J-S09030-21
2021 PA Super 201
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAURICE GREEN :
:
Appellant : No. 391 EDA 2020
Appeal from the Judgment of Sentence Entered December 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002747-2017
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
CONCURRING & DISSENTING OPINION BY McCAFFERY, J.:
Filed: October 7, 2021
I agree with the Majority’s disposition of Appellant Maurice Green’s
Miranda1 challenge, and join the denial of relief on that issue. See Majority
Op. at 8-10. I likewise join the denial of Green’s motion for a remand for a
hearing on alleged newly discovered evidence. However, I would conclude no
relief is due on Green’s issue concerning Pa.R.E. 404(b) prior bad acts
evidence, where: (1) it was properly within the trial court’s discretion to weigh
whether the prior incident had sufficient commonalities with the instant
homicide to establish admissibility under Rule 404(b); (2) the court gave a
proper jury instruction on the prior bad acts evidence; and (3) any error would
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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be harmless, as the Commonwealth presented extensive evidence against
Green at trial. Thus, I would affirm the judgment of sentence, and do not join
the Majority’s grant of a new trial. Accordingly, I respectfully concur and
dissent.
With respect to Green’s Pa.R.E. 404(b) evidence issue, I incorporate the
Majority’s discussion of the standard of review and relevant authority. See
Majority Op. at 11-15. I also consider the following evidence and arguments
presented by the parties to the trial court.
Four days after the shooting of Marie, Angela White told investigators
that Green told her the following: “about a year prior,” “a guy named Jay from
5th Street” “beat up” Green over a drug dispute; Green required medical
treatment at Methodist Hospital; and Green “shot up [Jay’s] grandmother’s
house,” which was also on 5th Street. N.T., 9/6/18, at 11.
Six months after Marie’s shooting, investigators interviewed Dominic
Rosano, who stated he was present when Green said he “was looking for”
Buck (Marie’s grandson). N.T., 9/6/18, at 12. When investigators asked
Rosano if he knew of other instances in which Green had a gun, Rosano
replied: “[Green] shot up McClellan Street between 5th and 6th Street over
drugs and money[,] and he bragged he ain’t no bitch and nobody messes with
his money.” Id.
Detectives then obtained medical records showing that Green sought
treatment at Methodist Hospital on October 26, 2015, at 9:00 a.m. N.T.,
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9/6/18, at 13. Green told hospital staff “he was assaulted three hours” earlier
but did not want to make a police report.2 Id. at 13-14.
Through further investigation, detectives learned that at 6:00 a.m. that
same day, October 26, 2015, gunshots were fired at the 515 McClellan Street
home of Levonya Ladson. There were bullet holes in her front door, and police
obtained a “real time video [showing] a shooting” and “at the [same] time[,]
a single individual . . . running out of the . . . block.” N.T., 12/9/19, at 244;
N.T., 9/6/18, at 14-16. Ladson told Detective Jenkins she has a grandson,
who sometimes resides with her; this grandson is also Green’s cousin and
heroin dealer. N.T., 9/6/18, at 16-17. No one, however, reported this
shooting to police.3 Id. at 14. Furthermore, a firearms examiner confirmed
that the gun used to fire at Ladson’s home was not the gun used in the
homicide in this case. Id. at 21.
The parties did not dispute the contents of the above evidence — that
is, there was no disagreement as to what White, Rosano, and Ladson told
police, when and where the gunshots were fired at Ladson’s front door, what
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2 At trial, White testified she accompanied Green to Methodist Hospital. N.T.,
12/5/19, at 186. She stated: Green “got[ ] in a physical fight” with “J,” who
was Green’s cousin and participated in the same “5th Street” drug ring with
Green. Id. Green sustained a split lip and got stitches.
3 At trial, a detective testified that on October 26, 2015, he responded to 911
calls about gunshots heard, “but no victim or any[one] report[ed] damage.”
N.T., 12/9/19, at 243. Outside Ladson’s home, the officers recovered fired
cartridge casings. Id. at 244.
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Green’s hospital record stated, and what the surveillance video showed.
Instead, the parties’ arguments went to whether the weight of this evidence
established a common plan, scheme, design, or identity under Rule 404(b).
The Commonwealth argued the prior bad acts evidence was admissible
to show a common plan, scheme, design, and identity. The Commonwealth
averred the following similarities between the October 2015 gunshots fired at
Ladson’s door and December 2016 shooting of Marie: “the manner in which
the crimes were committed,” the type of weapon used — handguns, the
“ostensible purpose of the crime,” the close locations of the two shootings,
and “the type of victim.” N.T., 9/6/18, at 29. The assistant district attorney
summarized: “[Green was] having a beef with one guy and shooting grand-
mom, that’s pretty heavy weighty stuff. . . . And this evidence shows [Green]
shot another grandmother’s house up. . . . [I]n my 25 years in homicide I
never dealt with a situation like this.” Id. at 32.
