Com. v. McGriff, R. , 160 A.3d 863 ( 2017 )

J-A08037-17
2017 PA Super 118COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUDOLPH MCGRIFF :
:
Appellant : No. 9 EDA 2016
Appeal from the Judgment of Sentence July 1, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002445-2014
BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 21, 2017
Rudolph McGriff (hereinafter “Appellant”) appeals the judgment of
sentence entered in the Court of Common Pleas of Philadelphia County on
July 1, 2015, at which time he was sentenced to life imprisonment without
the possibility of parole following his conviction of first-degree murder along
with concurrent prison terms of two and one half (2 ½) years to five (5)
years for his related firearms convictions. We affirm.
Appellant was convicted of murdering his estranged girlfriend
(hereinafter “the victim”). As the trial court set forth a comprehensive
recitation of the facts developed at trial in its Pa.R.A.P. 1925(a) Opinion, we
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*
Former Justice specially assigned to the Superior Court.
J-A08037-17
will not duplicate it herein but, instead, adopt the trial court’s summary for
purposes of this appeal. See Trial Court Opinion, filed 4/5/16, at 2-48.1
On July 1, 2015, the jury found defendant guilty of First-Degree
Murder, Firearms not to be carried without a license, Carrying firearms on
public streets in Philadelphia, and Possessing instruments of crime, 2 and the
trial court sentenced Appellant to an aggregate term of life imprisonment.
N.T., 7/1/15, 9, 16-17. Appellant filed a post-sentence motion on July 6,
2015, and the trial court denied the same on December 1, 2015.
On December 22, 2015, Appellant filed a timely notice of appeal. On
January 12, 2016, the trial court ordered Appellant to file a concise
statement pursuant to Pa.R.A.P. 1925(b), and Appellant complied on
February 10, 2016. In his brief, Appellant presents the following Statement
of the Questions Involved:
1. Did the trial court abuse its discretion in permitting the
prosecutor to present evidence that [ ] Appellant had repeatedly
refused to come in to the police office and talk to the detectives who
were investigating the homicide in this case while at the same time
prohibiting the defense from presenting the testimony of [ ]
Appellant’s attorney, Anthony Petrone, Esquire, who had instructed [ ]
Appellant not to talk to the police?
2. Did the trial court abuse its discretion in refusing to permit the
defense to call witnesses to inform the jury that the victim may have
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1
We direct the parties to attach a copy of the trial court opinion in the event
of further proceedings in this matter.
2
18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a), respectively.
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been slain in response to her participation in a scheme of armed
robberies at that location?
Brief for Appellant at 3.
Appellant’s first issue as it is developed in his appellate brief requires a
threefold analysis. Appellant first asserts the trial court denied him his
federal and state constitutional rights to due process and a fair trial when it
erroneously permitted the prosecution to elicit repeatedly that Appellant had
failed to meet with detectives of the Philadelphia Police Department
Homicide Unit.
Before we address the merits of this portion of Appellant's initial claim,
we first must determine whether Appellant properly has preserved the issue
for our consideration, for it is well-settled that a party must make a timely
and specific objection at trial, and the failure to do so results in waiver of
that issue on appeal. Pa.R.A.P. 302(a); see also Commonwealth v.
Montalvo, 641 A.2d 1176, 1184 (Pa.Super. 1994) (citation omitted) (to
preserve an issue for review, a party must make a timely and specific
objection at trial, for this Court will not consider claim on appeal not called
to trial court’s attention at a time purported error could have been
corrected).
Pa.R.E. 103 addresses rulings on evidence and requires a
contemporaneous objection in order to preserve a claim of error in the
admission of evidence. The Rule reads in relevant part as follows:
(a) Preserving a Claim of Error. A party may claim error in
a ruling to admit or exclude evidence only:
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(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion in
limine; and
(B) states the specific ground, unless it was apparent from
the context. . . .
Pa.R.E. 103(a). “Consistent with ... Pa.R.E. 103(a), a motion in limine may
preserve an objection for appeal without any need to renew the objection at
trial, but only if the trial court clearly and definitively rules on the motion.”
Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa.Super. 2011) (citations
omitted), appeal denied, ___ Pa. ____, 49 A.3d 441 (2012). Once the trial
court enters a definitive ruling on the record, either prior to or during trial,
“a party need not renew an objection or offer of proof to preserve a claim of
error for appeal.” Pa.R.E. 103(b).
Prior to trial, a hearing was held before the trial court at which time
Appellant presented argument pertaining to his motion in limine “to preclude
statements and comments by the DA in opening and closing and in the
presentation of evidence that would in any way imply that [Appellant] is
guilty because of pre-arrest silence.” Defense counsel further explained
generally that “[t]he proffered testimony in this case is that the police asked
family members of the decedent to have [Appellant] contact them and give
them statements.”
Specifically, counsel referenced what the victim’s “brother” and “sister”
“might” say, and anticipated the Commonwealth would argue “that his
failure to go to the police is an implication of guilt.” N.T., 6/17/15, at 5, 8-9.
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Notably, defense counsel later clarified that while the Commonwealth “can
present the evidence,” it would be improper to argue this failure reflects a
consciousness of guilt. N.T., 6/17/15, at 17. Counsel further explained the
basis for his objection as follows:
[Defense Counsel]: I object to any statements by the
brother and sister, evidence that they asked him to go to the
police, and then any testimony from any police officer as to
whether or not he actually went to the police and any argument
that the fact that he didn’t go to the police is consciousness of
guilt because the police were the ones that asked the family to
tell him to come to them.
Id. at 20.
In response, the Commonwealth represented it would limit its
questioning of members of the victim’s family to their “voluntary
conversations” with Appellant to establish a course of conduct whereby
Appellant repeatedly lied to and concealed information from them. Id. at
12-17, 21-23. The Commonwealth maintained that such references would be
used not to establish Appellant had been hiding from police, but rather to
show the credibility of other statements he made in those conversations.
The Commonwealth further suggested that if the trial court and defense
counsel agreed, the trial court may provide a “cautionary instruction that
this evidence on this statement is coming in for the context of [the jury] to
determine the credibility of the other statements in that conversation.” N.T.,
6/17/15, at 20-23. Counsel did not object to the presentation of such
testimony for this limited purpose.
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Following a brief recess, the trial court reached the following
conclusion:
My view is basically that I agree with the Commonwealth in this
matter. I do not review it—I do not review it as a pre-arrest
silence situation. The conversations that will be testified to by
family members with [Appellant] on the day that the victim’s
body was found and for the period thereafter when they urged
him to go to speak to police, that doesn’t amount in my mind to
pre-arrest silence and so I will deny your motion.
Id. at 25. Once again, counsel did not object to the family members’
testimony for this specified, limited purpose.
In his brief, Appellant presents the following summary of the trial
testimony of three witnesses, Pricilla Jessie, the victim’s sister, Aiking Jessie,
the victim’s brother, and Naneke Green, the victim’s cousin:
At trial, Pricilla Jessie, the victim’s sister, testified for the
prosecution that after the homicide, she asked [] Appellant to
go and meet with the assigned detectives and that [ ] Appellant
said that he would, “but he never went” (N.T. 6/18/15, 122).
Aiking Jessie, the victim’s brother, testified for the prosecution
that he also asked [ ] Appellant to talk to the police on several
occasions after the mother of his sister, and [ ] Appellant said he
would do so (N.T. 6/18/15, 165, 166). Mr. Jessie testified that
when he subsequently asked [ ] Appellant again if he was going
to talk to the police, [] Appellant said that he would not (N.T.
6/18/15, 168). Finally, Neneke Green, the victim’s cousin,
testified for the prosecution that [ ] Appellant also told her that
he was going to talk to the detectives (N.T. 6/23/15, 147).
Brief for Appellant at 10.
Appellant maintains the Commonwealth was “repeatedly permitted
over defense objection” to present the aforementioned testimony.
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Appellant’s Brief at 8, 11. However, as stated previously, defense counsel
admitted the Commonwealth could present the evidence, so long as it did
not argue it established Appellant’s consciousness of guilt, and our review of
the certified record reflects that at no time did counsel place a specific
objection on the record following the testimony of any of the aforementioned
witnesses in this regard.
