Com. v. Ferguson, Q. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
QUINTON FERGUSON,
Appellant No. 1067 EDA 2015
Appeal from the Judgment of Sentence entered April 1, 2015,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0004379-2013.
BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY RANSOM, J.: FILED APRIL 18, 2017
Appellant, Quinton Ferguson appeals from the judgment of sentence,
imposed April 1, 2015, following a jury trial resulting in his conviction of
voluntary manslaughter and two firearm violations.1 We affirm.
The trial court summarized the pertinent facts as follows:
Police Officer Todd Rose testified that in the early
morning hours of December 2, 2012, when he was off-
duty, he drove to the area of 52nd and Spruce Streets to
get some food. Upon arriving at Medina’s Restaurant,
Officer Rose proceeded to order his food when he heard
loud voices, “a lot of ruckus and noise outside.”
Officer Rose then went outside to say hello to the
owner’s wife who was in a car parked outside the Sunoco
Station on 52nd Street. He estimated that he was talking
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1
18 Pa.C.S. §§ 2503, 6106, and 6105.
*Former Justice specially assigned to the Superior Court.
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to her for about 2 minutes when he observed a commotion
at south 52nd Street, outside Medina’s and the Chinese
Store, with about ten to fifteen people involved. Their cars
were double-parked, and they were very loud. Noticing
this activity, Officer Rose told the owner’s wife that it
looked like there might be a shooting and suggested that
she leave; she did.
Officer Rose stated that after he saw one of the cars
pull off, he thought the commotion was over and returned
to Medina’s to see if his food was prepared. However,
upon hearing more arguing outside, he went back to the
doorway and saw that the vehicle had returned and the
parties were arguing again.
Officer Rose then observed some type of physical
altercation start. He saw a male emerge from his left,
produce a firearm, and run to give the firearm to another
male, who was standing about ten feet away from him.
The man who received the firearm then shot the individual
standing outside; the decedent fell to the ground.
Meanwhile, the shooter put the firearm into his waist area;
after someone handed him his crutches, the shooter
moved toward Spruce Street.
The shooter [(later identified as Appellant)] was moving
toward Officer Rose at a brisk pace; Officer Rose knocked
him to the ground. Officer Rose then produced his service
weapon in an attempt to hold [Appellant] on location until
local police arrived.
Initially, Officer Rose told [Appellant] that he was a
police officer and instructed him to toss his gun. They
argued back and forth for about four or five minutes at
which point Officer Rose discharged his weapon one time
in the air, away from [Appellant].
After Officer Rose discharged the weapon, [Appellant]
initially continued ignoring his instructions; however, upon
reaching his firearm, [Appellant] complied and tossed it in
the street.
Officer Rose asked the owner’s wife to dial 911. Officer
Rose estimated that he held [Appellant] for about four to
five minutes, until the arrival of the police. The police
arrested [Appellant] without incident.
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***
Detective Theodore Hagan testified that he was
assigned to investigate the shooting death of [the victim]
and that as part of the investigation, he . . . retrieved a
video from the China House on South 52nd Street.
Detective Hagan acknowledged the presence of [Appellant]
and [Appellant’s co-defendant, Daquan Young (“Young”)]
in the courtroom.
Detective Hagan commented on the video which was
played for the benefit of the jury. He identified
[Appellant], [Young] and the [victim] on the video.
Detective Hagan noted that he attempted to interview
people in the neighborhood several times but that he
never learned anyone’s true identity. Although he spoke
with some members of the [victim’s] family, he did not
speak with the driver of the car, which the [victim] was
getting in and out of on the video.
Trial Court Opinion, 10/28/15, 7-10 (citations and footnotes omitted).
Appellant chose to testify at trial with regard to his interactions with
the victim during the hours before and leading up to the shooting. See
Notes of Testimony (“N.T.”), 06/24/2014, at 20-123. He testified that on
the evening prior to the shooting, he and Young, as well as two others, went
to a video-game tournament at a nearby residence. Because there was a
cash prize, and Appellant was not sure who would be present, he decided to
take a gun with him. Once arriving at the tournament he discovered that
everyone was from the neighborhood, so Appellant decided to leave the gun
in the trunk of his friend’s car.
After the group left the tournament, Appellant retrieved his gun, but
asked Young to carry it. According to Appellant, he was afraid to carry the
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gun while walking with crutches for fear he would drop it and the gun would
fire. They began to walk toward Appellant’s house but then stopped to get
some Chinese food. Appellant stated that the Chinese store was crowded.