Green’s trial counsel responded that the Commonwealth was improperly
attempting to show he “is a person of evil character.” N.T., 9/6/18, at 35.
Green argued that because there was “a lack of evidence in this homicide,
[the Commonwealth] wished to try a second case that [Green] was never
charged with[ or] arrested for,” and “boot strap [the prior shooting] onto this
horrible homicide” of an 81-year old victim on Christmas Eve. Id. at 32-33.
Green further asserted the prejudicial value of the evidence far outweighed
any limited probative value it had. Id. at 35.
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The trial court announced its ruling at a hearing on October 11, 2018,
granting the Commonwealth’s motion to admit the prior bad acts evidence.
The court found the following similarities between the October 2015 shooting
at Ladson’s house and the December 2016 shooting of Marie: (1) “both are
shootings in drug related cases of retribution;” (2) “both put the grandmothers
of [Green’s] antagonist[s] at risk;” (3) “both were committed in early morning
hours in the area near 5th Street in Philadelphia;” (4) “both were committed
with a semiautomatic firearm;” and (5) “a single lone male was captured on
video in the area and[/] or leaving the area of each shooting.” N.T., 10/11/18,
at 13. The court observed the evidence against Green was “largely
circumstantial,” and found “the Commonwealth[‘s] need for such prior bad act
[evidence] outweighs any potential for prejudice to” him. Id. at 14.
I further note the trial court stated it would “issue a cautionary
instruction should [Green] request [one] at trial.” N.T., 10/11/18, at 14. At
the jury trial, the court indeed instructed the jury that the evidence of the
October 2015 shooting could only be considered as “tending to show a
common scheme or plan in order to establish the identity of the
perpetrator . . . in this case,” and not as evidence of bad character or criminal
tendencies. N.T., 12/12/19, at 23.
I emphasize that on appeal, the parties’ arguments are identical to those
presented to, and ruled upon by, the trial court. Presently, Green asserts
“there was scant evidence” tying him to the prior shooting, where “he was not
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identified, arrested, or prosecuted.” Green’s Brief at 15, 26. He denies there
are similarities between the two shootings: (1) there was “no unity of location
because . . . the alleged acts took place in different areas of South
Philadelphia;” (2) there was “no modus operandi,” as one incident was the
shooting of Marie inside her store but the other was a shooting “externally” at
Ladson’s home; (3) the prior incident “occurred more than one year before
the” instant homicide; and (4) there was no evidence that “the instant matter
grew out of or had any connection to the [prior] incident.” Id. at 22-25.
Green also avers: (1) all of the evidence for this homicide was circumstantial,
as no one testified they witnessed the killing; and (2) the prior bad act
evidence was presented merely to show he had a propensity for committing
crimes and he “was a person prone to violence against grandmothers.” Id.
at 19, 26, 29. He maintains “the probative value was clearly outweighed by
its prejudicial effect,” and thus the trial court erred in admitting the evidence
under the common plan, scheme, or design exception to Rule 404. Id. at 19,
27.
Green’s arguments on appeal would require this Court to reweigh the
evidence in his favor, and supplant the trial court’s findings with our own
determination that the prior bad acts evidence did not sufficiently establish a
common plan, scheme, or design under Rule 404(b). In granting this very
relief, the Majority has, in my opinion, exceeded our standard of review. See
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005) (“Questions
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concerning the admissibility of evidence lie within the sound discretion of the
trial court, and a reviewing court will not reverse the court’s decision on such
a question absent a clear abuse of discretion.”).
The Majority sets forth no discussion how — or even if — the trial court
overrode or misapplied the law, exercised manifestly unreasonable judgment,
or acted with “bias, prejudice, ill-will or partiality, as shown by the evidence
of record.” See Harris, 884 A.2d at 924. Indeed, the Majority does not even
conclude the trial court abused its discretion. Instead, the Majority arrives at
its determination, that the two incidents are not sufficiently similar, based on
its own reweighing of the evidence. See Majority Op. at 17 (“Our review of
the record does not support the trial court’s determination that admission of
evidence concerning the Ladson incident demonstrated a common scheme,
plan, or design by green to target grandmothers of protagonists. Rather, our
review reveals that the incidents are distinguishable in several significant
ways.”). Similarly, the Majority reweighs the evidence and the parties’
arguments to find, contrary to the trial court’s determination, that the prior
bad acts evidence “was more prejudicial than probative.” See id. at 19.
Additionally, the Majority does not consider the trial court’s cautionary
instruction to the jury. “[W]hen weighing the potential for prejudice, a trial
court may consider how a cautionary jury instruction might ameliorate the
prejudicial effect of the proffered evidence.” Commonwealth v. Gilliam,
249 A.3d 257, 270-71 (Pa. Super. 2021). Here, the court instructed the jury:
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You have also heard evidence tending to show that [Green]
may have committed another offense for which he is not on trial
before you. I am now speaking of the testimony to the effect that
[Green quarreled] with an alleged rival drug dealer over drugs and
money, and was physically beaten by that person, and that
[Green] allegedly retaliated by shooting into the home of the
rival’s grandmother, Levonya Ladson, on October 26th, 2015.