We conclude that, although he lodged an anticipatory objection prior to
the Commonwealth’s calling of the victim’s brother and sister to testify in
connection with his motion in limine, counsel failed to make a timely and
specific objection to their testimony on constitutional grounds at the time
that it was actually proffered. Moreover, counsel did not specifically
reference Ms. Green in his argument on June 17, 2015, at all and failed to
object following her trial testimony. Accordingly, we find Appellant has
waived for appellate review any constitutional challenge to the testimony. 3
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3
Even if Appellant properly had preserved this issue for review during trial,
his failure to conclude for “strategic reasons” that he did not wish the trial
court to provide an instruction stressing that Appellant had a right to remain
silent precludes his attempt to claim on appeal he had been prejudiced. See
Commonwealth v. Norman, 549 A.2d 981, 986 (Pa.Super. 1988) (en
banc) (“[w]hen counsel chooses to refuse appropriate curative instructions
for legitimate tactical reason, the defense may not plead prejudice on
appeal”). In addition, Appellant does not develop an argument in his
appellate brief with proper citation to authority as to how the statements of
family members impinged upon his constitutional right against self-
incrimination. Indeed, our Supreme Court has held otherwise. See
Commonwealth v. Dinicola, 581 Pa. 550, 563, 866 A.2d 329, 337 (2005)
(concluding a mere reference to a defendant’s pre-arrest silence does not
(Footnote Continued Next Page)
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However, Appellant did object prior to the Commonwealth’s calling of
Detective Edward Toliver to rebut counsel’s statement to another officer that
“Nobody cared enough to get a search warrant.” N.T., 6/24/15, at 8-9. The
Commonwealth indicated that while it had not intended to call Detective
Toliver to testify regarding the conversation Appellant had had with him on
April 7, 2013, it felt the need to question Detective Tolliver in response to
Appellant’s questioning of “a number of witnesses as to the [D]etective not
serving a search warrant on [Appellant’s] home and even went so far as to
say to Officer Flager, ‘nobody cared.’” N.T., 6/24/15, at 4.
As stated previously, our Supreme Court has held that “a mere
reference to pre-arrest silence does not constitute reversible error where the
prosecution does not exploit the defendant’s silence as a tacit admission of
guilt.” Commonwealth v. Adams, 628 Pa. 600, 601, 104 A.3d 511, 513
(2014) (Opinion Announcing the Judgment of the Court) citing
Commonwealth v. DiNicola, supra; Commonwealth v. Whitney, 708
A.2d 471, 478 (Pa. 1998).4 In doing so, the plurality in Adams stated that
_______________________
(Footnote Continued)
necessarily impinge constitutional rights when guilt is not implied and
“[e]ven explicit reference to silence is not reversible error where it occurs in
a context not likely to suggest to the jury that silence is the equivalent of a
tacit admission of guilt”). See id (citation omitted). As such, this claim is
also waived for lack of development. See Commonwealth v. Spotz, 610
Pa. 17, 157, 18 A.3d 244, 327 (2011).
4
Of the five justices deciding Adams, three agreed that the reference to
appellant's pre-arrest silence during the police investigation did not impinge
on the defendant's constitutional rights. Among the three was then-Chief
(Footnote Continued Next Page)
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“[w]hile we have interpreted the constitutional right against self-
incrimination generally to prohibit prosecutors from referencing a
defendant's silence as substantive evidence of guilt, this Court has also
concluded that the right against self-incrimination is not burdened when the
reference to silence is ‘circumspect’ and does not ‘create an inference of an
admission of guilt.’” Id., 628 Pa. at 609, 104 A.3d at 517 (citation omitted).
Moreover, our Supreme Court held in DiNicola, that the prosecution
could use a defendant's pre-arrest silence not only to impeach a defendant's
testimony but also as a fair response to defense arguments. Id. 581 Pa. at
562, 866 A.2d at 336, (finding that “[s]ince the trooper’s investigation was
obviously limited by [defendant’s] decision to reject the request for an
interview, we find that the Commonwealth’s elicitation of the trooper’s
testimony regarding this fact constituted fair response”). The admissibility of
testimony for purposes of fair response, where there is an appropriate
objection thereto, is subject to the trial court’s evaluation of probative value
versus prejudicial effect under Pa.R.A.P. 403. DiNicola, 581 Pa. at 561, 866
A.2d 336.
_______________________
(Footnote Continued)
Justice Ronald Castille, who, in concurrence, offered his view that reference
to pre-arrest silence would not violate a defendant's constitutional rights
“irrespective of whether the prosecution later exploited the reference.” See
Adams, 628 Pa. at 611, 104 A.3d at 518. (Castille, J., concurring)
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In support of its holding that its decision to permit the Commonwealth
to present evidence regarding Appellant’s failure to report to the Homicide
Unit for questioning did not disturb Appellant’s Fifth Amendment right
against self-incrimination, the trial court stated the following:
[O]n April 7, 2013, the day the decedent was killed,
Detective Tolliver spoke with [Appellant] on the phone and
explained to him that he was investigating the homicide and that
he would like to talk to [Appellant] as part of gathering
information. [Appellant], not a suspect at the time, promised
that he would come to Homicide to speak to the detectives
further. Almost immediately thereafter, [Appellant] reached out
to his counsel, Anthony Petrone, who advised him against
speaking to anyone. (N.T. Volume 1, 06/4/2015, p.10).
[Appellant], therefore, insists that he simply followed his
counsel’s advice, and that his Fifth Amendment rights were
violated when his non-reporting to Homicide was brought to light
through Detective Tolliver’s trial testimony.
This court finds that in the case at bar, Detective Tolliver’s
testimony offered a reasonable explanation as to why a search
warrant was not served on [Appellant] in an attempt to locate
the gun from which the shots were fired. As the Commonwealth
correctly noted, had a search warrant been served on
[Appellant], the latter would have interpreted this circumstance
as him [sic] being a suspect, which would have scared him away
from talking to the detectives.
[Detective Tolliver’s] testimony came in, clearly, to rebut
any allegations of … lazy detective work and the credibility
of Detective Tolliver, when he took the witness stand, as
the defense attacked Detective Tolliver’s credibility. Part
of the attack on his credibility was the lack of serving a
search warrant and the lack of his diligence. So it came in
for that purpose and not to pierce [Appellant’s] Fifth
Amendment right.
(N.T. Volume, 06/26/2015, pp. 9-10).
Furthermore, it was well known that [Appellant] had a lot
of properties, and it wouldn’t have been obvious which property
to search in the first place. The detectives were also aware that
it was easy to dispose of the gun “right away.” (N.T. Vollume
[sic] 1, 06/24/2015, pp. 7-8).
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Upon review of the record, this court is satisfied that the
evidence that [Appellant] did not follow through on his promise
to come to Homicide to speak to the detectives did not imply any
tacit admission of guilt by [Appellant] as it was introduced with a
sole purpose of demonstrating the nature and focus of the
investigation. Through his trial testimony, Detective Tolliver,
whose credibility was a “linchpin” in this case (N.T. Volume 1,
06/24/2015, p. 11), offered a fair response to counter any
defense allegations of his supposed lack of conscientiousness as
an investigator. The reference to [Appellant’s] non-showing up
at Homicide was circumspect and contextual; in no way did it
create an inference of [Appellant’s] consciousness of guilt. This
court, therefore, concludes that [Appellant’s] right against self-
incrimination was not disturbed. No relief is due.
Trial Court Opinion, filed 4/5/16, at 50-52. Upon our review of the record,
we find no abuse of the trial court’s discretion.
At numerous points throughout trial, Appellant criticized the police for
exhibiting apathy in their investigation and highlighted the alleged lack of
thoroughness they had showed in their failure to search his various
properties for evidence linking him to the murder. See e.g. N.T., 6/17/15 at
91-92; 6/18/15, at 82-85; 6/22/15, at 122-23; 6/23/15, at 174-75;
6/29/15, at 31-40, 44-45. It was in response to such criticism that the trial
court properly allowed Detective Tolliver’s testimony. See DiNicola, 581
Pa. at 561-62, 866 A.2d at 335-36 (Commonwealth may introduce evidence
of pre-arrest silence when defense’s examination of a witness challenges the
diligence of police investigation of its case).
In addition, the prosecutor indicated that he had inquired as to
whether Appellant wished to have the trial court provide a cautionary
instruction to the jury “about how to properly use the evidence of
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[Appellant] telling family members and Detective Tolliver that he would talk
to the police or go down to the Homicide Division and give a statement, then
never did.” The prosecutor explained he would not object to such a
cautionary instruction, although defense counsel stated that for “stragetic
reasons” he did not want the trial court to provide one. N.T., 6/29/15, at 4.
As such, Appellant has waived any claim of purported prejudice as a result of
Officer Tolliver’s testimony regarding Appellant’s pre-arrest silence for his
failure to request a curative instruction. See Commonwealth v. Williams,
532 Pa. 265, 277, 615 A.2d 716, 722 (1992) (finding trial court’s instruction
to jury not to draw any adverse inference from prosecutor’s comment upon
defendant’s post-arrest silence during closing argument sufficient to cure
any potential prejudice therefrom).
Appellant also posits the trial court abused its discretion when it ruled
that if he were to present testimony of his former counsel, Anthony Petrone,
to establish it was he who advised Appellant not to talk to the police, the
Commonwealth would be permitted to question counsel on cross-
examination regarding his representation of Appellant in prior criminal
homicide investigations. Brief for Appellant at 8-9, 12. Appellant stresses
that as a result of this ruling, Attorney Petrone was not called to testify.
