Com. v. Vasquez, M. ( 2023 )

J-A25010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW JAMES VASQUEZ :
:
Appellant : No. 190 WDA 2021
Appeal from the Judgment of Sentence Entered May 11, 2020,
in the Court of Common Pleas of Washington County,
Criminal Division at No(s): CP-63-CR-0001486-2019.
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 3, 2023
Matthew James Vasquez appeals from the 20-to-40-year judgment of
sentence entered after a jury convicted him of aggravated assault, conspiracy
to commit aggravated assault, and simple assault. We affirm.
This case concerns an incident on the evening of April 18, 2019, at the
Slovak Club in Charleroi, Washington County. Seven members of the Pagans
Motorcycle Club, including Vasquez, attacked Mr. Troy Harris, a member of
the rival Sutar Soldiers club. Surveillance video shows the group filing into
the club, Jason Huff (the first Pagan in line) promptly striking Mr. Harris,
Vasquez throwing a punch, and the group moving down to the floor as the
attack continued. Less than a minute after entering the club, the seven
Pagans rode away. Mr. Harris was Life Flighted to treat his severe injuries.
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As the investigation into the attack progressed, the Commonwealth
charged the seven Pagans for their involvement. The Commonwealth also
charged Michael Barringer (Pagans National Sergeant at Arms), Brian Keruskin
(Fayette Pagans President), Zachary Yagnich (Slovak Club Vice President),
and Jamie Granato (Vasquez’s then fiancée).
Four of the Pagans present at the Slovak Club pled to aggravated assault
and/or conspiracy to commit aggravated assault, as did Barringer and
Keruskin.1 Two did not: Vasquez, who was second in line, and Joseph Olinsky,
who was sixth. The Commonwealth consolidated its cases against Vasquez
and Olinsky for trial.
In preparing for trial, the parties became aware of three guns that were
in the Slovak Club during the attack. First, Mrs. Michelle Harris (Mr. Harris’
wife) had a gun in her purse that she had been unable to access while her
husband was being assaulted. See N.T., Preliminary Hearing, 7/16/19, at
128. Second, Mr. Harris had a gun in his back pocket that was recovered
when he arrived at the hospital. See N.T., Hearing, 1/23/20, at 41. Third,
three minutes after the Pagans had left, Mrs. Harris picked up a gun and
holster from where the group had beaten Mr. Harris to the floor, and she put
the gun and holster in her purse. Vasquez and Olinsky claimed that they had
seen Mr. Harris with this third gun as they approached him.
____________________________________________
1 Keruskin entered a nolo contendere plea; the others entered guilty pleas. At
the time of trial in this case, charges remained pending against Paul Cochran,
a Pagan who testified for the Commonwealth.
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The parties extensively litigated the issue of the admissibility of Mr.
Harris’ gun before trial. At a hearing on the Commonwealth’s motion in limine,
the trial court announced that it would exclude any reference to Mr. Harris’
gun “without prejudice” and revisit the issue if it became germane at trial.
The trial court entered an order granting the motion and then a clarifying order
following an ex parte hearing with the Commonwealth. On February 4, 2020,
the morning of the first day of trial, Vasquez’s counsel asked the court to
reconsider its order should Vasquez testify. The trial court ruled that it would
not exclude the Defendants’ own testimony about Mr. Harris’ gun.
Vasquez’s former fiancée Granato testified for the Commonwealth as to
her involvement with the Pagans and her interactions with Pagans members
and with Slovak Club Vice President Yagnich before the attack on Mr. Harris.
N.T., Trial Vol. II, 2/5/20, at 110–126. As detailed infra, the trial court ruled
that Vasquez’s cross-examination of Granato “opened the door” to inquiry into
the abusive nature of their relationship. Granato therefore testified on redirect
that Vasquez was abusive, including a specific incident when he ripped her off
a motorcycle and threw her onto a guardrail. The trial court instructed the
jury that the only purpose for which it could consider this testimony was to
help judge Vasquez’s credibility. N.T., Trial Vol. IV, 2/7/20, at 83.
Vasquez testified in his own defense. He said that Barringer had not
told him to attack Mr. Harris; the only reason Vasquez hit Mr. Harris was that
he saw a holstered gun on Mr. Harris’ right leg. The Commonwealth cross-
examined Vasquez about his testimony that Barringer had not told him to do
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anything. Arguing to the trial court that this testimony misled the jury and
“opened the door” to prove a conspiracy, the Commonwealth asked Vasquez
about how six other Pagans “pled guilty to conspiracy,” “took responsibility,”
and were therefore “sitting in state prison.” N.T. Vol. III, 2/6/20, at 154–157.
