J-S46002-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARSEILLE WILSON

Appellant No. 3593 EDA 2013

Appeal from the Judgment of Sentence July 11, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013135-2011

BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 15, 2015

Appellant, Marseille Wilson, appeals from the July 11, 2013 aggregate 

judgment of sentence of five to ten years’ imprisonment, plus ten years’ 

probation, imposed after he was found guilty of two counts of indecent 

assault and one count each of rape and sexual assault.1 After careful 

review, we affirm.

The trial court summarized the relevant factual and procedural history 

of this case as follows.

[The victim,] McNeil[,] testified she was 23 years old 

and had lived in West Philadelphia her entire life. 

She testified that in October 2011 she was living on 

63rd Street with her sister Talia McNeil (“Talia”) and 

her friend Shaneia Jenkins (“Shaneia”). She stated 

that on the night of October 14, 2011, she and 

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1 18 Pa.C.S.A. §§ 3126(a), 3121(a)(3), and 3124.1, respectively.
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Shaneia went to a neighborhood bar, Connections, 

which was three blocks from her apartment. She 

testified that at the bar she had a few drinks and 

eventually Shaneia left. She testified that she drank 

two glasses of wine, some vodka, and some 

Hennessey. She stated that after Shaneia left, she 

spent time with Thomas, Temple, Razul and 

[Appellant]. She stated that she knew Thomas, 

Temple and Razul from elementary and/or high 

school, but that she had never met [Appellant] 

before.

McNeil testified that she eventually got a ride 

from Razul to her apartment and in the car were 

Thomas, Temple and [Appellant]. She testified that 

they were all coming back to her place to spend time 

with Talia’s boyfriend who was at their apartment. 

She testified that on the way to the apartment the 

car stopped at a gas station. She stated that in the 

three to four hours she was at the bar she had about 

four drinks and in the car she started to feel sick. 

She testified that she did not vomit in the car and 

she did not talk to the others who were in the car. 

She stated that when they got to her house she went 

straight to the bathroom to vomit. She testified that 

after throwing up she went in the bathtub to cool off 

in the water.

She testified that while she was in the bathtub 

she took off her shirt and was wearing a bra, and her 

tights. She testified that eventually Talia and 

Thomas helped her out of the tub and brought her 

into the bedroom. She stated that after getting into 

bed she started vomiting again and Talia brought her 

a black bucket to vomit in. She testified that after 

vomiting, Talia closed the door and turned the lights 

off and she went to sleep. She testified that the next 

thing she remembered was waking up to [Appellant] 

in her bed with his penis inside her vagina. She 

testified that she said “get off me, stop[,] and help 

me.” She stated that Talia came into her room and 

said to [Appellant], “What are you doing to my 

sister.” To which [Appellant] responded, “My name 

is Cell. Your sister knows me,” before he ran out of 
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the room. McNeil testified that she did not know 

[Appellant] and that she saw him earlier in the night, 

but did not have any conversations with him.

McNeil testified that [Appellant]’s body was 

positioned behind hers and she was on her side 

when she woke up. She stated that [Appellant]’s 

hands were on her side and her panties were down 

towards her knees. She stated that she had her 

panties on when she went to sleep. She testified 

that when she told [Appellant] to stop, he kept 

having sex with her. After [Appellant] ran out, she 

testified that Shaneia and Thomas came in the room 

and they tried to call her a cab to the hospital 

because she felt pain from her tampon that was 

inside of her still. She testified that she was on her 

period that night and intentionally left the tampon 

inside her when she went to sleep. McNeil testified 

that she went to the hospital in an ambulance with 

Talia and her father. After the hospital, McNeil 

testified that she went to the Special Victims Unit

where a nurse performed an examination and she 

gave a statement to Detective Jenkins.

McNeil testified that after the incident on 

October 15, 2011, she did not see [Appellant] again 

until November 4, 2011. She testified that she saw 

[Appellant] at Connections and that it was the first 

time she returned to the bar since the assault. She 

testified that she called the police and [Appellant] 

was arrested in the bar that night. Following the 

night in October 2011, McNeil testified that she had 

been back to Connections only three times. She 

testified that one of those times she saw Temple and 

Thomas. She testified that Temple said, “I ain’t 

f[**]king with you. My man was drunk. You should 

just let him go.” She testified that she started crying 

and then approached them and Temple repeated 

himself. McNeil testified that she had only been back 

to Connections once since then because she felt 

uncomfortable being there and that something might 

happen to her. She testified that the others who 

were with [Appellant] had been at her apartment 

before October 14, 2011, but that [Appellant] had 
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never been there before and she did not think 

anything would happen that night since he was with 

her other friends.

McNeil identified different photographs showing 

her bedroom and her apartment. She testified that 

she had four drinks on the night of the ... incident 

and that she was intoxicated, but that there were no 

moments which she did not remember. She testified 

that she did not invite [Appellant] to come back to 

her house, into her bedroom nor did she tell him that 

he could have sex with her.

Trial Court Opinion, 5/30/14, at 5-7.