A review of the record reveals Appellant mischaracterizes the trial
court’s decision in this regard, for nowhere did the trial court prohibit
Attorney Petrone from testifying; instead, the court indicated it would
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provide the prosecution “wide latitude” in its cross-examination of counsel.
N.T., 6/26/15, at 13-17. As the trial court pointed out, defense counsel
agreed with its observation that any direction Attorney Petrone may have
provided to Appellant not to speak with police did not necessarily mean that
was, in fact, the reason he did not do so. In addition, the trial court stressed
that Attorney Petrone’s testimony regarding his advice to Appellant “neither
rebuts the fact that [Appellant] lied to the decedent’s family nor rebuts the
reason Detective Tolliver did not serve a search warrant.” Trial Court
Opinion, filed 4/5/16, at 54 (footnote omitted).
As the Commonwealth asserts, the scope of cross-examination is
always a matter within the trial court’s discretion. Commonwealth’s Brief at
34 citing Commonwealth v. Dowling, 778 A.2d 683, 687 (Pa.Super.
2001). Appellant’s arguments pertain only to what prejudice he surmises he
“would have suffered” had Attorney Petrone testified. Brief for Appellant at
14. As such, he has failed to show, in fact, that his constitutional rights
were violated or that he was prejudiced, as the cross–examination never
occurred due to a strategic decision defense counsel made not to call
counsel on the stand:
[Defense Counsel]: And if Petrone does not testify, you’re
not going to argue in any form or imply or draw reasonable
inference that his not going to the police when he told Tolliver he
would is consciousness of guilt or a lie or anything else, because
that’s not why you introduced it?
[The Prosecutor]: That’s correct.
The Court: Okay. Then we’re on the same page?
[Defense Counsel]: I think we are.
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N.T., 6/26/15, at 16-17. In light of the foregoing, Appellant’s first issue lacks
merit.
In his second question presented, Appellant states the trial court
denied his federal and state constitutional rights to due process and a fair
trial when it prevented him from presenting testimonial evidence from Jamar
Nesmith and Rasheeda Rogers. Appellant maintains their testimony would
have established they, along with the victim, had been involved in a
prostitution conspiracy to rob drug dealers in the vicinity wherein the victim
was murdered. Although not specified in his Statement of Questions
Presented, Appellant further argues in his appellate brief that the trial court
abused its discretion when it excluded evidence that a BB gun had been
found in the decedent’s vehicle.
When considering challenges to the admissibility of evidence, we
employ a well-settled standard of review:
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. Witmayer, 144 A.3d 939, 949 (Pa.Super. 2016) citing
Commonwealth v. Woodard, ___ Pa. ____, 129 A.3d 480, 494 (2015).
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Initially, we note that while Appellant frames his argument pertaining
to this issue in terms of the denial of his constitutional rights in his appellate
brief, he did not present a constitutional challenge before the trial court
either at the time of trial or in his Rule 1925(b) statement. It is well-
established that “[a] party complaining, on appeal, of the admission of
evidence in the court below will be confined to the specific objection there
made.” Commonwealth v. Cousar, 593 Pa. 204, 231, 928 A.2d 1025,
1041 (2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2429, 171 L.Ed.2d 235(2008). If counsel states the grounds for an objection, then all other
unspecified grounds are waived and cannot be raised for the first time on
appeal. Commonwealth v. Arroyo, 555 Pa. 125, 142, 723 A.2d 162, 170
(1999); thus, Appellant has waived this claim for his failure to properly raise
it below. See N.T., 6/17/15, at 32-36, 39-46; 6/23/15, at 180-81;
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Dowling, supra at 686(finding appellant waived claim on appeal where he presented one theory in
his Rule 1925(b) statement and a different one in his appellate brief).
In addition, to the extent Appellant generally asserts the trial court
abused its discretion in excluding the testimony of Mr. Nesmith and Ms.
Rogers in his Rule 1925(b) statement and appellate brief, we find he waived
this challenge for his failure to raise a timely and specific objection with the
trial court.
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Prior to trial, the parties presented argument on the Commonwealth’s
motion to exclude the proposed testimony of Mr. Nesmith who had given a
statement to a defense investigator the prior week. Positing the statement
lacked proper foundation and was rife with hearsay, the Commonwealth
explained that if called to testify, Mr. Nesmith would state that he had
committed robberies with the victim in the past and that he received a call
from someone indicating there was “a hit” on her. The Commonwealth
elaborated that such evidence would be used to show there was another
reason why the victim would have been in the block of Bailey Street where
the murder occurred and that someone other than Appellant would have had
a motive to kill her. N.T., 6/17/15, at 30-31. The Commonwealth
highlighted that because there was no other evidence to corroborate Mr.
Nesmith’s statements that the victim had engaged in prior robberies, such
testimony would be improper under Pa.R.E. 404(b).5
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5
This rule reads, in relevant part, as follows:
(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.
(Footnote Continued Next Page)
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In response, Appellant averred such testimony went to the heart of his
defense in that Mr. Nesmith and Ms. Rogers knew the victim well and the
trio had engaged in dangerous activities as was proven by the victim’s
robbery conviction. N.T., 6/17/15, at 32-35. Appellant further related that
Mr. Nesmith had been shot at, proving he was the victim of a hit. Id. at 34.
Appellant admitted no one ever had been arrested for shooting of Mr.
Nesmith. Id. at 34-35. Following a brief recess, the trial court made the
following ruling:
THE COURT: I know the defense has explained to me that
defense reviews this as vitally important to the defense in this
case, and that may be, but the evidence lacks the proper
foundation. It’s speculative. And ultimately all it proves, even if
it’s true, is that it goes to character assassination of the
deceased. I’m going to grant Commonwealth’s motion to
preclude it.
Id. at 35.
Appellant did not object to the trial court’s decision at this juncture,
and the trial court proceeded to consider on the record a juror issue.
Thereafter, defense counsel indicated his investigator had just handed him a
Facebook page belonging to Ms. Rogers. Although he admitted that prior
thereto Ms. Rogers had denied any involvement in the murder, counsel
maintained that the innuendo contained in the Facebook post constituted a
_______________________
(Footnote Continued)
Pa.R.E. 404(b)(1), (2).
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clear and direct implication that Mr. Nesmith is “a rat.” Id. at 39-41.
Counsel added that as he was pondering the trial court’s ruling, he
remembered surveillance video of the area depicted another individual,
clearly not Appellant, wearing a gray hoodie and walking down Bailey Street
and returning about twenty-five minutes later not wearing the hoodie. Id.
at 41-43. Counsel posited it would be fair to present this evidence, to the
jury to establish another individual may have had a motive to commit the
murder. Id. at 42.
The Commonwealth retorted, inter alia, that the Facebook post was
not authenticated and its contents were vague. Id. at 44-45. The trial court
indicated that the document did not change its ruling, and Appellant, again,
did not place a timely and specific objection on the record. Id. at 46. As a
result, for the reasons set forth supra, Appellant has waived this issue for
appellate review.6
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6
Notwithstanding, even if Appellant had preserved his claim that Mr.
Nesmith and Ms. Rogers should have been permitted to testify, we would
conclude that it lacks merit because the trial court properly exercised its
discretion in granting the Commonwealth’s motion to exclude this proposed
testimony. Appellant claims that the testimony would have tended to show
the crimes of which Appellant was accused may have been committed by
someone else and that it was “crucial to the defense to be able to present a
basis for the jury to find that she may have been there for another purpose
and that she may have suffered harm as a result of her involvement in
previous criminal activity.” Brief for Appellant at 24-25. To the contrary,
the mere suggestion that someone else may have had a motive to commit a
crime does not constitute evidence. Commonwealth v. Foley, 38 A.3d
882, 887 (Pa.Super. 2012). Also, a review of the record reveals Appellant
(Footnote Continued Next Page)
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Finally, Appellant challenges the trial court’s ruling in response to the
Commonwealth’s motion in limine presented during trial asking the court to
preclude Appellant from introducing evidence that police had recovered a BB
gun from the victim’s car after her body was found. N.T., 6/23/15, at 177.
In doing so, Appellant maintains the fact that a BB gun was found in the
victim’s vehicle corroborates the proposed testimony of Mr. Nesmith which
would have suggested individuals in the vicinity other than Appellant could
have had contact with or a motive to harm the victim. While the trial court
indicated it would have permitted the admission of this evidence if Appellant
had asserted he acted in self-defense, it ultimately found it “less than
insignificant” and, therefore, inadmissible. N.T., 6/23/15, at 178-179. We
find the trial court did not abuse its discretion in excluding this proffered
_______________________
(Footnote Continued)
presented no extrinsic evidence at trial to corroborate the bald allegations
that the victim had been involved in prior robberies. As such, the trial court
properly determined the evidence lacked a proper foundation, was
speculative and, if it were admitted, “would undeniably go to character
assassination of the deceased.” Trial Court Opinion, filed 5/5/16, at 57.
