Twitter Admissibility: Any Ambiguity in Tweets Is for Jury — Tweets Admissible to Show Consciousness of Guilt

Commonwealth v. Bradshear, 2016 Pa. Super. Unpub. LEXIS 4759 (Pa. Super. Ct. Dec. 30, 2016):

Appellant Rafael Bradshear appeals from the judgment of sentence imposed after he was convicted of aggravated assault, unlawful possession of a firearm, carrying a firearm without a license, and possession of an instrument of crime.1 We affirm.

1   18 Pa.C.S. §§ 2702, 6105, 6106, and 907.

The trial court summarized the facts of this case as follows:

   On July 22, 2014, Nabeel Din was sitting on his porch on Rorer Street in Philadelphia speaking with a friend [Ezequiel Lopez]. Sometime after 9:00 p.m., Din called [Appellant] and asked him for marijuana. A short time later, [Appellant] approached Din, and the two started arguing. [Appellant] was upset because Din asked [Appellant]'s mother where he could get marijuana earlier that evening. [Appellant] and Din started fighting on the porch. The fight continued down the street at the intersection of Tabor Road and Rorer Street. [Appellant] removed a gun from his pocket and pointed the gun at Din's head. Din grabbed the gun and [*2]  [Appellant] pulled the trigger, firing a bullet over Din's left shoulder. Din and [Appellant] "tussled" for the gun, and during the struggle [Appellant] shot Din in the foot. Din immediately ran away from [Appellant]; Din eventually collapsed on the front lawn of a house on Rorer Street.

Trial Ct. Op., 12/3/15, at 1-2 (citations to the record omitted).

Lopez and his stepfather, Bladimil Ortiz, immediately called 911 to report the shooting. N.T. Trial, 6/9/15, at 84-85, 88, 128-29; 6/10/15, 131-32.2 Officer Anthony Comitalo, who was on patrol that night, responded to a radio call about the incident. He found Din lying on the lawn in front of a house. Din had been shot in the ankle and was in severe pain. Din would not provide any information about the shooting to Officer Comitalo. Trial Ct. Op. at 2. Another officer suggested that Din had shot himself, and Din replied, "all right." Before he was placed in the ambulance, Din told the police that two men tried to rob him and then one of them shot him. Inside the ambulance, he provided physical descriptions of the alleged robbers. Trial Ct. Op. at 3; N.T. Trial, 6/9/15, at 166-69.

2   The 911 call was played at the trial. N.T. Trial, 6/9/15, at 84-85. This recording is not in the certified record.

Detective Timothy Hartman also went to the crime scene to investigate [*3]  the shooting. He recovered two .25 caliber fired cartridge casings from the intersection of Tabor Road and Rorer Street. Trial Ct. Op. at 2.

At the crime scene, Ortiz told police that he had information regarding the shooting and gave them his phone number. N.T. Trial, 6/10/15, at 47-49, 146-47. He later gave the police a surveillance video recording from his house, which showed the initial fight between Din and Appellant and the aftermath of the shooting, but did not show the shooting itself. Id. at 127-33.

Detective Robert Hassel called Ortiz the next day, and Ortiz provided descriptions of the shooter and a man who was with him at the time of the shooting, as well as their cell phone numbers. The number Ortiz provided for the shooter was Appellant's. The number he provided for Appellant's companion belonged to a man named Ryan Eitienne. N.T. Trial, 6/10/15, at 73, 105, 109; 6/11/15, at 13.3

3   A detective interviewed Eitienne and gave him a notice to appear in court on June 1, 2015, the day the trial was initially scheduled to begin. However, Eitienne did not appear, the trial was continued, and a bench warrant was issued. Eitienne could not be located for the trial. N.T., 6/10/15, at 72-80.

On July 24, 2014, Ortiz gave a formal statement to a detective. Ortiz did not feel comfortable talking at his house, so he met the detective on the street about ten blocks away. Ortiz told the detective that on the night of the shooting, he was inside his house and saw Lopez walking up the street. Ortiz asked [*4]  Lopez where he was going; Lopez responded that he was going with Din and there was going to be a fight. Ortiz told Lopez to come back, but Lopez refused. Ortiz walked to the front of the house, opened the door, and heard gunshots. He saw the shooter run away. Ortiz identified Appellant as the shooter from a photo array and told police where Appellant lived. N.T. Trial, 6/10/15, at 106-07, 144-51; Ex. C-7. In his statement, Ortiz did not mention any conversation he had with Lopez regarding the identity of the shooter. See Ex. C-7.

