J-A09044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DWANE HANDY

Appellant No. 1656 EDA 2013

Appeal from the Judgment of Sentence entered June 5, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: 51-CR-0013034-2011

BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 14, 2015

Appellant, Dwane Handy, appeals from the judgment of sentence the 

Court of Common Pleas of Philadelphia County entered June 5, 2013. Upon 

review, we affirm. 

The relevant facts and procedural history can be summarized as 

follows: 

[O]n April 2, 2011, at approximately 4:40 P.M., [Police Officer 

Candice McCoy] went to the Busti Housing Project at 46th and 

Market Streets in Philadelphia in response to a radio call. A 

black Pontiac Bonneville was in the eastbound lane with the 

engine running. The driver’s side door was slightly open and the 

front passenger’s side window was shattered. Two (2) black 

males discovered in the vehicle had been shot multiple times. 

The male sitting in the front passenger’s seat was unresponsive. 

The male sitting in the driver’s seat was complaining of pain in 

his legs. The medic unit arrived and transported the males to 

the hospital. The male [who] had been sitting in the passenger’s 

seat, later identified as Quince Morant [(Morant)] . . ., was 

pronounced dead on arrival. The other male, later identified as 

Sharad DuBose [(DuBose)], received treatment for his injuries. 
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Trial Court Opinion, 5/29/14, at 2. 

Following the shooting, the police interviewed several individuals, 

including DuBose, Consuelo Matthews, Jerome Boyd, John Ashmore, and 

Ivory Matthews, who provided written statements incriminating Appellant as 

involved in the shooting. In essence, these witnesses stated that Appellant, 

along with codefendant, robbed Morant and DuBose, and, in the course of 

the robbery, killed Morant and injured DuBose. At trial, however, with one 

exception (Consuelo Matthews),1all of the witnesses distanced themselves 

from the prior statements they gave to the police, denying making any 

statement to the police (DuBose), not recalling signing any statement 

(Boyd), not recalling what information was provided to the police (Ashmore), 

disputing the accuracy of the statement (Ivory Matthew), or claiming not to 

have signed all pages of the statement (Ivory Matthew).

On May 31, 2013, [Appellant] was found guilty by a jury of 

[m]urder of the [second] [d]egree; [a]ggravated [a]ssault; two 

(2) counts of [r]obbery; [c]onspiracy to [c]omit [r]obbery and, 

[p]ossession of an [i]nstrument of [c]rime. He was sentenced 

that same day to [l]ife without possibility of parole for the 

[m]urder conviction; five (5) to ten (10) years for the 

[a]ggravated [a]assault conviction; five (5) to ten (10) years for 

each [r]obbery conviction; and, . . . five (5) to ten (10) years for 

the [c]onspiracy to commit [r]obbery conviction; all sentences to 

run concurrently.

____________________________________________

1 At trial, Consuelo Matthews, “confirmed that most of the statement was 

accurate. However, she testified that she did not tell [detectives] that 

[Appellant] took Ebony into the bathroom with him.” Id. at 4. 
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On June 5, 2013, the court amended its sentencing order and 

vacated the sentence imposed on the two (2) counts of 

[r]obbery since they were lesser included offenses of [second] 

[d]egree [m]urder.

Trial Court Opinion, 5/29/14, at 1 (footnote omitted). This appeal followed. 

On appeal, Appellant raises the following issues:

1. Did not the trial court err in denying [A]ppellant’s motion to 

suppress inculpatory statements, where the statements were 

the product of an unlawful arrest unsupported by probable 

cause?

2. Did not the trial court err in refusing to permit to question codefendant . . . regarding his prior arrest with Elante 

Outterbridge, where such questioning was relevant to 

[A]ppellant’s defense at trial and where [codefendant] opened 

the door by testifying to his own character?

3. Did not the trial court err in denying repeated defense 

motions for a mistrial, where the Commonwealth engaged in 

an ongoing course of prejudicial conduct that included open 

references to the fact that documents had been redacted; 

improper comments in denigration of defense counsel; and 

improper burden-shifting, misstatement of evidence, and 

appeals to community sympathy and outrage?

4. Did not the trial court err in failing either to grant a mistrial or 

to conduct further investigation after it became apparent that 

specific information regarding the jury’s deliberations had 

been leaked?

Appellant’s Brief at 3. 

