Com. v. Porter, R.

• Court: Superior Court of Pennsylvania
• Decided: September 30, 2024
• Docket: 112 WDA 2024
• Status: Unpublished

Opinion

J-S29009-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RUSSELL I. PORTER : : Appellant : No. 112 WDA 2024

Appeal from the Judgment of Sentence Entered December 18, 2023 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001416-2022

BEFORE: DUBOW, J., KING, J., and BENDER, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 30, 2024

Appellant, Russell I. Porter, appeals from the judgment of sentence

entered on December 18, 2023, in the Court of Common Pleas of Washington

County after a jury convicted him of one count of Aggravated Assault and two

counts of Recklessly Endangering Another Person.1 Appellant challenges

certain evidentiary rulings. After careful review, we affirm.

A.

We glean the following relevant factual and procedural history from the

trial court opinion and the certified record. On the morning of July 26, 2022,

Appellant and Katie Deems, whom he had known “off and on” for 10 years,

were at Ms. Deems’ apartment. N.T. Trial, Volume I, 5/16/23, at 84.

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1 18 Pa.C.S. §§ 2702(a)(1) and 2705, respectively. The jury acquitted Appellant of two counts of Criminal Attempt-Homicide and one count of Aggravated Assault. J-S29009-24

Appellant planned to drive Ms. Deems to her father’s house and drop her off

so that he could subsequently borrow her car, a white SUV. As Appellant and

Ms. Deems approached her car outside of her apartment, a blue SUV parked

behind her car. Nasstylejah Wilkerson exited the blue SUV and proceeded to

chase Appellant and call him the “n-word.” Id. at 99. Appellant ran into Ms.

Deems’ apartment, which ended the altercation with Mr. Wilkerson.

A short time later, Ms. Deems and Appellant once again left to drive to

Ms. Deems’ father’s house, but they returned to Ms. Deems’ apartment

because she had forgotten her bag. While Ms. Deems was inside her

apartment, Appellant drove away in her car.

Later that morning, at approximately 11:00 AM, Mr. Wilkerson and his

girlfriend, Bailey Batch, were in Ms. Batch’s car at the intersection of Wylie

and Allison Avenues when they heard someone yell “Yo!” N.T. Trial, Volume

II, 5/17/23, at 168. A Black man driving a white SUV then fired several shots

at Ms. Batch’s car. Ms. Batch called 911.2 Police officers responded and found

that bullets had struck both Ms. Batch’s car and another car parked in a nearby

parking lot. Neither Ms. Batch nor Mr. Wilkerson were injured.

During their investigation of the shooting, police detectives obtained

surveillance footage of the altercation between Mr. Wilkerson and Appellant

outside of Ms. Deems’ apartment. The detectives also learned that Appellant ____________________________________________

2 Following the shooting, Ms. Batch told Mr. Wilkerson to leave the area because he had recently been in prison, and she was concerned that he would be in trouble. Ms. Batch did not initially admit that Mr. Wilkerson was with her during the shooting, but she later told police that he was also present.

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did not have a license to carry a firearm and, in fact, was not permitted to

possess a firearm due to a prior conviction (the “disqualifying conviction”).

The police arrested Appellant in connection with the shooting on July 28, 2022.

Finally, police obtained a recording of a phone call Appellant had made

to Taylor Costa following his arrest. During the phone call, Appellant

“referenced numerous pieces of information regarding the shooting incident,

including [Mr.] Wilkerson’s presence in [Ms.] Batch’s vehicle, as well as [Ms.]

Batch’s initial decision to withhold that information from investigators. . . .

[and] the lack of physical evidence,” including that police did not recover “a

firearm, shells, casings, or residue.” Trial Ct. Op., 3/1/24, at 13-14.

On July 26, 2022, police charged Appellant with the above charges.