On July 28, 2014, Lopez gave a statement to the police. He was initially reluctant to talk to the police, but said he eventually gave a statement because the police threatened to arrest him if he did not. In his statement, Lopez said that he was talking to Din when two men approached and started fighting with Din. The fight continued up the street, and one of the men shot Din. Lopez said he was "right next to" Din when Din was shot. Lopez told the police he did not recognize either of the men who approached Din. He described one man as black and wearing jeans. He did not provide a description of the other man. N.T. Trial, 6/9/15, at 96-107; Ex. C-9.

Din gave [*5]  several statements to the police. At 10:50 p.m. on July 22, 2014, while he was in the hospital, Din gave a statement in which he said that he got into a fight with two men, and one of them shot him. He described the two men, but claimed he did not know them. Trial Ct. Op. at 3; Ex. C-12.

On July 24, 2014, while still in the hospital, Din gave a second police statement, in which he said that a man named Edwin had shot him. Trial Ct. Op. at 3; Ex. C-13. Because of the information they had received from Ortiz that day, police suspected that Din had provided false information. Din was released from the hospital later that day. Shortly after he got home, the police went to his house, asked him to accompany them to the police station, and took a third statement from him there. N.T. Trial, 6/9/15, 176-79; 6/10/15, at 50-55.

In that third statement, Din identified Appellant as the shooter. Din explained that he had identified Edwin in his previous statement because he was upset with Edwin for implicating him in a robbery. Din said he had not identified Appellant earlier because he did not want any trouble. See Trial Ct. Op. at 3; N.T. Trial, 6/9/15, at 79; 6/10/15, at 55; Ex. C-14.

Based on the [*6]  identifications by Din and Ortiz, detectives obtained a search warrant for Appellant's last known address: his grandmother's house at 5242 Rorer Street. The police executed the warrant the next day, July 25, 2014. In Appellant's grandmother's bedroom closet, they found a loaded .25 caliber semiautomatic handgun, sixty-two .25 caliber bullets of various brands, and materials commonly used to package marijuana. The gun was registered to Appellant's grandmother; after testing, the police excluded the gun as the weapon used in the shooting of Din. In the basement of the house, which was used as a bedroom, detectives found mail addressed to Appellant and male clothing. Trial Ct. Op. at 9-10; N.T. Trial, 6/10/15, at 56-68, 86.

Police also obtained a warrant for Appellant's cell phone records. Those records revealed the following calls on the night of the shooting: a call from Appellant to Eitienne at 9:15 p.m.; a call from Din to Appellant at 9:33 p.m.; a call from Appellant to his mother at 9:38 p.m.; several additional calls from Appellant to Eitienne between 9:36 and 9:51 p.m.; a call from Appellant to Din at 9:54 p.m.; and a call from Appellant to his mother at 10:04 p.m. N.T., 6/10/15, [*7]  at 100, 107-14; Exs. C-35 and C-36.

An arrest warrant was issued for Appellant. On July 29, 2014, Appellant wrote on his Twitter4 page, "It be the tuffest niggas ratting manee,"5 and "This my last day out here." Appellant surrendered to the police that same day. Trial Ct. Op. at 11, N.T., 6/10/15, at 68-71; Ex. C-38. He was charged with attempted murder, aggravated assault, conspiracy, carrying a firearm without a license, unlawful possession of a firearm, and possessing an instrument of crime.

4   "Twitter" is a type of social media account. Messages posted on the service are known as "tweets." See generally Nixon v. Hardin Cty. Bd. of Educ., 988 F. Supp. 2d 826, 830 n.1 (W.D. Tenn. 2013) (explaining how Twitter works).

5   There is no definition or explanation of Appellant's use of the word "manee" in the record.

After Appellant's arrest, Din testified before a grand jury and identified Appellant as the man who shot him. He testified that he initially did not identify Appellant because he was afraid that if he did, someone in his family would get hurt. N.T. Trial, 6/9/15, at 180-81, 216-37; Ex. C-15.

Appellant was tried by a jury from June 9-12, 2015. During the trial, the Commonwealth was permitted to introduce Appellant's July 29, 2014 Twitter postings as evidence. N.T. Trial, 6/10/15, at 3-4, 70-71; Ex. C-38. Over Appellant's objection, the trial court ruled that it also would permit the Commonwealth to introduce evidence of the .25 caliber ammunition found in the closet of Appellant's grandmother. [*8]  N.T. Trial, 6/9/15, at 3. The court asked Appellant and his counsel whether, in light of that ruling on the ammunition, they wanted introduction of evidence about the loaded .25 caliber gun that was found in the closet with the ammunition and the fact that police had determined that that gun was not used in the shooting of Din. Both Appellant and his counsel responded that they wanted that additional evidence regarding the gun admitted. Id. at 4-5. Thereafter, the Commonwealth elicited testimony from a detective regarding both the ammunition and the gun. Id. at 60-64.