At some point the visibly-intoxicated victim, whom Appellant had never seen
before in the neighborhood, told Appellant that he should pay for the victim’s
food order. When Appellant stated that he would not do so, the victim
hurled threats at Appellant. Appellant’s friend intervened, and another
person from the neighborhood attempted to escort the victim out of the
store. At that point, Appellant left the Chinese store and started to wait
outside for his food.
A second interaction with the victim occurred as Appellant was leaning
against a pole outside the store eating the food he had purchased.
According to Appellant, the victim continued to direct different threats at
him. The victim eventually left the store area and walked up Delancey
Street. After a while, however, Appellant saw a car coming from Spruce
Street and pulling up in front of the Chinese store area. Appellant noticed
the victim, whom he did not expect to return, get out of the car. Appellant
also noted that the man who got out of the driver’s seat was someone
named Reem, whom Appellant knew from the neighborhood.
Although Appellant did not feel the need to leave the Chinese store
area after his first two interactions with the victim, he believed he should
pay attention to the victim’s actions, which were still animated. According to
Appellant, he decided to talk with Reem in an attempt to “de-escalate” the
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situation. Appellant wanted Reem to know that he was the person the
victim earlier had a “beef” with on 52nd Street. Appellant testified that, he
wanted to make sure that he did not have to worry about future encounters
with the victim. Appellant never got Reem’s attention, however, and the car
left the scene.
Appellant further testified that, as he was standing there, his brother
and his brother’s girlfriend rode by in a white car. The vehicle pulled over
near Delancey Street, and Appellant went up to the car to talk about the
tournament. In the meantime, Young allegedly talked to someone named
“Karif” to relay a message to Reem.
As Appellant returned to the Chinese store area, he saw Reem’s car
return to the scene. Reem got out of the car and walked over to another car
double parked in front of his, just in front of the Chinese Store. Reem and
Karif began to have a conversation. The victim also exited the car and
approached the two men, but Reem pushed him back and the victim went
back into Reem’s car. After a while, Appellant called to Reem, who had re-
entered his car, and Reem told Appellant to “hold-up.” According to
Appellant, he approached Reem’s vehicle so that he could “de-escalate” the
situation by talking directly to Reem. Almost immediately, the victim exited
the vehicle once again and approached Appellant. Referring to the video
tape as it played, Appellant testified:
A. Right now I’m backing up from [the victim] and he’s
yelling things. He’s saying he’s going to put hands and
feet on me right now. You thought I was playing. I’m
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going to F you up. And then I’m still backing up away.
I call Reem. Reem act like he wasn’t trying to get his
company. And I throw the crutches because [the
victim] kept saying, I’m about to put hands and feet on
you. I’m going to put hands and feet on you.” And I
know that I wouldn’t be able to defend myself with
crutches in my hand. Or I had a better chance of at
least trying to block a punch with the crutches out of
my hand. Then he swings. And my cousin swings on
him to get him away from me. I fall to the ground.
And as I’m getting up from the ground, he stopped and
said, Now you know what it is now. You know what it is
now.
Q. What did you think that was? What did you think he
meant?
A. In my mind, in the area I went, it means he’s going to
get a gun.
Q. And what does he do?
A. When [the victim] goes to the car and the car stops
ahead of him and he reaches in the car, that’s when I
call [Young]. Because I’m going to think he’s about to
get a gun. And I tell [Young], I told [him], I need it.
And then [the victim] pointed at me and said, Hand me
the twister. Hand me the twister. And [a woman
standing by the passenger door is] screaming, No.
Don’t give it to him, Reem. Don’t give it to him. And
[the victim] is still reaching and saying, I’m going to
blow your F-ing head off. And he’s reaching into the
car. And when I see her pushing the gun down so
Reem can’t – like trying to prevent Reem from giving
[the victim] the gun, I seen him reach in the car and I
shot him.
N.T. at 62-64.
The defense presented no other testimony. In rebuttal, the
Commonwealth entered two stipulations; one regarding a prior incident in
which, when stopped, Appellant had a gun “attached” to his person, and the
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other consisting of expert testimony describing the safety features of the
gun that Appellant had used to shoot the victim.
