Com. v. Blackston, M.

• Court: Superior Court of Pennsylvania
• Decided: April 5, 2024
• Docket: 1367 EDA 2022
• Status: Unpublished

Opinion

J-A24030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL BLACKSTON : : Appellant : No. 1367 EDA 2022

Appeal from the Judgment of Sentence Entered March 29, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006313-2018

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED APRIL 5, 2024

Appellant Michael Blackston appeals from the judgment of sentence

entered by the Philadelphia County Court of Common Pleas on March 29,

2022, after a jury convicted him of murder and related charges. Appellant

claims that the trial court abused its discretion in overruling objections to

testimony that detectives presented and in denying a motion for mistrial.

After careful review, we affirm the judgment of sentence.

In March 2022, a jury convicted Appellant, Chad Rannels, Semaj

Armstead, and Rashawn Combs of charges related to the December 2011

murder of Kevin Drinks (“Decedent”), whom they mistakenly believed was a J-A24030-23

witness to a prior murder for which Rannels was awaiting trial.1 The relevant

factual and procedural history is as follows.

In 2011, Philadelphia police arrested Rannels for the July 30, 2011

murder of Kristin Freeman. While in prison awaiting his preliminary hearing,

Rannels made at least fourteen recorded phone calls between September 27,

2011, and December 9, 2011, including several to Appellant and Armstead.

During these calls, Rannels provided an address and description of a person

he believed was an eyewitness to the murder named John Fisher. Rannels

repeatedly instructed the co-defendants to be on their “A-Game.” Trial Ct.

Op, 11/8/22, at 2.

On December 10, 2011, four days before Rannels’ scheduled preliminary

hearing, Appellant, while standing on a corner with Armstead, Combs, and

Eugene Floyd, saw Decedent drive by them in a white truck. Appellant stated,

“That is the guy right there.” N.T., 3/23/22, at 15-16. Floyd, to whom the

Commonwealth granted immunity, testified at trial that he understood

Appellant’s statement to mean that the driver of the truck was the eyewitness

to Mr. Freeman’s murder. Id. It is undisputed that Decedent had an

“uncanny” resemblance to Mr. Fisher and they both drove white trucks. N.T.,

3/24/22, at 93. ____________________________________________

1 Appellants’ co-defendants have also appealed their judgments of sentence.

The dispositions in Commonwealth v. Rannels, 1230 EDA 2022, and Commonwealth v. Armstead, 1269 EDA 2022, have been filed in conjunction with the instant case. Commonwealth v. Combs, 3161 EDA 2022, which was submitted after the others, is pending before a different panel.

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The four men immediately entered vehicles and followed Decedent in

his white truck. Floyd drove Appellant in a Chevrolet minivan while Combs

drove Armstead in a white PT Cruiser. The police eventually discovered that

Armstead’s sister owned the minivan and Appellant’s girlfriend owned the PT

Cruiser.

Appellant and the co-conspirators followed Decedent for approximately

six hours while Decedent made deliveries. During this time, Appellant and the

co-conspirators “maintain[ed] constant communication with each other.” Trial

Ct. Op. at 4. Floyd eventually parked the minivan close to the area where

Decedent parked the white truck. Appellant then exited the minivan with a

firearm and walked to the area where Decedent had parked the white truck.

He returned a few minutes later and told Floyd that there were cameras near

Decedent’s truck. Floyd and Appellant then drove to a location approximately

15-20 minutes away. Appellant exited the minivan and returned soon after

“wearing a black Muslim face covering and gown.” Id. at 5.

Floyd and Appellant then drove back to the location where Decedent had

parked the white truck. Appellant again exited the minivan with the firearm.

He approached the white truck and fired five to six rounds into the truck,

fatally shooting Decedent. Appellant then fled. Police arrived minutes later

and transported Decedent to the hospital where he was pronounced dead.

During the initial investigation, police recovered surveillance video

footage, from which they identified the PT Cruiser as a vehicle of interest.

Detectives, however, did not connect the co-defendants to the crime until

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2018, when they reviewed Rannels’ prison phone calls and obtained the co-

conspirators’ cell phone records. Ultimately, the Commonwealth charged

Appellant and his three co-defendants with murder and related crimes.

In March 2022, the trial court presided over a joint jury trial of Appellant

and his co-defendants. At trial, Floyd testified to the narrative set forth above.

The jury also heard the recordings of Rannels’ prison phone calls as well as

testimony relating to the cell phone records, which traced the co-conspirators’

movements on the day of the murder.