Prior to trial, the Commonwealth filed a Motion to Introduce Other Bad Acts

Evidence Pursuant to Pa.R.E. 404(b) and a Motion in Limine to admit, inter

alia, Appellant’s status as a person prohibited from possessing firearms and

evidence of the alteration with Mr. Wilkerson. At the hearing on the motion

in limine, Appellant objected to the admission of his disqualifying conviction

but did not object to the admission of evidence establishing that he was

ineligible to possess a firearm. The court granted the Commonwealth’s

motions.

Appellant proceeded to trial on May 15, 2023. At trial, witnesses

including Ms. Deems and Ms. Batch testified in accordance with the above

facts. Detective Dan Eberman also testified regarding the investigation of the

shooting. Relevantly, the Commonwealth asked Detective Eberman “a yes or

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no question” as to whether Appellant was permitted to possess a firearm. N.T.

Trial, Vol. II, at 433. Detective Eberman answered “no” without further

elaboration.3 Id.

The Commonwealth also played for the jury the surveillance video of the

altercation that occurred on the morning of the shooting and the audio

recording of Appellant’s phone call with Ms. Costa. To authenticate the

recording of the phone call, the Commonwealth called Ms. Deems, who

testified that she was “very certain” that the male voice in the recording was

Appellant. Trial Ct. Op. at 27. (citing N.T. Trial, Vol. I, at 84). The

Commonwealth also called Deputy Warden Chris Cain of the Washington

County Correctional Facility, who testified that he accessed the recordings of

the calls Appellant made between July 28 and August 2, 2022, including the

phone call to Ms. Costa. He further testified that Appellant would “have

utilized his own unique pin [sic] number, and verified himself via voice

verification” in order to make a call. Id.

On May 18, 2023, the jury found Appellant guilty of the above charges.

On September 7, 2023, the court sentenced Appellant to an aggregate term

of 12 to 24 years of incarceration. Appellant filed a timely post-sentence

motion, which the court denied on December 18, 2023.

B.

3 The Commonwealth also introduced a certified Pennsylvania State Police document which indicated that Appellant did not have a firearms license but did not state his disqualifying conviction. Commonwealth’s Exhibit C-47.

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This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issues for our review: I. The [t]rial [c]ourt erred in allowing the Commonwealth to present evidence that Appellant was ineligible to possess a firearm as evidence of intent, preparation, plan, knowledge or absence of mistake, or any other reason. II. The [t]rial [c]ourt erred in permitting the Commonwealth to introduce and admit evidence of an argument that occurred prior to the incidents in question. The probative value of this argument is outweighed by the prejudicial effect it had on the jury.

III. The [t]rial [c]ourt erred when it permitted admission of a recorded jail call between Appellant and another individual not connected to the case. This evidence was not authenticated at trial and would therefore by more prejudicial than probative of an [A]ggravated [A]ssault/SBI.

Appellant’s Br. at 7.

C.

Each of Appellant’s claims challenge the trial court’s evidentiary rulings.

“The admissibility of evidence is a matter solely within the discretion of the

trial court. This Court will reverse an evidentiary ruling only where a clear

abuse of discretion occurs.” Commonwealth v. Johnson, 638 A.2d 940,

942 (Pa. 1994). An abuse of discretion is not “merely because an appellate

court might have reached a different conclusion, but requires a result of

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support so as to be clearly erroneous.” Commonwealth v. Lehman,

275 A.3d 513, 518–19 (Pa. Super. 2022), appeal denied, 286 A.3d 213 (Pa.

2022) (citation omitted). “Moreover, an erroneous ruling by a trial court on

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an evidentiary issue does not necessitate relief where the error was harmless

beyond a reasonable doubt.” Id. (citation omitted).

It is axiomatic that “[o]nly relevant evidence is admissible at trial.”

Commonwealth v. Christine, 125 A.3d 394, 397 (Pa. 2015) (citing Pa.R.E.

