Com. v. Valle, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MELVIN VALLE,
Appellant No. 143 EDA 2014
Appeal from the Judgment of Sentence December 12, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0015039-2012
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 24, 2015
Appellant, Melvin Valle, appeals from the judgment of sentence
entered after his jury conviction of one count of violating the Uniform
Firearms Act (VUFA), person not to possess a firearm, 18 Pa.C.S.A. § 6105.
Appellant challenges the admissibility of certain evidence. We affirm.
We derive the following recitation of facts from the trial court’s June
30, 2014 opinion:
[Appellant’s] case arose from observations made by two
Philadelphia Police Officers, while on patrol. Two Philadelphia
Police Department police officers, a firearms expert, and a
detective testified for the Commonwealth.
On November 19, 2012 at approximately 8:30 P.M.,
Philadelphia Police Officers James Wheeler (“Officer Wheeler”)
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*
Retired Senior Judge assigned to the Superior Court.
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and Matthew Hagy (“Officer Hagy”) were on patrol during an
overtime detail. In a marked police car and in full uniform
Officers Wheeler and Hagy were westbound on the 1200 block of
W. Chew Avenue. Officer Wheeler was the driver and Officer
Hagy was the recorder. Officer Hagy observed [Appellant]
walking westbound holding a gun in his right hand. Officer Hagy
said to Officer Wheeler: “. . . I think he has a gun.” Not
wanting to startle [Appellant], Officer Wheeler drove past while
he watched [Appellant] in the rearview mirror, transfer the
weapon from his right hand to this left, and conceal it under a
jacket he was carrying. Officer Hagy saw the transfer by looking
over his shoulder. The Officers began to make a U-turn and lost
sight of [Appellant] for a few seconds, as he walked into an
alleyway. Officer Wheeler drove back towards [Appellant] where
the Officers then exited the vehicle. [Appellant] was leaving the
alley with a jacket in his hand. [Appellant] dropped his jacket
and said: “I didn’t do anything wrong. I was just taking a piss in
the alley.” Officer Hagy grabbed [Appellant’s] arm, walked him
over to the patrol car and conducted a frisk. After [Appellant]
was secured in the back of the patrol car, Officer Wheeler went
into the alleyway and found the firearm in a trash can.
Before opening, the Commonwealth asked for mutual
sequestration. [Appellant’s] counsel agreed and asked that
Officer Wheeler not have any communication about the case with
Officer Hagy. Before testifying, Officer Hagy was given a case
file to review, in which he read prior testimony from Officer
Wheeler. [Appellant] moved for mistrial based upon a violation
of the Court’s sequestration order and, upon denial of that
motion, moved to bar Officer Hagy from testifying; that motion
was also denied.
Following a stipulation to his expertise, Philadelphia Police
Officer Lawrence Flagler (“Officer Flagler”) testified as a firearms
expert. On direct examination, Officer Flagler testified that he
examined the weapon and it was operable. On cross,
[Appellant] asked Officer Flagler how a firearm would be handled
if it were to be tested for fingerprints or DNA. On re-direct, after
objecting to the previous question, the [prosecution] asked
Officer Flagler what the chances were of recovering fingerprints
from the firearm, which then prompted [Appellant’s] objection.
Still on re-direct, Officer Flagler testified, based on his personal
experience as a police officer and not as an expert, that his
opinion of the viability of recovering fingerprints from the gun
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recovered in this case was based on periodicals he had read that
were written by examiners in the field. On re-cross, [Appellant]
asked Officer Flagler to identify the periodicals he had read and
then further questioned him about his reading and how it could
relate to the firearm recovered in this case.
Finally, there was a stipulation as to [Appellant’s]
conviction of a crime that made him a person prohibited under
law to carry a firearm.
(Trial Court Opinion, 6/30/14, at 2-4) (record citations and footnotes
omitted).
Officer Hagy’s testimony diverged from his original police report, which
stated that Officers Hagy and Wheeler exited the vehicle before Appellant
had left the alley. (See N.T. Trial, 10/17/13, at 26). Officer Hagy read the
earlier testimony in preparation for trial. (See id. at 4). He then noticed
the discrepancy between his report and Officer Wheeler’s testimony and so
informed the assistant district attorney he wished to change his testimony.
(See id. at 4-5). The assistant district attorney then informed the court and
Appellant’s counsel about the change. (See id. at 5-6). Counsel for
Appellant then made a motion to preclude Officer Hagy from testifying,
which the court denied. (See id. at 6-7, 12). The court allowed Officer
Hagy to testify, but gave a cautionary instruction to the jury. (See id. at
16, 55). “We want to go on record and make a note that the court takes
judicial notice that prior to yesterday Officer Hagy acknowledged making a
mistake in his paper work.” Id. at 55. Both the Commonwealth and the
defense agreed to the statement.