For each, the Commonwealth introduced into evidence the trial court’s
sentence orders, which the jury had while deliberating.
The jury found Vasquez guilty of aggravated assault, conspiracy to
commit aggravated assault, and simple assault. It found him not guilty of
attempted murder and conspiracy to commit murder. The trial court
sentenced Vasquez to an aggregate term of 20 to 40 years of imprisonment.
Vasquez filed post-sentence motions, which the trial court denied. Vasquez
timely appealed. Vasquez complied with Pennsylvania Rule of Appellate
Procedure 1925(b).
Vasquez raises the following issues for our review:
I. Did the Trial Court abuse its discretion by permitting the
testimony of Ms. Granato about the prior bad acts of the
Appellant?
II. Did the Trial Court abuse its discretion by prohibiting any
questions about or references to Mr. Harris possessing a gun
on the night in question?
III. Did the Trial Court abuse its discretion by permitting the
Commonwealth to enter into evidence the guilty pleas and
sentence orders of non-testifying co-defendants in violation of
the Confrontation Clause of the United States Constitution?
IV. Was the Trial Court’s sentence a palpable abuse of discretion?
Vasquez’s Brief at 6.
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I. The admission of Vasquez’s prior act was harmless error.
Vasquez first challenges the trial court’s ruling admitting Granato’s
testimony that Vasquez was abusive during their relationship and that on one
occasion he had ripped her off a motorcycle and thrown her to the guardrail.
This Court reviews such an evidentiary ruling for an abuse of discretion.
Commonwealth v. Lang, 275 A.3d 1072, 1077–78 (Pa. Super. 2022). “An
abuse of discretion is not merely an error in judgment, but an overriding
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of the record.” Id. at 1078 (quoting Commonwealth v.
Talbert, 129 A.3d 536, 539 (Pa. Super. 2015).
The testimony at issue arose during the Commonwealth’s case-in-chief.
Granato testified on direct examination that because she was in a relationship
with a Pagans member, she was called “property” and wore a “property
patch.”2 N.T., Trial Vol. II, 2/5/20, at 116. On cross-examination, Vasquez
asked Granato if she had a negative experience with the club (“For the most
part, no.”) and if she and Vasquez were otherwise “living a normal life”
(“Yes.”). Id. at 134–135. He also asked about her property patch:
Q Now, you talk about property, you had a property patch.
Does that mean that you’re literally his property, what does
that mean?
____________________________________________
2 Later, Maryland State Police Lieutenant Terry Katz gave expert testimony
about Pagans “colors,” the group’s system of patches. N.T., Trial Vol. III,
2/6/20, at 23, 32, 37–38. Granato provided the only testimony about the
“property patch” that she had worn as Vasquez’s fiancée.
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A From what I took it as, that meant that, you know, when we
were out at functions together, that was so everybody knew
that you were with him.
Q It wasn’t like you were literally his property, then?
A He never treated me that way.
Id. at 135.
At sidebar before Granato’s redirect examination, the Commonwealth
argued to the trial court that Vasquez’s questions allowed it to ask Granato
about Vasquez abusing her.3 Granato described the abuse in camera. The
court allowed the testimony over Vasquez’s objection and preemptive motion
for mistrial. Granato testified:
Q Jamie, you were asked some questions by Mr. Colafella
about your relationship with [Vasquez], right?
A Correct.
Q Was your relationship with [Vasquez] a normal, loving
relationship?
A No.
Q Can you explain to the jury what you mean by that?
A I did not want to say anything in front of my family, because
they don’t know any of this. He was very physically,
mentally and emotionally abusive, for the majority of our
relationship.
We were in one instance at a bike an[d] car show in Belle
Vernon, with probably about 40, 50 Pagans. At the end of
night, we were getting ready to go home, we pulled over to
the side of the road, somebody was broken down, somebody
needed something. Our house was not five minutes from
____________________________________________
3 The Commonwealth also proffered that it would elicit that Granato had been
to bar fights, based on Vasquez questioning her about whether she had a
negative experience with the club. N.T., Trial Vol. II, at 139.
