Com. v. Martin, N. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
NICHOLAS MARTIN :
:
Appellant :
: No. 1659 WDA 2015
Appeal from the Judgment of Sentence June 11, 2015
in the Court of Common Pleas of Elk County Criminal Division
at No(s): CP-24-CR-0000140-2013
BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 29, 2016
Appellant, Nicholas Martin, appeals from the judgment of sentence
entered in the Elk County Court of Common Pleas following a jury trial and
his convictions for murder in the first degree1 and abuse of corpse.2
Appellant challenges the admission of a prior “bad act” pursuant to Pa.R.E.
404(b). We affirm.
Appellant’s conviction arises from the killing of his former girlfriend,
Allyssa Forsyth (“Decedent”). Three days prior to the murder, Appellant hit
Decedent on the side of the face with her cell phone, spit on her, and said,
“Next fucking time I see you, I’ll kill you.” N.T. Trial, 3/26/15, at 45. In the
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 5510.
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early morning hours of March 23, 2013, Appellant stabbed Decedent one
hundred and twelve times in his apartment. After initially stabbing Decedent
with a screwdriver, Appellant stopped, went to the kitchen to get a knife,
and continued to stab Decedent until she was dead. N.T., 3/25/15, at 66.
He disposed of Decedent’s body in a steep wooded area known as Sandy
Beach. N.T., 3/27/15, at 90-91. After the murder, Appellant texted
Decedent’s mother using Decedent’s phone, to conceal the murder. Id. at
100-02. Appellant was ultimately arrested and charged with, inter alia,
criminal homicide. At trial, Appellant did not deny the killing, but claimed he
acted under the heat of passion or was voluntarily intoxicated. N.T.,
3/25/15, at 36-42. Both the Commonwealth and Appellant called expert
witnesses to opine on Appellant’s mental state at the time of the killing.
Jessie Pino, who was a mutual friend of Appellant and Decedent,
testified for the Commonwealth. He stated, in relevant part, that he and
Appellant were together from approximately 9:00 p.m. until 2:40 a.m.,
shortly before Appellant killed Decedent. Id. at 53-59. During that time,
the two men consumed an entire bottle of Courvoisier cognac while playing
“beer pong.” Id. at 56. Pino explained that Appellant had dropped him off
at his home, but had returned in the morning hours of March 23, 2013. At
that time, Appellant told Pino he had picked up Decedent from a bar, had
sex with her, and had subsequently killed her. Id. at 64-65. Appellant
provided Pino with graphic details of the killing. Id. at 64-67.
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The following exchanges occurred during Pino’s direct examination by
the Commonwealth:
[Commonwealth]. And what else -- you were playing beer
pong. Did you -- anything else happen that night?
* * *
A. As we were playing beer pong, [Appellant] was into
martial arts and judo, and I was a wrestler and also into
martial arts. As we were playing throughout the night, we
started to wrestle a little bit. He wanted to show me a
move, so I had locked up with him as --
[Appellant’s counsel]. Objection, Your Honor. If we could
approach?
* * *
(The following discussion was had at side-bar.)
[Appellant’s counsel]. Your Honor, I think I know where
this testimony is going. He’s going to testify that they got
down on the floor; [Appellant] grabbed him or wrestled
him to the floor and then tried to lick him. And I don’t
think that’s relevant. I think it’s prejudicial. I think it’s a
bad act that they’re trying to get in, and I don’t see how
it’s relevant.
[Commonwealth]. As far as I know, kissing or licking
another human being isn’t a crime unless it’s an indecent
assault. It’s indicative of his state of mind that night. It
also may be relevant in the psychiatric testimony later.
THE COURT: Could be. So I’m going to overrule the
objection and allow the question to be asked.
(End of discussion at side-bar.)
* * *
[Commonwealth]. . . . You said that you -- [Appellant]
and you were wrestling, and you locked up and -- what
happened?
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A. [Appellant] had taken me down to the ground, and I
was laying down flat on my back and he was on top of me.
He went into like almost kissing me. And when I turned
away, he licked my face and I got a rug burn on the side of
my head. And I had then said, Whoa, whoa, whoa.
And he said something about being drunk and he said,
Oh. My bad.
But I was very uncomfortable. That’s not something
that ever happened before, and -- it was uncomfortable for
me.
N.T., 3/25/15, at 56-58.