The Commonwealth additionally presented Detective Thorsten Lucke,

who had compiled into one video the surveillance videos from several cameras

in the area around the murder. Detective Lucke testified about the video while

the jury was watched it. N.T., 3/23/22, at 160-189. As described by the trial

court, the surveillance video depicted the PT Cruiser following a white truck

before the truck parked and then showed vehicles consistent with the PT

Cruiser and the minivan circling the murder scene between 5:47 p.m. and

6:16 p.m., immediately before the 6:17 p.m. murder. The video also

displayed an individual in “Muslim garb” approach the white truck twice. Trial

Ct. Op. at 18-19. At no point did the video display anyone exiting either the

PT Cruiser or the minivan.

On March 29, 2022, the jury convicted Appellant of First-Degree Murder,

Conspiracy to Commit Murder, Firearms Not To Be Carried Without a License,

Carrying Firearms on Public Streets or Public Property in Philadelphia, and

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Possessing Instruments of Crime.2 On the same day, the trial court imposed

a mandatory minimum sentence of life imprisonment without the possibility

of parole for Murder; a consecutive sentence of 10 to 20 years of

imprisonment for Conspiracy to Commit Murder; and concurrent sentences of

2.5 to 5 years of imprisonment for each of the remaining three charges.

On April 1, 2022, Appellant filed a post-sentence motion, claiming that

the verdict was against the weight of the evidence. On April 2, 2022, the trial

court denied the motion. On April 28, 2022, appellate counsel entered his

appearance and filed a timely notice of appeal. The trial court and Appellant

complied with Pa.R.A.P. 1925.

Appellant raises the following issues to this Court:

1. Did the trial court err, abuse its discretion, and violate Pa.R.E[.] 1002 when it overruled a number of objections to the testimony of Detective Timothy Bass about events that he did not witness but saw on a portion of video that existed, but that was not presented to the jury?

2. Did the trial court err, abuse its discretion, and deprive Appellant of a fair trial secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, when it denied Appellant’s motion for a mistrial following testimony from Detective John Verrecchio about a “prior attempt to kill the witness?”

3. Did the trial court err, abuse its discretion, and deprive Appellant of a fair trial secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, when ____________________________________________

2 18 Pa.C.S. §§ 2502, 903(c), 6106(a)(1), 6108, 907(a), respectively. The Commonwealth nolle prossed the charge of Persons Not to Possess, Use, Manufacture, Control, Sell or Transfer Firearms, 18 Pa.C.S. § 6105(a)(1).

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it overruled counsels’ objections that permitted Verrecchio to improperly express opinions and conclusions?

Appellant’s Br. at 2.

A.

In his first issue, Appellant claims that the trial court erred and abused

its discretion in overruling Appellant’s objections to portions of Detective

Timothy Bass’ testimony, which Appellant claims violated the Best Evidence

Rule, Pa.R.E. 1002. Appellant’s Br. at 22-24. As Appellant is challenging an

evidentiary ruling of the trial court, we will reverse “only upon a showing that

the trial court clearly abused its discretion.” Commonwealth v. Green, 162

A.3d 509, 516 (Pa. Super. 2017) (en banc) (citation omitted).

The Best Evidence Rule instructs that “[a]n original writing, recording,

or photograph is required in order to prove its content unless these rules,

other rules prescribed by the Supreme Court, or a statute provides otherwise.”

Pa.R.E. 1002. An original need not be produced, however, if “the writing,

recording, or photograph is not closely related to a controlling issue.” Id.

1004(d). This Court has held that the Best Evidence Rule applies to

surveillance videos and, thus, requires the admission of the original video,

rather than merely testimony regarding the content of the video, where the

video is necessary to prove the elements of the crime. See Green, 162 A.3d

at 518.

At trial, Detective Bass testified regarding his 2011-12 investigation of

the crime. In relevant part, he stated that the surveillance video showed “the

perpetrator exit[ing] this white PT Cruiser[.]” N.T., 3/24/22, at 74. Upon

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questioning, however, he clarified that while he remembered that the video

showed the shooter coming from the location of the PT Cruiser, he “would

have to look at the video” to determine if there was “actual footage” of the

shooter exiting the vehicle. Id. at 76. Moments later, he reiterated that he

could not “recall exactly whether [the shooter] was coming from inside the

vehicle or form [sic] the area of the vehicle at this point.” Id. at 77.

We highlight that Detective Bass, unlike Detective Lucke, did not make

his initial comment while presenting the surveillance video to the jury. Rather,

he made the initial comment while describing his investigation, which included

using the surveillance video to identify the PT Cruiser as a vehicle of interest.

