Commonwealth of Pennsylvania, v. Lindley Thelismond

Commonwealth of Pennsylvania, v. Lindley Thelismond

 

Criminal Action-Law-Criminal Homicide-Shooting-Evidence-Motion in Limine-Admissibility-Pa.R.E. Rule 404-Prior Bad Acts-Character-Gang Affiliation-Drug Related Activities-Probative Value-Prejudicial Effect

 

Lindley Thelismond (“Defendant”) was charged with one (1) count of Criminal Homicide relating to the shooting death of a victim at a home belonging to an eyewitness to the shooting.  Defendant filed a Motion in Limine requesting preclusion of the Commonwealth from introducing testimony regarding Defendant’s alleged gang affiliation and drug dealing.  The Commonwealth also filed a Motion in Limine requesting admission of evidence of Defendant’s alleged gang affiliation and drug dealing.  After the Court directed that the Commonwealth was precluded from introducing evidence of Defendant’s alleged gang affiliation and drug use and an appeal by the Commonwealth to the Pennsylvania Superior Court, the Superior Court remanded the case with a direction that the Court weight the probative value of the evidence against its prejudicial effect.

 

1. Pa.R.E. Rule 404(b) provides that while evidence of any other crime, wrong or act is not admissible to prove a person’s character to show that the person acted in accordance with the character, such evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident.

 

2. Rule 404(b)(2) provides that such evidence in a criminal case is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

 

3. Unfair prejudice is a tendency to suggest decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially.

 

4. In weighing the probative and prejudicial value of evidence, the court may consider whether and how much the potential for unfair prejudice may be reduced by delivery of cautionary instructions.

 

5. Evidence of a defendant’s association with a drug organization has been held to be admissible to establish motive and to show the chain or sequence of evidence that became part of the history of the case and formed a part of the natural development of the facts.

 

6. While evidence of gang membership and activities has been held to be admissible to explain the conduct of a Commonwealth witness with regard to circumstances such as fear of gang retaliation, gang related incidents that are not relevant to the crime at issue are not admissible.

 

7. Where evidence of the gang affiliation sets the background for the shooting, is probative of Defendant’s motive in committing the offense, the shooting would make little or no sense without the background of the respective gang activity and the absence of the gang activity would provide no explanation as to the flight of the eyewitness from the area based upon fear of retaliation, the probative value of the evidence outweighs the potential for unfair prejudice when the Court provides cautionary instructions to the jury regarding the permissible use of such evidence.

 

8. Evidence of drug dealing between Defendant and the eyewitness to the shooting is not probative where the victim was not there to purchase drugs, the argument between Defendant and the victim had nothing to do with drugs and the shooting otherwise had no connection to drug dealing.

 

L.C.C.C.P. No. CP-38-CR-0000539-2019, Opinion by Charles T. Jones, Junior, Judge, April 21, 2022.

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA        :         NO. CP-38-CR-539-2019

:

1. :

:

LINDLEY THELISMOND                                   :

 

ORDER OF COURT

 

AND NOW, this 21st day of April, 2022, we issue the following Opinion in response to the Order of the Superior Court of Pennsylvania filed on February 14, 2022 remanding this matter for consideration of whether the evidence at issue in the parties’ Motions in Limine is admissible as res gestae and/or as demonstrative of Defendant’s motive.  In accordance therewith, it is Ordered as follows:

1. Evidence of the alleged gang affiliation of Defendant, James Jeter and Richard Andino will be admitted at the trial of this matter with the following provisos:

(a.)  The Commonwealth is prohibited from introducing evidence that Andino was requested to find accommodations for Defendant in Lebanon due to Defendant’s involvement in a criminal act committed in New York;

(b.)  The Commonwealth is prohibited from introducing evidence of the rivalry situation between the gangs in the respective New York neighborhoods of Defendant and James Jeter without laying a proper foundation for the admission of such evidence in accordance with the Opinion accompanying this Order.

2. Evidence of the alleged drug dealings of Defendant and Richard Andino will be inadmissible at the trial of this matter.

BY THE COURT:

 

                                                                   _____________________, J.

                                                                   CHARLES T. JONES, JR.