402). Evidence is relevant if it tends to make a material fact more or less

probable than it would be without the evidence. Pa.R.E. 401. However, even

if evidence is relevant, it may be excluded “if its probative value is outweighed

by. . .unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

*

Appellant first claims that the trial court erroneously allowed the

Commonwealth to introduce evidence that he was ineligible to possess a

firearm as evidence of intent, preparation, plan, knowledge, absence of

mistake, “or any other reason.” Appellant’s Br. at 13. However, before we

address the merits of this claim, we must determine whether Appellant has

preserved it for our review.

It is axiomatic that “failure to raise a contemporaneous objection to

evidence at trial waives that claim on appeal.” Commonwealth v. Ramos,

231 A.3d 955, 957 (Pa. Super. 2020) (citations omitted); see also Pa.R.E.

103(a) (providing a party may only claim error regarding admission of

evidence if he makes a timely objection on record). Appellant maintains that

the court admitted this evidence over his objections at the motion in limine

hearing and at trial. Appellant’s Br. at 15. However, the trial court determined

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that Appellant waived this claim because he failed to object either during the

Commonwealth’s motion in limine or during trial. Trial Ct. Op. at 15.

Specifically, it noted that Appellant had agreed at the motion in limine hearing

to the admissibility of evidence of his ineligibility to possess a firearm if the

Commonwealth did not reference his disqualifying conviction, and that he did

not object during Detective Eberman’s testimony at trial. Id. at 15-16. In his

brief, Appellant did not challenge the trial court’s determination that he failed

to preserve this claim.

We agree with the trial court that Appellant has waived this claim. At

the motion in limine hearing, Appellant objected only to evidence of his

disqualifying conviction, not to evidence of the mere fact that he was ineligible

to possess a firearm. See N.T. Motion, 3/20/23, at 10-11. At trial, Appellant

noted his previous objection, which, again, only pertained to evidence of his

disqualifying conviction. Id.; N.T. Trial, Vol. II, at 436. The Commonwealth

did not introduce any evidence of Appellant’s disqualifying conviction; rather,

the prosecutor only asked Detective Eberman a “yes or no” question to

establish that Appellant was ineligible to possess a firearm. N.T. Trial, Volume

I, at 433. Since Appellant had agreed at the hearing on the motion in limine

to the scope of the evidence that was ultimately introduced at trial, and he

failed to object at trial, Appellant has waived this claim.4

4 Appellant also asserts that evidence of his ineligibility to possess a firearm

is insufficient to establish specific intent to commit Aggravated Assault and, in (Footnote Continued Next Page)

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Appellant next asserts that the court erred when it permitted the

Commonwealth to introduce evidence of his altercation with Mr. Wilkerson

prior to the shooting because its probative value “is outweighed by the

prejudicial effect it had on the jury.” Appellant’s Br. at 15. Specifically, he

maintains that the altercation “does not determine whether the crime of

[A]ggravated [A]ssault. . .was more or less probable and committed by”

Appellant, and that evidence of the altercation “would mislead the jury and

confuse the issues” because the Commonwealth did not establish a connection

between the altercation and the shooting. Id. at 17.

Before addressing the merits of this claim, we must consider whether

Appellant has preserved it for our review. In his Rule 1925(b) Statement,

Appellant merely claimed that evidence of the altercation was “more

prejudicial than probative.” Appellant’s Rule 1925(b) Statement, 2/21/24, at

1 (unpaginated). This Statement was too vague to apprise the trial court of

his argument that this evidence confused the issues and mislead the jury.

Accordingly, this argument is waived. Lineberger v. Wyeth, 894 A.2d 141,

148 (Pa. Super. 2006) (A Rule 1925(b) statement “which is too vague to allow ____________________________________________

support, cites case law addressing the sufficiency of the evidence to establish intent. Id. at 15 (citing Commonwealth v. Roche, 783 A.2d 766, 768 (Pa. Super. 2001). This argument does not go to admissibility, and Appellant has not preserved a challenge to the sufficiency of the evidence because he failed to raise it in his Rule 1925(b) Statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement. . . are waived.”); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (setting bright-line rule requiring strict compliance with Rule 1925(b) requirements).