This evidence is before you for a limited purpose. That is, for
the purpose of tending to show a common scheme or plan in order
to establish the identity of the perpetrator in the killing in this
case, that is, the homicide of Marie Buck which occurred on
12/24/16. This evidence must not be considered by you in any
other way other than for the purpose I just stated. You must not
regard this evidence as showing that [Green] is a person of bad
character or criminal tendencies for which you may be inclined to
infer guilt.
N.T., 12/12/19, at 23. “The law presumes that a jury will follow the trial
court’s instructions,” and Green presents no argument to the contrary. See
Commonwealth v. Gilliam, 249 A.3d 257, 274 (Pa. Super. 2021).
Accordingly, in my view, the record does not support the Majority’s conclusion
that “the trial court effectively forced the jury to decide a trial within a trial as
to Green’s culpability in the prior incident.” See Majority Op. at 19.
Finally, the Majority makes no mention of any of the remaining evidence
presented at trial. In my view, even if the trial court erred in permitting the
prior bad acts evidence, any error was harmless in light of the breadth of the
Commonwealth’s evidence. This Court has explained:
In the event of an erroneous admission of evidence, a verdict can
still be sustained if the error was harmless. An error is harmless
if it could not have contributed to the verdict, or stated conversely,
an error cannot be harmless if there is a reasonable possibility the
error might have contributed to the conviction. [Our Supreme
Court has] found harmless error where:
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(1) the error did not prejudice the defendant or the
prejudice was de minimis;
(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.
The Commonwealth has the burden of proving harmless error
beyond a reasonable doubt.
Commonwealth v. Yocolano, 169 A.3d 47, 53 (Pa. Super. 2017) (citation
omitted).
While the Commonwealth acknowledged its evidence was
circumstantial, it presented 23 witnesses over multiple days of trial. See
Commonwealth’s Brief at 9. First, I note that a witness, who was in the store
at the time of the shooting, testified that someone, wearing a hat or a black
mask, opened “the door half way,” fired about six shots, and ran out. N.T.,
12/3/19, at 49-51. The witness could only see “a little bit” of the shooter’s
face, but told police he was wearing black clothes. Id. at 50, 58.
The Commonwealth also presented several surveillance videos showing:
(1) a Chevrolet Impala drive and park near the intersection of 6th and Titan
Streets at 8:45 a.m. on the morning of the homicide; (2) at 8:45 a.m., a
person in dark clothing exit the driver’s side of the vehicle; and (3) at 8:47
a.m., a person walk toward the same car, from the direction of Marie’s corner
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store, walk past the car, do “an about-face,” enter the car and drive away.4
N.T., 12/9/19, at 19, 24, 28, 29, 37. Both Buck (Marie’s grandson) and White
(Green’s paramour) identified Green as the person in the surveillance video
leaving the store. N.T., 12/10/19, at 157. An expert witness in vehicle
identification testified that the Impala in the surveillance videos and Green’s
Impala were the same vehicle. N.T., 12/9/19, at 112, 122. White similarly
identified the Impala as Green’s car. N.T., 12/10/19, at 157.
Finally, an expert in historical cell site analysis testified the data showed
Green’s cell phone was in the following locations: (1) at 8:27 a.m., at his
girlfriend’s house at 21st and Cross Streets; (2) at 8:47 in the area of the
crime; and (3) and 8:49 a.m., still “in the same area but it looks like [the
phone is] moving.” N.T., 12/11/19, at 11, 29, 30, 32. These cell phone
locations were “consistent with the positioning of [the moving] Chevy Impala”
captured on the surveillance videos. Id. at 33. In light of the foregoing, I
would conclude the jury was free to weigh this “uncontradicted evidence of
guilt was so overwhelming,” and thus any error by the court could not have
contributed to the verdict. See Yocolano, 169 A.3d at 53.
Applying our standard of review, I believe the trial court acted within its
discretion in weighing the evidence and the parties’ extensive oral argument.
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4 The surveillance videos were taken from private residential surveillance
cameras. N.T., 12/9/19, at 20. Additional surveillance video showed the car
travelling until 8:49 a.m. Id. at 37.
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See generally N.T., 9/6/18. A mere “error of judgment” is not sufficient for
this Court to reverse an evidentiary ruling. I would conclude the record does
not indicate any misapplication of the law, manifestly unreasonable judgment,
bias, prejudice, ill-will, or partiality. See Harris, 884 A.2d at 924.
Accordingly, I would deny relief on Green’s evidentiary issue and affirm
the judgment of sentence.
For the above reasons, I respectfully concur and dissent.
Judge Olson did not join this concurring/dissenting opinion.
Judge Musmanno did not join this concurring/dissenting opinion.
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