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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WAYNE T. SMITH

                            Appellant                 No. 2304 EDA 2015


              Appeal from the Judgment of Sentence April 2, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011844-2010

BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 09, 2016

        Wayne Smith was charged with murder and related offenses for his

role in a street brawl on the evening of June 5, 2010. His first trial ended in

a hung jury.        A second jury convicted him of third degree murder,

aggravated assault, possession of an instrument of crime and carrying a

firearm on public streets in Philadelphia.1 The trial court sentenced Smith to

an aggregate term of 25-50 years’ imprisonment.          He filed timely post-

sentence motions, which the Court denied. Smith then filed a timely notice

of direct appeal, and both Smith and the trial court complied with Pa.R.A.P.

1925. We affirm.

        The record reflects that David Dial uttered a racial epithet denigrating

Smith’s sister, Taneka, and Jimmy Schmidt. A street fight ensued between
____________________________________________


1
    18 Pa.C.S. §§ 2502, 2702, 907, and 6108, respectively.
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two duos: (1) Smith and Schmidt and (2) Dial and Tyrell Harris (the

victims).    Jamial Burley soon joined the fight on the side of Smith and

Schmidt.

      A few minutes later, Harris started to fight with Burley, and Schmidt

went to help Burley. Dial approached and said: “You ain’t going to roll on

my man.” Smith pulled out a gun and shot Dial four times and Harris once.

Dial died; Harris was hospitalized with a gunshot wound to his upper back.

      That night, Smith had been driving a car owned by his sister, Latia.

Latia called police to report that her car was stolen. Police officers arrived at

the house where Smith, Taneka and Latia lived with their mother.             The

officers realized that family members had been involved in the shooting

incident and told Smith’s mother that they wanted to talk with everyone in

the house.    Smith’s mother called Smith and Taneka and told them that

detectives wanted to talk to them. Taneka, Jimmy Schmidt, Krysta Mitchell,

and Smith’s mother went to the police station.        Smith did not go to the

police station but instead went to his aunt’s house to avoid the police.

      On June 6, 2010, the morning after the shooting, Schmidt gave a

written statement to police identifying Burley as the shooter. One day later,

on June 7, 2010, Jamella Shaw, an eyewitness to the shooting, gave a

statement to police that she saw Smith shoot the victims.        After obtaining

Shaw’s statement, Detective Bamberski obtained a second verbal statement

from Schmidt on June 25, 2010.          In this second statement, Detective


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Bamberski later testified, Schmidt recanted his first statement incriminating

Burley and claimed that Smith was the shooter.2 Two months later, Schmidt

died in an unrelated incident.

       On July 13, 2010, police detectives interviewed Burley. At first, Burley

said he did not know anything about the shooting.        But when detectives

showed him Schmidt’s statement identifying him as the shooter, Burley

stated that he saw Smith shoot the victims. After Burley’s interview, police

arrested Smith.

       Smith raises five issues in this appeal:

       1.   WAS JIMMY SCHMIDT’S LATER ORAL STATEMENT TO
       DETECTIVE BAMBERSKI IN WHICH HE IDENTIFIED [SMITH] AS
       THE SHOOTER INADMISSIBLE?

       2. WAS THE ADMISSION OF SCHMIDT’S UNSIGNED STATEMENT
       MADE TO DETECTIVE BAMBERSKI HARMLESS?

       3. CAN THE COMMONWEALTH SHOW - BEYOND A REASONABLE
       DOUBT - THAT JIMMY SCHMIDT’S UNSIGNED STATEMENT DID
       NOT CONTRIBUTE TO THE VERDICT?

       4. DID THE COURT ERR IN NOT DECLARING A MISTRIAL SUA
       SPONTE WHEN THE COMMONWEALTH INTRODUCED [SMITH’S]
       PRE-ARREST SILENCE OVER DEFENSE OBJECTION?

