Commonwealth v. Jackson, 425 WDA 2021

279 A.3d 1251 (Table)

COMMONWEALTH of Pennsylvania

v.Monty William JACKSON II, Appellant

No. 425 WDA 2021

Superior Court of Pennsylvania.

Filed: May 13, 2022

MEMORANDUM BY MURRAY, J.:

Monty William Jackson, II (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of persons not to possess firearms.¹ Upon review, we affirm.

The trial court summarized the relevant facts as follows:

On June 7, 2019, [Appellant] was visiting with Kell[i] Murphy at her home in Carmichaels Borough in Greene County, Pennsylvania. Gary Varesko [(Mr. Varesko or Varesko)] was the main witness for the Commonwealth ... Mr. Varesko was the stepfather of Kelli Murphy[.] Mr. Varesko testified that Kelli Murphy was an alcoholic and that he would frequently visit [her] home ... to monitor Ms. Murphy and to attempt to prevent Ms. Murphy from consuming alcohol.

On June 7, 2019, Mr. Varesko entered Kelli Murphy's residence and according to the testimony of Mr. Varesko, noticed a book bag that he did not recognize to be Ms. Murphy's. He called out for Ms. Murphy and then ... opened the book bag. ... Mr. Varesko [also] retrieved a [handgun in plain view, located on top of] a heater in the living room[, which also did not belong to Ms. Murphy.] According to the testimony of Varesko, [Appellant] then appeared from another room of the residence ... and yelled at Varesko while Varesko was in possession of [the handgun,] which the jury determined to be [Appellant's]. [Appellant] testified [at trial] and denied possession of the firearm. Varesko then describe[d] [a scuffle] where [Appellant] wrestled Varesko for control of the firearm and at some point, Mr. Varesko ... held [Appellant] in a headlock. In the struggle for the gun, the gun [ ] struck Mr. Varesko in the bridge of the nose and [Appellant] ultimately ran from Ms. Murphy's residence and was later arrested by Ryan Campbell of the Carmichaels Borough Police [Department].

As a result[, Appellant] was charged with simple assault, recklessly endangering [another person (REAP)], aggravated assault, a summary offense of disorderly conduct, and a charge of persons not to possess, use, manufacture, control, sell or transfer firearms, a felony of the first degree.

After the incident on June 7, 2019, and unrelated to these events, Ms. Kell[i] Murphy passed away prior to the trial in this matter.

Trial Court Opinion, 6/25/21, at 4-5 (footnote citations to record omitted).

Prior to trial, Appellant filed a motion in limine to preclude any reference to Varesko being a retired police officer. Appellant alleged that such reference would constitute improper character evidence.² See N.T., 1/22/20, at 7-9. The Commonwealth countered that Varesko's prior employment was relevant to establish his familiarity and experience with firearms, and further asserted the information would not be offered to bolster Varesko's credibility. Id. at 8-9 (prosecutor arguing, "we're trying to establish knowledge, Your Honor. And [Varesko's] profession establishes that knowledge.").

The trial court denied Appellant's motion in limine on the record prior to the commencement of trial. The court stated,

[Appellant's counsel] has moved to preclude the Commonwealth from introducing at trial that Mr. Varesko is a retired police officer. I'm going to deny that request. ... [T]he attorney for the Commonwealth[ ] ... believes that Mr. Varesko's experience as a police officer may be critical in ... [Varesko's] identifying what is alleged to have been a firearm. But I want to remind the Commonwealth and the defense that ... Varesko is not ... going to be qualified as an expert. So, he's not going to be able to testify in that capacity. If you ask [Varesko] what he is and that contributes to his ... knowledge as an eyewitness, that's possible. But ... if [defense counsel] makes an objection I'll give an instruction ... during the trial as to the fact that [Varesko] is a ... lay witness and to be treated the same as any other person.

Id. at 7-8.

Immediately after the prosecutor's opening statement, Appellant's counsel objected to the prosecutor identifying Varesko as a retired police officer, and moved for mistrial. Id. at 26-27. Though the court overruled the objection, id. at 28, the court subsequently instructed the jury it was required to "consider [Varesko's] testimony the way you consider everybody else to include bias, prejudice, et cetera ." Id. at 63.

During the Commonwealth's case-in-chief, Varesko testified as follows:

Q [Prosecutor]: So, you picked ... the gun up. And then you said that you had intended to leave but what occurred next?

A: [Appellant] came running at me and told me to give [him] his f'ing gun.

* * *

Q: Okay. And then as [Appellant] came running to the dining room, what occurred next?

A: After he told me to give [him] his f'ing gun, I replied you are not allowed to have a gun. You're a convicted felon .