The jury acquitted Appellant of first-degree, third-degree murder, and
conspiracy, but convicted him of voluntary manslaughter and carrying a
firearm without a license. That same day, the trial court found Appellant
guilty of an additional firearm violation. On April 1, 2015, the court
sentenced him to an aggregate term of nine and one-half to nineteen years
of imprisonment, and a consecutive ten-year probationary term.2 Appellant
filed a timely appeal. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Appellant raises the following issues:
1. Was not the evidence insufficient to support the verdict
of voluntary manslaughter where the Commonwealth
failed to disprove beyond a reasonable doubt that
[Appellant] was not acting in self-defense?
2. Did not the trial court err as a matter of law and abuse
its discretion in permitting the Commonwealth to
introduce as purported “rebuttal”, evidence of a prior
conviction that did not rebut [Appellant’s] statement
that it was easier for him not to carry a weapon due to
his disability and that was impermissible propensity
evidence so prejudicial that it undermined his defense
of self-defense?
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2
The jury found Young guilty of the same charges. The trial court sentenced
him to an aggregate term of five to ten years of imprisonment, and a
consecutive seven-year probationary term.
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3. Did not the trial court err as a matter of law and abuse
its discretion by denying [Appellant’s] motion to
preclude cross-examination of his character witness,
using a stale and unfairly prejudicial prior juvenile
adjudication?
Appellant’s Brief at 3.
Appellant first challenges the sufficiency of the evidence supporting his
voluntary manslaughter conviction. Initially, we set forth our standard of
review:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted
at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable a fact-finder to find
every element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilty may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact
while passing upon the credibility of the witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations
omitted).
“In order to procure a verdict of voluntary manslaughter, the
Commonwealth has the burden of proving beyond a reasonable doubt that
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the homicide was not a justifiable act of self-defense.” Commonwealth v.
Smith, 710 A.2d 1218, 1220 (Pa. Super. 1998) (citation omitted). “A killing
which occurs because of a mistaken belief that facts of justification exist will
constitute voluntary manslaughter.” Id. The criminal statute provides, in
pertinent part”
§ 2503. Voluntary manslaughter
(b) Unreasonable belief killing justifiable.—A
person who intentionally or knowingly kills an individual
commits voluntary manslaughter if at the time of the
killing he believes the circumstances to be such that, if
they existed, would justify the killing under Chapter 5 of
this title (relating to general principles of justification), but
his belief is unreasonable.
18 Pa.C.S. § 2503(b). Stated differently, to obtain a conviction, the
Commonwealth has the burden of proving beyond a reasonable doubt that
the defendant killed the victim without justification based upon a mistaken,
unreasonable belief that the act was justified. Smith, supra.
With regard to a claim of self-defense, this Court has recently
summarized the applicable presumptions and burden of proof as follows:
The defendant has no burden to prove his self-defense
claim. [Our] Supreme Court explained the evidentiary
burden as follows: While there is no burden on the
defendant to prove the [self-defense] claim, before the
defense is properly at issue at trial, there must be some
evidence, from whatever source to justify a finding of self-
defense. If there is any evidence that would support the
claim, then the issue is properly before the fact finder.
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Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citations
omitted).
If the defendant properly raises self-defense under Section
505 of the Crimes Code, the burden is on the
Commonwealth to prove beyond a reasonable doubt that
the defendant’s act was not justifiable self-defense.
The Commonwealth sustains this burden if it establishes
at least one of the following: 1) the accused did not
reasonably believe that he was in danger of death or
serious bodily injury; or 2) the accused provoked or
continue the use of force; or 3) the accused had the duty
to retreat and the retreat was possible with complete
safety.
The Commonwealth must establish only one of these
three elements beyond a reasonable doubt to insulate its
case from a self-defense challenge to the evidence.
Id.
“The Commonwealth can negate a self-defense claim if it proves the
defendant did not reasonably believe he was in imminent danger of death or
great bodily injury and it was necessary to use deadly force to save himself
from that danger. Id. (citing Commonwealth v. Sepulveda, 618 Pa. 262,
288-89, 55 A.3d 1108, 1124 (2012). Our Supreme Court has described the
requirement of “reasonableness” as follows:
The requirement of reasonable belief encompasses two
aspects, one subjective and one objective. First the
defendant must have acted out of an honest, bona fide
belief that he was in imminent danger, which involves
consideration of the defendant’s subjective state of mind.
Second, the defendant’s belief the he needed to defend
himself with deadly force, if it existed, must be reasonable
in light of the facts as they appeared to the defendant, a
consideration that involves an objective analysis.
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Commonwealth v. Mouzon, 617 Pa. 527, 551, 53 A.3d 738, 752 (2012).
