Com. v. Poteet, E., Sr. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDDIE JOE POTEET, SR. :
:
Appellant : No. 1456 MDA 2018
Appeal from the Judgment of Sentence Entered November 29, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006263-2015
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED FEBRUARY 03, 2021
I agree with the learned majority’s substantive analysis regarding the
trial court’s jury instructions, Appellant’s obligation to register as a convicted
sex offender, and the inapplicability of the Rape Shield Law, 18 Pa.C.S.
§ 3104. However, I respectfully disagree with my esteemed colleagues’
conclusion that the proffered impeachment evidence concerning the victim’s
contemporaneous allegations of sexual abuse against someone else was
properly excluded by the trial court.
As the majority addressed our standard of review and succinctly
summarized the procedural posture of this case, I will not revisit those items
herein. However, for ease of discussion, I briefly restate the factual history
and outline the relevant offer of proof that is the genesis of Appellant’s
contention.
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The victim testified that Appellant engaged in escalating episodes of
sexual abuse against her while she was between the ages of four and ten. The
abuse ended when the victim moved from the home at the age of ten, but
Appellant assaulted her again when she was thirteen years old. On cross-
examination of the victim, Appellant’s counsel inquired about the former
boyfriend of the mother. See N.T., 9/6/17, at 130. Then, in response to the
Commonwealth’s request for an offer of proof, counsel indicated that he
sought to introduce evidence that the victim previously alleged that her
mother’s former paramour assaulted her sexually when she was seven years
old. Id. Counsel explained that the alleged abuse occurred contemporaneous
with the allegations against Appellant. Id. at 131. The trial court barred the
inquiry under the Rape Shield Law.
Although the trial court’s post-trial analysis subsequently retreated from
its reliance upon the Rape Shield Law, the court concluded that the proffered
impeachment evidence was irrelevant. It reasoned, “Whether or not T.B.
accused another person of sexually assaulting her does not make it more or
less probable that Appellant assaulted her.” Trial Court Opinion, 11/20/18, at
10. The majority’s analysis builds upon the trial court’s premise that the
evidence was irrelevant, adding that, since Appellant’s reference to the prior
allegation did not suggest that the assertion was fabricated, it did not bear
upon the victim’s credibility. See Majority Memorandum at 7 (“Because
Appellant did not assert that the Victim’s purported accusation was false,
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either before or after the court’s ruling denying any further questioning,
counsel’s ‘belief’ that the Victim made an accusation about another person
was not relevant to the issue of the Victim’s credibility.”). For the following
reasons, I respectfully disagree.
The majority requires an express assertion that the prior allegation of
abuse was false. Considering the fact that portions of the alleged assaults
overlap, or at least occurred close in time, I do not believe that Appellant was
compelled to assert that the victim fabricated the prior allegations in order for
the proffered evidence to bear on the victims’ credibility. In my view, the
witness’s potential confusion about the overlapping assaults was sufficient to
implicate her credibility based upon faulty recollection.1
Evidence of prior sexual assaults is admissible if it is relevant and
material. Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994).
Pursuant to Pa.R.E. 401, “[e]vidence is relevant if . . .it has any tendency to
make a fact more or less probable than it would be without the evidence; and
. . . the fact is of consequence in determining the action.” Furthermore,
“[i]mpeachment evidence is evidence which is presented as a means of
____________________________________________
1 Although evidence concerning the victim’s prior allegations of abuse
admittedly lacks the gravitas of the impeachment evidence challenging the
respective witnesses’ propensity for truthfulness in Commonwealth v.
Woeber, 174 A.3d 1096 (Pa. Super. 2017) and Commonwealth v. Schley,
136 A.3d 511, 517-19 (Pa.Super. 2016), which the majority cites in support
of its position, the evidence nevertheless was admissible to challenge the
witness’s credibility based on faulty recollection. A point that I develop in the
body of this concurring memorandum.
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attacking the witness’[s] credibility.” Commonwealth v. Palo, 24 A.3d
1050, 1055 (Pa.Super. 2011) (quoting Leonard Packel & Anne
Poulin, Pennsylvania Evidence § 608 (1987)). Black’s Law Dictionary (11th
ed. 2019) defines “credibility” as “The quality that makes something (as a
witness or some evidence) worthy of belief.” One of the several principal
means to attack a witness’s credibility includes offering evidence to “prove
defects in the witness’[s] perception or recollection.” Palo, supra at 1056;
see also Pa.R.E. 607(b) (“The credibility of a witness may be impeached by
any evidence relevant to that issue, except as otherwise provided by statute
or these rules.”).
In contrast to the perspective of my esteemed colleagues, the pertinent
question is not whether the prior accusations against the paramour were
untruthful, but whether, considering the timing and corresponding nature of
the alleged assaults, they bore upon the victim’s credibility in any manner.