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On October 17, 2013, a jury convicted Appellant of one count of
VUFA, 18 Pa.C.S.A. § 6105, person not to possess a firearm, as previously
noted. On December 12, 2013, the court sentenced Appellant to a term of
not less than four to no more than eight years’ incarceration, plus two years’
probation, to run consecutively. Appellant timely appealed.1
Appellant raises two questions for our review:
1. Did not the trial court abuse its discretion in denying
[A]ppellant’s motion to preclude Officer Hagy from testifying at
trial due to his violation of the court’s sequestration order, where
just before testifying, the officer read the transcribed
suppression hearing testimony of Officer Wheeler, saw that it
conflicted with Officer Hagy’s own police report, and then told
the prosecutor that his report was mistaken and that he planned
to testify consistently with the testimony of Officer Wheeler, who
testified at trial the previous day?
2. Did not the trial court err and abuse its discretion in
permitting the Commonwealth to elicit from a firearms examiner
his opinion regarding fingerprint removal, as the witness
conceded he had no expertise in that field, and lay opinion
testimony on such a highly technical topic was not permitted
under the Pennsylvania Rules of Evidence and common law?
(Appellant’s Brief, at 3).
In Appellant’s first question, he claims that the trial court erred in
denying his motion to preclude by allowing Officer Hagy to testify after he
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1
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on April 22, 2014. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on June 30, 2014.
See Pa.R.A.P. 1925(a).
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reviewed Officer Wheeler’s prior testimony. (See id. at 3). Specifically, he
argues that this review violated the sequestration order and that the trial
court should have precluded Officer Hagy’s testimony. (See id. at 10-11).
We disagree.
Our standard of review for a challenge to the admissibility of evidence
is well settled:
It is well settled that the admission or rejection of [ ]
evidence is within the sound discretion of the trial court. An
abuse of discretion will not be found based on a mere error of
judgment, but rather exists 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. Davido, 106 A.3d 611, 645 (Pa. 2014) (citations and
quotation marks omitted).
We review the trial court’s decision whether to allow a witness, who
purportedly violated a sequestration order, to testify under the following
standard:
Once a sequestration order is in effect and a possible
violation is brought to the courts’ attention, the trial court must
determine, as a question of fact, whether there has been a
violation and, if so, the remedy required. In deciding whether to
allow a witness who violates a sequestration order to testify, the
trial court should consider the seriousness of the violation, its
impact on the testimony of the witness, the probable impact on
the outcome of the trial, whether the witness intentionally
disobeyed the order, and whether the party calling the witness
procured the disobedience.
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Commonwealth v. Schwartz, 615 A.2d 350, 357 (Pa. Super. 1992),
appeal denied, 629 A.2d 1379 (Pa. 1993) (citing Commonwealth v.
Stinnett, 514 A.2d 154 (Pa. Super. 1986).
Further, “[i]f a violation of a sequestration order is found, the remedy
is a matter left to the discretion of the trial court, and it is within the sound
discretion of the trial court whether to allow the witness to testify with
proper cautionary instruction.” Commonwealth v. Marinelli, 690 A.2d
203, 219 (Pa. 1997). The jury is “presumed to follow the court’s
instructions.” Commonwealth v. Naranjo, 53 A.3d 66, 71 (Pa. Super.
2012) (citation omitted).
Here, the trial court found that the violation was not serious because
the Commonwealth had already presented overwhelming evidence to convict
Appellant. (See Trial Ct. Op., at 7). The trial court found that the changed
portion of the testimony had no impact on the relevant part of the
Commonwealth’s case. (See id.). Rather, the change in testimony only
related to the position of the officers either in or out of the police car when
Appellant entered the alley. (See id.). Notably, the testimony that Officer
Hagy saw Appellant with a gun remained unchanged. (See N.T. Trial,
10/17/13, at 26). Officer Hagy did not discuss the trial with Officer Wheeler,
but instead only reviewed Officer Wheeler’s testimony from the preliminary
hearing or the hearing on the motion to suppress. (See Trial Ct. Op., at 6,
n.7). Additionally, the prosecution explicitly told Officer Hagy not to discuss
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the case with Officer Wheeler. (See N.T. Trial, 10/17/13, at 10). Moreover,
the court gave the jury an agreed on statement taking judicial notice of
Officer Hagy’s review. “[T]he jury took the violation of sequestration into
account when weighing Officer Hagy’s testimony.” (Trial Ct. Op., at 7).2
The court cautioned the jury to consider Officer Hagy’s review after
giving judicial notice of that fact. (See id.) The trial court reasoned that its
notice was, in effect, equivalent to a cautionary instruction, which made the
jury aware of Officer Hagy’s review and the inconsistency between his report
and Officer Wheeler’s testimony. (See N.T. Trial, 10/17/13, 52-55).
Notably, both defense and Commonwealth agreed to a statement of judicial
notice, which the trial court gave. (See id. at 53-54). Therefore, Appellant
has waived the issue. Additionally, we observe that even after considering
this information, the jury voted to convict.