       5. WAS THE INTRODUCTION OF A FIREARM ALLEGEDLY SEEN
       IN [SMITH’S] POSSESSION WITHIN ONE WEEK OF THE SLAYING
       WHICH WAS NOT TIED IN ANY WAY TO THE SLAYING
       PREJUDICIAL?

____________________________________________


2
  Schmidt’s second statement was verbal but not written. Schmidt refused
to give a written statement against Smith on the ground that he considered
Smith to be like “family”.



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Brief For Appellant, at 4.

      We consider Smith’s first and third arguments together. The thrust of

both arguments is that Detective Bamberski’s testimony about Schmidt’s

second statement, in which Schmidt recanted his prior accusation against

Burley and named Smith as the shooter, was inadmissible hearsay. The trial

court overruled Smith’s hearsay objection and instructed the jury that it

could not consider this statement for its truth but only to explain the course

of the police investigation.   We conclude that the court’s decision was an

appropriate exercise of its discretion.

      Our standard of review for evidentiary rulings is abuse of discretion.

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa.2009). Hearsay is “a

statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.”

Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super.2003); Pa.R.E.

801(c).   Certain out-of-court statements offered to explain the course of

police conduct are admissible; such statements do not constitute hearsay,

because they are not offered for the truth of the matters asserted but

merely to show the information upon which police acted. Dent, 837 A.2d at

577–79. The reason for admitting course of conduct evidence is because “an

arresting or investigating officer should not be put in the false position of

seeming just to have happened upon the scene; he should be allowed some

explanation of his presence and conduct.” Id. at 580. However, “not every


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out-of-court statement having bearing upon subsequent police conduct

should be admitted because, despite cautionary instructions, there is great

risk that certain types of statements will be considered by the jury as

substantive evidence of guilt.” Commonwealth v. Chmiel, 889 A.2d 501,

533 (Pa.2005).       To guard against prejudice, “the trial court, in exercising

discretion over the admission of such statements, must balance the

prosecution’s need for the statements against any prejudice arising

therefrom.” Id. at 532-33.

      In multiple cases, courts have held out-of-court statements to police

officers admissible to explain the officers’ course of conduct, notwithstanding

the speaker’s absence from the witness stand and the possibility of

prejudice. See Commonwealth v. Weiss, 81 A.3d 767, 805-06 (Pa.2013)

(in capital murder trial, state trooper’s testimony that he received

anonymous telephone call that defendant had given victim ride home on

night she disappeared was not inadmissible hearsay, where Commonwealth

offered testimony not to prove that defendant had given victim ride home

but   to   explain    what    prompted     trooper’s   interview   with   defendant);

Commonwealth v. Trinidad, 96 A.3d 1031, 1036-37 (Pa.Super.2014) (in

jury trial, court properly allowed detective to testify about recorded

statement    he      took   from   an   individual   concerning    victim’s   murder);

Commonwealth v. Cruz, 414 A.2d 1032, 1035 (Pa.1980) (content of police

radio call did not constitute hearsay where Commonwealth introduced call to


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explain police conduct and not to prove truth of content of tape); but see

Commonwealth v. Moseley, 114 A.3d 1072, 1078 (Pa.Super.2015) (error

to admit officer’s testimony that he was responding to informant’s complaint

of “drug activity” at apartment complex, where court failed to give jury

cautionary instruction as to its limited admissibility).

       In view of these precedents, Detective Bamberski’s testimony about

Schmidt’s second statement was admissible.           At the time of Schmidt’s

second statement, the police had two conflicting accounts: (1) Schmidt’s

first statement incriminating Burley, and (2) Shaw’s statement incriminating

Smith.    To resolve the discrepancy, Detective Bamberski went back to

Schmidt and obtained a second statement, this time accusing Smith.

