Com. v. L.M.

• Court: Superior Court of Pennsylvania
• Decided: January 28, 2021
• Docket: 1268 EDA 2020
• Status: Unpublished

Opinion

J-S56036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : L.M. : : Appellant : No. 1268 EDA 2020

Appeal from the Judgment of Sentence Entered May 28, 2019 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003513-2018

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: Filed: January 28, 2021

L.M. appeals from the judgment of sentence imposed in the Court of

Common Pleas of Bucks County (trial court) following his jury conviction of

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

endangering another person1 for the shooting of R.P.2 We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a)(1), 907(a) and 2705. L.M. was found not guilty of attempted homicide, 18 Pa.C.S. § 901(a). A charge of person not to possess a firearm, 18 Pa.C.S. § 6105(a)(1), was severed from the case.

2We have used initials in this Memorandum to protect the identity of R.P.’s minor son (Child). Child’s mother is V.C., L.M.’s then-girlfriend. J-S56036-20

I.

On February 24, 2018, at about 5:50 p.m., R.P. arrived at the Pennsbury

Racquet Club to watch Child participate in an amateur boxing match. (See

N.T. Trial, 3/05/19, at 38-39, 41). R.P. attended the event with his long-time

friend and co-worker, A.D. Upon entering the gymnasium, R.P and A.D.

greeted Child’s maternal grandmother and then approached V.C. and L.M. to

greet them. (See id. at 43-44). When R.P. extended his hand to shake L.M.’s

hand, L.M. refused the gesture and said, “don’t shake my hand, you was

talking shit.” (Id. at 47). As L.M. grew more agitated, they took the

discussion outside into the hallway. (See id. at 49).

As L.M., R.P., A.D. and V.C. went into the hallway, L.M. reached for his

waist. (See N.T. Trial, 3/06/19, 136-37, 142). A.D. punched L.M. and he fell

to his knees. (See id.). During the altercation, L.M. shot R.P. in the lower

left back and R.P.’s “legs just went crazy, like they were turning the opposite

. . . way your legs are supposed to go.” (N.T. Trial, 3/05/19, 53; see also

N.T. Trial, 3/06/19, at 117). L.M. ran up a nearby staircase with a black semi-

automatic firearm in his hand. (See N.T. Trial, 3/05/19, at 126-27). He ran

by Philadelphia Police Officer Michael Minor, who was off-duty at the time and

attending the boxing match with his family. (See id. at 118-20, 126). Officer

Minor followed L.M. towards the exit and recorded L.M.’s appearance with his

cell phone. (See id. at 126-27). Officer Minor and two other men ran after

L.M, but lost sight of him. (See id. at 129-30). Video camera surveillance

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footage captured L.M. running by a local grocery store. (See N.T. Trial,

3/07/19, at 54, 56-59).

Several members of the Falls Township Police Department responded to

the scene of the shooting to investigate, including Officer Francisco Olmeda

and Corporal Michael Callahan. Officer Olmeda spoke with V.C. and while they

talked, L.M. called her and said: “I shot [R.P.]”. (N.T. Trial, 3/06/19, at 175,

250-52).

Corporal Callahan was given a shell casing by an unknown witness at

the racquet club, who had found it on the hallway floor within ten feet from

where R.P. was lying. (See id. at 201-03, 224). The shell casing was

admitted into evidence at trial without objection by defense counsel. (See id.

at 203). Consistent with police department practice, the casing was not tested

for DNA or fingerprint evidence because any such evidence evaporates when

a gun is fired. (See N.T. Trial, 3/07/19, at 46-47). The firearm used in the

shooting was never recovered. (See id. at 50-51).

R.P. was transported to Saint Mary Medical Center where he underwent

surgery to remove a bullet from his right thigh. (See N.T. Trial, 3/06/19, at

116-18, 121). He remained hospitalized for 32 days and was on bedrest for

six weeks thereafter. (See N.T. Trial, 3/05/19, at 58, 60-61).

Prior to trial, counsel for L.M. filed a motion to sever the person not to

possess firearms charge. On March 4, 2019, just before jury selection, L.M.

asked the court to dismiss his attorney and appoint new counsel because he

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disagreed with counsel’s decision to seek severance of the firearms offense.