In Smith, we further noted:
As the Mouzon Court observed, the use of deadly force
itself cannot be viewed in isolation with the victim as the
sole physical aggressor and the defendant acting in
responsive self-defense. This would be an incomplete and
inaccurate view of the circumstances for self-defense
purposes. To claim self-defense, the defendant must be
free from fault in provoking or escalating the altercation
that led to the offense, before the defendant can be
excused from using deadly force. Likewise, the
Commonwealth can negate a self-defense claim by proving
the defendant used more force that reasonably necessary
to protect against death or serious bodily injury.
When the defendant’s own testimony is the only
evidence of self-defense, the Commonwealth must still
disprove the asserted justification and cannot simply rely
on the jury’s disbelief of the defendant’s testimony[.]
***
A number of factors, including whether the [victim] was
armed, any actual physical contact, size and strength
disparities between the parties, prior dealings between the
parties, threatening or menacing actions on the part of the
[victim], and general circumstances surround the incident,
are all relevant when determining the reasonableness of a
defendant’s belief the that the use of deadly force was
necessary to protect against death or serious bodily
injuries. No single factor is dispositive. Furthermore, a
physically larger person who grabs a smaller person does
not automatically invite the smaller person to use deadly
force in response.
Smith, 97 A.3d at 788 (citations omitted).
The trial court concluded that the Commonwealth’s evidence when
properly viewed, Hansley, supra, established the elements of voluntary
manslaughter, and disproved Appellant’s claim of self-defense:
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Here, [Appellant] admitted that he fired shots at the
[victim] but said that he did so in self-defense because he
believed that the [victim] was about to use deadly force
against him. In the case sub judice, the question was
whether, considering the available evidence, a reasonable
person would have believed that he was in imminent
danger of death or great bodily harm, which would have
justified his act of self-defense. In light of all the
circumstances known to [Appellant], even if he actually
believed that he needed to use deadly force to protect
himself, his belief was unreasonable. By rendering its
verdict of voluntary manslaughter, the jury demonstrated
that it concluded that a reasonable person would not have
had this belief.
Although the [victim] was the initial aggressor and, in
fact, seriously provoked [Appellant] – going from verbal
abuse to physical abuse to asking the driver of the car to
hand him a “twister” and reaching into the car as if to get
a gun – [Appellant] acted under an unreasonable belief
that these circumstances would have justified the use of
deadly force against [the victim].
This court finds that, in the heat of conflict, [Appellant]
failed to evaluate the danger carefully and make precise
judgments about exactly how much force was need to
protect himself. Furthermore, [Appellant] could have
refrained from using deadly force by safely retreating and
thereby removing himself from a dangerous situation;
however, he failed to do so. Instead, he himself went up
to the [victim] in the middle of a highly escalated situation
thereby neglecting his duty to retreat.
Upon considering the realities of the situation faced by
[Appellant], the jury properly assessed that the
Commonwealth proved beyond a reasonable doubt that
[Appellant] did not believe that he was actually in danger
of death or serious bodily injury to the extent that he
needed to use deadly force in self-defense and that if
[Appellant] did hold that belief, the belief was
unreasonable.
Trial Court Opinion, 10/28/15, at 26-27.
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Our review of the record supports the trial court’s conclusions. Here,
Commonwealth had no witnesses to the shooting. Thus, the only evidence it
could present was the surveillance video. This Court has reviewed the
surveillance video tape from this incident, which has no audio, on several
occasions. Although the shooting occurred quickly, arguably Appellant
introduced deadly force into what until that time was a physical altercation
when he emerged from the group of people on the street and approached
the victim. See Smith, 710 A.2d at 1220 (holding that Commonwealth
negated a self-defense claim by proving the defendant used greater force
that was reasonably necessary to protect against death or serious bodily
injury). If so viewed by the jury, the Commonwealth disproved Appellant’s
claim of self-defense. Id. While Appellant testified that he interpreted the
victim’s alleged statements of “Now you know what it is now. You know
what it is now,” as indicating he was going for a gun, it was up to the jury to
accept his testimony as reasonable, as well as Appellant’s further claim that
he saw the victim reaching for a gun.3 Clearly, it was within the jury’s
province to discredit Appellant’s version of the incident. Commonwealth v.
Bullock, 948 A.2d 818, 824 (Pa. Super. 2008). Thus, Appellant’s sufficiency
challenge fails.