The trial court also correctly determined that Ms. Rogers’ Facebook
post and the referenced videotape were inadmissible evidence. Hearsay is
an out-of-court statement offered for the truth of the matter asserted.
Pa.R.E. 801(c). Hearsay generally is inadmissible unless it falls within one of
the exceptions to the hearsay rule delineated in the Pennsylvania Rules of
Evidence. Commonwealth v. Savage, 2017 WL 900023, at *4 (Pa.Super.
Mar. 7, 2017). In this case, Appellant fails to argue or to point to any
exception to the hearsay rule under which either Ms. Rogers’ Facebook post
or the referenced videotape might fall.
- 19 -
J-A08037-17
evidence. Witmayer, supra. Appellant's second claim has no arguable
merit.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2017
- 20 -
Circulated 04/07/2017 03:04 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF CP- Sl-CR-0002445-2014
PENNSYLVANIA
vs.
RUDOLPH MCGRIFF
SUPERIOR COURT
FILED NO. 9 EDA 2016
APR - 5 2016
Criminal Appeals Unit OPINION
FirstJudicial Oistrict_of PA
GEROFF,J. APRIL 5, 2016
On July l , 2015, after a jury trial, the Defendant, Rudolph ("Ru»; "Rudy") McQriff, was
convicted of murder of the first degree, carrying a firearm without a license, carrying a firearm
on the public streets, and possessing an instrument of crime. Also on July I, 2015, this court
sentenced the Defendant to a mandatory term of life imprisorunent without parole on the murder-
of-the-first-degree charge. The Defendant also received concurrent sentences of two and one-
half (2 Yi) to five (5) years on the charge of carrying a firearm without a license, two and one-
half (2 Yi) to five (5) years on the charge of carrying a firearm on public streets, and two and one-
half (2 Yi) to five (5) years on the charge of possessing an instrument of crime. (N.T.
07/01/2015, pp. 8-9; 16-17).
At trial, Petitioner was represented by Richard DeSipio, Esquire. Burton A. Rose,
Esquire, was subsequently retained to represent the Defendant on appeal.
On December 23, 2015, the Defendant filed a Notice of Appeal. On January 12, 2016,
this court ordered counsel for the Defendant to file a Concise Statement of Matters Complained
of on Appeal pursuant to Pa.R.A.P. § 1925(b). On or about February 10, 2016, counsel for the
Defendant filed a § l 925(b) Statement.
In his Statement, the Defendant raises the following issues, verbatim:
I. The trial court abused its discretion in permitting the prosecutor to present evidence
that the Defendant had repeatedly declined to report to the Philadelphia Police
Homicide Unit for questioning and ruled that the defense would not be permitted to
present the testimony of attorney Anthony Petrone, Esquire who would have testified
that he instructed the Defendant, who was his client, not to talk to the Homicide Unit
detective which would have been crucial in countering the prosecutor's argument that
the Petitioner had refused to do so as proof of the· Defendant's consciousness ofgfriH;' ..
in this regard, the trial court abused its discretion in ruling that, if called to the stand,
Mr. Petrone could be questioned about the Defendant's previous criminal cases, thus
resulting in Mr. Petrone's not being called to testify.
2. The trial court abused its discretion in refusing to permit the defense to call witnesses
such as Jamar Nesmith, who resided at 3225 N. Bailey Street, and Rasheed[a]1
Rogers to testify that the slaying of victim may 'have been .a response to her
participation in a scheme with Nesmith and Rogers to commit armed robberies on
Bailey Street of drug dealers, along with evidence that a BB gun was found in the
victim's vehicle, to counter the Commonwealth's argument that the victim was slain
by the Defendant
Defendant's Statement of Errors To Be Complained of on Appeal, 02/10/2016, pp. 1-2.
THE EVIDENCE
The evidence adduced at trial established beyond reasonable doubt that in the early
morning hours of April 7, 201_3, the Defendant shot and killed Malisha Jessie (nicknamed Lai
Lai). The jury also found the evidence to be sufficient to support. the guilty verdict on the
I
Appellate counsel incorrectly identifies Rasheeda Rogers as Rasheed Rogers.
2
charges of carrying a firearm without a license, carrying a firearm on the public streets, and
possessing an instrument of crime.
Tlte Murder and Investigation
Erica Burton, a friend of the decedent, testified that on April 6, 2013, she and the
decedent met at about 5:00 pm and visited three different bars together. Burton stated that she
and the decedent did not have "a lot" to drink that night. (N.T. Volume 1, 06/17/2015, pp. 94-
97, 99).
Burton stated that at some point that evening, she received a phone call from her mother
who was in the same area; they met at Germantown Avenue and Bristol Street where the
: -, decedent's car was also parked at-about 2:05 am.: Burton got irt-the'car with her mother and they
drove home; the decedent drove behind them. (N.T. Volume 1, 06/17/2015, p. 99). Burton
expected the decedent to follow her toward Route 76; however, despite mentioning to Burton
that she was going home, the decedent did not follow her to the expressway. (N.T. Volume 1,
06/17/2015, pp. 100-101). Burton noticed that it was about 2:13 or 2:15 am. (N.T. Volume 1,
06/17/2015, p. 101). "[WJhen her car turned off, I looked in my rearview and said.v'Where's Lai
going," and I looked at the clock." (N.T. Volume 1, 06/17/2015, p. 101).
That morning, April 7, 2013, Burton received a phone call from the decedent's son,
Myzeh, who was looking for his mother. Soon thereafter, Burton was also contacted by the
decedent's grandmother who informed her that she had received a visit from police with regard
to "a girl with tattoos [who] had been shot in the head." (N.T. Volume 1, 06/17/2015, pp. 104-
05).
3
Immediately thereafter, Burton went to the decedent's house where she came in contact
with detectives. The detectives drove her to Homicide where she gave a statement. Burton
recognized the statement she gave to Detectives Edward Tolliver and Micah Spotwood on April
7, 2013 at 3:30 pm and confirmed that while at Homicide, she also identified a photograph of the
decedent which the detectives showed her. (N.T. Volume 1, 06/17/2015, pp. 105-08).
Lonnie Wilson testified that on Saturday, April 6, 2013, into Sunday morning, April 7,
2013, he was inside his home on the 3200 block of North Bailey Street in Philadelphia when he
was awakened by the sound of two gunshots at about 2:30 am.2 He did not call the police after
hearing those two gunshots; to his knowledge, no one did. He indicated that he did see the police
on the block at 8:30 or 9:00 am when he came out to walk his dog. (N.T. Volume 1,.06/17/2015,
. . 11"")
·p.. .., : . .. _..
- .... . ..• . ... . ·-· . . . . .. : . • • • • " ,. • •''•lo'I .:, ,. •• ~.,;._,_\
Wilson stated that he talked to a detective on location and that he also later gave a
statement to Detective Brian Peters. He recognized the statement bearing his signature. (N.T.
Volume 1, 06/17/2015, p. 115).
Under cross-examination, Wilson explained that at about 2:30 am, he heard a female very
loudly say, "No." (N.T. Volume 1, 06/17/2015, p. 116). Wilson estimated that the sound came
from about six houses away .. He explained that he did not call police because "sometimes it's a
common occurrence in the neighborhood if you hear gunshots. Nobody goes to the window.
Nobody goes to the door. You just don't call the cops. Usually a patrol car will come by after
hearing shots. But this particular night ... I didn't see any beacons." (N.T. Volume l,
06/17/2015, p. 117).
2
Wilson was confident about the time he heard the gunshots because he had a digital clock right by his bed. (N.T.
Volume I, 06/17nOI5, p. 114).
4
Crime Scene Investigator Ronald Sirianni testified that on April 7, 2013, he was called
upon to process a crime scene on the 3200 block of North Bailey Street with Police Officer Terry
Tull. (N.T. Volume l , 06/17/2015, pp. 123, 125). Investigator Sirianni explained that he
generated a report documenting his findings and that he collected certain items of physical
evidence from the scene and placed them on Philadelphia Police Department property receipts;
he also photographed the crime scene. (N.T. Volume l, 06/17/2015, p. 123).
Investigator Sirianni indicated that he and Officer Tull arrived at the scene· at 8:37 am and
remained on the scene until l 0:35 am. By the time they arrived at the scene, it had already been
secured by the police and the crime scene tape was in place. (N.T. Volume 1, 06/17/2015, p.
125).
. . ·-.. . ... - ~, :-:: .... For the benefit of the jury, Investigator Sirianni reviewed the photographs. taken on .
location noting that they fairly and accurately depicted the area as it appeared upon his arrival.on
location. (N.T. Volume 1, 06/17/2015, pp. 126-50).
Investigator Sirianni explained that the ballistics evidence collected from the scene and
marked by numbered placards contained three fired cartridge casings (FCCs), and two
projectiles. (N.T. Volume l, 06/17/2015, pp. 126-27, 133-34). The ballistics evidence was
packaged, numbered to correspond with the numbers on the placards, put on property receipts,
and then sent to the Ballistics Unit for further identification. (N.T. Volume I, 06/17/2015, pp.