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there. So I offered to go get what we needed from the
house.
I got on the back of another member’s bike. And [Vasquez]
proceeded to come over and rip me off of the bike, throw
me to the ground, hit me, and then he threw me over a
guardrail.
Q Did you seek treatment for that?
A I did. I went to Mon Valley Hospital.
Q And in up until your relationship ended, was physical abuse
routine with [Vasquez]?
A Normally, when he would drink.
Q What would he do?
A He would punch me, strangle me, suffocate me with a
pillow.
Id. at 224–226.
Vasquez later testified that he did not abuse Granato as she claimed.
The trial court instructed the jury that it could only consider Granato’s
testimony about the abuse to judge Vasquez’s own credibility as a witness:
In this case, with regard to the Defendants, you heard
evidence tending to show that Defendant Matthew Vasquez had
previously been involved in some domestic incidents for which he
is not on trial, and I’m speaking of the testimony of Jamie Granato.
This evidence is not to be considered by you as evidence of his
guilt. This evidence may be considered by you for only one
purpose, and that is [to] help you judge the credibility of the
Defendant, and the weight of the testimony given by the
Defendant as a witness in the trial.
You must not regard this evidence as showing that the
Defendant is a person of bad character or criminal tendencies from
which you might be inclined to infer guilt. It’s only for the limited
purpose that I just instructed you.
N.T., Trial Vol. IV, 2/7/20, at 83.
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The trial court explained that Granato’s testimony on redirect
examination was admissible because Vasquez “opened the door” in cross-
examining her. Trial Court Opinion, 10/13/21, at 15–18 (citing
Commonwealth v. Gilliard, 446 A.2d 951, 954 (Pa. Super. 1982),
Commonwealth v. Miller, 481 A.2d 1221 (Pa. Super. 1984), and
Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011)). Because Vasquez chose
to ask Granato about her life and her property patch, the trial court ruled that
the Commonwealth was free to explore that subject matter.
Vasquez argues that Granato’s testimony about prior abuse was not
admissible for any reason. Vasquez’s Brief at 20–29. He submits that his
questions were too narrow in scope to open the door to the Commonwealth’s
examination. Even if he had opened the door, Vasquez challenges the
evidence as not relevant and as character evidence not admissible under
Pennsylvania Rules of Evidence 402 and 404(b)(2). Vasquez complains that
the trial court did not state on the record its balancing of the probative value
and the potential for unfair prejudice under Rule 403. He further contends
that the evidence of a collateral matter was not admissible to impeach
Vasquez, who had not yet testified. Finally, he maintains that Rule 608(b)(1)
prohibits the Commonwealth from attacking Vasquez’s character for
truthfulness with extrinsic evidence about specific instances of his conduct.
The Commonwealth agrees with the trial court, arguing that Vasquez
opened the door to Granato’s cross-examination. Commonwealth’s Brief at
10–22. It posits that it could elaborate on defense counsel’s open-ended
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questions about her property patch, and it suggests that defense counsel’s
“normal life” question created a false impression that it could correct.
Alternatively, the Commonwealth reasons that it could introduce evidence of
Vasquez’s prior bad act as res gestae evidence to tell the complete story of
Vasquez’s relationship with Granato. The Commonwealth adds that the trial
court does not need to place its Rule 403 balancing test on the record, and
that any objection to the jury instruction on impeachment was waived.
An initial hurdle in analyzing this issue is that the trial court’s stated
rationale for allowing this evidence differs from its limiting instruction. As
noted, the trial court explained its ruling that the evidence was admissible
because Vasquez opened the door. However, it instructed the jury that the
only reason the jury could consider Granato’s testimony that Vasquez abused
her was to help judge Vasquez’s credibility as a testifying witness. Because
either theory of admissibility could allow the evidence, we will address both.
“Opening the door” is a way for one party’s evidence to become
admissible based on presentation by another party. “A litigant opens the door
to [otherwise] inadmissible evidence by presenting proof that creates a false
impression refuted by otherwise prohibited evidence.” Commonwealth v.
Nypaver, 69 A.3d 708, 716–17 (Pa. Super. 2013) (citations omitted). That
is:
[o]ne who induces a trial court to let down the bars to a field of
inquiry that is not competent or relevant to the issues cannot
complain if his adversary is also allowed to avail himself of that
opening. The phrase ‘opening the door’ ... by cross examination
involves a waiver. If [a] defendant delves into what would be
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objectionable testimony on the part of the Commonwealth, then
the Commonwealth can probe further into the objectionable area.