 

CTJ/jah

 

Cc:  Pier Hess, Esquire/District Attorney

       Kevin Dugan, Esquire

       Leslie Fillak/Court Administration

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA        :         NO. CP-38-CR-539-2019

:

1. :

:

LINDLEY THELISMOND                                   :

 

APPEARANCES:

 

PIER HESS GRAF, ESQUIRE                           FOR THE COMMONWEALTH

DISTRICT ATTORNEY

 

KEVIN DUGAN, ESQUIRE                               FOR LINDLEY THELISMOND

FEATHER & FEATHER, PC

 

OPINION, JONES, J., APRIL 21, 2022.

 

Defendant is charged with one count of Criminal Homicide pursuant to 18 Pa.C.S.A. §2501(a) for the shooting death of James Jeter at a home located on Orchard Avenue in the City of Lebanon on February 27, 2019.  The home belonged to the wife of the eyewitness to the shooting, Richard Andino. In addition to Andino, Andino’s children were in the home at the time of the shooting.

On August 6, 2020, Defendant filed a Motion in Limine requesting, in part, that the Commonwealth be precluded from introducing testimony regarding the alleged “Crips” gang affiliation and drug dealings of Defendant. On that same date, the Commonwealth filed a Motion in Limine requesting a ruling that  evidence of the gang affiliation of Defendant, Jeter and Andino, and the drug dealing by Defendant and Andino would be admissible at trial.  We conducted a pretrial conference with counsel on the record on September 18, 2020.

On September 24, 2020, we issued an Order suppressing any reference to the “Crips” gang affiliation or the drug dealings.  On October 2, 2020, the Commonwealth filed an appeal of that ruling to the Superior Court of Pennsylvania.  On November 25, 2020, we issued an Order and Opinion pursuant to Pa.R.A.P. 1925 and the matter was submitted to a panel of the appellate court.  On February 14, 2022, the Superior Court remanded the matter to us with instructions to weigh the probative value of the evidence of the gang affiliation and drug dealings against the prejudice which would result from the admission of such evidence as res gestae and as evidence of Defendant’s motive to shoot Jeter.   We issue this Opinion and accompanying Order in response to the Superior Court’s instructions.

A thorough rendition of the facts is set forth in our Opinion of November 25, 2020 and in the Superior Court’s Memorandum of February 14, 2022.  In short, it is alleged that Defendant, Jeter, and Andino were all members of the “Crips.”  Jeter was a friend of Andino’s who lived in Lebanon.  Defendant’s home is in New York.  Andino had arranged for a place for Defendant to stay in Lebanon at the request of a Crip gang member in New York as a favor to a higher-level Crip gang member known as “Big Homie.”[1]

During the evening of February 27, 2019, Defendant and Andino were at the home of Andino’s wife, who was at work.  Andino’s children were upstairs and the men were downstairs.  Jeter arrived at the residence as he and Andino had plans for the evening.  Jeter and Defendant had never met before and became engaged in conversation.  Defendant asked Jeter his name and where he was from.  Jeter said that he was from a Brooklyn neighborhood, Flatbush, in New York.  Andino explained that he had heard that Defendant had a problem with someone from that neighborhood.  Defendant became irritated and began to argue with Jeter.  In an effort to avert trouble, Andino called “Big Homie” who spoke to Defendant.  Andino then called a cab for Defendant.  In the interim, Defendant had resumed arguing with Jeter.  Fearing that the cab would take too long, Andino called another individual, “Ezra,” to pick up Defendant.  While they waited for Ezra, Defendant and Jeter continued to argue.  When the cab arrived, Andino told Defendant to leave.  As Defendant pulled on his jacket, he reached into the drawer of a nearby dresser where he had stored some of his personal belongings and pulled out a gun.  He then shot Jeter multiple times.  Andino saw Defendant pointing a gun in his direction.  Defendant grabbed his belongings and ran out the back door of the home.

