Com. v. Kramer, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN M. KRAMER :
:
Appellant : No. 1539 MDA 2022
Appeal from the Judgment of Sentence Entered October 17, 2022
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000574-2022
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: NOVEMBER 3, 2023
Jonathan M. Kramer appeals from the aggregate judgment of sentence
of eighteen to thirty-six months of incarceration, imposed following his jury
convictions for flight to avoid apprehension and related offenses. We affirm.
In the early afternoon of December 27, 2021, Detective Michael
Dissinger and Corporal Mark Vandermartin of the Pine Grove Police
Department arrived at Appellant’s house to serve a felony arrest warrant that
they had been trying to serve for months. The detective parked at one end
of the road and the corporal parked at the other. Appellant’s vehicle was in
the driveway but they did not see Appellant. After leaving for a lunch break,
they returned to the house to find Appellant’s vehicle gone. The officers took
up the same positions on the street to await Appellant’s return.
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* Retired Senior Judge assigned to the Superior Court.
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Eventually, Appellant’s truck approached. Appellant had a front-seat
passenger, John Siegel. When Appellant saw Detective Dissinger’s vehicle, he
swerved away and did not continue towards the house. Detective Dissinger
pursued and ultimately activated his emergency lights and sirens to initiate a
stop. After announcing “[c]at and mouse” to Mr. Siegel, Appellant drove away
at a high rate of speed, at least double the posted speed limit, for 200 yards.
See N.T. Trial, 8/23/22, at 115. Appellant then drove off-road through a
grassy area and into a grocery store parking lot, where pedestrians were
returning to their vehicles. The officers blocked Appellant’s truck with their
vehicles and successfully took him into custody. They then learned that Mr.
Siegel also had a warrant for his arrest, so he was taken into custody as well.
Within Appellant’s truck, the officers recovered methamphetamine,
marijuana, and a marijuana grinder. Based on the foregoing, Appellant was
charged with various flight and drug-related charges, as well as summary
traffic offenses.
Appellant proceeded to a jury trial on August 23, 2022. Of relevance,
the Commonwealth presented testimony, over Appellant’s objection, from
Detective Dissinger that he had reviewed police reports indicating that
Appellant previously called the police department to ascertain whether he had
any outstanding warrants. Mr. Siegel also testified, without objection, that
Appellant had told him prior to the incident that the police were looking for
him. Appellant testified in his own defense. At the conclusion of trial, the jury
found Appellant guilty of one count each of flight to avoid apprehension,
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fleeing or attempting to elude police, recklessly endangering another person,
and possession of drug paraphernalia, as well as two counts of possession of
a controlled substance.1 The court found him guilty of two summary traffic
violations. Thereafter, he was sentenced as indicated above.
Appellant filed a timely notice of appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.2 Appellant presents a single issue for our
consideration: “Did the trial court err in allowing [Detective] Dissinger to
testify to the contents of police reports prepared by other officers indicating
that [Appellant] called the Pine Grove police station to inquire about
warrants?” Appellant’s brief at 3 (cleaned up).
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1 The jury hung on two additional reckless endangerment counts.
2 Technically, the certified record indicates that Appellant filed his concise
statement one day late. To wit, on December 2, 2022, the trial court granted
Appellant’s request for an extension to file a Rule 1925(b) statement until
twenty-one days following the docket entry indicating that the transcripts had
been filed. The last docket entry for transcript filings was December 1, 2022,
making his statement due by December 22, 2022. Appellant filed his
statement on December 23, 2022. Nonetheless, as the trial court did not
deem the statement untimely and addressed the issues raised therein, we
proceed as if the statement had been timely filed. See Pa.R.A.P. 1925(c)(3)
(“If an appellant represented by counsel in a criminal case was ordered to file
and serve a Statement and . . . untimely filed or served a Statement, such
that the appellate court is convinced that counsel has been per se ineffective,
and the trial court did not file an opinion, the appellate court may remand for
appointment of new counsel, the filing or service of a Statement nunc pro
tunc, and the preparation and filing of an opinion by the judge.”);
Commonwealth v. Andrews, 213 A.3d 1004, 1010 (Pa.Super. 2019)
(declining to find waiver or remand for a Rule 1925(a) opinion where “the trial
court did not comment on the untimely filing of [the defendant’s] Rule 1925(b)
statement and, in fact, it addressed all of the issues raised therein”).