Id. at 57-58 (emphasis added).³ Appellant immediately moved for mistrial. Id. at 58. The court declined to grant a mistrial, but gave the following curative instruction to the jury:

THE COURT: ... [F]irst of all, Mr. Varesko, answer the question that's put to you and quit volunteering things, okay? ... Number two, the last thing that was said was [Mr. Varesko] said I know [Appellant is] a convicted felon. That is for you to decide. That is not for Mr. Varesko to decide nor ... are you able to use what he's saying [on] the witness stand as evidence of anything whatsoever in terms of conviction. It is ... not right. It may or may not be proven by the Commonwealth, but it is their burden to prove that. It is not being proven in any way by what Mr. Varesko just said. Nor does Mr. Varesko have any law enforcement power whatsoever, nor d[id] Mr. Varesko have any law enforcement power on the day he [encountered Appellant in Ms. Murphy's home]. [Mr. Varesko] was acting strictly as a citizen and I'll give you a different instruction about that more. You consider his testimony the way you consider everybody else[’s.]

Id. at 62-63; see also id. at 63 (trial court reprimanding the prosecutor: "ask the questions in a way that Mr. Varesko answers them as to what happened.").

After the close of the Commonwealth's case, the trial court instructed the jury as to Appellant's prior conviction:

The Commonwealth has introduced [evidence] ... that [Appellant] was convicted of a crime of robbery. That ... is a crime that if you were convicted of that it would be one element of [persons not to possess firearms] that would need to be proven by the Commonwealth beyond a reasonable doubt. ... You cannot use ... evidence of that conviction to show any propensity of the crime. You can't use that ... for any other reason [ ] than to prove that one element.

Id. at 152-53. Thereafter, the jury convicted Appellant of persons not to possess firearms; the jury acquitted Appellant of simple assault, aggravated assault, REAP, and disorderly conduct.

On July 28, 2020, the trial court sentenced Appellant to 5-10 years in prison.⁴ Appellant timely filed a post-sentence motion, asserting that: the jury's verdict was against the weight and sufficiency of the evidence; the sentence was excessive and an abuse of discretion; and the court erred with respect to certain evidentiary rulings and jury instructions. Post-Sentence Motion, 8/7/20, at ¶¶ 1-4. On August 10, 2020, the trial court appointed new counsel (Counsel) for Appellant, and gave Counsel 20 days to file supplemental post-sentence motions. However, Counsel never filed supplemental post-sentence motions. The court, for reasons not of record, subsequently permitted Counsel to withdraw.

On January 11, 2021, Appellant timely filed a pro se petition pursuant to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541 - 9546 ; see also PCRA Petition, 1/11/21, at ¶¶ 11-13 (claiming ineffectiveness based on Counsel's failure to file supplemental post-sentence motions). Appellant filed a supplemental pro se PCRA petition on January 22, 2011, seeking reinstatement of his direct appeal rights. The court appointed PCRA counsel, and the Commonwealth filed an answer to Appellant's PCRA petition on February 18, 2021. By order entered February 26, 2021, the court denied Appellant's pending August 7, 2020, post-sentence motion,⁵ but reinstated his direct appeal rights. Order, 2/26/21, at 1-2.

Appellant timely appealed on March 24, 2021.⁶ See Commonwealth v. Perry , 820 A.2d 734, 735 (Pa. Super. 2003) ("where the clerk of courts does not enter an order indicating that the post-sentence motion is denied by operation of law and notify the defendant of same, a breakdown in the court system has occurred and we will not find an appeal untimely under these circumstances"); Commonwealth v. Braykovich , 664 A.2d 133, 135-38 (Pa. Super. 1995) (excusing facially untimely notice of appeal where clerk of courts never entered order denying appellant's post-sentence motions by operation of law, under predecessor to Pa.R.Crim.P. 720(B)(3)(c), supra ). Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents six issues for our consideration:

I. Was the verdict, as it pertains to the conviction of person not to possess, use, manufacture, control, sell, or transfer firearms, against the sufficiency of the evidence?

II. Was the verdict, as it pertains to the conviction of person not to possess, use, manufacture, control, sell, or transfer firearms, against the weight of the evidence?

III. Was the denial of Appellant's counsel's motion in limine to exclude identification of the victim as a former police officer appropriate given the circumstances?

IV. Was the denial of Appellant's counsel's motion for mistrial due to the victim's testimony identifying the Appellant as a felon appropriate given the circumstances?

V. Was the denial of Appellant's counsel's motion for mistrial due to the District Attorney's exaggeration of the evidence in his closing remarks appropriate given the circumstances?

VI. Was

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