The investigation of the PT Cruiser and its owner eventually linked Appellant

to the murder.

Appellant contends that Detective Bass’ testimony violated the Best

Evidence Rule because the detective testified to events that he “did not

personally witness but had reviewed on a portion of video that was never

presented to the jury.” Appellant’s Br. at 22. Specifically, he argues that

Detective Bass’ statement that the shooter “exit[ed] the PT Cruiser”

constituted a “critical identification” based upon video that the jury did not

see. Id. at 23. Accordingly, he argues that the trial court abused its discretion

by allowing Detective Bass’ testimony about the shooter exiting the PT Cruiser.

As the trial court held, the record does not support Appellant’s claim.

Trial Ct. Op. at 27-28. Detective Bass did not testify to a video that was not

shown to the jury; rather, the Commonwealth had shown the compilation

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surveillance video to the jury earlier in the trial, and Detective Lucke had

explained it to them. Detective Bass merely made an initial statement about

his recollection of the surveillance video and then testified that he misspoke.

Detective Bass repeatedly clarified his testimony by acknowledging that he

could not remember if the video showed the shooter exiting the vehicle. N.T.,

3/24/22, at 76-77. Accordingly, we agree with the trial court that the Best

Evidence Rule did not apply to Detective Bass’ initial misstatement because

he did not make the misstatement while presenting the compilation of the

surveillance videos to the jury and later corrected his testimony.

Moreover, the trial court emphasized that the Best Evidence Rule does

not apply when the testimony “pertains to how and what is done while

conducting an investigation.” Trial Ct. Op. at 26 (citing Green, 162 A.3d at

521). As applied to the instant case, the court highlighted that Detective Bass’

testimony regarding the content of the surveillance video focused on Detective

Bass’ investigation and using the video to identify the PT Cruiser as a vehicle

of interest. Id. We agree with this analysis. Accordingly, this issue fails.3

____________________________________________

3 Appellant also objects to Detective Bass’ testimony because it references the

shooter or the perpetrator, even though a pole blocked the relevant camera from displaying the exact moment of the shooting. Appellant’s Br. at 23-24. In so doing, Appellant suggests that there is “some unshown video.” Id. We find this argument frivolous as there is no suggestion that there is another video that captures the moment of the shooting. Rather, Detective Lucke testified earlier that “[t]he only angle that captures the location of the incident was the one we saw. . . .[U]nfortunately, there is a pole which covered the area right where the shooter was standing where the shooting incident (Footnote Continued Next Page)

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B.

In his second issue, Appellant asserts that the trial court erred in not

granting a mistrial. Appellant’s Br. at 25-28. An appellant court will not

overturn a trial court’s denial of a mistrial absent an abuse of discretion.

Commonwealth v. Leap, 222 A.3d 386, 392 (Pa. Super. 2019) (citation

omitted).

It is well established that “[a] trial court may grant a mistrial only where

the incident upon which the motion is based is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial by preventing the

jury from weighing and rendering a true verdict.” Commonwealth v.

Bryant, 67 A.3d 716, 728 (Pa. 2013) (citation omitted). In reviewing a trial

court’s determination, we recognize that “[t]he trial court is in the best

position to assess the effect of an allegedly prejudicial statement on the

jury[.]” Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007) (citation

occurred.” N.T., 3/23/22, at 194. Thus, there is no basis to support Appellant’s suggestion about the existence of “some unknown video.”

Moreover, to the extent Appellant challenges Detective Lucke’s testimony based upon his use of the term “shooter,” we find that Appellant waived this argument given that both the issue included in his Rule 1925(b) statement and his statement of questions in his brief to this Court address only Detective Bass’ testimony and do not reference Detective Lucke’s testimony. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived; id. at 2116(a) (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”).

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In cases where the trial court provides a cautionary instruction to

address the incident giving rise to the motion for mistrial, we presume that

the jury will follow the instruction. Leap, 222 A.3d at 392. Where the

instruction is adequate, the grant of a mistrial is not necessary. Id.

At trial, Detective John Verrecchio testified regarding his investigation,

specifically addressing the prison recordings, the cell phone records, and the

process of obtaining search warrants for the cell phone records. The detective

stated that he initially was not interested in Appellant’s cell phone records

because his cell phone went “off the network” at 3:03 p.m., three hours prior

to the murder. N.T., 3/25/222, at 58-59. The detective explained, however,

that he subsequently “went back to the records and reviewed them” after he

“learned of a previous or prior attempt to kill the witness[.]” Id. at 59.