Andino called 911 to report the shooting.  Because he had outstanding warrants, he gathered his children and left the home with them.  They met Ezra outside and got into his vehicle.  They then picked up some guns and Defendant’s jacket which had been discarded in the alley behind the home.  Ezra’s vehicle was pulled over by the police shortly thereafter and Andino identified Defendant as the shooter.  When asked to aid the police in the investigation of the shooting, Andino expressed fear about gang retaliation.

At the behest of police, Andino made two recorded calls in order to locate Defendant.  During the first call, another individual indicated that Defendant was staying at an address on North 12^th Street in the City. During the second call, Andino spoke to Defendant who admitted to shooting Jeter.  Defendant was arrested at the North 12^th Street residence where he was staying and charged with Criminal Homicide.  During a search of the Orchard Street home where the shooting occurred, the police found Jeter’s body near the dresser.  The dresser contained personal belongings of Defendant, including multiple drugs and drug-related materials.  Papers describing gang vocabulary and structure, as well as references to “Big Homie,” were also located in the dresser.

After Andino testified for the Commonwealth at Defendant’s Preliminary Hearing, he was out on bail with electronic monitoring. He began to receive gang-related threats of retaliation.  Eggs were thrown at his family’s home and vehicles and he found three dead rats with knives stuck through them at his back door.  When the lines to his surveillance camera were severed, he removed his monitoring bracelet and fled to Florida with his wife and children.  He was eventually located there and brought back to Lebanon on a warrant.  He was placed in protective custody in the Lebanon County Correctional Facility, where he continued to receive gang-related threats and retaliation from Defendant and other inmates.

In its Memorandum, the Superior Court specifically directed us to consider whether the evidence of gang membership and drug dealing is admissible in the trial of this matter pursuant to Pa.R.E. 404(b) in light of its recent non-precedential decision in Commonwealth v. Wilson, 2020 WL 2315616, 237 A.3d 442 (Pa. Super. 2020).  In Wilson, the Superior Court had affirmed the trial court’s holding that evidence of gang membership was admissible, in part, as res gestae to explain the story of the defendant’s involvement in a shooting, and as motive to commit the crime.

Pa.R.E. 404(b) provides, in part:

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts

 

(b) Other Crimes, Wrongs, or Acts.

 

(1) Prohibited Uses. Evidence of any other crime, wrong, or 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.

 

Pa.R.E. 404(b)(1)-(2).

 

In Wilson, the defendant was a gang member who had participated in a drive-by shooting at a residence at the invitation of other gang members after a resident of the home had sold fake drugs to a gang member’s friend.  He was charged with third-degree murder, conspiracy and several counts of recklessly endangering another person.  The defendant filed a motion in limine to preclude evidence of his gang affiliation.     The trial court denied the motion and the defendant was found guilty of the charges.  On appeal, he argued, in part, that the trial court had erred in permitting the Commonwealth to present evidence of the gang’s history, organization, structure, and criminal activities, claiming that there was a limited connection between the underlying drug deal and the gang.

The trial court had noted that, in addition to the purposes listed in Rule 404(b)(2), the courts have also recognized another exception – res gestae – to give essential background information to the crimes on trial.   2020 WL 2315616 at *6.  In determining whether it was proper for the evidence to have been admitted, the Superior Court considered the trial court’s reasoning:

According to the evidence presented at trial, Appellant’s gang affiliation prompted his entire involvement in the criminal episode that led to the death of [the decedent].  Furthermore, the Black P-Stone hierarchy and protocol dictated the level of Appellant’s involvement in this incident.

…

 

Evidence of Appellant’s gang involvement makes the fact of his participation in the drive-by more probable than without such evidence.

 

…

 

Appellant would have had little, if any, reason to accompany this group to the … residence and participate if not for his affiliation with the Black P-Stones, the hierarchy and protocol within the gang.  Thus, the gang-related evidence has a ‘tendency to make [Appellant’s involvement] more … probable than it would be without the evidence’ and Appellant’s involvement is clearly a fact ‘of consequence in determining the action.

 

2020 WL 2315616 at *4-5.

In noting that such evidence should be permitted only if the probative value outweighs its potential for unfair prejudice, the trial court considered the definition of “unfair prejudice” – a “tendency to suggest decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially.”  2020 WL 2315616 at *6, citing Pa.R.E. 403 – comment.  The court also observed that, when weighing probative value and unfair prejudice, the court may consider whether and how much the potential for unfair prejudice may be reduced by cautionary instructions.  2020 WL 2315616 at *6, citing Pa.R.E. 404 – comment.