On independent review, we conclude that the trial court properly
admitted Officer Hagy’s testimony with a statement to the jury, agreed on
by both parties. The statement sufficiently informed the jury of the
inconsistency between Officer Hagy’s written report and his trial testimony.
We discern no abuse of discretion. Admission of Officer Hagy’s testimony
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2
Although the trial court and defense counsel assumed a violation of the
sequestration order occurred. We conclude on independent review that the
record does not support that conclusion.
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was within the sound discretion of the trial court. See Davido, supra at
645. Appellant’s first claim is without merit.
In Appellant’s second question, he claims that the trial court erred in
admitting testimony by Officer Flagler regarding fingerprints. (See
Appellant’s Brief, at 3). Officer Flagler testified about the difficulty of
recovering fingerprints from a handgun based on knowledge from
periodicals. (See Trial Ct. Op. at 9-10). (See also N.T. Trial, 10/16/13, at
126-29). Appellant claims that allowing Officer Flagler’s testimony was
improper because he was not an expert on fingerprints and he was testifying
as a lay witness to a technical issue. (See Appellant’s Brief, at 20). We
disagree.
As already noted, we review a challenge to the admissibility of
evidence for abuse of discretion. See Davido, supra, at 645.
Pennsylvania Rule of Evidence 701 states:
If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are rationally based on the
perception of the witness, helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and
not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Pa.R.E. 701; see also Commonwealth v. Huggins, 68 A.3d 962, 967
(Pa. Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013), (“[T]he rules [of
evidence] do not preclude a single witness from testifying, or offering
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opinions, in the capacity as both a lay and an expert witness on matters that
may embrace the ultimate issues to be decided by the fact-finder.”).
Here, Officer Flagler testified about the methods used by the
Philadelphia Police Department to handle weapons that may have
fingerprints. (See N.T. Trial, 10/16/13, at 116-17). He further testified on
the difficulty of finding fingerprints on corroded guns, like the one in the
instant case. (See id. at 128).
Officer Flagler testified that he did not consider himself an expert in
fingerprints and DNA. (See id. at 126). He therefore testified on these
subjects as a lay witness, subject to Pa.R.E. 701. (See id. at 126-27); see
also Huggins, supra at 967. Officer Flagler repeatedly stated that he was
not an expert in either field. (See N.T. Trial 10/16/13, at 130). Moreover,
Officer Flagler’s specific testimony related to a firearm’s surface material and
texture, two topics of which he had undisputed expertise and technical
knowledge. (See id. at 128-29).
Further, if defense counsel opens the door to a line of questioning on
cross-examination, the trial court may permit the Commonwealth to
continue the line of questioning on re-direct examination. (Commonwealth
v. Smith, 17 A.3d 873, 914 (Pa. 2011).
Additionally, the trial court has discretion on the scope of
re-direct examination. The scope of redirect examination is
largely within the discretion of the trial court. An abuse of
discretion is not a mere error in judgment but, rather, involves
bias, ill will, partiality, prejudice, manifest unreasonableness, or
misapplication of law. Moreover, when a party raises an issue on
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cross-examination, it will be no abuse of discretion for the court
to permit re-direct on that issue in order to dispel any unfair
inferences.
Commonwealth v. Fransen, 42 A.3d 1100, 1117 (Pa. Super. 2012),
appeal denied, 76 A.3d 538 (Pa. 2013) (internal citations and quotation
marks omitted). Therefore, the court has discretion to present re-direct
examination to address evidentiary issues to which defense counsel by
cross-examination has already opened the door. (See Smith, supra, at
914).
In the instant case, counsel for Appellant, on cross-examination, asked
Officer Flagler about DNA and fingerprinting on firearms. (See N.T. Trial,
10/16/13, at 116-17). Specifically, Appellant’s counsel asked about the
procedures in place to detect fingerprints and DNA from a gun submitted as
evidence. (See id.). The prosecution objected to this line of questioning,
but the trial judge allowed it, and Appellant’s counsel continued to cross-
examine Officer Flagler. (See id. at 117). On re-direct, the prosecutor
asked Officer Flagler what the chances were of recovering fingerprints from
the firearm. He responded that in this case the chances were low. (See id.
at 124). After this answer, counsel for Appellant objected to the line of
questioning. The trial court overruled, and allowed Officer Flagler to answer.
(See id. at 124-25). The court concluded that Appellant’s counsel
introduced the subject of fingerprints when he questioned Officer Flagler
about DNA and fingerprints. (See id. at 125). On review, we conclude that
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trial court correctly determined that defense counsel opened the door to the
line of questioning on cross-examination. (See Smith, supra, at 914).
Upon review, we conclude that because Officer Flagler testified as a lay
witness, and because Appellant’s counsel opened the door to questioning,
the trial court did not err in allowing him to testify about fingerprints and
DNA. Appellant’s second claim is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
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