Pino subsequently referred to the nature of his encounter with
Appellant as “homosexual” during direct examination, Appellant’s cross-
examination, and the Commonwealth’s further direct examination, after
recalling him to testify. See N.T., 3/25/15, at 62 (indicating Pino told his
brother about the “homosexual encounter” after Appellant dropped Pino off
at home), 107 (responding to Appellant’s counsel’s questions regarding
whether Pino felt uneasy around Appellant by referring to the “homosexual
encounter”); N.T., 3/26/15, at 112 (interrupting the Commonwealth’s
question by referring to the “uncomfortable homosexual encounter”).
Appellant did not object to or move to strike Pino’s characterization of the
incident as a “homosexual encounter.”
Lastly, the Commonwealth, in its closing argument, stated Appellant
“made a pass at Jessie [Pino].” N.T., 3/30/15, at 64. Appellant did not
object to or move to strike this characterization. The Commonwealth
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essentially argued that Appellant had killed Decedent in a despondent rage
after Pino had rejected his advances and after Decedent began to leave him
on the early morning in question. Id. at 65.
The jury found Appellant guilty of first-degree murder and abuse of a
corpse. On June 11, 2015, the trial court sentenced Appellant to a term of
life imprisonment for murder and a concurrent term of one to two years’
imprisonment for abuse of a corpse. Appellant filed a timely post-sentence
motion challenging the admittance of Pino’s testimony regarding the
“homosexual encounter” and his lack of notice thereof pursuant to Rule
404(b).
In an October 13, 2015 order, the trial court denied Appellant’s motion
and issued a memorandum opinion in support thereof. The trial court
specifically found that the testimony in question was properly admitted
under Rule 404(b) because it was relevant as part of the sequence of events
on the night of the murder and because it was probative as to Appellant’s
state of mind and level of intoxication before the killing. Trial Ct. Op,
10/13/15, at 2-3. Further, the trial court determined that Pino’s references
to a homosexual encounter was not indicative of a “bad act” and was not so
prejudicial as to require a new trial. Id. at 3-4. Appellant filed a timely
notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement. The trial
court issued a responsive Rule 1925(a) opinion incorporating the reasoning
set forth in its memorandum opinion.
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Appellant raises the following issue on appeal:
Did the trial court abuse its discretion in allowing the
Commonwealth, during jury trial in this homicide case, to
introduce irrelevant and prejudicial testimony, through
Commonwealth witness, Mr. Jessie Pino, that [Appellant]
engaged in crimes, wrongs, or other acts in violation of
Pa.R.E. 404(b), requiring the grant of a new trial?
Appellant’s Brief at 4.3
Appellant argues that the trial court erred by admitting evidence of his
attempt to lick or kiss Jessie Pino because such evidence was not relevant to
his state of mind at the time of the murder and constituted a “bad act”
under Rule 404(b). Appellant contends that his state of mind hours before
the killing was not relevant because his defense focused on “the heat of
passion” based on something Decedent said immediately before the killing.
Further, Appellant claims that he did not have sufficient notice, as required
under Rule 404(b)(3), of the characterization of the incident as
3
On March 23, 2016, during the pendency of this appeal, Appellant filed a
pro se “Petition to Amend Direct Appeal Petition,” in the trial court.
Appellant, who was 22 years old at the time of the killing, sought relief
under Miller v. Alabama, 132 S. Ct. 2455 (2012). The petition was
forwarded to this Court, and this Court issued a Jette letter to Appellant’s
counsel. Counsel has not filed a petition on Appellant’s behalf.
It is axiomatic that “there is no constitutional right to hybrid
representation either at trial or on appeal.” Commonwealth v. Jette, 23
A.3d 1031, 1038 (Pa. 2001) (quoting Commonwealth v. Ellis, 626 A.2d
1137, 1139 (Pa. 1993)). Accordingly, because Appellant was represented by
counsel, Appellant’s pro se petition is a legal nullity for the purposes of this
appeal. See id.-6-
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“homosexual” and that such a label caused undue prejudice. We conclude
that any error in the admission of Pino’s testimony was harmless.
It is well settled that “[r]ulings on the admissibility of evidence are
within the discretion of the trial judge, and such rulings form no basis for a
grant of appellate relief absent an abuse of discretion.” Commonwealth v.
Powell, 956 A.2d 406, 419 (Pa. 2008) (citiation omitted). Further, “[a]n
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.” Commonwealth v. Weakley, 972
A.2d 1182, 1188-89 (Pa. Super. 2009). “[A]n appellate court may affirm a
valid judgment based on any reason appearing as of record, regardless of
whether it is raised by appellee.” Commonwealth v. Moore, 937 A.2d
1062, 1073 (Pa. 2007) (citations omitted).
Pennsylvania Rule of Evidence 404(b) provides, in relevant part:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this
evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.
