NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No MDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. SMITH GABRIEL Appellant No MDA 2013 Appeal from the Judgment of Sentence May 22, 2013 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.: FILED AUGUST 19, 2014 Smith Gabriel appeals from the judgment of sentence entered in the Court of Common Pleas of Lackawanna County following his convictions for promotion of prostitution 1 and criminal use of a communication facility. 2 After careful review, we affirm. The instant matter arises from an investigation undertaken by the Scranton Police Department s Special Investigation Division (SID), with the purpose of locating and identifying prostitution rings. On August 29, 2012, an undercover officer sent a text message to a phone number listed in an advertisement for an escort service. Following an exchange of text 1 18 Pa.C.S. 5902(b)(1) Pa.C.S. 7512(a).

2 messages, the individual operating the telephone in question directed Officer Lawrence Spathelf to go to the Roadway Inn in Moosic. Later that evening, Officer Spathelf, along with Sergeant Patrick Gerrity and a surveillance team, traveled to the specified hotel to meet with a female escort, who SID believed was performing sexual acts in exchange for money. Upon arrival, Officer Spathelf entered the hotel room and engaged in conversation with the female escort, Tina Tuttle, indicating that he was interested in oral sex. Meanwhile, the surveillance team observed Gabriel and an individual named Lawrence Rollocks drive into the parking lot at a high rate of speed. Officer Spathelf testified that shortly thereafter, Tuttle received a phone call, walked to the window and hung up the phone. She then told Officer Spathelf that she was not into this, but would be willing to give him a massage. N.T. Trial, 3/5/13, at Officer Spathelf testified that at that point he knew his identity had been compromised, and therefore he opened the door to allow Sergeant Gerrity to enter the room. Officer Spathelf and Sergeant Gerrity then interviewed Tuttle. Meanwhile, the surveillance team followed Gabriel and Rollocks to a nearby parking lot, where local police conducted a traffic stop at the request of Sergeant Gerrity. The officers recovered several cell phones from Gabriel and Rollocks, and Gabriel admitted that the cell phone associated with the advertisement for the female escort service was his. The officers then took Gabriel and Rollocks to the Scranton Police Department, where they were interrogated and charged with the aforementioned crimes

3 On March 6, 2013, a jury convicted Gabriel of promotion of prostitution and criminal use of a communication facility. On May 22, 2013, the court sentenced Gabriel to an aggregate of two to six years imprisonment. Subsequently, Gabriel filed a motion for reconsideration of sentence, which the court denied on June 19, On July 15, 2013, Gabriel filed a timely notice of appeal, followed by a court-ordered concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Gabriel raises the following issues on appeal: 1. Did the trial court err and/or abuse its discretion in limiting the cross-examination of Tina Tuttle as to the charges she faced prior to her testimony to establish that she possessed an expectation of leniency in exchange for her testimony and that she possessed motive to provide bias[ed] testimony against [Gabriel]? 2. [Did] the trial court err in allowing the admission of cumulative evidence in the nature of text messages over the objection of counsel? Brief of Appellant, at 5. In his first issue, Gabriel asserts that the trial court should have permitted defense counsel to cross-examine Tuttle with respect to the nature and extent of her outstanding charges in order to establish that her testimony was biased in favor of the prosecution. Cross-examination may be employed to test a witness story, to impeach credibility, and to establish the witness motive for testifying. Further, a witness may be crossexamined as to any matter tending to show the interest or bias of that witness. Commonwealth v. Hyland, 875 A.2d 1175, 1186 (Pa. Super

4 2005) (citations omitted). Whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Id. (citing Commonwealth v. Evans, 512 A.2d 626, 631 (Pa. 2005)). Lastly, [a]s a general rule, defense counsel must be permitted to crossexamine a Commonwealth witness on possible favorable treatment or expectations of such favorable treatment in exchange for testimony for the prosecution.... The principle upon which this rule is premised is that the jury should have the opportunity to consider information concerning possible ulterior motives on the part of the witness in order accurately to assess the witness credibility. Id. (citing Commonwealth v. Buksa, 655 A.2d 576, (Pa. Super. 1995)). The scope of cross-examination is a matter within the discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Ballard, 80 A.3d 380, 394 (Pa. 2013). In the present case, the trial court did not abuse its discretion in limiting the defense counsel s cross-examination of Tuttle, as the above requirements were satisfied. First, on direct examination, the prosecution immediately questioned Tuttle with respect to her living arrangements, disclosing to the jury that she was incarcerated on drug charges. N.T. Trial, 3/4/13, at 52. Second, the trial court allowed defense counsel to crossexamine Tuttle with respect to her outstanding charges, establishing that the same unit involved in the present case, the SID unit, was involved in - 4 -