(See N.T. Trial, 3/04/19, at 6-13). The court shared counsel’s concern that

inclusion of this charge with the remaining offenses at trial would prejudice

L.M. (See id. at 13). It denied his request for appointment of new counsel

and severed the firearms offense. (See id.).

During trial, Officer Minor testified as a lay witness in full police uniform

over defense counsel’s objection to his attire. (See N.T. Trial, 3/05/19, at

111). The Commonwealth explained that Officer Minor was on duty that day

and was returning to work directly after his testimony. (See id. at 111-12).

The trial court overruled the objection and issued a cautionary instruction to

the jury, emphasizing that although Officer Minor was wearing a police

uniform, he was testifying as a civilian to the incident in this case and was not

on duty at that time or involved in the investigation. (See id. at 112, 115,

117-18).

Officer Minor testified that after he gave his statement to police, he was

shown a photograph of L.M. (See id. at 152-53, 156). Neither defense

counsel nor the Commonwealth were aware of this identification and the trial

court immediately excused the jury from the courtroom to allow for

questioning as to its circumstances. (See id. at 155-56). Minor explained

that he did not remember who showed him the photograph or exactly what it

looked like, but recalled that it was a facial photograph and that he

immediately recognized L.M. as the shooter. (See id. at 146-47, 156-159).

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After a brief inquiry, the Commonwealth was able to identify the police

officer who may have shown the photograph to Officer Minor. (See id. at

162-63). Defense counsel moved for a mistrial and the trial court dismissed

the jury for the afternoon, granting counsel time to interview any police

officers or witnesses regarding the photograph identification. (See id. at 163-

65). After defense counsel interviewed several officers and witnesses, placed

her findings on the record and discussed the issue with L.M. and his father,

L.M. and counsel decided to withdraw the request for a mistrial. (See N.T.

Trial, 3/06/19, at 6-13, 15-25). The trial court repeatedly advised L.M. that

it would grant the mistrial if L.M. chose to advance it and thereafter conducted

a colloquy regarding his withdrawal of the motion. (See id. at 24-25).

On March 8, 2019, the jury found L.M. guilty of the above-mentioned

offenses. On May 6, 2019, L.M. filed a pro se motion requesting the

appointment of new counsel. The public defenders’ office filed a petition for

the appointment of conflict counsel that the court granted on May 14, 2019.

On May 28, 2019, the trial court sentenced L.M. to an aggregate term

of not less than ten nor more than twenty years’ incarceration. L.M. did not

file a post-sentence motion or direct appeal. Following restoration of his direct

appeal rights nunc pro tunc through litigation of a PCRA petition,3 L.M. filed

3 Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

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the instant timely appeal. L.M. and the trial court complied with Rule 1925.

See Pa.R.A.P. 1925(a)-(b).

II.

A.

L.M. first argues that the trial court erred in denying the motion for

appointment of new counsel he made at the outset of trial. L.M. contends his

reasons for opposing the motion for severance of the firearms offense were

clear and that he was consistently at odds with counsel’s trial strategy.

“The right to counsel is guaranteed by both the Sixth Amendment to the

United States Constitution and by Article I, Section 9 of the Pennsylvania

Constitution. . . . These constitutional rights entitle an accused to choose at

his own cost and expense any lawyer he may desire.” Commonwealth v.

Prysock, 972 A.2d 539, 542 (Pa. Super. 2009) (citation and internal

quotation marks omitted). “However . . . the constitutional right to counsel

of one’s choice is not absolute.” Id. (citation omitted). Rather, the right of

an accused individual to choose his own counsel must be weighed against and

may be reasonably restricted by the state’s interest in the swift and efficient

administration of criminal justice. See Commonwealth v. Lucarelli, 971

A.2d 1173, 1178 (Pa. 2009).

A trial court’s decision as to whether to grant a defendant’s petition to

replace court-appointed counsel is left to its sound discretion. See

Commonwealth v. Weimer, 167 A.3d 78, 89 (Pa. Super. 2017). “As a

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general rule, however, a defendant must show irreconcilable differences

between himself and his court appointed counsel before a trial court will be

reversed for abuse of discretion in refusing to appoint new counsel.” Id.

(citation omitted). Our courts have held that the appointment of new counsel

is not warranted where the defendant merely has a strained relationship with

counsel, a difference of opinion in trial strategy or lacks confidence in counsel’s

ability. See id.

In this case, L.M. requested the appointment of new counsel because

he disagreed with her decision to seek severance of the firearms offense.