Commonwealth v. Gilbert, 269 A.3d 601, 613 (Pa. Super. 2022) (quoting
Commonwealth v. Lewis, 885 A.2d 51, 54–55 (Pa. Super. 2005)).
Pennsylvania Rule of Evidence 404 outlines the door-opening process
for character evidence, which is otherwise inadmissible to prove actions in
accordance with that character. Pa.R.E. 404(a)(1). Rule 404(a)(2)(A)
permits a criminal defendant to “offer evidence of the defendant’s pertinent
trait, and if the evidence is admitted, the prosecutor may offer evidence to
rebut it.” In such instances, the Commonwealth’s evidence of the defendant’s
character trait is limited to testimony about the defendant’s reputation.
Pa.R.E. 405(a). Specifically, “[i]n a criminal case, on cross-examination of a
character witness, inquiry into allegations of other criminal conduct by the
defendant, not resulting in conviction, is not permissible.” Pa.R.E. 405(a)(2).
Rule 404 also provides for the admissibility of other instances of
conduct, commonly called prior bad 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).
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Among the recognized exceptions to the prohibition on evidence of prior
bad acts is res gestae. Under this exception, evidence of a prior bad act is
admissible “when relevant to furnish the complete story or context of events
surrounding the crime.” Commonwealth v. Crispell, 193 A.3d 919, 936
(Pa. 2018) (citations omitted). Because such evidence proves the alleged
crime’s “immediate context of happenings near in time and place,” the prior
bad acts must be part of the same transaction. Commonwealth v. Green,
76 A.3d 575, 584 & n.3 (Pa. Super. 2013) (citations omitted).
Here, the Commonwealth stated that Vasquez opened the door and
created a “character issue” by trying to portray Vasquez as a boy scout, which
created a misleading impression. N.T., Trial Vol. II, 2/5/20, at 143. We
disagree. Even if we accepted the theory that having a “normal relationship”
is a character trait that Vasquez opened the door for the Commonwealth to
rebut, Rule 405(a)(2) prohibits inquiry into Vasquez’s other criminal conduct
that did not result in conviction. Vasquez was not charged or convicted for
his conduct in allegedly throwing Granato off of the motorcycle.
Moreover, the Commonwealth’s suggestion that Vasquez ripping
Granato from a motorcycle is res gestae evidence of the attack on Mr. Harris
fails because the incident was not part of the same transaction, instead
occurring in a different location on a different day. Green, supra. Thus, this
exception also fails.
To the extent that Vasquez’s questions to Granato on cross-examination
in the Commonwealths’ case-in-chief opened the door to further examination
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about Vasquez’s character, a prior specific instance of abuse was not
admissible to prove that character. Pa.R.E. 405(a)(2). As such, the trial court
misapplied the law and therefore abused its discretion when it allowed
evidence that Vasquez abused Granato under the theory that Vasquez opened
the door.
The second theory the trial court gave for allowing Granato’s testimony
about prior abuse was for purposes of impeaching Vasquez (who later testified
that he did not abuse Granato). N.T., Trial Vol. III, 2/6/20, at 88–89. This
was the only reason why the trial court instructed the jury that it could
consider Granato’s testimony about the abuse. N.T., Trial Vol. IV, 2/7/20, at
83.4 Putting aside that Vasquez had not yet testified when Granato
purportedly impeached him, this theory likewise runs contrary to law.
It has long been the rule in Pennsylvania that a witness cannot be
impeached on a collateral matter. Commonwealth v. Petrillo, 19 A.2d 288,
295 (Pa. 1941); Commonwealth v. Guilford, 861 A.2d 365, 369 (Pa. Super.
2004) (quoting Commonwealth v. Bright, 420 A.2d 714, 716 (Pa. Super.
1980) (noting that “a witness may not be contradicted on ‘collateral’ matters,
... and a collateral matter is one which has no relationship to the case at trial”).
Pennsylvania Rule of Evidence 608(b) limits attacks of a testifying witness’
character for truthfulness with specific instances of conduct:
____________________________________________
4 The Commonwealth is correct that Vasquez waived any challenge to this
instruction because he did not object to it. Here, we address the underlying
evidentiary issue rather than the propriety of the instruction.