5 charging her with two of her three offenses. N.T. Trial, 3/5/13, at 7. In addition, in response to defense counsel s questioning, Tuttle denied having a motive to testify in Gabriel s case or that the prosecution promised her favorable treatment in exchange for her cooperation several times. Id. at As such, the jury had the opportunity to consider whether Tuttle s testimony was biased, taking into account her outstanding charges and the questioning by both the prosecution and defense. See Hyland, 875 A.2d at 1186 (quoting Commonwealth v. Evans, 512 A.2d 626 (Pa. 1986)). Therefore, the trial court was acting within its discretion when it limited defense counsel s cross-examination of Tuttle to an acknowledgement of her outstanding charges and the fact that she was likely to spend an extended period of time incarcerated, rather than a detailed description of each charge, along with the respective sentence for each charge. In his second issue, Gabriel argues that the text messages presented by the Commonwealth were cumulative and unfairly prejudicial in nature, and therefore, should have been prohibited by the trial court following defense counsel s objection. The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of that evidence. Commonwealth v. Page, 965 A.2d 1212, 1219 (Pa. Super. 2009). The court may exclude relevant evidence if its probative value is outweighed by a - 5 -

6 danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Pa.R.E However, evidence will not be prohibited merely because it is harmful to the defendant. Exclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case. Commonwealth v. Owens, 929 A.2d 1187, 1191 (Pa. Super. 2007). In the instant case, the trial court did not err in admitting the Commonwealth s evidence, as the text messages in question were neither cumulative nor unfairly prejudicial to Gabriel. First, with respect to the cumulative argument, a review of the record demonstrates that although the Commonwealth expressed its intention to review more than 47 text messages in its direct examination of Sergeant Gerrity, the trial court immediately informed the Commonwealth that it would not permit this level of repetition. N.T. Trial, 3/6/13, at Instead, in order to prevent the evidence from becoming cumulative in nature, the trial court allowed the Commonwealth to question Sergeant Gerrity with respect to the content of five text messages that were particularly relevant to the charges involved. Id. As such, not only did the trial court determine that the probative value of the evidence outweighed the danger that it would become cumulative, but a review of the evidence indicates that the text messages were in fact not - 6 -

7 cumulative in nature, as the trial court limited the amount of evidence the Commonwealth was permitted to present. See Pa.R.E Second, the text messages in the instant case were not unfairly prejudicial to Gabriel, as they are relevant to the legal basis of the charges, tending to indicate that Gabriel was involved in the promotion of prostitution. Specifically, the text messages introduced by the Commonwealth include references to sexual activities, sexual fetishes, and meeting times and locations. N.T. Trial, 3/6/13, at As such, the jury could not possibly have been inflamed to make decisions based on information unrelated to relevant legal propositions, as the text messages are directly applicable to the charges in the instant case. Based on the foregoing, the trial court did not err in permitting the Commonwealth to introduce text messages following defense counsel s objection, as the text messages were not unfairly prejudicial to Gabriel. Owens, 929 A.2d at Judgment of sentence affirmed; application for relief denied. 3 3 Several weeks after the instant matter was assigned to this panel, we received an Application to Remand to Trial Court for Grazier Hearing filed by Gabriel s counsel, Robert M. Buttner, Esquire. The application was submitted in response to a letter written by Gabriel to the Prothonotary of this Court, in which Gabriel alleged ineffectiveness on the part of Attorney Buttner. Although Attorney Buttner s application suggests that Gabriel has expressed a wish to proceed pro se, we can discern nothing in Gabriel s letter indicating such a desire. Accordingly, we decline to remand the case to the trial court for a Grazier hearing. Should Gabriel wish to allege that Attorney Buttner has been ineffective in representing his appellate interests, (Footnote Continued Next Page) - 7 -

8 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/19/2014 (Footnote Continued) he may do so in a petition under the Post Conviction Relief Act, 42 Pa.C.S.A