(See N.T. Trial, 3/04/19, at 8). As mentioned previously, counsel sought

severance of this charge because its inclusion at trial would lead to admission

of L.M.’s prior felony convictions. (See id. at 10-11). Despite L.M.’s

knowledge of this reasoning, he insisted that he wanted one trial only. (See

id. at 8-10).

The trial court advised that it had never had an attorney request only

one trial under these circumstances because of the significant potential for

prejudice. (See id. at 11-12). The court explained its concern that the jury

would not be as open minded after hearing about L.M.’s prior record and could

find him guilty of the most serious charges in the instant case, including

attempted homicide, based on that record. (See id. at 10-13). The court

denied L.M.’s request for appointment of new counsel, stating that it “[had]

no reason to quarrel with [present counsel’s] tactical decision to ask for

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severance, and indeed, would be concerned about what would happen to

[L.M.] if [the court] did try these cases together.” (Id. at 13).

We agree with the trial court’s assessment that L.M. failed to establish

an irreconcilable difference with trial counsel warranting appointment of new

counsel where his disagreement with her trial strategy was patently

unreasonable. Instead, counsel’s tactical decision to sever the firearms

offense demonstrated her effective representation of L.M, especially in light of

the serious charges he faced, including attempted homicide. L.M.’s first issue

merits no relief.4

B.

L.M. contends that the trial court erred in allowing Officer Minor to testify

at trial in full police uniform when he was merely a lay witness to the incident.

L.M. maintains that Officer Minor’s uniform unfairly bolstered his credibility

with the jury and was prejudicial to his case.

Preliminarily, we note that we review a trial court’s evidentiary decisions

for an abuse of discretion. See Commonwealth v. DiStefano, 236 A.3d 93,

98 (Pa. Super. 2020). Additionally, it is well established that a jury is

4 With regard to L.M.’s claim that counsel continued to make decisions adverse to his interests throughout trial, any allegations of ineffective assistance of counsel are not cognizable on direct appeal and must be deferred to collateral review under the PCRA. See Commonwealth v. Rosenthal, 233 A.3d 880, 886 (Pa. Super. 2020).

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presumed to follow the trial court’s instructions. See Commonwealth v.

Travaglia, 28 A.3d 868, 882 (Pa. 2011).

Officer Minor testified in uniform because he was on duty on the day of

trial and returning to work immediately after his testimony. The trial court

instructed the jury regarding Officer Minor’s uniform as it related to his

credibility as follows:

Members of the jury, I want to advise you that this witness was not involved in the investigation of this case. He is testifying as a civilian witness, so he should be given no special status because he is in uniform here today.

As we’ve discussed earlier, the testimony of all witnesses should be evaluated in the same way and when I give you my concluding instructions I will discuss with you the factors you are to consider when judging credibility of witnesses.

(N.T. Trial, 3/05/19, at 117). Neither the Commonwealth nor defense counsel

augmented this instruction after the court gave them the opportunity to do

so. (See id.).

The trial court’s instruction plainly directed the jury that it could not

consider Officer Minor’s uniform in assessing his credibility; the jury is

presumed to have followed this instruction. Further, we agree with the trial

court that because Officer Minor was employed by the Philadelphia Police

Department at the time of L.M.’s trial and the jury heard background

testimony concerning his employment, permitting him to testify in uniform

was not prejudicial and the curative instruction corrected any possible

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prejudice. (See Trial Court Opinion, 8/11/20, at 15; see also N.T. Trial,

3/05/19, at 118-19).5 L.M. is not entitled to relief on this claim.

C.

L.M. next argues that the trial court erred in admitting into evidence the

shell casing found by a witness at the scene of the shooting, given that the

Commonwealth failed to connect it to him through DNA, fingerprint or other

evidence. L.M. asserts that because the casing had no relevance or probative

value, it was inadmissible.

First, we agree with the trial court and the Commonwealth that this issue

is waived. “It is well settled in Pennsylvania that a party must make a timely

and specific objection at trial in order to preserve an issue for appellate

review.” Commonwealth v. Marrero, 217 A.3d 888, 890 (Pa. Super. 2019),

appeal denied, 226 A.3d 968 (Pa. 2020); see also Pa.R.A.P. 302(a) (“Issues

not raised in the trial court are waived and cannot be raised for the first time

on appeal.”).