Following Schmidt’s second statement, the police expanded the investigation

by interviewing Burley.    When the police told Burley about Schmidt’s first

statement identifying Burley as the shooter, Burley responded that Smith

was the shooter. It was reasonable to inform the jury of all statements in

this   chain,   including Schmidt’s   second statement,     so    that    the   jury

understood the manner in which the police investigated the crimes and

gathered its body of evidence against Smith.          Moreover, in contrast to

Moseley, the court gave an appropriate limiting instruction that the jury

should not consider Schmidt’s second statement for its truth but to explain

the course of the police investigation. The jury is presumed to have followed

this   instruction.    Commonwealth         v.   Estepp,   17 A.3d 939,   945


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(Pa.Super.2011)    (officer’s   testimony   regarding   statements   made    by

confidential informant was admissible to explain officer’s course of conduct,

during prosecution for possession with intent to deliver a controlled

substance; defendant presented no evidence to rebut presumption that jury

followed instruction to consider this evidence only to explain officer’s course

of conduct).

      The two decisions relied upon by Smith in his brief – Commonwealth

v. Palsa, 555 A.2d 808 (Pa.1989), and Government of Virgin Islands v.

Muiruri, 340 Fed. Appx. 794 (3d Cir. 2009) – are not on point. In Palsa,

following a one-car accident, the police arrested the driver (Silvoy) both for

driving under the influence and possession of fifteen pounds of marijuana

found in his car. While in custody, Silvoy told an undercover detective that

at the time of the accident, he was on his way to deliver marijuana to a man

named “Ed” (the appellant) at 116 East Irvin Street in State College,

Pennsylvania. Silvoy added that one day before the accident, he had sold Ed

a pound of marijuana for $500.00, and Ed had given him an extra $500.00

as a down payment on an order of fifteen additional pounds.          The police

conducted a “sting” operation which culminated in the appellant’s arrest for

attempting to complete the purchase of the fifteen pounds of marijuana.

Silvoy then became a fugitive and was not available to testify at the

appellant’s trial. Over the appellant’s objection, the trial court permitted the

undercover detective to describe Silvoy’s custodial statement to the jury.


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The trial court instructed the jury that it could not consider this testimony as

substantive evidence of guilt but only to explain the police’s subsequent

course of conduct.

      The jury found the appellant guilty of attempt to gain possession of

fifteen pounds of marijuana with the intent to deliver the substance to

others.   Our Supreme Court reversed and remanded for a new trial,

reasoning:

      In this case, the police easily could have explained the course of
      their conduct pertaining to the investigation and arrest of
      appellant … without resorting to the full and explicit statements
      given by Silvoy.      It is the prosecutor’s duty to avoid the
      introduction of out-of-court statements that go beyond what is
      reasonably necessary to explain police conduct. Certainly,
      references to appellant’s having purchased one pound of
      marijuana on the day prior to the attempted delivery of the
      fifteen pounds involved in this case could have been eliminated.
      The statements could have been attenuated in other ways, too,
      to lessen their prejudicial impact. Thus, an adequate explanation
      for police conduct could have been provided, while minimizing
      the introduction of statements made by a person who was not
      under oath and who was not available for cross-examination.

      It is certainly to be recognized that there is often a subtle, and
      elusive, difference between the use of statements to establish
      the truth of facts averred by one not in court and their use to
      establish a course of conduct by police. Further, in weighing the
      prejudice to the defense versus the prosecution’s need for the
      challenged statements, the ambit of the trial court’s discretion is
      to be preserved. In the present case, however, the statements
      were so highly incriminating, and the need for them in the form
      in which they were introduced was so lacking, that their
      admission cannot be sustained.

Id. at 811.




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      The present case is distinguishable from Palsa.          The prosecution in

Palsa introduced Silvoy’s statement about an extraneous subject (the

appellant’s purchase of marijuana on a prior occasion) that went beyond

what was essential to explain police conduct and prejudiced the defendant

by casting him as a repeat drug dealer. Here, in contrast, Schmidt’s second

statement related strictly to the matter under investigation, the shooting of

Dial and Harris, and was a vital link in this investigation.