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(3) Notice in a Criminal Case. In a criminal case the
prosecutor must provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such
evidence the prosecutor intends to introduce at trial.
Pa.R.E. 404(b)(1)-(3).
In the context of a Rule 404(b) analysis, we note:
While it is true that evidence of prior crimes and bad acts
is generally inadmissible if offered for the sole purpose of
demonstrating the defendant’s bad character or criminal
propensity, the same evidence may be admissible where
relevant for another purpose. Examples of other such
relevant purposes include showing the defendant’s motive
in committing the crime on trial, the absence of mistake or
accident, a common scheme or design, or to establish
identity. . . . [T]he evidence may also be admitted where
the acts were part of a chain or sequence of events that
formed the history of the case and were part of its natural
development. Of course, in addition to the relevance
requirement, any ruling on the admissibility of evidence is
subject to the probative value/prejudicial effect balancing
that attends evidentiary ruling.
Powell, 956 A.2d at 420 (citations omitted).
The Commonwealth must provide reasonable notice of the bad acts
evidence it intends to introduce. Pa.R.E. 404(b)(3); Commonwealth v.
Lynch, 57 A.3d 120, 125 (Pa. Super. 2012). However, “[t]here is no
requirement that the ‘notice’ must be formally given or be in writing in order
for the evidence to be admissible.” Id. at 126.
Further, we note that even erroneously admitted evidence of “bad
acts,” will not necessarily require a new trial:
Not all improper references to prior bad acts will mandate
a new trial, however. Mere passing reference to criminal
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activity will not require reversal unless the record indicates
that prejudice resulted from the reference. Harmless error
is present when 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.
Commonwealth v. Stafford, 749 A.2d 489, 496-97 (Pa. Super. 2000)
(internal citations omitted).
Significantly, “the harmless error doctrine, as adopted in Pennsylvania,
reflects the reality that the accused is entitled to a fair trial, not a perfect
trial.” Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (citations
omitted). Specifically:
Harmless error exists if the record demonstrates either:
(1) the error did not prejudice the defendant or the
prejudice was de minimis; or (2) the erroneously admitted
evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and
the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to
the verdict.
Id. at 671-72 (citations omitted).
In the case sub judice, even assuming the evidence that Appellant
attempted to kiss or lick Pino was admitted in error, we conclude that the
harmless error doctrine applies.4 See Hairston, 84 A.3d at 671. The
4
Although the Commonwealth did not present a specific harmless error
argument on appeal, this Court may consider such argument sua sponte as
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substantial evidence presented at trial established that Appellant threatened
to kill the Decedent three days prior to the murder. N.T., 3/26/15, at 45.
Appellant admitted stabbing Decedent over one hundred times with both a
screwdriver, and after a break in the violent act, a knife. N.T., 3/25/15, at
66. Thereafter, Appellant attempted to conceal the crime via impersonating
Decedent by texting Decedent’s mother with Decedent’s cell phone. N.T.,
3/27/15, at 100-02. Appellant also admitted disposing of Decedent’s body
in a remote area. Id. at 90-91. Given the substantial, properly admitted,
and uncontradicted evidence of Appellant’s guilt, it strains reason to
conclude that the admission of Pino’s characterization of his encounter with
Appellant as “homosexual” contributed to the verdict. See Hairston, 84
A.3d at 671. Accordingly, we decline to conclude that a new trial is
warranted because any error in the admission of the evidence in question
constituted harmless error. See Stafford, 749 A.2d at 496-97.
In addition, we conclude that Appellant’s argument that he did not
have sufficient notice of the Commonwealth’s intention to bring forth
evidence regarding the face licking/kissing incident is also without merit.
Appellant acknowledges that he did have evidence of the incident in general,
as evidenced by his objection prior to Pino’s testimony at trial, but avers that
he did not have sufficient evidence of Pino’s characterization of the incident
we may affirm a valid judgment based upon any reason appearing of record.
See Moore, 937 A.2d at 1073.
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as “homosexual.” Appellant’s Brief at 15. However, the Commonwealth
need only provide information regarding the general nature of the intended
testimony. See Lynch, 57 A.3d at 125. Here, Appellant had ample notice
of the general nature of Pino’s intended testimony, specifically regarding
Appellant’s attempt to kiss or lick Pino. N.T., 3/25/15, at 56-58. Therefore,
we decline to conclude that the trial court erred by determining that
Appellant had proper notice of Pino’s intended testimony. Thus, we affirm
Appellant’s judgment of sentence, albeit partially on other grounds. See
Moore, 937 A.2d at 1073.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2016
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