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3
Appellant contends that the trial court found as fact that the victim was
reaching for a gun. The jury was the finder of fact and it was exclusively in
their province to accept Appellant’s testimony.
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In his next issue, Appellant claims that he was prejudiced by the trial
court’s permitting the Commonwealth to place certain stipulations on the
record during its rebuttal, because a prior gun incident was not relevant and
therefore merely introduced as propensity evidence. We disagree.
As our Supreme Court has summarized:
Appellate courts typically examine a trial court’s decision
concerning the admissibility of evidence for abuse of
discretion. An abuse of discretion 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.
Typically, all relevant evidence, i.e., evidence which tends
to make the existence or non-existence of a material fact
more or less probable, is admissible, subject to the
prejudice/probative value weighing which attends all
decisions upon admissibility. See Pa.R.E. 401; Pa.R.E.
402[.]
Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007). In general,
evidence of uncharged crimes or prior bad acts is inadmissible to
demonstrate a defendant’s propensity to commit the crime charged.
Commonwealth v. Shull, 148 A.3d 820 (Pa. Super. 2016).
In this case, the trial court explained why its decision to allow the
Commonwealth to introduce rebuttal evidence was neither error nor an
abuse of discretion:
Here, in response to [Appellant’s] assertion that he did
not want to carry a firearm on him the night of the
shooting because of his lifelong disability requiring the use
of crutches, the Commonwealth introduced evidence that
on January 10, 2008, [Appellant] was arrested for a
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firearm violation after a pedestrian investigation when the
police recovered one black revolver, .38 special, loaded
with six live rounds from [Appellant’s] person. Based on
the officer’s recollection, he was not using crutches at the
time he was arrested.
In the case at bar, the evidence of [Appellant’s] prior
gun possession was not introduced in order to show
[Appellant’s] bad character or criminal propensity.
Instead, it was introduced for a legitimate purpose of
rebutting [Appellant’s] testimony that he did not want to
carry a handgun on his person because of his disability.
Furthermore, the court cautioned the jury not to infer
[Appellant’s] guilty in this case on the evidence that in the
past he carried a handgun on his person. This court
explained to the jury that the evidence could be considered
for one purpose only – to help the jury assess the
credibility and weight of the testimony [Appellant] gave at
trial.
This court is satisfied that the probative value of this
evidence outweighs its possible prejudicial effect and that
the evidence of [Appellant’s] prior gun possession was
therefore admissible.
Trial Court Opinion, 10/28/15, at 30.
Once again, our review of the record supports the trial court’s
conclusions. As noted by the trial court, a limiting or cautionary instruction
“may ameliorate the prejudicial effect of the proffered evidence.” Id. at 29
(citing Commonwealth v. Tyson, 119 A.3d 353, 360 (Pa. Super. 2015). A
jury is presumed to follow the trial court’s instructions. Commonwealth v.
Faurelus, 147 A.3d 905 (Pa. Super. 2016). Thus, Appellant’s second claim
is meritless.
Appellant presents his final issue as follows:
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[Appellant] declined to present a witness to his
reputation for non-violence due to the trial judge’s decision
to permit the Commonwealth to cross-examine the
character witness as to whether he was aware of a stale
juvenile adjudication of [Appellant’s]. Reputation
witnesses may only be cross-examined regarding a
defendant’s specific instances of misconduct resulting in a
conviction probative of the character trait in question. The
proffered cross-examination material was a juvenile
adjudication, not a conviction, as prescribed by Pa.R.E.
405(a)(2). Also, the adjudication was too remote in time
to be probative. Its prejudicial effect outweighed its
limited impeachment value.
Appellant’s Brief at 15.
Before the parties’ opening arguments on the first day of trial, the trial
court inquired of defense counsel regarding their motion in limine regarding
the use of character testimony that the parties previously had discussed off
the record. N.T., 6/24/14, at 136. The trial court deferred ruling on the
motion and defense counsel agreed not to mention the reputation evidence
when opening to the jury. At the beginning of the third day of trial, the trial
court and the parties revisited Appellant’s motion. After hearing the
arguments of the parties, the trial court denied Appellant’s motion. See
N.T., 6/26/14, 4-8.
Defense counsel then made the following statement:
[DEFENSE COUNSEL]: So it would be clear for the
record that we will not forego [sic] presenting this
critical character testimony for peacefulness based
on your – [ruling].
N.T., 6/26/14, at 9 (emphasis added).
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Within its brief, Appellant does not explain the above statement.