At trial, Din identified Appellant as the person who shot him. N.T., 6/9/15, at 144-51, 184-85. He testified that he had not identified Appellant at first because he "ain't want no more problems" and "I thought that's it, it was over." Id. at 167. He hoped that when he told the police that he was robbed and did not know who did it, that "it was just going to go away" and "nobody was going to get locked up or nothing." Id. at 170. Din testified that he concocted the story about Edwin because Din wanted to "get him back" for telling the police that Din had robbed him. Id. at 174. Din explained that he ultimately told the truth because he did not want to be arrested for giving [*9]  false reports. Id. at 178-79.6

6   Din was later arrested for falsely implicating Edwin. N.T. Trial, 6/9/15, at 174.

Lopez testified that, on the night of the shooting, he was outside with Din when two black men (who he said he did not know) approached Din. One of the men got into a verbal argument, and then a physical fight, with Din. Lopez tried to stop Din from fighting, but Din refused. Lopez testified that he heard gunshots but did not see the shooting. In contrast to what he told the police in his statement (in which he said he was "right next to" Din when Din was shot), Lopez testified at trial that he was about ten feet away from Din when Din was shot. Lopez testified that he did not remember much of his police statement, and he did not identify the shooter during the trial. He initially testified that he did not call 911, but when confronted with the recording of his call, he admitted that he had done so. When asked by the Commonwealth, "Did you tell your stepdad who you saw shoot?" Lopez testified that he did not. Trial Ct. Op. at 4; N.T. Trial, 6/9/15, at 68-84, 95-107.

Ortiz testified that, on the night of the shooting, he saw Appellant fighting with Din, but did not see the shooting. He had trouble remembering what he had told the police, but he testified that he had identified [*10]  Appellant as the shooter in his July 24, 2014 statement because he had seen Appellant fighting with Din and because Lopez told him that the man fighting Din was the shooter. N.T. Trial, 6/10/15, at 134-150; 6/11/15, at 4-15. Ortiz's testimony about what Lopez told him about the identity of the shooter contradicted Lopez's prior testimony that he had not made such a statement to Ortiz. Appellant objected to Ortiz's testimony on this issue, but the objection was overruled. Id. at 135. Appellant did not then move for a mistrial or request a limiting instruction. See id.

After Ortiz testified, he revealed that a man in the courtroom called him a "snitch" as he was taking the stand on the second day of his testimony. Ortiz said that the man continued to look at him and moved his mouth without saying anything aloud during Ortiz's testimony and continued to look at Ortiz after Ortiz left the witness stand. Ortiz said he told the man, "I don't worry about you." Ortiz maintained that his testimony was not affected by this interaction. Over Appellant's objection, the trial court allowed the Commonwealth to recall Ortiz as a witness to testify about this incident, and also to call an assistant district [*11]  attorney who had witnessed what happened in the courtroom. N.T. Trial, 6/11/15, at 43-55.

At the conclusion of all trial testimony, Appellant moved for a mistrial. He argued that Ortiz's testimony was "filled with hearsay from his son, inadmissible hearsay, that a curative instruction of any kind [telling] the jury to only regard that evidence as to whether or not the son Mr. Lopez made a consistent or inconsistent statement would be inadequate." N.T. Trial, 6/11/15, at 60-61. The trial court denied the motion for a mistrial, but gave the following limiting instruction to the jury:

   You heard the testimony regarding alleged conversations between Mr. Bladimil Ortiz and Ezequiel Lopez regarding the alleged identity or description of the shooter. That testimony was admitted for a limited purpose, that is to evaluate the weight and credibility of Mr. Lopez's testimony. You may not regard that evidence as proof of the truth of anything asserted in those statements.

N.T. Trial, 6/11/15, at 62, 130-31.

On June 12, 2015, the jury found Appellant guilty of aggravated assault, carrying a firearm without a license, and possessing an instrument of crime. The jury found Appellant not guilty of attempted [*12]  murder. Based upon the evidence submitted to the jury and a stipulation that Appellant had a prior felony adjudication, the trial court found Appellant guilty of unlawful possession of a firearm. On August 13, 2015, the trial court imposed a sentence of 7-14 years' incarceration for aggravated assault and a concurrent sentence of 3-6 years' incarceration for carrying a firearm without a license.

In this appeal, Appellant raises the following issues, as stated in his brief:

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3. Was admission of two postings from social media an abuse of discretion where such postings were more prejudicial than probative, and were not relevant (see N.T. 6.10.15, pp. 3-4)?