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Except as provided in Rule 609 (relating to evidence of conviction
of crime),
(1) the character of a witness for truthfulness may not be attacked
or supported by cross-examination or extrinsic evidence
concerning specific instances of the witness’ conduct; however,
(2) in the discretion of the court, the credibility of a witness who
testifies as to the reputation of another witness for truthfulness or
untruthfulness may be attacked by cross-examination concerning
specific instances of conduct (not including arrests) of the other
witness, if they are probative of truthfulness or untruthfulness;
but extrinsic evidence thereof is not admissible.
Pa.R.E. 608(b).
Here, the incident where Vasquez ripped Granato from a motorcycle is
collateral because it is not related to the attack on Mr. Harris, nor does it
involve Vasquez’s truthfulness. Although Vasquez later refuted Granato’s
testimony about prior abuse, it runs contrary to law to admit Granato’s
testimony as a preemptive challenge to Vasquez’s version of this uncharged
incident. As such, the trial court abused its discretion in allowing this
testimony.
However, this is not the end of the inquiry. In appropriate cases, this
Court may assess sua sponte whether an error is harmless. Commonwealth
v. Hamlett, 234 A.3d 486 (Pa. 2020). We do so here, recognizing the
significant expense involved in bringing a case to trial as well as the interests
of the parties in achieving a just resolution. For this Court to find harmless
error, we must be “convinced beyond a reasonable doubt that the error is
harmless.” Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). That
is, “the error could not have contributed to the verdict. Whenever there is a
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reasonable possibility that an error might have contributed to the conviction,
the error is not harmless.” Id. at 164 (internal quotation marks omitted);
see Commonwealth v. Bieber, 283 A.3d 866, 880 (Pa. Super. 2022)
(rejecting a case-dependent lower standard). Here, the applicable test for
harmless error is whether “the properly admitted and uncontradicted evidence
of guilt 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.” Commonwealth v. Jones, 240 A.3d 881, 892 (Pa. 2020) (quoting
Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa. 2018)).”
The uncontradicted evidence in this case included a video of Vasquez
filing into the Slovak Club with a group of Pagans and quickly attacking Harris.
The prejudicial effect of the error was that the jury could assess Vasquez’s
credibility based on his prior violent acts. Even if we correct the error and
accept Vasquez’s testimony as true, Vasquez said that he punched Harris in
the face. He did not claim self-defense. Although Vasquez denied that he
agreed to assault Harris, he did not contradict that he was in the group of
Pagans that entered the Slovak Club and had beaten Harris to the floor in a
matter of seconds.5 We conclude that the only reasonable inference from this
evidence is that Vasquez was guilty of the offenses for which the jury convicted
him. Therefore, the error was harmless, and we deny relief.
____________________________________________
5 In assessing the “properly admitted” evidence of guilt, we will not consider
the admission of the co-conspirators’ pleas discussed in Part III, infra.
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II. Vasquez waived his issue about Mr. Harris’ gun.
Next, Vasquez challenges the trial court’s exclusion of evidence that Mr.
Harris had a gun, including cross-examination of any witnesses at the Slovak
Club and the portion of the surveillance video of Mrs. Harris retrieving the gun.
He argues that the trial court abused its discretion by excluding defense
evidence based on the anticipated strength of the Commonwealth’s evidence.
Vasquez’s Brief at 30–38 (citing Holmes v. South Carolina, 547 U.S. 319(2006)).
Vasquez has waived this issue. Review of the litigation over the gun
shows that that trial court initially granted the Commonwealth’s motion in
limine to exclude such evidence “without prejudice” and recognized that it
could reconsider:
[Vasquez’s counsel]: Your Honor, I would just submit to the Court,
that issue may become germane at some point during the
course of trial. So I understand the Court’s ruling, but we
may ask to revisit that during the course of testimony.
THE COURT: Right. Very good. And I will. If it [] becomes
germane, yes, absolutely.
[Vasquez’s counsel]: Thank you, Your Honor.
Id. at 46. The trial court entered an order granting the motion. Order,
1/23/20, at 2 (unnumbered).
The next day, the Commonwealth filed another motion based on the
defense proffer at the hearing, then seeking to bar “any mention at trial of
[Mrs. Harris] being in possession of a gun on the night of the assault or [Mrs.