133-34). Three FCCs and two projectiles were put on Property Receipt No. 9015154. (N.T.
Volume i, 06/17/2015, pp. 134-35).
Investigator Sirianni indicated that there was a lot of blood around the deceased. (N.T.
Volume 1, 06/17/2015, pp. 126-27). Property Receipt No. 9015155 contained a sample of the
decedent's blood. (N.T. Volume 1, 06/17/2015, pp. 135-36).
5
Myzeh Jessie-Ross, thirteen at the time of the trial and eleven at the time of the
decedent's death, stated that the decedent was his mother. (N.T. Volume 2, 06/18/2015, p. 12).
He acknowledged the Defendant's presence in the courtroom and stated that he was his mother's
boyfriend, "Ru." (N.T. Volume 2, 06/18/2015, p. 13). Myzeh noted that he lived with his
mother from age seven to age nine; that he subsequently lived with his grandmother, and that
starting in December 2012, when the decedent received visitation rights, he would spend
weekends with her. (N.T. Volume 2, 06/18/2015, pp. 13-14) .
.
Myzeh indicated that he was six years old when he first met the Defendant. He noted that
the Defendant was the decedent's boyfriend, though it was an on- and off-relationship, which
continued up until the time of the decedent's death. Myzeh stated that he had been to the
... .
Defendant'shomeoften when he lived With his mother and that that sometimes he would sperid
the night at his place. Myzeh also noted that he even helped the Defendant move to his duplex in
West Philadelphia. (N.T. Volume 2, 06/18/2015, pp. 15-17).
Myzeh explained that he knew that the Defendant had two phones and that he saw the
Defendant with his two phones when he went to the movies with him. (N.T. Volume 2,
06/18/2015, p. 18). He also acknowledged dialing the Defendant's telephone number at the
decedent's request multiple times when she was driving and said that he knew the Defendant's
telephone number by heart. (N.T. Volume 2, 06/18/2015, pp. 19-20).
Myzeh confirmed that the weekend she died, the decedent had visitation of him and that
he was going to be staying with her. On Friday, April 5th the decedent picked him up from
school and he stayed at her home (where his grandmother Mary also lived). (N.T. Volume 2,
06/18/2015, p. 21-22).
6
Myzeh was awakened that night by his mother's screaming; she was on the phone with
the Defendant (whom she called by name). (N.T. Volume 2, 06/18/2015, pp. 23-24). Myzeh
stated that he overheard the decedent tell the Defendant that she "should have busted the
windows out of his car and flattened his (car] tires when she saw ... their car out there the other
day." (N.T. Volume 2, 06/18/2015, p. 24). Myzeh also added, "She said he's mad that ... she
got his name covered up with a [tattoo of a) diamond on her finger and how he tnoved a girl into
a house." (N.T. Volume 2, 06/18/2015, pp. 25-26).
Myzeh also stated that on April 6, 20 IJ, he and the decedent attended a family gathering
at her cousin's place. (N.T. Volume 2, 06/18/2015, p. 28). He noted that on the way to the
cousin's place they went to Bailey Street and that he remembered that block because that was
·· where the· decedent "got killed on." (N.T. Volume 2, 06/1&/201 s·, p. 30) ... Myzeh 'stated that the
decedent parked her car at the corner across the street from a store. She then took her phone and
walked to the middle of the block and proceeded between the parked cars on the right side of the
street; Myzeh, who remained in the car, lost sight of her for a few minutes. (N.T. Volume 2,
06/18/2015, pp. 30-31). When the decedent came back to the car, she was on the phone. Myzeh
knew that the decedent was talking t
2013. On April 9, 2013, the decedent's siblings, Priscilla Jessie and Aiking Jessie came in and
provided statements. (N.T. Volume I, 06n4!2015, p. 24).
Detective Tolliver indicated that he received neighborhood surveys from Detectives
Peters and Glenn. He also noted that he and Detective Spotwood went back to the block
numerous times to canvass the neighborhood and to do their own surveys as well; they talked to
about a dozen people. (N.T. Volume I, 06!24nOI5, pp. 26-27).
On April 9, 2013, Detective Tolliver obtained a search warrant for the contents of the
decedent's cell phone and for the phone records. Detective Tolliver explained that the other two
search warrants
. were
. .for
. . cell phone
...
records of two target cell phone numbers associated with
Sprint and AT&T, respectively. Based on the information he obtained through executing those
search warrants, he then applied for other search warrants for additional phone numbers. Later in
April, Detective Tolliver received an extraction report for the phone's contents through the
Regional Computer Forensics Laboratory. (N.T. Volume 1, 06/24/2015, pp. 27-31).
On April 15, 2013, Detectives Tolliver and Spotwood met Eric Wallace, whom they
identified as a potential witness in the case. They knocked on his door, talked to him inside his
home, and secured his agreement to come to Homicide and talk to the detectives. (N.T. Volume
I, 06/24/2015, pp. 31-32).
Detective Tolliver noted that while Wallace informed them that he had cancer, he assured
the detectives that he would be fine without taking his medications with him. (N.T. Volume I,
06/24/2015, p. 35).
Wallace told the detectives that prior to hearing gunshots, he heard an argument between
a male and a female. He then went to the window and only saw a male who was walking off east
34
on Willard Street. Subsequently he said that he recognized the person; however, he was scared
and did not want to identify him. (N.T. Volume 1, 06/24/2015, pp. 36-37).
Detective Tolliver said that he and Wallace had lunch together and talked about a lot of
different things - life, family friends, and the neighborhood; after the interview was
memorialized, Wallace agreed to be videotaped and then left. (N.T. Volume l, 06/24/2015, pp.
37-40).
Detective Tolliver noted that Wallace identified the Defendant on a photo array of eight
males. Wallace explained to the detectives that he was introduced to the Defendant by his sister
Tina, who used to live two doors away from Wallace two years earlier. Detective Tolliver
indicated that at no point did Wallace say that he needed any medication or that he needed to
leave the interview room; Iie never refused to sign anything and willingly agreed to. be
videotaped. (N.T. Volume 1, 06/24/2015, pp. 46-47, 55).
Detective Tolliver confirmed that despite being subpoenaed to appear at the preliminary
hearing on December 18, 2013, Wallace never did so. Although Detectives Griffin and Centeno
were searching for him, they were unable to locate him. (N.T. Volume 1, 06/24/2015, p. 57).
Detective Tolliver also noted that on February 25, 2014, Detective Centeno picked up
· Wallace and brought him to court for a preliminary hearing. Prior to taking the witness stand
that morning, Wallace told Detective Tolliver that "people don't want him to testify." Detective
Tolliver offered to move Wallace if he felt that he was in any danger but Wallace never took
advantage of those offers. Detective Tolliver noted that Wallace told him that he was threatened
but he never mentioned who had threatened him. (N.T. Volume 1, 06/24/2015, pp. 57-58).
Detective Tolliver confirmed that he had applied for multiple search warrants to access
cell phone records for the decedent's iphone and for other target phone numbers associated with
35
this .. case. . He acknowledged that he received the Regional Computer Forensic Laboratory
(RCFL) extraction reportfor the decedent's phone and looked through the contents of the phone,
and that he also looked at the messages from the phones belonging to the Defendant; he noted
the abundance oftext messages. (N.T. Volume I, 06/24/2015, pp. 63-65; 67-72).
Detective Tolliver also confirmed that he looked at each frame of a surveillance video
from a store on the corner of Bailey Street and Allegheny A venue. The video from the afternoon
of Saturday, April 6, 2013, showed the decedent driving up on Bailey Street in her cat, parking
her car, getting out of the car, and walking north on Bailey Street while talking on a cell phone,
then coming back to the car and taking off. Approximately a half-hour later, the video showed
the Defendant walking south on Bailey Street, going inside the store, leaving the store, and
· proceeding to go east on Allegheny A venue. The cell phone records showed 'that 'starting at 4: l 3
pm, during the time period observed on the video, several phone calJs were made from the
decedent's cell phone to the Defendant's cell phone. (N.T. Volume 1, 06/24/2015, pp. 74, 77-79,
82-83).
For the benefit of the jury, Detective Tolliver went through the text messages exchanged
between the decedent and the Defendant over a period of time. (N.T. Volume 1, 06/24/2015, pp.
88-102; N.T. Volume 1, 06/25/2015, pp. 26-34, 37).
Detective Tolliver explained that as the next step of their investigation, he and Detective
Spotwood tracked down Femi Johnson, who was staying at the Defendant's place on North
Bailey Street. Unable to locate her at the residence, they found out where she worked; on May
29, 2013, Detectives Tolliver and Spotwood went to the school in Southwest Philadelphia where
Johnson was a teacher. (N.T. Volume l, 06/25/2015, p. 37).