In his first argument, Appellant claims the trial court erred in finding 

the officers had probable cause to arrest Appellant. Specifically, Appellant 

argues the Commonwealth failed to make out a prima facie case Appellant 

committed the crimes ascribed to him. Appellant’s Brief at 33 (quoting 
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Commonwealth v. Weigle, 997 A.2d 306 (Pa. Super. 2010)). Appellant 

also added that 

Pennsylvania courts have thus held that the question of probable 

cause is closely related to the issue of legal sufficiency: would 

the evidence possessed by the police at the time they arrested 

appellant, assuming it were true, have been sufficient to allow a 

judge or magistrate to find probable cause to bind him over for 

trial?

Id. (relying, presumably, on Weigle). 

Appellant misunderstands the law. Weigle deals with the 

Commonwealth’s burden at a preliminary hearing, not with the 

Commonwealth’s burden at a suppression hearing. At a preliminary hearing, 

the Commonwealth must provide (i) evidence of each of the material 

elements of the crime charged and (ii) and establish probable cause to 

warrant belief that the accused committed the crime.2 At a suppression 

____________________________________________

2

In Commonwealth v. Lacey, 496 A.2d 1256, 1260-61 (Pa. Super. 1985), 

this Court noted: 

A creature of statute, the preliminary hearing is intended to 

protect the accused from unlawful detention. To that end, the 

prosecution must establish at least a prima facie case that a 

crime has been committed and that the accused is the one who 

committed it. The Commonwealth’s burden at this stage falls 

short of proof beyond a reasonable doubt. The proof need only 

be such that, if the evidence were presented at trial and 

accepted as true, the trial judge would be warranted in allowing 

the case to go to the jury. 

Id. at 1260 (citations omitted). We also explained our standard of review as 

follows:

(Footnote Continued Next Page)
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hearing where a defendant challenges the arrest, however, the 

Commonwealth must produce only evidence of the propriety of the arrest, 

i.e., probable cause to arrest, not evidence sufficient to make a prima facie

case of guilt. Commonwealth v. Holloway, 323 A.2d 216, 217 (Pa. Super. 

1974). “It is only probability, and not a prima facie showing of criminal 

activity[,] that is the standard of probable cause for arrest[.] If the officer 

had known of a complaint when he took the appellant into custody, he would 

have had all the evidence presented at trial, i.e. prima facie evidence of guilt 

beyond a reasonable doubt.” Id.; see also Commonwealth v. 

Thompson, 985 A.2d 931 (Pa. 2009) (“probability, and not a prima facie 

showing, of criminal activity” necessary for search and seizure) (emphasis in 

original) (citing Illinois v. Gates, 462 U.S. 213, 235 (1983)). Thus, 

reliance on Weigle is misplaced.

(Footnote Continued) _______________________

Our function is to take the facts proven by the 

Commonwealth at the preliminary hearing and to 

determine whether the sum of those facts fits within 

the statutory definition of the types of conduct 

declared by the Pennsylvania legislature in the 

Crimes Code to be illegal conduct. If the proven 

facts fit the definition of the offenses with which the 

appellees are charged, then a prima facie case was 

made out as to such offense or offenses. If the facts 

do not fit the statutory definitions of the offenses 

charged against the appellees, then the appellees 

are entitled to be discharged.

Id. at 1260-61 (citation omitted). 
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Applying the proper standard, the trial court concluded the officer had 

probable cause to arrest Appellant. Specifically, at the suppression hearing, 

the investigating detective testified that he spoke, inter alia, to Ebony 

Matthews, Ivory Matthews, and the mother of eyewitness John Ashmore, all 

of whom knew Appellant and codefendant. Ebony told the detective that, 

“just” after the shooting, then 11-year-old John Ashmore told Ebony that he 

saw codefendant shooting someone inside a car. N.T. Suppression, 2/14/13, 

at 12. Ebony told the detective that Ashmore was shaking with fear because 

he had seen everything and “he was afraid that they were going to come get 

him.” Id. at 13.

Ivory Matthews reported that Ashmore, upon entering the Matthews’ 

apartment after the shooting, told Ivory that Appellant was in the backseat 

of the car when codefendant approached Morant and DuBose and said, “Y’ all 

got to . . . the count of five to give it up.” Id. at 23. Ashmore saw 

Appellant get out the car’s back seat and walk away from codefendant 

before codefendant began firing the gun. Id.; see also id. at 36-37.

John Ashmore’s mother reported to the detectives that she saw 

Appellant with codefendant on the elevator “right after” the shooting. N.T. 