Nevertheless, the defense did not call any character witnesses.
“It is well-settled that the scope of cross-examination is a matter
within the trial court’s discretion and will not be disturbed absent an abuse
of that discretion.” Commonwealth v. Kouma, 53 A.2d 760, 768 (Pa.
Super. 2012) (citation omitted). When examining the admission or
exclusion of impeachment evidence in the context of character witnesses,
this Court has further noted:
In a criminal case, the defendant may offer character
witnesses to testify as to that defendant’s reputation in the
community regarding a relevant character trait. See
Pa.R.E. 404(a)(1); 405(a). Of course, the Commonwealth
may attempt to impeach those witnesses.
Commonwealth v. Hoover, [] 16 A.3d 1148, 1149 (Pa.
Super. 2011) (citing Commonwealth v. Morgan, 559 Pa.
248, 739 A.2d 1033, 1035 (1999). “For example, when
cross-examining character witnesses offered by the
accused, the Commonwealth may test the witnesses’
knowledge about specific instances of conduct of the
accused where those instances are probative of the traits
in question.” Hoover, 16 A.3d at 1149-50 (citing Pa.R.E.
405(a)). However, the Commonwealth may not cross-
examine a character witness about a defendant’s
uncharged criminal allegations, Morgan, 739 A.2d at
1035-36, or a defendant’s arrests that did not lead to
convictions. Commonwealth v. Scott, 496 Pa. 188, 436
A.2d 607, 611-12 (1981).
Commonwealth v. Kuder, 62 A.3d 1038, 1057-58 (Pa. Super. 2013).
The trial court found no merit to Appellant’s claim, concluding that the
juvenile adjudication could be used for impeachment purposes, and that it
was not stale:
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In the present case, [Appellant] was adjudicated
delinquent by admission of aggravated indecent assault, a
felony of the second degree, on November 14, 2002. On
November 29, 2002, [he] was committed to the
Pennsylvania Clinical School where he remained until
October 21, 2003; on December 3, 2003, Judge Reynolds
committed [Appellant] to Benchmark School, another
secure residential facility, where he remained until his
discharge on January 11, 2005. This Court finds,
therefore, that Pa.R.E. 609(b), which limits the use of
evidence after 10 years, is inapplicable to the case at bar.
Here, the cross-examination of a witness attesting to
[Appellant’s] reputation of non-violence would have
brought to light [Appellant’s] prior juvenile record of being
adjudicated for a crime of violence. Such cross-
examination would have been conducted not to prove
[Appellant’s] bad character or criminal propensity but to
impeach the credibility of [Appellant’s] witness attesting to
his reputation for non-violence. The cross-examination
would have allowed [for] testing the “accuracy and
completeness” of the witness’s real knowledge of
[Appellant’s] reputation.
Trial Court Opinion, 10/28/15, at 32-33 (citation omitted).
We find that no error occurred. Contrary to Appellant’s claim,
although the general rule is that a juvenile disposition or other adjudication
under the Juvenile Act “is not a conviction of crime,” such a disposition may
be “only be used against him” . . . in a criminal proceeding, if the child was
adjudicated delinquent for an offense, the evidence of which would be
admissible if committed by an adult.” 42 Pa.C.S. §§ 6354(a), (b)(4).
Clearly, if convicted as an adult, Appellant’s prior aggravated indecent
assault would be admissible to impeach evidence of his character for
peacefulness. See Commonwealth v. Ross, 856 A.2d 93, 101-102 (Pa.
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Super. 2004) (explaining that cross-examination of a character witness may
include questions regarding a defendant’s prior convictions for crimes involve
the relevant character trait; the purpose of this type of impeachment is to
test the accuracy and completeness of the witness’s knowledge of the
defendant’s reputation).
Moreover, while we agree with Appellant’s assertion that the ten-year
rule of Rule 609, which by its terms is limited to crimen falsi offenses, has
no application to his “dated” juvenile adjudication, see Ross, 856 A.2d at
102, we cannot agree with his additional claim that the absence of a direct
reference to juvenile adjudications in Rule 405(a)(2) renders the juvenile
adjudication inadmissible. See Appellant’s Reply Brief at 15-17. Section
6354 of the Juvenile Act permits the use of such dispositions in criminal
proceedings. Finally, we discern no abuse of discretion in the trial court’s
weighing of the probative value of Appellant’s prior adjudication vis-à-vis the
potential prejudice to Appellant. Thus, Appellant’s final issue merits no
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
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