      In Muiruri, the defendant was charged with rape, and his defense was

that he had consensual intercourse with the complainant.          The jury heard

the testimony of a man who overheard the security guard at the

complainant’s condominium complex tell the complainant’s husband: “Your

wife has been raped.” The trial judge permitted this testimony by accepting

the Government's contention that it did not offer the security guard’s out-of-

court statement to prove the truth of the matter asserted but to explain why

the complainant’s husband stopped searching for his wife and went to the

hospital.   The Third Circuit held that there was “[no] tenable non-hearsay

purpose for the security guard’s statement that [the complainant] had been

raped.” Id. at 799. The court reasoned:

      The Government claims that the out-of-court statement was
      offered to explain [the complainant’s husband’s] activities after
      his wife’s encounter with Muiruri, but those activities are utterly
      irrelevant. The fact that [the complainant’s husband] was
      searching for his wife and eventually found her at the hospital
      has no bearing on the question whether the sexual encounter
      between Muiruri and [the complainant] was consensual. To the
      extent that the witness’s testimony provided context for the

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        jury, its marginal utility could have been achieved without the
        hearsay statement - which expressed a third-hand opinion
        regarding the ultimate issue in the case - that [the complainant]
        had been raped. On appeal, the Government makes no attempt
        to explain how [the complainant’s husband’s] actions were
        relevant, or why the hearsay statement was so necessary to
        provide context that it was not intended to prove the truth of the
        matter asserted.

Id. at 798-99. The Government’s claim that this statement explained the

complainant’s husband’s subsequent course of conduct was a “thinly veiled

pretext,” Id. at 789, because it had no bearing on the ultimate issue in the

case:    whether   the   defendant   had   consensual   intercourse   with   the

complainant.

        While the security guard’s testimony in Muiruri was irrelevant

hearsay, Schmidt’s second statement to Detective Bamberski is relevant to

the central issue in this case -- the identity of the shooter -- and explains

the police’s course of conduct in obtaining Burley’s statement and then

arresting Smith.     The trial court properly admitted Detective Bamberski’s

testimony for a non-hearsay purpose.

        For these reasons, Smith’s first and third arguments are devoid of

merit.

        In his second argument on appeal, Smith argues that Schmidt’s

second statement was inadmissible under the Confrontation Clause of the

Sixth Amendment. Smith waived this argument because he did not lodge a

Confrontation Clause objection during trial; he only lodged a hearsay

objection.    Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa.1999) (if

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party objects to evidence on specific ground, all other reasons for its

exclusion are waived); Commonwealth v. Akbar, 91 A.3d 227, 235

(Pa.Super.2014) (where appellant objected to admission of 911 tapes as

hearsay, but not on Confrontation Clause grounds, he waived Confrontation

Clause argument on appeal), appeal granted and order vacated on other

grounds, 111 A.3d 168 (Pa.2015).

      Even if Smith preserved this issue, it has no merit.        A statement

admitted for a purpose other than establishing the truth of the matter

asserted -- such as, in this case, the investigating officers’ course of conduct

-- does not violate the Confrontation Clause. Commonwealth v. Dargan,

897 A.2d 496, 500 (Pa.Super.2006).

      Smith argues that the United States Supreme Court’s plurality opinion

in Williams v. Illinois, -- U.S. --, 132 S. Ct. 2221 (2012), supports his

position that Schmidt’s second statement was inadmissible under the

Confrontation Clause.   We are not convinced.      Plurality decisions have no

precedential value. Petition of Hughes, 532 A.2d 298, 303 n. 5 (Pa.1987).