Suppression, 2/15/13, at 51-52. She heard Ebony warning codefendant 

about the police in the courtyard. Id.

The trial court summarized this evidence as follows:
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There [are] three really strong statements that indicate that 

[Appellant] more likely than not had involvement in this murder. 

. . . 

So [codefendant] comes up to commit a murder, 

robbery/murder, [Appellant] gets to leave the car unscathed and 

[codefendant] and [Appellant] are together within a few minutes 

after the homicide. If that is not probable cause, I don’t know 

what is.

Id., at 63-64. 

The trial court also properly noted: “There is a difference between 

probable cause to arrest and whether the detectives believed they had 

enough evidence to hold and whether they want to bring their case at that 

time or gather more information.” Id. at 66. 

In light of the foregoing, we conclude the trial court did not err in 

denying Appellant’s motion to suppress the statements.3

In his second claim, Appellant argues the trial court erred in not 

allowing him to question codefendant about codefendant’s prior arrests to 

show that Elante Outterbridge, who had been arrested with codefendant in 

the past in connection with another robbery, was involved in the crimes at 

issue here. 

____________________________________________

3 To the extent Appellant argues the Commonwealth failed to make a prima 

facie case at the preliminary hearing because the officer did not have 

probable cause to arrest, we find the claim meritless. It is well known that 

any defect in the preliminary hearing is cured by subsequent trial. “Once a 

defendant has gone to trial and has been found guilty of the crime or crimes 

charged, however, any defect in the preliminary hearing is rendered 

immaterial.” Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014) 

(citation omitted). 
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In his argument, Appellant mentions Pa.R.E. 404(b) as controlling the 

issue, but fails to provide the pertinent analysis (i.e., why the evidence 

sought was permissible as opposed to impermissible and whether its 

probative value outweighed its potential for prejudice).4 Appellant merely 

argues that he should have been allowed to question codefendant because 

codefendant opened the door by testifying about his character for being a 

law-abiding citizen, i.e., on two occasions, codefendant commented about 

the tone or content of the questions from the Commonwealth that, 

according to the codefendant, made him look like something he was not. 

____________________________________________

4 Rule 404(b) reads as follows:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 

not admissible to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance with 

the character.

(2) Permitted Uses. This evidence may be admissible for 

another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident. In a criminal case this evidence is admissible 

only if the probative value of the evidence outweighs its potential 

for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the prosecutor 

must provide reasonable notice in advance of trial, or during trial 

if the court excuses pretrial notice on good cause shown, of the 

general nature of any such evidence the prosecutor intends to 

introduce at trial.

Pa.R.E. 404(b).
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Appellant’s representation of the testimony above as “character 

evidence” is a stretch. However, even if codefendant “opened the door”5to 

questions about his character, Appellant fails to provide any explanation why 

he wanted to question codefendant on a prior arrest for robbery—assuming 

he could have impeached him with evidence of prior arrests—if he merely 

intended to show that he was not a law-abiding citizen.6 We see no other 

reason for the proposed line of questions than Appellant’s attempt to 

establish that codefendant acted in conformity with the prior robbery. Such 

evidence, however, is expressly prohibited under Pa.R.E. 404(b)(1). “A 

defendant has a fundamental right to present evidence, so long as the 

evidence is relevant and not subject to exclusion under our Rules of 

Evidence.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014). In 

the instant matter, Appellant essentially claims the trial court should have 

allowed him to show that Elante Outterbridge was involved in the instant 

robbery/murder, not Appellant, because codefendant and Elante 

____________________________________________

5

“A litigant opens the door to inadmissible evidence by presenting proof that 

creates a false impression refuted by the otherwise prohibited evidence.” 

Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) 

(citations omitted).

6 Codefendant had seven arrests, mostly for felonies, including an arrest in 

connection with a robbery that took place in the neighborhood of the Busti 

Projects (West Philadelphia) on September 6, 2008. See N.T. Suppression, 

2/14/13, at 27; N.T. Suppression, 2/15/13, at 60.
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Outterbridge were arrested in connection with the 2008 robbery.7 “Reverse 

Rule 404(b) evidence” refers to a defendant’s use of other acts evidence 

under Pa.R.E. 404(b) to show that a third party had committed the crime at 

issue. See United States v. Stevens, 935 F.3d 1380, 1404 (3d Cir. 2001) 

(construing the materially similar Fed.R.Evid. 404(b)). No Pennsylvania 

court has squarely addressed the use of reverse Rule 404(b) evidence, but 

some have mentioned the concept obliquely. See, e.g., Commonwealth v. 