The trial court further explained that

All evidence against a defendant in a criminal case will be prejudicial. Commonwealth v. Peer, 684 A.2d 1077, 1083 (Pa. Super. 1996). Our determination in this context, however, must be whether evidence is unfairly prejudicial. Id.; see also Rule 404(b)(2). While the trial court must exclude relevant but unfairly prejudicial evidence, we are “not required to sanitize the trial to eliminate all unpleasant facts from the jury’s consideration where those facts form part of the history and natural development of the events and offenses with which [a] defendant is charged.” Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004) (quotation omitted). In order for it to be excluded, relevant evidence must be “so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case.” Id. (quotation omitted).

 

Wilson, 2020 WL 2315616 at *6.

 

In this matter, Defendant points out that gang affiliation evidence is appropriate in cases where the defendant is charged with conspiracy, but that no conspiracy charge has been lodged against him.  Our review of relevant caselaw does reveal that in many of the cases dealing with this issue, the defendant was charged with conspiracy in connection with the actions of other members of the defendant’s gang.  See, Commonwealth v. Jones, 668 A.2d 491 (Pa. 1995); Commonwealth v. Gwaltney, 442 A.2d 236 (Pa. 1982); Commonwealth  v. Mable, 2018 WL 653777 (Pa. Super. 2018) (unpublished, non-precedential decision); Commonwealth v. Collins, 70 A.3d 1245 (Pa. Super. 158 (Pa. Super. 2013); Commonwealth v. Brewington, 740 A.2d 243 (Pa. Super. 1999); Commonwealth v. Childress, 680 A.2d 1184 (Pa. Super. 1996).

In fact, the trial court specifically focused on the conspiracy charge in admitting such evidence in Wilson:

As we stated above, Appellant’s movements and actions on the night of the drive-by shooting would make little, if no, sense absent the background information of gang affiliation, hierarchy, and protocol. The Pennsylvania Supreme Court has held that admission of gang affiliation is proper when the Commonwealth alleges conspiracy as such evidence is highly probative of the crime of conspiracy and goes to prove “motive, intent, plan, design, ill will or malice.” Appellant was charged with conspiracy. Proof of conspiracy under subsection (a)(1) requires a showing that a person intends to promote or facilitate the commission of a crime and “agrees with [another] person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime.” 18 Pa. C.S. § 903(a)(1). Evidence of gang affiliation, hierarchy, and protocol shows that Appellant had the motive, intent, and plan to conspire with his fellow gang members to participate in the drive-by. Thus, the gang-related evidence is admissible against Appellant under Rule 404(b).

Wilson, 2020 WL 2315616 at *6.

 

In weighing the probative value against the prejudice which would result from the admission of such evidence, the court explained:

Finally, we do not believe that admission of highly probative gang-related evidence would be “so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case.” This [c]ourt issued a cautionary instruction to the jury regarding the evidence relating to Appellant’s membership in the Black P-Stone gang and the gang’s illegal activity. The jury was instructed that this evidence could only be used for the limited purpose of tending to show motive and modus operandi. We presume that the jury follows the [trial c]ourt’s instruction. Any prejudice that may arise from admission of this gang-related evidence would be curable through a cautionary jury instruction and, thus, is not unfairly prejudicial. See Rule 404, cmt; see also Commonwealth v. Whitfield, 419 A.2d 27, 29 (Pa. Super. 1980) (finding a jury can be instructed not to assume guilt simply because of gang affiliation).

 

Wilson, 2020 WL 2315616 at *7.

 

In Commonwealth v. Childress, the court also held that evidence of a defendant’s association with a drug organization was admissible to establish motive and to show the chain or sequence of events which became part of the history of the case and formed a part of the natural development of the facts.  Commonwealth v. Childress, 680 A.2d at 1188.  Evidence of gang membership and activities has also been admitted to explain the conduct of a Commonwealth witness with regard to circumstances such as fear of gang retaliation.  Commonwealth v. Whitfield, 419 A.2d 27, 29 (Pa. Super. 1980); Commonwealth v. Brewington, 740 A.2d at 251-252.  However, gang-related incidents which are not relevant to the crime at issue are not admissible.  Commonwealth v. Roman, 351 A.2d 214 (Pa. 515).