Even if Williams were precedential, it would not help Smith. The plurality in

Williams held that an expert witness could testify for the prosecution that a

DNA profile produced by an outside laboratory matched the state police lab’s

DNA profile using a sample of the defendant’s blood. The plurality held that

the expert’s references to the outside lab were admissible, because they

were not offered for their truth but solely for the purpose of explaining the


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assumptions on which the expert based her opinions. Id. at 1228 (“We now

conclude   that   this   form   of   expert     testimony   does   not   violate   the

Confrontation Clause because that provision has no application to out-of-

court statements that are not offered to prove the truth of the matter

asserted. When an expert testifies for the prosecution in a criminal case, the

defendant has the opportunity to cross-examine the expert about any

statements that are offered for their truth. Out-of-court statements that are

related by the expert solely for the purpose of explaining the assumptions on

which that opinion rests are not offered for their truth and thus fall outside

the scope of the Confrontation Clause”). This rationale is consistent with the

Superior Court’s holding in Dargan that a statement admitted for a purpose

other than establishing the truth of the matter asserted does not violate the

Confrontation Clause.

      In his fourth argument on appeal, Smith argues the trial court erred by

failing to declare a mistrial sua sponte after the prosecutor asked a defense

witness about Smith’s failure to go to the police with the rest of his family.

The witness, Smith’s sister, Taneka, testified that the morning after the

shooting, she, Jimmy Schmidt and Krystal Mitchell went to the police station.

On cross-examination, Taneka explained that she went because her mother

told her the police wanted to talk to her.         The prosecutor asked if Smith

went with his family, and Taneka responded that he did not. The prosecutor

asked: “So that would make sense, right, you guys are all going down,


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Wayne should probably go down if he didn’t do anything wrong, right?”

Smith objected, and the court sustained the objection and struck the

question. Smith did not request a mistrial.

      Because Smith failed to request a mistrial when the court sustained his

objection, he cannot complain on appeal that the trial court failed to grant a

mistrial.   Commonwealth v. Ables, 590 A.2d 334, 340 (Pa.Super.1991)

(“A defendant is required to request a mistrial because of an event

prejudicial to him when the event is disclosed. Since appellant failed to move

for a mistrial, he cannot now complain that the court erred in failing to grant

a mistrial when no such motion was made. We therefore deem this issue

waived”).

      Relying on Commonwealth v. Molina, 104 A.3d 430 (Pa.2014),

Smith insists that he was not required to request a mistrial in order to

preserve this argument for appeal.      We consider Molina distinguishable.

The issue in Molina was “whether a defendant's right against self-

incrimination … is violated when the prosecution utilizes a non-testifying

defendant’s pre-arrest silence as substantive evidence of guilt.” Id. at 432.

Molina is different from this case, because the trial court in Molina

overruled the defendant’s objection to use of the defendant’s pre-arrest

silence, whereas the trial court in this case sustained the objection. In cases

where the trial court overrules this objection, the court has effectively said

that it considers the prosecutor’s comment proper.       Commonwealth v.


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McGeth, 622 A.2d 940, 943 (Pa.Super.1993).            A request for a mistrial

would be futile under these circumstances, so the failure to seek a mistrial

does not constitute waiver.       Id.    But when the defendant’s objection is

sustained, the trial court “[has] indicate[d] that the challenged conduct was,

in fact, improper … [T]herefore, a request for a curative instruction or

mistrial ... should be made immediately to remedy the error and/or to

preserve the record.” Id. at 942-43. The failure to request a mistrial in this

situation results in waiver of the right to request a mistrial on appeal. Id.

That is what happened here.          The court sustained an objection to the

prosecutor’s question to Taneka, but Smith did not follow up by requesting a

mistrial. As a result, he has waived the right to argue in this Court that the

trial court erred by failing to grant a mistrial.

      Even if Smith had not waived his request for a mistrial, this argument

is meritless because the trial court should not have sustained his objection

to the question that the prosecutor asked Taneka. The prosecutor’s question

was a permissible reference to Smith’s efforts to avoid apprehension, not to

his silence.   After the shooting, Smith did not go home; he avoided his

mother and his sisters. Evidence of this behavior is admissible and probative

of his consciousness of guilt.    Commonwealth v. Collins, 269 A.2d 882,

884 (Pa.1970) (“Flight, unlike silence in the face of police questioning,

cannot be taken as an assertion of a constitutional right”).