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We consider this issue pursuant to the following legal principles. “Our
standard of review for evidentiary rulings, including the admission of hearsay,
is abuse of discretion.” Commonwealth v. Luster, 234 A.3d 836, 838
(Pa.Super. 2020) (cleaned up). “Hearsay is an out-of-court statement offered
for the truth of the matter asserted. Hearsay generally is inadmissible unless
it falls within one of the exceptions to the hearsay rule delineated in the
Pennsylvania Rules of Evidence.” Commonwealth v. Rivera, 238 A.3d 482,
492 (Pa.Super. 2020) (cleaned up).
Appellant argues that Detective Dissinger’s testimony about the
contents of the police report was inadmissible hearsay because: (1) the report
was not produced; (2) Detective Dissinger did not recall the date of the report,
when he read it, or if he read it before the incident; and (3) the Commonwealth
did not call the author of the report as a witness. See Appellant’s brief at 9.
The Commonwealth counters that it was not hearsay because it was not
offered for the truth of the matter asserted, but to establish Appellant’s state
of mind. See Commonwealth’s brief at 7.
The relevant exchange between the Commonwealth and Detective
Dissinger occurred thusly:
Q. Do you have personal knowledge of whether or not
[Appellant] called the Pine Grove Police Department?
A. I did. I read through reports –
[Defense counsel]: Objection. Hearsay.
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[Commonwealth]: I’m asking if he has personal knowledge,
if he ever called and asking what he said. I’m not offering it for
the truth of the matter.
THE COURT: Objection overruled. Go ahead. You can
answer the question.
A. Part of our duties every day is to read reports to find
out what happened prior to our shift. And I have read reports that
[Appellant] has called our police department inquiring about
whether he was wanted or not. And so that was in a report.
[Defense counsel]: I’d like to renew my objection, Your
Honor.
THE COURT: All right. The objection is granted – the
objection is noted, but it’s overruled.
N.T. Trial, 8/23/22, at 46-47.
Based on the foregoing, we readily conclude that Detective Dissinger’s
testimony regarding the police report constituted hearsay. The police report
was an out-of-court statement, and the truth of the matter asserted in the
report was that Appellant called the police department to inquire about his
wanted status. Since the Commonwealth called Detective Dissinger to testify
to this fact, and not the author of the report, Appellant was deprived of the
opportunity to test this evidence. Indeed, on cross-examination, Detective
Dissinger was unable to offer any additional information regarding the report.
See id. at 57-58. The Commonwealth did not offer the testimony pursuant
to any exception to the hearsay rule, and we discern no applicable exception
upon review of the certified record. Accordingly, the trial court erred in ruling
that the testimony was not inadmissible hearsay.
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Our analysis does not end here, however, as we may nevertheless affirm
if the error was harmless. “Under the harmless error doctrine, we must vacate
the order on review to correct the error unless we are convinced beyond a
reasonable doubt that the error is harmless.” Commonwealth v. Murray,
248 A.3d 557, 576 (Pa.Super. 2021) (cleaned up).
[A]n error cannot be held harmless unless the appellate court
determines that the error could not have contributed to the
verdict. Whenever there is a reasonable possibility that an error
might have contributed to the conviction, the error is not
harmless. The Commonwealth bears the burden of proving that
the error was harmless beyond a reasonable doubt.
Harmless error exists where: (1) the error did not prejudice the
defendant or the prejudice was de minimis; (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 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. Fitzpatrick, 255 A.3d 452, 483 (Pa. 2021) (cleaned up).
“[W]hen reviewing for harmless error, the appellate court considers only
the uncontradicted evidence and, having done so, proceeds to determine
whether that body of uncontradicted evidence was so overwhelming that the
erroneous admission of the evidence could not have impacted the verdict.”
Id. at 470 (cleaned up). Finally, we observe that the harmless error “doctrine
reflects the reality that the accused is entitled to a fair trial, not a perfect trial.”
Commonwealth v. Wilson, 286 A.3d 1288, 1300 (Pa.Super. 2022) (cleaned
up).
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The Commonwealth argues in the alternative that, even if the evidence
was hearsay, its admission was harmless because the testimony from Mr.