36
When Detectives Tolliver and Spotwood explained the reason of their visit to Johnson,
she produced a business card of an attorney, Dennis Cogan (she explained that she had received
the card fromthe Defendant). (N.T. Volume l, 06/25/201'5, p. 40). The detectives told her that
she had the right to have an attorney but that they were "just investigating a homicide that
happened two doors away from [her] house" and wanted to talk to her .to find out if she knew
anything. (N.T. Volume l, 06/25/2015, p. 41).
Detective Tolliver stated that Johnson, who was never a suspect, agreed to go to
Homicide where they took an interview from her. (N.T. Volume l, 06/25/2015, pp. 41-42).
Detective Tolliver noted that Johnson was "very vague, very' evasive" when answering all of the
detectives' questions. (N.T. Volume l, 06/25/2015, p. 42). She confirmed that she was at home
at the time of the shooting and that she transported the Defendant's phones to the Defendant
early in the morning. (N.T. Volume l , 06/25/2015, p. 45);
Detective Tolliver also noted that guns can be disposed of easily and that in his
experience as a detective and police officer it was rare that guns could be retrieved after some
time had passed. After talking to his supervisors and his partner, they decided against serving a
search warrant at the North Bailey location: "[W]e felt like we would be tipping our hand a little
bit if we served a search warrant, especially at this location .... " (N.T. Volume l, 06/25/2015, pp.
49-50). He was also waiting for the Defendant to follow up on his promise to come in and talk
to Detective Tolliver. (N.T. Volume l, 06/25/2015, p. 50f
In her statement, Johnson identified Charles Bonner, in addition to the Defendant and the
decedent. After receiving Johnson's statement, Detectives Tolliver and Spotwood found out
Bonner's whereabouts, and on June 6, 2013, they brought him into Homicide for an interview.
(N.T. Volume 1, 06/25/2015, pp. 50-52).
37
Detective Tolliver noted that Bonner, who was cooperative, mentioned that he and the
Defendant had attended a hair show-together on April 61h and that around 2:00 am on-April 7,
2013, the Defendant arrived at his house. He indicated that shortly thereafter, the Defendant's
acquaintance, a girl, came to the house with his two phones which he had left at his residence.
(N.T. Volume I, 06/25/2015, pp. 53.:65).
Detective Tolliver stated that about a week or two after their initial encounter with
Johnson, he and Detective Spotwood returned to her house. She was at home and after they told
her that they wanted to talk to her again at Homicide, she refused to go with them; instead, she
provided them with the name of her attorney, Raymond Driscoll. Following that encounter with
Johnson, they reached out to Mr. Driscoll; they had no further conversations with Johnson, but a
grand jury investigation was conducted. (N.T. Volume I, 06/25/20i5, pp. 66-69).
Detective Tolliver explained that they executed search warrants on Johnson's phones. He
also indicated that following the receipt of the alibi notice filed by defense counsel on May 8,
2015, he arranged additional search warrants - for AT&T and Sprint for phone numbers
belonging to the Defendant and for the phone records ofNekeisha Gay-McGriff, the Defendant's
wife. (N.T. Volume I, 06/25/2015, pp. 69, 81-83). Detective Tolliver also sent search warrants
to Facebook for Instagram accounts. (N.T. Volume I, 06/25/2015, pp. 86-87).14
Detective James Dunlap testified that he was called upon by Detective Tolliver to retrieve
certain video surveillance in this case and that he was able to obtain video surveillance from a
14
The Instagram accounts were tagged on the bottom of the photograph of the screen shot provided by Ms. Jessie,
the decedent's sister. (N.T. Volume 1, 06/25/2015, pp. 86-87).
38
store at the northeast corner of North Bailey and Allegheny Streets. (N.T. Volume l, 06/25/2015,
pp. 163-66).15'
Detective Dunlap also noted that a week or two after the incident, he was asked to take a
look at the decedent's phone. (N.T. Volume l , 06/25/2015, p. l68). There were seven pictures
on that phone which were brought to his attention. " ... I explained the time they were taken and
the actual longitude and latitude of where they were taken." (N.T. Volume l, 06/25/2015, p.
168). He took the phone to a private company, Cornerstone Forensic, and they performed an
extraction and provided Detective Dunlap with a copy of their extraction work. (N.T. Volume I,
06/25/2015, p. 169).
Detective Dunlap compared the photographs which he had against the photographs from
the extraction, and found-that they were exactly the same; he was able to see when" the images
were taken, down to a second. (N.T. Volume 1, 06/25/2015, p. 169).
For the benefit of the jury, Detective Dunlap reviewed the photographs and their
metadata. The photographs were taken on the 3200 Block of Bailey Street and its vicinity. The
data was consistent with. both the extraction done by the Regional Criminal Forensic
Laboratories of the FBI as well as by Cornerstone Forensics. (N.T. Volume 1, 06/25/2015, pp.
174-76, 181).
One of the photographs showed a piece of mail addressed to "Femi Johnson or current
resident, 3229 North Bailey Street, Philadelphia, PA 19129." (N.T. Volume I, 06/25/2015, p.
175). There were also photographs of a silver Mercedes taken on April l, 2013, at 3 :45 am.
(N.T. Volume I, 06/25/2015, pp. 176-79). Detective DunJap stated that the car had a
Pennsylvania tag, which enabled him to perform the BMV check; the check established that the
,.s Detective Dunlap explained that they had ten working cameras, including two exterior cameras, and that he
succeeded in offloading those cameras. (N.T. Volume I, 06/25/2015, p. 166).
39
Defendant was the owner of the vehicle. (N.T. Volume l, 06/25/2015, p. 178). The decedent
took her last photograph on her cell phone on April 7, 2013, at 2:23 am, around the comer from
Bailey Street. (N.T. Volume I, 06/25/2015, p. 180).
Detective Dunlap also shared his presentation report which showed the Defendant's and
Johnson's color-coded phone records reflecting who was calling whom, what time, and from
what location. (N.T. Volume I, 06/25/2015, pp. 181-82).
Johnson received a phone caU from the Defendant at 2:54 am on April 7 from the 3229
Bailey Street to 5332 Poplar Street location. (N.T. Volume 1, 06/25/2015, p. 183). Detective
Dunlap explained that, according to Google Maps, the distance between those two locations was
6.4 miles. It took about 16 minutes to get to the Poplar Street location, meaning that the start of
the travel time was roughly af2:38 am. (N.T. Volume l, 06/25/2015, p. 184).
Detective Dunlap also mentioned that after taking a photograph of the envelope with
Johnson's name on it, the decedent made multiple phone calls to Johnson blocking her phone
number ahead of making those calls. (N.T. Volume 1, 06/25/2015, pp. 187-92).
Nekeisha Gay-McGriff testified for the defense as an alibi witness. She stated that she
and the Defendant were married for nine years and that they had two minor children. (N.T.
Volume 1, 06/26/2015, p. 32). She explained that they lived in Columbia, South Carolina,
where they moved in order to raise their children and start a business. (N.T. Volume l,
06/26/2015, p. 33).16
Gay-McGriff indicated that on April 5, 2013, she drove with her two daughters to
Philadelphia to visit her mother. She initially stated that the Defendant usually stayed at Bailey
Street when they were visiting and that he probably stayed there that time as well, and not at her
16
Gay-McGriff conceded that they did not start any business there, (N.T. Volume I, 06fl.6fl.O 15, p. 33).
40
mother's house; moments later, however, she stated that she believed that the Defendant, in fact,
spent the night with her on April 5. (N.T. Volume 1, 06/26/2015, pp. 35-36).
Gay-McGriff stated that on April 61h, they went to visit the Defendant's mother. The
Defendant drove the family there in Gay-McGriff's truck. (N.T. Volume I, 06/26/2015, p. 37).
Gay-McGriff noted that she spent the afternoon with her family but that the Defendant was out
and she was not sure what he was doing. Gay-McGriff had a problem with the truck which she
stated was leaking oil. The Defendant "got the car fixed before [they] got on the road." (N.T.
Volume l, 06/26/2015, pp. 38-39).
Gay-McGriff noted that the Defendant picked them up from his mother's house at about
5 or 5:30 pm and dropped them off at her mother's house at about 6:30 or 7 pm. (N.T. Volume l,
· · · · 06/26/2015, p. 39). Gay-Mcflriff explained that they needed lo get some test and finish packing
to be able to get on the road at about l :00 am. (N.T. Volume l, 06/26/2015, p. 40).'7
Gay-McGriff indicated that the Defendant contacted her again by phone at about 12:30
am; he asked her if she was ready to get on the road. He called her about ten minutes later to
inform her that he had arrived. (N.T. Volume l , 06/26/2015, pp. 42-43).