5 L.M acknowledges that there is no Pennsylvania authority supporting his argument and relies instead on a non-binding United States Court of Appeals Second Circuit decision from 1981, LaRocca v. Gold, 662 F.2d 144 (2d Cir. 1981). LaRocca is factually and legally inapposite to the instant case, as it involved an ordained Catholic priest and practicing attorney who brought a civil rights action seeking declaratory relief permitting him to wear his Roman Catholic collar when appearing before a jury as a defense lawyer in a criminal trial. The case at bar is readily distinguishable in that it involves a police officer testifying as a lay witness to a shooting who was unable to appear in street clothes because of logistical reasons. LaRocca has no bearing on this case.

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In this case, the trial court admitted the shell casing into evidence during

Corporal Callahan’s testimony without objection by the defense, even when

specifically queried by the court. (See N.T. Trial, 3/06/19, at 203).

Moreover, even if this claim challenging the admission of the shell casing

were not waived, any error was harmless. Harmless error exists if “the

erroneously admitted evidence was merely cumulative of other untainted

evidence which was substantially similar to the erroneously admitted

evidence.” Commonwealth v. Jones, 240 A.3d 881, 892 (Pa. 2020)

(citation omitted) (outlining three discrete circumstances under which

harmless error can be established).

Here, the trial court found:

The shell casing did not prove anything other than that [R.P.] was shot, which was proven by his doctor’s expert testimony and uncontested. Additionally, as [L.M.] himself argues in his Statement of Errors, no gun was recovered in this matter from [him] that would connect [him] to the shell casing. The shell casing was not sent out for either DNA or fingerprint testing, because, as Detective [Stephen] Reeves explained in his testimony, the gasses released from a gun evaporate any kind of DNA and/or fingerprints that would be left behind on a shell casing. Indeed, the shell casing was not linked to [L.M.] in any way. The shell casing was merely cumulative, and there is no reasonable possibility that the admission of the shell casing itself moved the jury toward conviction of [L.M.].

(Trial Ct. Op., at 16) (record citations omitted).

It is abundantly clear from the record that R.P. was shot with a firearm

in the lower back, as established through eyewitness testimony and physical

evidence of the bullet extracted during surgery from his right thigh.

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Therefore, we agree with the trial court that evidence of the shell casing found

in the hallway was merely cumulative and did not impact the verdict. This

issue is meritless, even if it were not waived.

D.

Finally, L.M. claims that the trial court erred in failing to grant a mistrial

sua sponte for reasons of manifest necessity, given that his right to a fair trial

was jeopardized. L.M. maintains that a mistrial was warranted even without

his consent because of Officer Minor’s testimony relating to the photograph

identification.

“It is within a trial judge’s discretion to declare a mistrial sua sponte

upon the showing of manifest necessity, and absent an abuse of that

discretion, we will not disturb his or her decision.” Commonwealth v.

Cornelius, 180 A.3d 1256, 1262 (Pa. Super. 2018) (citation omitted). “A

mistrial should be declared sua sponte only in very extraordinary and

striking circumstances.” Id. (citation omitted; emphasis added).

The record demonstrates that following Officer Minor’s testimony

describing the photograph identification, the trial court afforded defense

counsel ample opportunity to examine the circumstances and openly told L.M

that it would grant a mistrial if he pursued the motion. Counsel conducted

several interviews to investigate any ramifications and placed her findings on

the record. (See N.T. Trial, 3/06/19, at 7-11). Counsel also discussed with

L.M. and his father whether pursual of a mistrial was the best course of action

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and they concluded that it was not. (See id. at 24). Additionally, the trial

court colloqued L.M. regarding withdrawal of the motion, as follows:

The Court: Has anybody threatened you or forced you to do this today?

The Defendant: No, ma’am.

The Court: Are you under the influence of alcohol or drugs?

The Court: Are you taking medications of any kind?

(Id. at 25).

Thus, the record reflects that L.M. and his attorney carefully considered

whether a mistrial was in his best interests after thorough investigation and

decided to go forward with trial. L.M. has failed to establish that the court

should have disregarded his express wish to proceed with trial by declaring a

mistrial sua sponte and has fallen far short of showing that extraordinary or

striking circumstances were present to necessitate such action. Thus, the trial

court did not err in not declaring a mistrial.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/28/21

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