Harris] as seen in the video handling a firearm.” Motion in limine, 1/24/20,
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at 2 (unnumbered). After an ex parte hearing with the prosecutor, the trial
court entered an order purporting to clarify its previous order:
AND NOW this 30th day of January 2020, upon motion of the
Commonwealth, the Court hereby grants the Commonwealth’s
Motion in Limine concerning ANY reference to a firearm being
possessed by the victim. This order also prohibits any reference
to a firearm being handled by the victim’s wife after the alleged
crimes. This shall further prohibit defense counsel from asking
questions of witnesses concerning ANY firearm, showing portions
of the video of the Slovak Club, and still shots of the victim’s wife
with a firearm after the alleged crime. The Court is hereby
clarifying its previous order of January 23, 2020, granting the
Commonwealth’s Motion to exclude reference to a firearm.
Order, 1/30/20.
The morning of trial, the parties addressed the matter further.
Vasquez’s counsel requested that Vasquez be permitted to testify that he saw
that Mr. Harris had a gun.6 The trial court candidly admitted that it had not
considered that the defendants could provide their own testimony. The court
announced that it would stand by its ruling, to revisit before the defendants
testified. N.T., Motion, 2/4/20, at 12, 25. The trial court later revisited the
matter and addressed counsel regarding the exclusion of the guns:
I said this morning, frankly, I’m sticking to my guns as far as
everything else is concerned. But as far as . . . a Defendant giving
his supposed observations in real time, not what he heard, what
he supposedly saw, I have a hard time excluding that.
____________________________________________
6 Vasquez’s counsel clarified that this request was only for Vasquez’s own
testimony. N.T., Motion, 2/4/20, at 6.
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N.T., Trial Vol. I, 2/4/20, at 218. Vasquez did not make any additional
requests to question witnesses about Mr. Harris’ guns or to present the
surveillance video to the jury.
Pennsylvania Rule of Evidence 103 provides:
(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion in
limine; and
(B) states the specific ground, unless it was apparent from
the context; or
(2) if the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent
from the context.
(b) Not Needing to Renew an Objection or Offer of Proof.
Once the court rules definitively on the record--either before or at
trial--a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.
Pa.R.E. 103(a), (b).
Here, the trial court did not rule “definitively on the record” that all the
evidence of Mr. and Mrs. Harris’ guns would be excluded. Rather, it said on
the record that it could later reconsider its order, recognizing that trial could
take an unexpected turn. See Commonwealth v. Hicks, 91 A.3d 47, 54 n.9
(Pa. 2014) (“A pre-trial ruling on admissibility may help define the issues and
the potential evidence, but the court retains the discretion to modify its ruling
as circumstances develop or as the evidence at trial diverges from that which
was anticipated.”).
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Notably, the trial court did reconsider its order. At the hearing the
morning of trial, the trial court acknowledged that it had not considered that
Vasquez could testify, and it later conceded that such testimony would be
admissible. Vasquez did not move for the trial court to admit any other
evidence regarding Mr. Harris’ gun, such as the video or testimony from other
witnesses. Therefore, the trial court granted the entirety of Vasquez’s
request—that he could personally testify to his observations.
Vasquez contends that the January 30, 2020 order is sufficiently clear
that his earlier objections to the Commonwealth’s motion in limine should be
preserved. However, that order merely clarified the January 23, 2020, order,
which the court said on the record that it was granting “without prejudice.”
Under these circumstances, the trial court had not ruled “definitively on the
record” as contemplated by Rule 103(b). As such, Vasquez was required to
renew his earlier offer of proof regarding additional evidence about the gun to
preserve his evidentiary issue for review.
III. Vasquez waived his Confrontation Clause issue.
Vasquez next challenges the trial court’s admission, during his cross-
examination, that six other Pagans involved in this incident, who did not testify
at trial, entered guilty pleas to conspiracy, took responsibility, and were
therefore in state prison. Vasquez’s Brief at 38–46; see N.T. Vol. III, 2/6/20,
at 154–157. He contends that this violated his rights under the Confrontation
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Clause, as illustrated by the recent case of Hemphill v. New York, 142 S.
Ct. 681 (2022).
Vasquez has waived this issue. At sidebar, when the Commonwealth
announced its intent to introduce this evidence, Vasquez’s counsel did not
object. He stated:
Your Honor, my client’s position is that [Barringer] never
commissioned him. That conversation never happened, and he
testified to the fact that these gentlemen pled guilty to these
charges. [If t]he Court thinks it appropriate, he can ask him about
it, if he wants to. They made that decision [to plead guilty].
