Commonwealth v. Zervanos

1

COMMONWEALTH OF PENNSYLVANIA v. NIKOLAS ANTHONY ZERVANOS Appellant

No. 1731 MDA 2023

No. J-A23015-24

Superior Court of Pennsylvania

October 31, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered November 7, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at no(s): CP-22-CR-0000802-2022

Benjamin D. Kohler, Esq.

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM

BOWES J.

Nikolas Anthony Zervanos appeals from the judgment of sentence of five to ten years of incarceration following his conviction for persons not to possess a firearm.^[1] We affirm.

We glean the following facts from the trial court:

On January 9, 2022, at approximately 3:30 a.m., numerous gunshots were fired in the first block of 4^th Street in the City of Harrisburg. Although no evidence was immediately discovered, once daylight arrived police located nineteen shell casings, one discharged projectile, and property damage in the area. The casings were mostly gathered in the middle of the block near Strawberry Square, [a mixed-use commercial and real estate complex,] with some outside the entrance of Strawberry Square.

Detective Anthony Cummings, a seven[-]year veteran of the Harrisburg Bureau of Police, was assigned to the case the following day.

Video surveillance was obtained from numerous sources including Strawberry Square, the State Capitol Building, a city operated camera at the intersection of 4^th and Walnut Streets, and the nearby Rachel Carson Building. The video evidence from Strawberry Square depicted an individual in the center of the screen wearing a "distinctive" sweatshirt with white sleeves.

Video obtained from the Rachel Carson Building showed the same individual running down the street towards a red parked vehicle and tucking a firearm into his waistband. Although previously unmasked, the suspect now had a mask over his face and had his hand on the black object in his waistband.

The camera at 4^th and Walnut Streets captured the masked gunman raising his right hand and moving forward. As he did so, muzzle fire was clearly observable emanating from his hand evidencing the firing of a gun. The individual then ran from the scene, but shell casings were later located in the spot from which he had obviously been discharging his firearm. Additional video footage showed the suspect entering a Sport Utility Vehicle and driving on Strawberry Street towards 5^th Street.

Hoping to identify the individual, Detective Cummings obtained still images from the videos and distributed them to law enforcement. Juvenile Probation Officer Bernard Rendler watched the videos and identified [Appellant] as the individual depicted therein.

Trial Court Opinion, 2/27/24, at 3-4 (cleaned up, parenthetical numbers omitted).

At the ensuing jury trial, the Commonwealth presented these surveillance videos, which Officer Rendler narrated and identified Appellant as the shooter. Specifically, Officer Rendler testified to the following:

[He] has worked for Dauphin County Juvenile Probation for twelve years, with current assignments to, among other units, the Dauphin County Gang Task Force and the Dauphin County Street Crimes Unit. The Street Crimes Unit is comp[ose]d of county probation officers, Harrisburg police officers, and state parole officers. Its function is to patrol high crime areas of Harrisburg searching for illegal guns and drugs.

He also works part-time as a security officer at sporting events for the Central Dauphin School District. In this capacity, he has known [Appellant], a [former] Central Dauphin athlete, since approximately 2017 or 2018. He has also encountered [Appellant] on the streets of Harrisburg while patrolling with the Street Crimes Unit.

Officer Rendler identified at least two other individuals in the videos seen standing on either side of [Appellant]. Through his work with the Gang Task Force, he is familiar with them as validated gang members. Investigations of gangs in Harrisburg, including the social media accounts of suspected gang members, has demonstrated [Appellant's] association with these individuals for more than one year preceding the incident.

The identification of [Appellant] was based upon Officer Rendler's multiple personal encounters with him, multiple times viewing him on social media, and multiple times observing him with known and suspected gang members, including the two individuals present at the time of the shooting. Furthermore, Officer Rendler noted [Appellant's] distinctive bushy eyebrows, his pointed nose, and the fact that he was wearing the same sneakers in the videos that he had seen him wearing in pictures on social media. For these reasons, Officer Rendler testified to being "100% certain" of his identification.

Id. at 4-5 (cleaned up, parenthetical numbers omitted).

Appellant and the Commonwealth also stipulated that Appellant had a prior conviction of an enumerated disqualifying offense. The jury convicted Appellant of persons not to possess a firearm, and the trial court imposed the above-referenced sentence. Appellant filed a post-sentence motion, which the trial court granted in part relating to his request for time credit but denied his remaining claims. Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement. The trial court authored a responsive Rule 1925(a) opinion denying relief. In his brief, Appellant raises the following issues for our review:

A. Whether the trial court erred in allowing Officer Rendler to testify to Appellant's alleged gang association where the prejudicial effect of said testimony outweighed any probative value.

B. Whether the trial court erred in allowing Officer Rendler to identify the Appellant from a surveillance video.

C. Whether the trial court erred in accepting the jury verdict where the Commonwealth failed to present sufficient evidence that the Appellant possessed a firearm.

D. Whether the trial court erred in accepting the jury verdict where the weight of the evidence did not establish Appellant possessed a firearm.

Appellant's brief at 5 (capitalization altered).

Appellant's first and second arguments concern Officer Rendler's testimony. We review a trial court's decision to admit certain evidence for an abuse of discretion, which "may not be found 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. Carter, 320 A.3d 140, 147 (Pa.Super. 2024) (cleaned up).

Appellant initially argues that the trial court erred in allowing Officer Rendler to testify that Appellant is known to associate with a gang because this testimony was prejudicial.^[2] Pennsylvania Rule of Evidence 404(b)(1) prevents the presentation of other crimes, wrongs, or acts as character or propensity evidence. However, "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident" if the probative value outweighs the potential for unfair prejudice. Pa.R.E. 404(b)(2). "[M]ere passing references to prior criminal activity will not necessarily require reversal unless the record illustrates definitively that prejudice results." Commonwealth v. Thompson, 106 A.3d 742, 753 (Pa.Super. 2014). Whether prejudice has occurred is a fact specific inquiry, and "[p]rejudice results where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of another criminal offense." Id.

Officer Rendler's testimony regarding Appellant's gang activity was relevant to establish Appellant's identity as the shooter in the surveillance footage. The evidence established a potential motive as he believed the shooting was a gang-related incident and he recognized two known gang members alongside Appellant. Additionally, this testimony was relevant to the Officer's identification of Appellant through his work in the Street Crimes Unit and Gang Task Force. The potential for unfair prejudice did not outweigh the probative value of Officer Rendler's testimony. The Commonwealth had to prove Appellant was the shooter in the surveillance footage. To do so, it used the Officer's identification of Appellant based on his experience in the Street Crimes Unit and Gang Task Force. The mere passing references to Appellant's gang activity does not require reversal. Accordingly, Appellant is not entitled to relief on this basis.

Appellant next argues Officer Rendler's narration of the surveillance footage violated Pa.R.E. 701. He asserts that considerable time was spent "bolstering [Officer] Rendler and his involvement with law enforcement, gangs, and firearms[,]" which impermissibly persuaded the jury. See

Appellant's brief at 16. Rule 701 provides that a lay witness may testify as to their opinion regarding an issue that is "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Pa.R.E. 701.

This Court's analysis in Commonwealth v. Palmer, 192 A.3d 85 (Pa.Super. 2018), is instructive. One of the issues we addressed therein was whether a detective's identification of Palmer in surveillance footage shown to the jury violated Rule 701. The defense argued the detective's testimony was not helpful to the jury, was prejudicial, and interfered with the jury's own assessment of the footage. This Court disagreed and explained:

[The detective] merely testified that he identified the shooter by finding and

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