Chmiel, 889 A.2d 501, 534-35 (Pa. 2005) (holding that trial court properly 

precluded defendant from questioning witness concerning prior burglary 

which did not fall within permitted purposes of Rule 404(b) but merely 

tended to establish action in conformity with the prior act). To the extent a 

defendant’s reverse Rule 404(b) evidence is admissible, it certainly does not 

permit a defendant to seek admission of “propensity evidence in violation of 

the prohibition of Rule 404(b).” United States v. Williams, 458 F.3d 312, 

314 (3d Cir. 2006). The claim is therefore without merit.

Appellant next argues the trial court erred in denying Appellant’s 

motions for mistrial due to the Commonwealth’s misconduct.8 Appellant, 

____________________________________________

7 As noted, Appellant does not argue the questioning was intended to show 

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of incident.” Pa.R.E. 404(b). 

8 Appellant sought a mistrial following the Commonwealth’s reference to 

documents and/or photographs being redacted and following a comment, 

directed to the jury, “that they would be serving until Memorial Day.” 

(Footnote Continued Next Page)
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however, does not challenge any specific ruling made by the trial court as 

improper or incorrect. In fact, Appellant conceded the rulings were proper. 

Appellant’s Brief at 52. Appellant merely states the cumulative impact of the 

Commonwealth’s actions amounted to prosecutorial misconduct even if the 

instances themselves, considered separately, did not rise to the level of 

prosecutorial misconduct. Id. In support, Appellant cites Commonwealth 

v. Bricker, 487 A.2d 346 (Pa. 1985), for the proposition a mistrial should be 

granted if the Commonwealth has engaged in a pattern of misconduct 

throughout the trial. 

The claim fails for several reasons. Preliminarily, we note that Bricker

is a plurality opinion, which means it is not binding authority. 

Commonwealth v. Antoszyk, 985 A.2d 975, 981 (Pa. Super. 2009). In 

any case, in Commonwealth v. Miles, 681 A.2d 1295 (Pa. 1996), the 

Supreme Court acknowledged that “if the prosecutor has engaged in a 

pattern of misconduct throughout the trial then there is reason to grant a 

new trial.” Id. at 1303 (citing Bricker). However, the Supreme Court also 

noted that “[n]o number of failed claims may collectively attain merit if they 

could not do so individually.” Id. (citation omitted) (emphasis in original). 

(Footnote Continued) _______________________

Appellant also brought another motion for mistrial following 

Commonwealth’s closing argument. Appellant argued that the 

Commonwealth improperly cited DuBose’s statements for their content, 

whereas they were admitted for impeachment purposes only; improperly 

shifted the burden to the defense to produce evidence; improperly misstated 

the evidence; and improperly appealed to community sympathy or outrage. 
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Here, as in Miles, all claims for prosecutorial misconduct failed, and 

Appellant did not challenge their disposition. Thus, as in Miles, we conclude 

Appellant is not entitled to relief based on his claim.

Additionally, the claim fails on its merits. 

The denial of a motion for a mistrial is assessed on appellate 

review according to an abuse of discretion standard. See 

Commonwealth v. Savage, 529 Pa. 108, 116, 602 A.2d 309, 

312 (1992). The central tasks confronting the trial court upon 

the making of the motion were to determine whether misconduct 

or prejudicial error actually occurred, and if so, to assess the 

degree of any resulting prejudice. See generally 

Commonwealth v. Boczkowski, 577 Pa. 421, 454, 846 A.2d 

75, 94 (2004) (characterizing a mistrial as an extreme remedy 

that needs only be granted where a prejudicial event may 

reasonably be said to have deprived the defendant of a fair 

trial).

Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa. 2006).

Here, the trial court found the challenged comments regarding the 

redacted photos and the pace of the trial were in fact intemperate and 

improper, but did not deprive Appellant of a fair trial. Similarly, the trial 

court found two comments (use of DuBose’s statements and appeal to the 

community outrage) made during the closing argument required a curative 

instruction, but none of the claims warranted granting Appellant’s motion for 

mistrial. On appeal, as noted, Appellant does not challenge any of these 

rulings, and does not argue—except for bald allegations—he suffered 

prejudice. As such, Appellant is entitled to no relief on this claim.