And I mean, from my standpoint, they’re all charged with
conspiracy. The fact that they pled guilty, I really don’t want to
argue that point, but I understand it’s relevant. I don’t know.
Id. at 145.
Because Vasquez did not make a timely objection or motion to strike,
he cannot now claim error in the trial court’s allowing this evidence. Pa.R.E.
103(a)(1).
IV. Vasquez’s sentence is not an abuse of discretion.
Finally, Vasquez contends that the trial court abused its discretion in
imposing the maximum possible sentence, an aggregate of 20 to 40 years of
imprisonment. Vasquez’s Brief at 46–60.
Challenges to the discretionary aspects of sentence are not
appealable as of right. Commonwealth v. Leatherby, 116 A.3d
73, 83 (Pa. Super. 2015). Rather, an appellant challenging the
sentencing court’s discretion must invoke this Court’s jurisdiction
by (1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth a concise statement of
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the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence; and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or
sentencing norms. Id. An appellant must satisfy all four
requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013).
Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022). In
determining whether an appellant has raised a substantial question, we “focus
on the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000)
(en banc).
Vasquez complied with the first three requirements to invoke this
Court’s jurisdiction over his sentencing claim. As to the fourth requirement,
Vasquez claims that the sentencing court imposed an unreasonably excessive
sentence, did not sufficiently state its reasons for doing so on the record,
caused an unduly harsh result by imposing consecutive sentences, and relied
on impermissible factors. We accept that this presents a substantial question
and thus proceed to the merits.
This Court will vacate an above-guidelines sentence only if “the sentence
is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). We review a challenge to the
discretionary aspects of sentencing mindful of the following standard of
review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
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of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022)
(quoting Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa. Super. 2019)).
Vasquez argues that the sentencing court abused its discretion in
imposing an aggregate 20-to-40-year term of imprisonment in several ways.
First, he claims that the court failed to state or consider the applicable
sentencing guidelines, and it treated Harris’ severe injuries as exceeding those
contemplated in the guidelines. Second, he claims that the court failed to
consider his prior record score of zero and his lack of a history of violence.
Third, he challenges the court’s treatment of his testimony and subsequent
silence as a failure to take responsibility, in light of his intent to preserve his
case for appeal after exercising his right to trial.
The Commonwealth responds that the sentencing court was free to
depart from the sentencing guidelines, as it placed its reasons for doing so on
the record. It notes that, among other appropriate factors, the sentencing
court considered Vasquez’s violation of the court’s no-contact order while
awaiting his sentence. It concludes that Vasquez’s sentence was reasonable.
The sentencing court explained at the time of sentencing why it was
imposing a long sentence:
[Q]uite frankly, I’ve never seen anything like this. I’ve never seen
not only this total lack of remorse but total lack of responsibility.
Every single person—according to Mr. Vasquez, every single
person that testified was lying including the—his fellow members,
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particularly Mr. Cochran, and all the other Codefendants that took
responsibility, admitted their guilt, showed remorse. They must’ve
all been lying when they did that according to [Vasquez].[7] The
other bystanders from the club must’ve been lying as well. Of
course, Mr. Katz, the expert, had to have been lying because he
defined—he set forth all the reasons why the Pagans are an outlaw
motorcycle gang engaged in criminal activity. But to Mr. Vasquez
this was a brotherhood of guys who ride motorcycles and engage
in charitable activities, so he was way off base according to you,
Mr. Vasquez.
And then, of course, your friend, Zachary Yagnich, … was
not being truthful because your testimony was at odds with his
testimony. And of course the—your former fiancé[e], Ms.
Granato, you’ve completely disparaged and indicate that she’s
lying, not only about this incident but the prior history of violence
that you had between the two of you. And finally, the biggest liar
of all is the videotape because the videotape is completely
different from your testimony.
And … your Facebook post was attached to the presentence
investigation, and frankly, … I always take these Facebook posts
with a grain of salt. I’m not into it. I know that you were in jail
so you weren’t—I wondered how you could be directly responsible
for a Facebook post, but then I hear you on tape dictating it,
asking your parents if they saw it, and did you get any favorable
comments to it. This is the farthest thing from any kind of
remorse, responsibility, or any demonstration that you have the
ability to be rehabilitated. You’re on the videotape or video talking
about the future of the Pagan organization, and how it’s going to
go when you get out. You’re wishing harm on the other witnesses.