Appellant’s counsel and Rannels’ counsel objected and moved for a

mistrial. After the jury left the courtroom, Appellant’s counsel asserted that

there had been no information to support the detective’s statement regarding

a “previous attempt to kill a witness.” Id. at 60. Appellant’s and Rannels’

counsel additionally argued that the detective’s testimony included a

“monologue about search warrants” and contained “editorializing and

prejudicial remarks.” Id. at 60-62.

After hearing argument, the trial court denied the motion for mistrial,

but offered to provide a cautionary instruction, which co-defendants’ counsel

later submitted. The trial court heard additional testimony from Detective

Verrecchio outside the presence of the jury where he clarified that the “prior

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attempt” related to the incident on the day of the murder when Appellant

walked to the Decedent’s white truck and returned, asserting that there were

cameras around the truck. Id. at 75.

The trial court then instructed Detective Verrecchio to testify to his

investigation without addressing the process of obtaining search warrants.

After the jury returned, the trial court provided the following cautionary

instruction:

Before we broke, Detective Verrecchio was explaining what he did. Detective Verrecchio's testimony, the purpose is to explain what information he gathered, what he did with that information and how he proceeded forward with his investigation.

It will be up to you, ladies and gentlemen, to evaluate the information being presented by Detective Verrecchio and what was done with that information; just like you’re going to evaluate all other testimony being presented to you from all other witnesses.

Id. at 77. While the trial court did not include the portion of the counsels’

proposed instruction that the jury should disregard Detective Verrecchio’s

reference to “any prior attempt to murder a witness[,]” none of the

defendants’ counsel objected to this omission and thus, waived any objection

to it. Id. at 68-69, 77.

Based on our review, we conclude that the trial court did not abuse its

discretion in denying Appellant’s request for a mistrial. In addressing

Appellant’s claim, the trial court found that the reference to a prior attempt

was a “reasonable characterization” of the shooter walking toward the

Decedent’s truck and discovering cameras, an event about which Floyd also

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testified. Trial Ct. Op. at 34, 36. Moreover, the trial court opined that its

cautionary instruction to the detective regarding future testimony together

with the curative jury instruction “prevent[ed] any incidental prejudice that

resulted from Detective Verrecchio’s testimony” and rendered the grant of a

mistrial unnecessary as courts presume that a jury will follow a court’s

instructions. Trial Ct. Op. at 36.

After considering the trial court’s assessment of the testimony presented

to the jury and its cautionary instructions to which counsel did not object, we

conclude that Appellant has not demonstrated that the trial court abused its

discretion in denying a mistrial. Additionally, we find that Appellant waived

any objection to the court’s curative instructive as counsel did not object either

when the court explained to counsel the instruction it intended to give or after

it gave the instruction. Accordingly, no relief is due on this issue.

C.

In his final issue, Appellant contends that the trial court erred in allowing

Detective Verrecchio to testify about obtaining search warrants, which

involves expert testimony, when the trial court never qualified him as an

expert. Appellant’s Br. at 28-29. Appellant asserts that Detective Verrecchio’s

description of the search warrant process was not related to his investigation

but served to alert the jury that “numerous educated individuals” found the

information in the search warrants “important and deeply connected to more

than one homicide.” Id. Appellant argues that the curative instruction was

insufficient because it did not “specifically remind[] the jury that all witnesses

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were to be evaluated in same[sic], and no witness, should be taken to be

more important or credible on the basis of a uniform.” Id. at 29.

After review, we conclude that the trial court did not abuse its discretion

in addressing the challenges to Detective Verrecchio’s testimony about the

search warrants.4 Rather, the trial court instructed Detective Verrecchio to

confine his testimony to his investigation and issued a cautionary instruction

to the jury. Specifically, the court reminded the jury that it was up to them

“to evaluate the information being presented by Detective Verrecchio and

what was done with that information; just like you’re going to evaluate all

other testimony being presented to you from all other witnesses.” N.T.,

3/25/22, at 77. At no point did any counsel object to this instruction; thus,

Appellant waived any challenge to the sufficiency of the instruction. Moreover,

as we presume the jury followed the instruction, we conclude that the trial

court did not abuse its discretion in addressing Appellant’s challenges to

Detective Verrecchio’s testimony about the search warrants.

Accordingly, given that none of Appellant’s issues warrant relief, we

affirm the judgment of sentence.

Judgment of Sentence affirmed.

4 As set forth above, we will reverse an evidentiary ruling of the trial court,

“only upon a showing that the trial court clearly abused its discretion.” Commonwealth v. Green, 162 A.3d at 516 (citation omitted).

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Date: 4/5/2024

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