
Here, the trial court concluded that Appellant’s postings “credited the
assertions that Appellant owned a firearm, and that he supported witness
14
In his brief, Appellant contends (without a citation to the record) that he
presented evidence that the postings were from lyrics by a local Philadelphia
rapper named “Oschino.” Appellant’s Brief at 27. Our review of the record
reveals only that Appellant asked a Commonwealth witness whether the
postings were lyrics from another artist and the witness responded that he
did not know. N.T., 12/18/14, at 111-12.
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intimidation tactics.” Trial Ct. Op. at 12. Appellant disagreed with the these
interpretations, but the fact that this evidence could be interpreted
differently by the jury does not mean it was inadmissible.
In Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003), cert.
denied, 543 U.S. 1008 (2004), the defendant, before his trial, approached a
witness and said, “[I]t’s kind of f____ed up when people’s families die.” 838
A.2d at 679 (letters omitted in original). The defendant argued that the
statement was not admissible, because “it [was] not clear that the
comments were intended as a threat.” Id. at 680. The Supreme Court of
Pennsylvania held that, regardless of whether the defendant’s words
constituted a threat, they were admissible because they were probative of
an intent to influence the witness’s testimony. Id. Similarly, in
Commonwealth v. Kramer, 371 A.2d 1008, 1011-12 (Pa. Super. 1977)
(en banc), the defendant wrote a letter to his wife stating, “[w]hen I get out
of here I am going to get a gun and you know what I am going to do”; the
letter was deemed admissible even though the defendant said he was
referring merely to hunting. We held that the true meaning of the statement
was within the province of the jury. Id. Thus, interpreting whether
Appellant’s postings actually mean that he owned a firearm or supported
witness intimidation was within the province of the jury. See id.The fact that the postings were made more than a year before the
shooting of Silver did not mean that the jury could not consider them. In
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Patterson, 91 A.3d at 75, the Supreme Court held that a writing by the
appellant that included a third party’s lyrics and that pre-dated the crime
was admissible and any concerns about its connection to the crime went “to
the weight of the evidence.” Analogously, here, the date of the postings
went to the weight of the evidence, not their admissibility. See
Commonwealth v. Hanible, 30 A.3d 426, 464 (Pa. 2011) (“the lack of
conclusive proof” to support an inference “went to the weight, rather than
admissibility, of the evidence”), cert. denied, 133 S. Ct. 835 (2013).
Finally, even if the admission of Appellant’s social media postings was
erroneous, the admission was harmless error.
The harmless error doctrine, as adopted in Pennsylvania, reflects
the reality that the accused is entitled to a fair trial, not a perfect
trial. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d
155 (1978). The proper analysis to be undertaken was
thoroughly explained in Story:
This Court has stated that an error may be harmless where
the properly admitted evidence of guilt is so overwhelming
and the prejudicial effect of the error is so insignificant by
comparison that it is clear beyond a reasonable doubt that
the error could not have contributed to the verdict. Under
this approach, a reviewing court first determines whether
the untainted evidence, considered independently of the
tainted evidence, overwhelmingly establishes the
defendant’s guilt. If “honest, fair minded jurors might very
well have brought in not guilty verdicts,” an error cannot
be harmless on the basis of overwhelming evidence. Once
the court determines that the evidence of guilt is
overwhelming, it then decides if the error was so
insignificant by comparison that it could not have
contributed to the verdict.
We have cautioned that:
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“a conclusion that the properly admitted evidence is
‘so overwhelming’ and the prejudicial effect of the....
error is ‘so insignificant’ by comparison, that it is
clear beyond a reasonable doubt that the error is
harmless, is not to be arrived at lightly.”
Accordingly, we have been reluctant to find an error
harmless on the basis of overwhelming evidence.
Id. at 412–413, 383 A.2d at 166 [footnote omitted; citations
omitted].
Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994).
Here, the Commonwealth’s key witness was the victim himself, who
identified Appellant as the individual with whom he had an altercation and
who shot him. Ex. C-5; N.T., 12/17/14, at 35; Trial Ct. Op. at 4-5, 8.
Surveillance video recorded part of the incident. When Appellant’s home
was searched, police found clothing identical to what Silver said Appellant
was wearing on the night of the shooting. N.T., 12/17/14, at 37; N.T.,
12/18/14, at 147-49. The Commonwealth also introduced transcripts of
recordings by Appellant encouraging family and friends to prevent Silver
from testifying. Exs. C-32, C-34; N.T., 12/19/14, at 21-27. The properly
admitted evidence of guilt thus was overwhelming, and the prejudicial effect
of any error was insignificant by comparison. See Rasheed, 640 A.2d at
898. Hence, it is clear beyond a reasonable doubt that any error arising
from the admission of Appellant’s social media postings during trial could not
have contributed to the verdict and thus was harmless. See id.
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J-S23023-17
For all of these reasons, we conclude that Appellant’s challenge to the
social media postings is without merit. Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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