And then there you are laughing with your Pagan friends on video
while they’re at the bar. And it’s beyond just being disgruntled
and upset about the verdict. And this continued up until—through
April, the most recent one was April 18th.
For all these reasons, the Court feels that it is necessary to
depart from the sentencing guidelines. I have to take into account
the protection of the public. And again, this was in a public place,
____________________________________________
7 The Commonwealth had cross-examined Vasquez about whether the other
witnesses were lying. See Commonwealth v. Yockey, 158 A.3d 1246, 1256
(Pa. Super. 2017). Because Vasquez did not object to this line of questioning,
we find that it was appropriate for the sentencing court to consider it.
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while on video, directly going toward the victim. Taking into
account the protection of the victim and his family, the
rehabilitative needs of the Defendant, which again I—you’ve
demonstrated through your—from the outset and even after the
verdict that—I don’t see any potential for rehabilitation. The
gravity of the offense, and the nature of the impact on the life of
the victim and his family, it goes beyond aggravated—even
though the jury found serious bodily injury, this is beyond that.
This is beyond the protracted loss of an organ or vital bodily
function. Mr. Harris nearly passed away and by all accounts will
never be the same. And he’ll never have the enjoyment of his
family or be able to support his family again. All of your letters
indicated what a family man you are and how your family needs
you. Well, his needs him too, and he’ll never again be available.
And yes, your—despite what you told the jury about the
others just wishing to take a plea because they knew they were
going to be railroaded, each expressed remorse for the victim’s
family, and knew that this was a terrible thing that they had done
to him and his family. And for those reasons, the Court—seeing
the need to provide for the protection of the public, the lack of any
rehabilitative potential for the Defendant, the gravity of the
offense, the effect [on] the life [of] the victim and his family and
the community, and the protection of the public, the other
witnesses, and the general public, the Court will depart from the
sentencing guidelines . . . .
N.T., Sentencing, 5/22/20, at 24–27.
In its opinion on appeal, the sentencing court further explained its
reasons for deviating from the sentencing guidelines:
First, [Vasquez] showed a complete lack of remorse for his actions
and refused to take any sort of responsibility for his role in the
assault of [Harris]. At the sentencing hearing, the Commonwealth
played numerous video recordings of [Vasquez] from the
correctional facility to his family and friends wherein [Vasquez]
was laughing, downplaying the assault, and mocking the justice
system. [In the recordings, Vasquez dictates] a Facebook post to
his parents by which he is dismissing his guilt. [Vasquez] also
makes several graphic comments wishing harm on witnesses
Jamie Granato and Paul Cochran for testifying at his trial. On one
video call, [Vasquez] is communicating with other Pagan members
at a bar, laughing, and talking about his future with the Pagans,
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despite his bond condition prohibiting contact with any member of
the Pagans. [Vasquez’s] lack of remorse and inability to take any
responsibility for his actions justified the court’s departure from
the sentencing guidelines.
Furthermore, the court found that [Vasquez’s] behavior
demonstrated that he is not amen[]able to rehabilitation.
Accordingly, a lengthy term of incarceration was warranted to
protect [Harris] and the community. The court must also consider
that the victim in this instance was assaulted so severely that he
nearly died and his life had been irreparably changed due to the
actions of [Vasquez] and his co-defendants.
Trial Court Opinion, 10/13/21, at 46.
We conclude that the sentencing court did not abuse its discretion. It
indicated that it reviewed the presentence investigation report, which would
include both Vasquez’s prior record score and the appropriate sentencing
guidelines. See Bankes, 286 A.3d at 1307 (citing Clemat, 218 A.3d at 959–
60). As to the treatment of the Pagans who were sentenced pursuant to plea
agreements, we note that such defendants are not similarly situated for
sentencing purposes; therefore, Vasquez’s comparatively harsher sentence
does not demonstrate that he was punished for exercising his constitutional
rights. Commonwealth v. Ali, 197 A.3d 742, 764 (Pa. Super. 2018) (citing
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)), appeal
denied, 652 Pa. 269 (Apr. 30, 2019). Because Vasquez has not shown that
the sentencing court abused its discretion, we will affirm his judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2023
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