Appellant next argues the trial court erred in failing either to grant a 

mistrial or to conduct further investigation after it became apparent that 
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specific information about the jury’s deliberations had been leaked. 

Specifically, Appellant argues that during the deliberations the trial court 

learned that a juror, Juror No. 7, had participated in conversations with 

outside parties regarding the jury’s deliberations. 

A close reading of Appellant’s argument reveals that Appellant does 

not challenge the trial court’s denial of his motion for mistrial. Indeed, 

Appellant concedes the trial court’s determination in this regard was correct. 

Appellant’s Brief at 54. Appellant, rather, argues, for the first time on 

appeal, that the trial court should have engaged in “further inquiries to trace 

the leak,” Appellant’s Brief at 58, and that questioning only one juror, the 

juror allegedly involved in the leak, was not enough to assess whether 

Appellant was prejudiced by the leak. Id. In support, Appellant cites 

Commonwealth v. Price, 344 A.2d 493 (Pa. 1975) for the proposition that 

“where the juror visited the scene of the crime, but that juror was not 

identified or questioned by the court, likelihood of prejudice could not be 

discounted and new trial was required[.]” Appellant’s Brief at 56. 

Appellant never requested or even alluded to the necessity of 

conducting further investigation until this appeal. As per defendants’

request, the trial court questioned the only juror who could have been the 

source of the potential leak (Juror No. 7). Appellant did not complain at any 

time before now about the adequacy of the inquiry. The trial court was not 

made aware of the necessity of conducting further inquiry at any time. 
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Appellant raises the issue for the first time on appeal. The claim is therefore 

waived. See Pa.R.A.P. 302(a).

Additionally, had the claim been preserved, we would have found it 

meritless. 

Once the trial court is made aware that a juror has been exposed 

to extraneous information [. . .] that was not provided in open 

court or vocalized by the trial court via instructions which may 

have affected the juror’s deliberation, the trial court must assess 

the prejudicial effect of the extraneous influence. In so doing, 

the trial court should consider: (1) whether the extraneous 

influence relates to a central issue in the case or merely involves 

a collateral issue; (2) whether the extraneous influence provided 

the jury with information they did not have before them at trial; 

and (3) whether the extraneous influence was emotional or 

inflammatory in nature.

Commonwealth v. Pope, 14 A.3d 139, 145 (Pa. Super. 2011) (citing 

Commonwealth v. Messersmith, 860 A.2d 1078, 1085 (Pa. Super. 

2004)).

Here, the claim again would fail for several reasons. First, Appellant 

presumes prejudice from the trial court’s failure to conduct further inquiries 

into the leak. However, this is not the test. The burden is on the moving 

party, here Appellant, to prove he suffered prejudice. Id. Second, once the 

moving party shows prejudice, the trial court must assess the extent of the 

prejudice of the extraneous influence. Appellant never made this showing 

because he never raised the issue before the trial court. To this end the trial 

court noted that Appellant “has failed to provide an argument as to how this 

extraneous information may have affected the juror’s deliberation such that 
J-A09044-15

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it may have prejudiced [Appellant] or Co-Defendant. There was no 

argument made by [Appellant] as to what impact, if any, this extraneous 

information had on Juror No. 7.” Trial Court Opinion, 5/29/14, at 22. 

Finally, Price is distinguishable. In Price, the trial court never conducted 

any inquiry into the alleged misconduct resulting in the trial court’s failure to 

assess whether any prejudice occurred. Here, however, the trial court fully 

examined—to Appellant’s satisfaction—Juror No. 7, and concluded that 

Appellant did not suffer prejudice from the extraneous influence. In this 

regard, the trial court noted: 

[T]he trial court conducted a meaningful colloquy with Juror No. 

7[.] . . . Juror No. 7, a corrections officer at the House of 

Corrections, has a daughter who is a Corrections Officer at 

[Philadelphia Industrial Corrections Center]. Juror [No.7] denied 

speaking to anyone[,] including her daughter[,] about the 

deliberations in the case. [Juror No. 7] acknowledged that her 

daughter did tell her that [Appellant] knew her mother was 

sitting as a juror in his trial and asked her to put in a word with 

her mother. Juror No. 7’s daughter told her that she ignored 

[Appellant] and acted like nothing happened.

Trial Court Opinion, 5/29/14, at 21.

Thus, the instant matter is distinguishable from Price. As a result, 

Appellant’s reliance on Price is misplaced. 

In light of the foregoing, we conclude Appellant is not entitled to relief 

on any of his claims.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015