Gay-McGriff stated that although the Defendant was not drunk, she could smell alcohol
on his breath. Having concluded that it would be unsafe for the Defendant to drive, she sat at the
wheel and dropped the Defendant off on Bailey Street. (N.T. Volume 1, 06/26/2015, p. 47).18
On the way there, he said that he was going to walk the dog and freshen up and go out with some
friends. (N.T. Volume 1, 06/26/2015, p. 47).
17
She explained that she wanted to leave that night so that her older daughter could have some rest on Sunday
before returning to school on Monday. (N.T. Volume I, 06/26/20 I 5, p. 40).
"Gay-McGriffstated that she was unaware if anyone was staying at that address. (N.T. Volume I, 06/26/2015, p.
47).
41
Gay-McGriff explained that she stopped at a gas station; she then went inside the mini
mart and she called the Defendant (who, according to her, was sitting with their children in the
car) to see if he wanted anything from the mini mart. (N.T. Volume 1, 06/26/2015, p. 48). She
then returned to Bailey Street; she parked at 26'11 Street closer to Willard Street not on Bailey
Street because "it's only one-side parking and there's never any parking." (N.T. Volume 1,
06/26/2015, p. 50). The Defendant came back to the car in about 15 to 20 minutes; she did not
observe any difference in his demeanor; there were no scratch marks on him and no blood on his
clothes. (N.T. Volume 1, 06/26/2015, pp. 50-51).
She gave the Defendant a ride, which took about 15 minutes; she recalled that they
arrived in West Philadelphia but she did not know the name of the friend the Defendant was
visiting.· Gay... McGriff stated that she had' never met Charles Bonner and that she did not see him
that night; she just dropped off the Defendant then proceeded to get on the road to South
Carolina. (N.T. Volume l, 06/26/2015, pp. 51-52).
Under cross-examination, Gay-McGriff noted that while she did not know the decedent
personally, she knew of her from the Defendant who informed Gay-McGriff when they were
separated that he and the decedent were in a relationship. (N.T. Volume 1, 06/26/2015, p. 55).
(Gay-McGriff and the Defendant were separated for about a year.)
Gay-Mcflriff was already in South Carolina when the Defendnat informed her that the
decedent was killed. Gay-McGriff learned that the Defenant was a suspect in this murder when·
FBI agents came to the house. The Defendant did not tell her that he was a suspect but told her
that he was asked to come down and speak to the detectives. She stated that she did not give the
FBI agents his phone number but that she said that she would relay to him their message that
there was a warrant out for his arrest. (N.T. Volume 1, 06/26/2015, pp. 56, 58-59).
42
Gay-McGriff stated that she never contacted police to tell them that she was with the
Defendant that night; she explained that she wanted to talk to her lawyer first. She confirmed
that she had a degree in criminal justice and that she had worked in the criminal justice system
for almost a decade. (N.T. Volume l , 06/26/2015, pp. 61, 65). Gay-McGriff confirmed that no
one asked her to take a signed statement about her whereabouts for the day. (N.T. Volume I,
06/26/2015, p. 66).
Ronald Felder testified that he was a licensed private investigator and that he had been
working on this case for about a month. One of the pieces of discovery he reviewed was a
surveillance video from a store on the comer of Bailey and Allegheny Streets. Specifically, he
looked at a segment provided in discovery from 12:00 am to 3:00 am from both of the camera
. 'angles. Fot ·cfi04 A.3d 511, 517 (Pa. 2014). "[T]he right
against self-incrimination is not burdened when the reference to silence is circumspect and does
not create an inference of an admission of guilt." Id. (citation and internal quotations omitted).
There is no reversible error where an explicit reference to silence "occurs in a context not likely
to suggest to the jury that silence is the equivalent of a tacit admission of guilt." Id. ( citation
omitted).
Prosecutors should "tread carefully when referencing a defendant's refusal to speak to
officers, limiting such reference to the description of the investigation or other relevant purpose."
Id. at 518 (holding that the reference to defendant's pre-arrest silence was contextual and "did
49
not highlight Defendant's silence as evidence of guilt"; instead, it was utilized "to recount the
sequence ofthe investigation, in particular, how the DNA sample was obtained from
Defendant").
The Fifth Amendment does not involve a "proscription precluding the raising of silence
in fair response to defense argumentation." Commonwealth v. Ditiicola, 581 Pa. 550, 560, 866
A.2d 329, 335 (2005) ("Since the trooper's investigation was obviously limited by [defendant's]
decision to reject the request for an interview, we find that the Commonwealth's elicitation of the
trooper's testimony regarding this fact constituted fair response."). For purposes of fair
response, on an appropriate objection, admissibility is subject to the trial court's evaluation of
probative value versus prejudicial effect under Pa.R.E. 403. Id at 336.
. . .
.
.... - .. ·- · -· -
. . _..,_ . . .. ~. - - .
. - .. ,
Detective Tolliver's Testimony Was Not Intended to Imply a Tacit Admission of
Guilt By the Defendant.
The Defendant claims that this court abused its discretion by permitting the
Commonwealth to present evidence of his non-reporting to the Homicide Unit for questioning.
Upon careful review of the record, this court concludes that the Defendant's Fifth Amendment
right against self-incrimination was not disturbed. No relief is due.
Here, on April 7, 2013, the day the decedent was killed, Detective Tolliver spoke with the
Defendant on the phone and explained to him that he was investigating the homicide and that he
/
would like to talk to the Defendant as part of gathering information. The Defendant, not a
suspect at the time, promised that he would come to Homicide to speak to the detectives further.
Almost immediately thereafter, the Defendant reached out to his counsel, Anthony Petrone, who
advised him against speaking to anyone. (N.T. Volume 1, 06/4/2015, p. 10).
so
The Defendant, therefore, insists that he simply followed his counsel's advice, and that
his Fifth Amendment rights were violated when his non-reporting to Homicide was brought to
light through Detective Tolliver's trial testimony.
This court finds that in the case at bar, Detective Tolliver's testimony offered a
reasonable explanation as to why a search warrant was not served on the Defendant in an attempt
to locate the gun from which the fatal shots were fired. As the Commonwealth correctly noted,
had a search warrant been served on the Defendant, the latter would have interpreted this
circumstance as him being a suspect, which would have scared him away from talking to the
detectives.
[Detective Tolliver's] testimony came in, clearly, to rebut any
allegations of . . . lazy detective work . and the credibility of
Detective Tolliver, when· he took the witness stand, as the defense
attacked Detective Tolliver's credibility. Part of the attack on his
credibility was the lack of serving a search warrant and the lack of
his diligence. So it came in for that purpose and not to pierce [the
Defendant's] Fifth Amendment right.
(N.T. Volume, 06/26/2015, pp. 9-10).
Furthermore, it was well known that the Defendant had a lot of properties, and it
wouldn't have been obvious which property to search in the first place. The detectives were also
aware that it was easy to dispose of the gun "right away." (N.T. Vollume 1, 06/24/2015, pp. 7-
8).
Upon review of the record, this court is satisfied that the evidence that the Defendant did
not follow through on his promise to come to Homicide to speak to the detectives did not imply
any tacit admission of ·guilt by the Defendant as it was introduced with a sole purpose of
demonstrating the nature and focus of the investigation. Through his trial testimony, Detective
Tolliver, whose credibility was a "linchpin" in this case (N.T. Volume I, 06/24/2015, p. 11),
51
offered a fair' response to counter any defense allegations of his supposed Jack of
conscientiousness as an investigator. The reference to the Defendant's non-showing up at
Homicide was circumspect and contextual; in no way did it create an inference of the
Defendant's consciousness of guilt. This court, therefore, concludes that the Defendant's right
against self-incrimination was not disturbed. No relief is due.
This Court Did Not Abuse Its Discretion by Deciding to Give a Wide Latitude for
Cross-Examination if Attorney Anthony Petrone Were Called to Testify.
This court is firmly of the belief that it correctly gave wide latitude for cross-examination
if Attorney Petrone were called to testify. No relief is due.
Under the law, "cross-examination of a-witness ... should be limited to the subject matter.
of the direct examination and matters affecting credibility, however, the court may, in the
exercise of discretion, permit inquiry into additional matters as if on direct examination."
Pa.R.E. 611.
Our Supreme Court has set forth the following guiding principles pertaining to a
challenge to the extent of cross-examination:
(W]e note that in cross-examining a witness, an attorney is entitled to
question the witness about subjects raised during direct examination as
well as any facts tending to refute inferences arising from matters raised
during direct testimony .... Similarly, an attorney may discredit a witness
by cross-examining · the witness about omissions or acts that are
inconsistent with his testimony .... However, the scope and limits of cross-
examination is [sic] vested in the trial court's discretion and that discretion
will not be reversed unless the trial court has clearly abused its discretion
or made an error of law.
Commonwealth v. Begley, 566 Pa. 239, 276-77, 780 A.2d 605, 627 (2001) (internal citations
omitted). ·
52
In the case sub Judice, defense counsel wanted Attorney Petrone to testify that he told the
Defendant that he was not to speak with anyone, "because he doesn't know anything about the
case, doesn't have the discovery." (N.T. Volume 1, 06/26/2015, p. 4).