We understand the Commonwealth’s position that evidence of the Crips affiliation sets the background for the shooting here and is probative of Defendant’s motive to commit this offense. The evidence of gang membership bolsters the Commonwealth’s case in that Defendant’s shooting of an individual he met only moments earlier would make little to no sense without the background of the respective gang activity and association of these individuals.   We further note that the gang-related retaliatory acts directed at Andino explain his flight from Lebanon.  Without the evidence of the retaliatory acts, Andino’s flight could be interpreted as guilt as he was the only eyewitness to the shooting.

The Commonwealth posits that the ensuing argument between Defendant and Jeter was a result of their being from the rival Crips neighborhoods in New York and that this rivalry provided the motive for Defendant to shoot Jeter.  It appears that this evidence is to be presented through the testimony of Andino.  It is unclear, however, whether Andino’s testimony will be based on his own personal knowledge or experience with regard to the situation of the rival neighborhood gangs in New York.  We believe such testimony will be inadmissible if Andino knows of this situation solely through his communications with “Big Homie” or other gang members.  Therefore, the Commonwealth is required to lay a proper foundation for its admission.

The Commonwealth will also present evidence that Andino found Defendant a place to stay in Lebanon at the request of a higher-up gang member, “Big Homie,” and was obligated to accommodate this request due to his gang relationship with that individual and Defendant.  It appears that “Big Homie” wanted Defendant to abscond to Lebanon as the result of a gang-related criminal incident which occurred in New York.  We believe that no reference to the reason for “Big Homie’s” request (that it was necessary for Defendant to “hide out” in Lebanon due to his involvement in a criminal act committed in New York) should be made at trial as such evidence has nothing to do to this shooting and any probative value, if any, is outweighed by its prejudicial effect.

While we acknowledge the highly probative nature of this evidence, we cannot ignore the high potential for prejudice which would result from its admission.  However, the relevant caselaw on this issue causes us to hesitate to say that this prejudice is unfair.   Evidence of gang affiliation has been held admissible in numerous cases involving similar facts.[2]  In those cases, the appellate courts have opined that any potential that such evidence would inflame the minds of the jurors and create the risk that a decision would be made based upon something other than the relevant law and circumstances of the case could be cured by cautionary instructions to the jury.  Based on this precedent, we believe that the probative value of the evidence outweighs the potential for unfair prejudice.  We will therefore permit the Commonwealth to introduce this evidence, with the provisos noted above, and the Court will provide instructions as to relevance and limitations with regard to the jury’s consideration of the charge against Defendant.

Conversely, we find that the matter of the drug dealing which was carried on by Defendant and Andino is not in any way related to Jeter’s shooting.  The shooting had no connection to any discrepancy over a drug deal.  Jeter was not there to purchase drugs and the argument between the two had nothing to do with drugs.  When Defendant reached into the dresser, he retrieved a gun and did not remove any drugs from the area where his personal belongings were stored. Details of the drug dealing has no probative effect and provided no motive for Defendant’s actions.  Such evidence adds nothing to the history or background of this scenario and is therefore not part of the res gestae. Because we find this evidence to be of no probative value, we need not address the potential prejudice which would result from its admission.   This does not hamper the Commonwealth’s presentation of its case as an examination of the potential exhibits provided to us indicates that the Commonwealth has sufficient photographic evidence to present without reference to drugs.  Therefore, we will order that the evidence of drug dealing will be inadmissible at trial.

 

[1] It appears that “Big Homie”wanted Defendant to hide out in Lebanon due to his involvement in a gang-related incident in New York.  The Commonwealth has indicated that it does not intend to introduce any evidence of the out-of-state incident or Defendant’s purported involvement in that incident at the trial of this matter.

[2] As noted previously, most of the cases included a charge of conspiracy.