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the court to identify the issues raised on appeal is the functional equivalent of

no [Rule 1925(b)] Statement at all.”); Commonwealth v. Tyack, 128 A.3d

254, 260 (Pa. Super. 2015) (finding waiver where appellant’s concise

statement was too vague to permit review).

Moreover, the trial court determined that this evidence was relevant

because it “served to complete the ‘story,’ [and] ultimately provid[ed] the jury

with an explanation as to Appellant’s potential motive [and] his intent to

commit the shooting[,]” and was not prejudicial because Appellant had not

engaged in any criminal or violent behavior during the altercation. Trial Ct.

Op. at 22. Accordingly, we discern no abuse of discretion in the trial court’s

determination that this evidence was admissible, and this claim merits no

relief.

Finally, Appellant argues that the trial court erred when it admitted the

recording of the prison phone call between him and “another individual not

connected to the case[,]” Ms. Costa. Appellant’s Br. at 17. Specifically, he

maintains that the Commonwealth did not properly authenticate the recording

because it failed to verify the identity of the other party to the call.5 Id. at

17-18.

5 Although in the heading for this argument section, Appellant also claims that

the phone call recording was also more prejudicial than probative, he does not develop this argument further. Appellant’s Br. at 17. Accordingly, it is waived. See Pa.R.A.P. 2119(a) (requiring that the argument of an appellant's brief (Footnote Continued Next Page)

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It is well-settled that “[a]uthentication generally entails a relatively low

burden of proof and requires only, as stated in Rule of Evidence 901, that the

proponent ‘produce evidence sufficient to support a finding that the item is

what the proponent claims it is.’” Commonwealth v. Kurtz, 294 A.3d 509,

527 n.12 (Pa. Super. 2023), appeal granted, 2023 WL 7123941 (Pa. Oct. 30,

2023) (citing Pa.R.E. 901(a)). Furthermore, a witness may offer “[a]n opinion

identifying a person’s voice—whether heard firsthand or through mechanical

or electronic transmission or recording—based on hearing the voice at any

time under circumstances that connect it with the alleged speaker” in order to

authenticate a recording of a voice. Pa.R.E. 901(b)(5).

The trial court concluded that this claim lacked merit because the

Commonwealth only needed to establish the authenticity of the phone call

itself and that it was Appellant who made the relevant statements during the

phone call. Trial Ct. Op. at 25. The court determined that the testimony of

Ms. Deems and Deputy Warden Cain sufficiently authenticated the phone

call—Ms. Deems, who had known Appellant for almost 10 years, was “very

certain” that the only male voice on the recording belonged to Appellant, and

Deputy Warden Cain testified that Appellant needed to use his unique PIN and

verify his voice to make the call. Id. at 27, 29 (citing N.T. Trial, Volume I, at

84). Accordingly, the court determined that their testimony “render[ed] [Ms.]

include discussion and citation of authorities); Commonwealth v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) (concluding that undeveloped arguments are waived).

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Costa’s purported need to authenticate the phone call wholly irrelevant.” Id.

at 25.

Following our review, we discern no abuse of discretion. The

Commonwealth met its low burden to authenticate the phone call recording

because Ms. Deems’ identification of Appellant’s voice was sufficient to

establish that Appellant made the relevant statements on the phone call.

Additionally, Deputy Warden Cain’s testimony supported the authentication by

establishing that Appellant needed to use his unique credentials to make

phone calls, and that the call to Ms. Costa appeared on Appellant’s phone

records.

Appellant fails to address the authentication evidence put forth by the

Commonwealth and has, thus, failed to inform this Court how the trial court’s

ruling was an abuse of discretion. Accordingly, this claim lacks merit.

D.

Having found each of Appellant's issues either meritless or waived, we

affirm his judgment of sentence.

Judgment of sentence affirmed.

DATE: 09/30/2024

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