The. Commonwealth noted that Attorney Petrone's testimony would be irrelevant because
the reason this court admitted the Defendant's telephone conversation with Detective Tolliver
was to explain why the latter did not execute a search warrant on the Defendant's home. As the
prosecutor argued:
"[T]his is basically the [DJefendant trying to testify without taking the
witness stand, and it's not proper. It's not relevant. It doesn't rebut the
fact that that is a reason why Detective Tolliver did not execute a search
warrant on the Defendant's home. Furthermore, I should be able to cross-
examine Mr. Petrone on why the [D]efendant reached out to him, the
... contentsof the 'conversation, and ... on his credibility." . ·-· ...
(N.T. Volume1, 06/26/2015, p. 5).
This court agrees with the Commonwealth that where the defense was putting in play the
Defendant's right of silence, the Commonwealth had to be permitted to cross-examine the
attorney and argue on that issue. (N.T. Volume l, 06/26/2015, p. IO). As the Commonwealth
explained, it would have been hard to sanitize the reason the Defendant had called Attorney
Petrone, whom he had known in connection with prior homicides with which he had been
charged. "[Tjhe reason why (the Defendant] had (Attorney Petrone's] phone number and the
relationship that he had with Mr. Petrone was because of prior murders." (N.T. Volume l ,
06/26/2015, p. 7).
Furthermore, defense counsel himself agreed with this court that the mere fact that
Attorney Petrone told the Defendant not to go to the police did not mean that that was, in fact,
the reason the Defendant did not go to the police: MR. DESIPIO: "Well, that's fair." THE
53
COURT: "All of that. .... I think we're on the same page right now." (N.T. Volume l ,
. Q6/26/2015, p. 13).
Having weighed how Attorney Petrone's testimony would impact the Defendant's case,
defense counsel made a strategic decision not to call Petrone on the stand:
MR. DESfPIO: And if Petrone does not testify, you're not going to argue
in any form or imply or draw reasonable inference that his not going to the
police when he told Tolliver he would is consciousnless of guilt or a lie or
anything else, because that's not why you introduced it?
MR. NOTARISTEFANO: That's correct.
THE COURT: Okay. Then we're on the same page?
MR. DESIPIO: I think we are.
··· (N.T. Volume I·, 06/26/201.S, ..pp. 16-17}.
Moreover, this court finds that Attorney Petrone's counseling the Defendant neither
rebuts the fact that the Defendant lied to the decedent's family19 nor rebuts the reason Detective
Tolliver did not serve a search warrant.
19
This court agrees with the Commonwealth that the Defendant displayed consciousness of guilt by misleading the
family over the course of three weeks that he would go to the police:
The defense will say that, well, he cared for her, so he wants to know, like everybody else
that cares for her wants to know, do they have a suspect? Are they going to close the
case? Are they going to solve who killed my loved one? But taken in context of, "Did
you go to the police yet, did you go to the police yet," and he's saying to them for three
weeks, "I will go to police," and then never does, kind of takes out of the context of, "l
want to know if the police are solving this crime, who they have, my beloved has been
brutally murdered and l'm grieving," to all of everything that I just said that can be
interpreted one way or the other, put in context, shows no, I'm hiding, l have a guilty
conscience.
(N.T. Volume 1, [motionsJ06/17/2015,p. 16).
Putting in this piece where he is clearly lying to them shows that those conversations
should not be interpreted for innocence but should be interpreted for consciousness of
guilt. It's the conversations about everything else, not so much him not going to police
and hiding from police, but him saying that he will and then not doing it.
(N.T. Volume I, 06/17/2015, p. 22).
54
This court, therefore, did not abuse its discretion when it made it clear that while it would
permit Attorney Petrone to testify, the court would exercise its discretion and give a wide latitude
for cross-examination.· The Defendant's meritless claim must fail.
THIS COURT DID NOT ERR IN REFUSING TO PERMIT THE DEFENSE TO CALL
WITNESSES WHO WOULD TESTIFY THAT THE SLAYING OF THE DECEDENT
MAY HAVE BEEN A RESPONSE TO HER PARTICIPATION IN A SCHEME TO
COMMIT ARMED ROBBERIES ON BAILEY STREET; THIS COURT ALSO
PROPERLY EXCLUDED EVIDENCE THAT A BB GUN WAS FOUND IN THE
DECEDENT'S VEHICLE.
The Defendant further argues that this court abused its discretion when it refused to admit
evidence of a BB gun found in the decedent's vehicle. The Defendant also claims that this court
erred when it denied permission to the defense to call Jamar Nesmith and Rasheeda Rogers who
allegedly would have testified that the victim's shooting may have been a "response to her
participation in a scheme with Nesmith and Rogers to commit armed robberies of drug dealers
on Bailey Street. The Defendant insists that he was thereby deprived of an opportunity to rebut
the Commonwealth's argument that the victim was slain by the Defendant. The Defendant's
claim is without merit and must fail.
The BB Gun Found in the Decedent's Car Was Correctly Excluded.
This court correctly granted the Commonwealth's motion in limine to suppress evidence
relating to a BB gun recovered in the decedent's vehicle.
Under Pennsylvania law, non-relevant evidence is not admissible. Pa.R.E. 402.
"(W]hile the general rule of the admissibility of relevant evidence is
subject to various exceptions, the rule that irrelevant evidence is not
admissible is categorical. Accordingly, the threshold inquiry with
admission of evidence is whether the evidence is relevant."
Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008) (citation and
internal quotations omitted) (emphasis added).
55
The Defendant averred that the BB gun was admissible because anything recovered from -
the decedent's car "was of value." (N.T. Volume 1, 06/23/2015, p. 178). The Commonwealth
noted that the presence of the gun in the decedent's vehicle was not relevant in this case.
This court is satisfied that the evidentiary value of the gun's presence in the decedent's
car was "less than insignificant." 20 (N.T. Volume 1, 06/23/2015, p. 179). This court, therefore,
did not err in granting the Commonwealth's motion in Iimine with regard to the BB gun found in
the decedent's car.
This Court Correctly Refused to Permit the Defense to Call Jamar Nesmith and
Rasheeda Rogers.
_Th_is c?urt did not err wh~n !t refused to permit the defense to call Jamar Nesmith and
Rasheeda Rogers to rebut the Commonwealth's argument that the victim was slain by the
Defendant.
Pennsylvania Rules of Evidence state in pertinent 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.
Pa.R.E. 404 (b)( l ).
Other crimes evidence is "admissible if offered for a non-propensity purpose, such as
proof of an actor's knowledge, plan, motive, identity, or absence of mistake or accident."
Commonwealth v. Tyson, 20l5 PA Super 138, l l9 A.3d 353, 358 appeal denied, 128 A.3d 220(Pa. 2015).
20 This court indicated, it would have permitted this evidence ifthere were a self-defense component to it but that
that there was no self-defense involved in the present case. (N.T. Volume, 06/23/2015, p. 178).
56
Here, it was proffered that Jamar Nesmith (who resided at 3225 Bailey Street)21 would
testify that he, Rasheeda Rogers, and the decedent "would actually rob drug dealers and johns;
that they would use a gun or something that looked like a gun to do so .... " (N.T. Volume I,
06/23/2015, p. 180). It was also proffered that Nesmith would testify that as aresult of this
activity, there was a contract hit on the victim.
Defense counsel was planning to argue that "if you are going to rob drug dealers and
johns at 3225 Bailey Street right where [the decedent] was found, and that's where her body was
found, that she was at 3225 for a different purpose other than to meet with [the Defendant]."
(N.T. Volume I, 06/17/2015, p. 41). The defense was thereby proffering this evidence to show
that there was another reason the victim was on the block of Bailey Street and to explain why
· someone elsewouldwant to kill the decedent. (N.T. Volume I, 06/l 7, 2Qi5, pp. 30-31).
The Commonwealth pointed to the circumstance that there was no extrinsic evidence to
corroborate the allegation of the decedent's involvement in prior robberies, that the evidence
lacked foundation, and that as such, it was simply bad character evidence which was not proper
under 404(b). (N.T. Volume 1, 06/17, 2015, p. 32).
Upon review of the record, this court concludes that the evidence indeed lacked proper
foundation and was speculative. This court is also satisfied that the evidence, if admitted, would
undeniably go to character assassination of the deceased. This court, therefore did not err in
refusing to permit the defense to call witnesses Nesmith and Rogers.
21
The Defendant's Bailey Street address was at 3229 Bailey Street.
57
CONCLUSION
In summary, this court has -carefully reviewed the entire record and finds no harmful,
prejudicial, or reversible error and nothing to justify the granting of Defendant's request for
relie~ For the reasons set forth above, the judgment of the trial court should be affirmed.
BY THE COURT:
STEVEN R. GEROFF, J.
58