For example, if there had been another assailant during the same time period,
perhaps the victim’s testimony against Appellant was colored by mistake,
confusion, or faulty memory. As framed by Appellant, the crux of the proffer
is that the victim accused someone else of assaulting her “around the time”
that the Appellant allegedly assaulted her. Appellant’s brief at 30. Appellant
argues, and I agree, that the timing of the other allegation is relevant
impeachment evidence. Although the majority reiterates Appellant’s position
generally, and stresses the absence of skepticism as to the prior assertions, it
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ignored the timing element and declined to explain why evidence of the
overlapping assaults was not admissible to challenge the victim’s recollection
of the assaults perpetrated by Appellant.
Similarly, the fact that the allegations against Appellant spanned periods
prior to and following the alleged abuse by another individual when the victim
was seven years old does not negate the relevance of the evidence challenging
her recollection. It merely influences the weight that the jury attributes to it.
For all of the forgoing reasons, I believe that the trial court abused its
discretion in refusing to permit Appellant to question the victim about the prior
allegations. The majority’s rationale ignores the plain fact that alternative
methods exist to impeach a witness’s credibility beyond attacking her
character for truthfulness. See Palo, supra at 1055-56 (quoting Leonard
Packel & Anne Poulin, Pennsylvania Evidence § 608 (1987)) (emphasis added)
(“There are several principal ways to attack a witness’ credibility: ‘evidence
offered to attack the character of a witness for truthfulness, evidence offered
to attack the witness’ credibility by proving bias, interest, or corruption,
evidence offered to prove defects in the witness’ perception or
recollection, and evidence offered to contradict the witness’ testimony.’”).
As Appellant offered the proposed impeachment evidence to prove defects in
the witness’s recollection of events that occurred approximately fourteen
years earlier, Appellant was not required to assert that the prior allegations
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against the paramour were false. Stated plainly, Appellant sought to challenge
the victim’s memory, not her penchant for truthfulness.
Notwithstanding the court’s erroneous exclusion of the impeachment
evidence, I concur with my learned colleagues’ decision to affirm the
judgement of sentence because the exclusion of evidence was harmless. See
Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (“[A]n erroneous
ruling by a trial court on an evidentiary issue does not require us to grant
relief where the error was harmless.”). Our Supreme Court discussed the
issue, as follows:
Harmless error exists where: (1) the error did not prejudice the
defendant or the prejudice was de minmis; (2) the erroneously
admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilty was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Id. (quoting Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)).
I also emphasize that “[n]ot all errors at trial, ..., entitle an appellant to a new
trial and [t]he harmless error doctrine, as adopted in Pennsylvania, reflects
the reality that the accused is entitled to a fair trial, not a perfect trial[.]”
Commonwealth v. Fransen, 42 A.3d 1100, 1113 (Pa.Super. 2012).
Instantly, the evidence of guilt was so overwhelming and the prejudice
so negligible that the preclusion of the prior allegations against the paramour
could not have contributed to the verdict. My review of the certified record
confirms that the Commonwealth presented compelling evidence to the jury,
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who found beyond a reasonable doubt, that Appellant habitually abused the
victim, his daughter, over a six year period beginning when she was four years
old. The abuse paused only when the victim moved from the home but
occurred once more when she spent the night at Appellant’s residence three
years later. This evidence is unassailable.
In support of his assertion of prejudice, Appellant argues, “The jury
balked at finding [Appellant] guilty . . . as it had to ask a question before
reaching a verdict.” Appellant’s brief at 25. Notwithstanding Appellant’s
protestations to the contrary, there is no evidence in the record that the jury
struggled to convict him. Appellant’s assertion of prejudice implicates the
following facts. Prior to rendering unanimous guilty verdicts on all five counts,
the jury inquired of the court, “What year did the defendant’s deceased
brother move out of the defendant’s house?” See N.T., 9/6/17, at 273. The
question relates to testimony concerning the period that the paternal uncle
and aunt babysat the victim in Appellant’s home while her mother and
Appellant were unavailable. Significantly, there is no indication in the certified
record that the uncle assaulted the victim and there was no question of fact
relating to the uncle’s presence or absence in the home when Appellant
assaulted the victim. The uncle was not reported to have witnessed any of
the assaults, and the victim did not confide in him about either Appellant or
her mother’s former paramour. Hence, the fact that the jury asked an isolated
question of the trial court relating to the uncle is neither evidence of the jury’s
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hesitation to convict Appellant nor a rebuttal to the evidence that established
Appellant’s guilt beyond a reasonable doubt. Thus, because the properly
admitted evidence of Appellant’s guilt was overwhelming and the prejudicial
effect of the court’s evidentiary error was insignificant by comparison, the
error could not have contributed to the jury verdict. See Chmiel, supra at
521. Accordingly, Appellant is not entitled to relief. Hence, I concur.
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