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      Further, even assuming the question was improper, the trial court

cured any prejudice by instructing the jury that questions were not evidence,

sustaining Smith’s objection and striking the question. Commonwealth v.

Brown, 987 A.2d 699, 712 (Pa.2009) (no reversible error based on

challenged question where objection was sustained, no answer was

provided, and jury had been instructed that questions were not evidence).

      Finally, we note that spontaneously declaring a mistrial despite Smith’s

failure to request one might have violated Smith’s double jeopardy rights

and barred a retrial.   A mistrial not requested by the defendant must be

supported by “manifest necessity.” Pa.R.Crim.P. 605(B). If a trial court sua

sponte declares a mistrial in the absence of manifest necessity, the

defendant may not be retried. Commonwealth v. Bycer, 401 A.2d 740,

742 (Pa.1979) (under double jeopardy clause, “retrial is improper unless the

previous trial was aborted on a motion by the defendant or out of manifest

necessity”). Had the trial court sua sponte declared a mistrial here, Smith

could have subsequently argued that there was no manifest necessity. This

might well have succeeded, because as we observed above, the trial court

should not have sustained his objection in the first place.

      In his final argument, Smith asserts that the trial court abused its

discretion in allowing the Commonwealth to present evidence that he had a

gun shortly before the crimes in question. Specifically, the Commonwealth

presented Burley’s testimony that Smith showed him a small gun less than


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one week before the shooting. Burley testified that Smith told him the gun

was .40 caliber, but the gun was actually much smaller than .40 caliber.

The fired cartridge casings found at the crime scene and the bullets

recovered from Dial’s body were .25 caliber, a smaller weapon than a .40

caliber gun.

      The trial court properly determined that Burley’s testimony was

admissible.    The fact that the accused had a weapon suitable to the

commission of the crime charged

      is always a proper ingredient of the case for the prosecution.
      This court has repeatedly held that the prosecution need not
      establish that a particular weapon was actually used in the
      commission of a crime in order for it to be admissible at trial.
      The only burden on the prosecution is to lay a foundation that
      would justify an inference by the finder of fact of the likelihood
      that the weapon was used in the commission of the crime.
      Moreover, the admission of such demonstrative evidence is a
      matter within the discretion of the trial judge and, absent an
      abuse of his discretion, his decision must stand.

Commonwealth v. Lee, 662 A.2d 645, 652 (Pa.1995);                  see also

Commonwealth v. Yount, 314 A.2d 242, 249 n.8 (Pa.1974) (evidence that

accused possessed weapon “is relevant to show that the defendant owned or

had access to an implement with which the crime could have been

committed”).    Evidence that the defendant possessed a weapon that was

likely the murder weapon, shortly before the murder, is highly probative and

properly admitted.   Commonwealth v. Murphy, 657 A.2d 927, 933-34

(Pa.1995) (testimony that witness saw weapon of same caliber as murder

weapon in defendant’s possession between 1981 and 1983 was relevant and

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admissible, even though weapon was not conclusively proven to be murder

weapon);      Commonwealth       v.     Akers,   572 A.2d 746,   754-55

(Pa.Super.1990) (trial court properly permitted testimony that defendant

possessed gun similar to, but not specifically identified as, murder weapon

five months before murder).

     These decisions support the admission of Burley’s testimony that

Smith showed him a small gun less than one week before the shooting was

admissible.   The only case Smith cites in his brief, Commonwealth v.

Marshall, 743 A.2d 489 (Pa.Super.1999), is inapposite, because there, the

gun in question could not possibly have been the murder weapon.      Id. at

492 (abuse of discretion to admit weapon into evidence; “it was impossible

for appellant’s gun to have been the murder weapon since the gun was in

police custody eighty days before the murder and remained in police custody

on the actual day of the murder”) (emphasis in original).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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