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Evidentiary Rulings

In his second, third, and fourth issues, Appellant challenges evidentiary rulings made by the trial court. Our standard of review for these claims is deferential:

   The admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation marks and citations omitted), cert. denied, 137 S. Ct. 92 (2016).

In general, all relevant evidence is admissible. Pa.R.Evid. 402. Evidence is relevant if "it has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence." Pa.R.Evid. 401. "[T]he threshold for relevance is low due to the liberal 'any tendency' prerequisite." Brady v. Urbas, 111 A.3d 1155, 1162 (Pa. 2015) (emphasis in original; citing Pa.R.Evid. 401). Relevant evidence may be excluded, however, if its probative value is outweighed by, among other things, a danger of unfair [*23]  prejudice. Pa.R.Evid. 403. "Evidence is not unfairly prejudicial simply because it is harmful to the defendant's case. Rather, exclusion of evidence on this ground 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. Foley, 38 A.3d 882, 891 (Pa. Super. 2012) (internal quotation marks and citations omitted), appeal denied, 60 A.3d 535 (Pa. 2013).

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Appellant's Social Media Postings

Next, Appellant claims that the trial court abused its discretion in admitting evidence of his Twitter postings. Approximately one week after the shooting, and hours before he surrendered to the police, Appellant tweeted, "it be the tuffest niggas ratting manee" and "this my last day out here." N.T. Trial, 6/10/15, at 68-71, 96; Ex. C-38. Appellant concedes that he "used a street word for witness -- rat -- that is often used in the context of threats." Appellant's Brief at 23. He argues, however, that his posting expressed only surprise that someone who is "tough" would cooperate with the Commonwealth. Id. Appellant argues that the postings were more prejudicial than probative and were not relevant. Appellant's Brief at 22.11 The trial court concluded that the postings were probative of Appellant's consciousness of guilt and were not unfairly prejudicial. Trial Ct. Op. at 11.

11   Appellant did not challenge the authenticity of the postings at trial, and he does not do so on appeal. Trial Ct. Op. at 11 n.5.

Separate and apart from whatever implication of a threat may be inferred from Appellant's tweet, there is no question that Appellant's use of the word "ratting" suggested that Appellant believed someone spoke to the police and implicated him in [*29]  the crime. As Appellant acknowledges, the tweet reflected an "anti-snitching sentiment," Appellant's Brief at 24, which shows his belief that someone identified him as Din's shooter. Appellant argues that his characterization of that person as a "rat" or snitch did not necessarily reflect an admission that the information given to the police about Appellant's involvement in the crime was correct. He explains, "the terms 'ratting' and 'snitching' are not only used to refer to people who tell the truth to the police -- they are also used to describe people like Nabeel Din, who lie to the police, leading them to arrest an innocent party (such as Edwin, the man that Din named as the shooter just prior to naming the Appellant, and such as the Appellant himself)." Id. But resolution of any ambiguities in Appellant's tweet was for the jury, which was free to interpret the statement as an acknowledgment that someone had informed the police of a crime he committed. Under that interpretation, the tweet had probative value.

To the extent that the word "ratting" suggested a possible threat, the tweet was also admissible to show possible consciousness of guilt. See Commonwealth v. Raymond Johnson, 838 A.2d 663, 680 (Pa. 2003), cert. denied, 543 U.S. 1008 (2004). In Raymond Johnson [*30] , before his trial, the defendant approached a witness and said, "Its' [sic] kind of f   ed up when people's families die." 838 A.2d at 679 (letters omitted in original). The defendant argued that the statement was not admissible because "it [was] not clear that the comments were intended as a threat." Id. at 680. The Court held that regardless of whether the defendant's words constituted a threat, they were admissible because they were intended to influence the witness' testimony. Id.

Whether Appellant's postings actually communicated a threat was a question of interpretation that was properly left to the jury. In Commonwealth v. Kramer, 371 A.2d 1008 (Pa. Super. 1977), the defendant's letter to his wife stating, "(w)hen I get out of here, I am going to get a gun and you know what I am going to do," was admissible even though the defendant said he merely was referring to hunting. The true meaning of the statement was within the province of the jury. 371 A.2d at 1011-12. Here, the jury could have inferred that Appellant used word "ratting" with the intent to intimidate, and the Twitter postings therefore were relevant and admissible. See Raymond Johnson, 838 A.2d at 680. Moreover, we conclude that the trial court did not abuse its discretion in finding that "the messages were not unfairly prejudicial as they did [*31]  not divert the jury's attention away from its duty of weighing the evidence impartially." Trial Ct. Op. at 11 (quotation marks and citation omitted).

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