On December 8, 2011, the Commonwealth filed an information, 

charging Appellant with the above-mentioned offense, plus one additional 

count of rape and one count of simple assault.2 Appellant proceeded to a 

jury trial on February 26, 2013, at the conclusion of which, Appellant was 

found guilty of two counts of indecent assault and one count each of rape 

and sexual assault. The simple assault charge and the second rape count 

were nolle prossed. On July 11, 2013, the trial court imposed a sentence of 

five to ten years’ imprisonment, plus ten years’ probation, for rape but no 

further penalty on the remaining charges. On July 19, 2013, Appellant filed 

a timely post-sentence motion. The trial court entered an order on 

November 19, 2013 denying Appellant’s post-sentence motion by operation 

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2 18 Pa.C.S.A. §§ 3121(a)(1) and 2701(a), respectively.
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of law. See generally Pa.R.Crim.P. 720(B)(3)(c). On November 20, 2013, 

Appellant filed a timely notice of appeal.3

On appeal, Appellant raises one issue for our review.

Did not the trial court err when it admitted an outof-court statement in evidence for its effect on the 

listener where the listener’s reaction to the 

statement was irrelevant to the case and the trial 

court’s refusal to give a limiting instruction 

restricting the jury from considering the evidence for 

its truth unfairly prejudiced ... [A]ppellant?

Appellant’s Brief at 4.

Although presented as a single issue, Appellant’s argument on appeal 

contains two sub-issues. First, Appellant avers the trial court abused its 

discretion in allowing McNeil to testify to a statement made by Temple, “I 

ain’t f[**]king with you. My man was drunk. You should just let him go.” 

N.T., 2/27/13, at 39. Specifically, Appellant argues that statement was 

irrelevant under Pennsylvania Rule of Evidence 401 and its probative value 

was outweighed by its prejudicial effect under Rule 403. Appellant’s Brief at 

13, 22. In his second sub-issue, Appellant argues the trial court erred in not 

instructing the jury that it may not consider said statement for its truth. Id.

at 19. 

We begin by noting our well-settled standard of review regarding these 

issues. 

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3 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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The admissibility of evidence is at the discretion of 

the trial court and only a showing of an abuse of that 

discretion, and resulting prejudice, constitutes 

reversible error. An abuse of discretion is not merely 

an error of judgment, but is rather the overriding or 

misapplication of the law, or the exercise of 

judgment that is manifestly unreasonable, or the 

result of bias, prejudice, ill-will or partiality, as 

shown by the evidence of record. Furthermore, if in 

reaching a conclusion the trial court over-rides or 

misapplies the law, discretion is then abused and it is 

the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en 

banc) (internal quotation marks and citations omitted), appeal denied, 83 

A.3d 167 (Pa. 2013). Likewise, “[i]n deciding whether a trial court erred in 

refusing to give a jury instruction, we must determine whether the court 

abused its discretion or committed an error of law.” Commonwealth v. 

Clouser, 998 A.2d 656, 658 (Pa. Super. 2010) (citation omitted), appeal 

denied, 26 A.3d 1100 (Pa. 2011).

Assuming, arguendo, that the trial court erred by allowing Temple’s 

statement and in not giving the requested limiting instruction to the jury, we 

nevertheless conclude that its errors were harmless.

[A]n error will be deemed harmless where the 

appellate court is convinced beyond a reasonable 

doubt that the error could not have contributed to 

the verdict. Guidelines for determining whether an 

error is harmless include: (1) whether the error was 

prejudicial to the defendant or if prejudicial, whether 

the prejudice was de minimis; (2) whether the 

erroneously admitted evidence was merely 

cumulative of other, untainted evidence which was 

substantially similar to the erroneously admitted 

evidence; or (3) whether the evidence of guilt was so
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overwhelming as established by properly admitted 

and uncontradicted evidence that the prejudicial 

effect of the error was so insignificant by comparison 

to the verdict.

Commonwealth v. Molina, 33 A.3d 51, 67 (Pa. Super. 2011) (en banc) 

(citation omitted), affirmed, 104 A.3d 430 (Pa. 2014).

As part of his defense, Appellant called Miguel Thomas who testified 

that Temple told McNeil the following.

Like, I don’t want to speak to you because you got 

one of my friends locked up and you know that’s not 

what happened. You know that’s not how it went 

down. Like, he didn’t rape you. He didn’t hold you 

down and rape you or anything like that. It was just 

like we were drunk and we tried -- he tried to do it to

you. Now, that’s how you should put it. Don’t try to 

put it like he raped you because that’s not how it 

went down.

N.T., 2/28/13, at 26-27. Here, because Temple’s statements came in as 

part of Appellant’s own defense, they were introduced to establish the 

substance of Temple’s statements, not for the limited purpose of their effect 

on the listener such as during the Commonwealth’s case-in-chief. Cf. N.T., 

2/26/13, at 5-9. Since Appellant’s own defense witness testified to the 

same statements as those Appellant complains of on appeal, but in greater 

detail, which were admitted for their substance, any potential prejudice was 
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de minimis, rendering any potential errors by the trial court harmless.4 See 

Molina, supra.

Based on the foregoing, we conclude Appellant’s issue is devoid of 

merit. Accordingly, the trial court’s July 11, 2013 judgment of sentence is 

affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2015

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4 Appellant acknowledges his eliciting of Temple’s statements from his own 

witness, but blames the trial court for not giving the limiting instruction. 

Appellant’s Brief at 25. Appellant argues that he was “trying to make the 

best of a bad situation.” Id. However, in our view, it appears odd that 

Appellant would wish for the jury to hear testimony, that according to 

Appellant undermines his own credibility, for a second time. Further, we 

agree with the Commonwealth that Appellant’s intentional elicitation of 

Temple statements reflects a belief that the statement could have been 

beneficial to him, such as to undermine Temple or the victim’s credibility by 

suggesting to the jury that they were all intoxicated and could not remember 

the events correctly. See generally Commonwealth’s Brief at 9 n.3.