Siegel that Appellant knew the police were looking for him, “coupled with
Appellant’s actions of flight upon making contact with police, established that
he evaded police for the purpose of avoiding apprehension.” Commonwealth’s
brief at 8-9. Likewise, the trial court concluded that “the jury’s verdict was
based upon solid evidence and the reasonable inferences deduced therefrom,
and that any error alleged was harmless since Mr. Siegel confirmed Appellant’s
knowledge of the outstanding warrants.” Trial Court Opinion, 1/10/23, at 5.
While not so artfully crafted, we deem these averments as invoking the second
and third types of harmless error.3
Our review of the certified record confirms that the testimony regarding
Appellant’s inquiry to police as to his wanted status was merely cumulative of
other evidence demonstrating his intent to flee from police to avoid
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3 Respectfully, insofar as the learned dissent’s discussion of the applicable law
references the concerns surrounding this Court addressing harmless error sua
sponte and how that deprives defendants of the opportunity to respond, that
discussion is inapt to the case presently before us. See Dissent at 2-4.
Instantly, the trial court indicated that “any error alleged was harmless” in its
Rule 1925(a) opinion, referring to Mr. Siegel’s testimony as to Appellant’s
awareness that the police were attempting to apprehend him. See Trial Court
Opinion, 1/10/23, at 5. Appellant had the opportunity to respond in his brief
to the court’s finding of harmless error but declined to do so. Nonetheless,
the Commonwealth addressed harmless error in its brief. See
Commonwealth’s brief at 7-9.
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apprehension.4 See Fitzpatrick, supra at 483. Specifically, that evidence
established that Appellant: (1) told Mr. Siegel that the police were looking for
him; (2) only moved his vehicle when the police were not parked outside his
house; (3) drove away from the parked police vehicles instead of continuing
on his apparent route home; (4) sped away when Detective Dissinger
attempted to stop him; (5) told Mr. Siegel that they were engaging in a game
of “cat and mouse[;]” and (6) drove through the grass into a crowded parking
lot before being blocked by police vehicles and arrested at gunpoint. See N.T.
Trial 8/23/22, at 115. It could not be more obvious that Appellant was
employing drastic measures on that day to avoid being “seiz[ed] in the name
of the law[.]” APPREHENSION, Black’s Law Dictionary (11th ed. 2019). Thus,
we hold that the “uncontradicted evidence was so overwhelming that the
erroneous admission of the evidence could not have impacted the verdict.”
Fitzpatrick, supra at 470. Since we cannot conclude that Appellant was
deprived of a fair trial, we determine that the Commonwealth has met its
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4 Instead of characterizing the erroneously admitted testimony as
demonstrating Appellant’s inquiry into his wanted status, the dissent finds
there is no other substantially similar evidence because Mr. Siegel’s testimony
did not reflect that Appellant “called the police and found out he had a warrant
for his arrest.” Dissent at 7 (citation omitted). However, neither did Detective
Dissinger’s testimony; his testimony was only that he read a report that
Appellant had called the police station to inquire about his wanted status, not
what the responding police officer told Appellant. Therefore, we find the
dissent’s distinction in this regard unpersuasive.
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burden of establishing that the admission of this hearsay evidence was
harmless error.
Since the admission of the hearsay evidence constituted harmless error,
we affirm Appellant’s judgment of sentence.5
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5 Respectfully, contrary to the dissent’s accusation that we are conflating
sufficiency standards with those applicable to harmless error analysis, we
remind the dissent that the harmless error standard requires us “to determine
whether that body of uncontradicted evidence was so overwhelming that the
erroneous admission of the evidence could not have impacted the verdict.”
Commonwealth v. Fitzpatrick, 255 A.3d 452, 470 (Pa. 2021) (cleaned up).
Thus, part of determining whether a piece of testimony impacted the verdict
necessarily implicates the elements of the crime charged. Moreover, it is the
dissent that contends that knowledge of a warrant is “central to conviction”
and therefore cannot constitute harmless error. See Dissent at 10.
In considering whether the evidence could have impacted the verdict, we
again reject the dissent’s characterization of the tainted evidence. At no point
did Detective Dissinger testify to Appellant’s knowledge about an outstanding
warrant. What he testified to was that Appellant called the police station to
inquire whether there were any warrants. Since Detective Dissinger could not
identify when Appellant called the station, he likewise would not have been
able to state whether the warrant had been filed at that point and,
furthermore, explicitly did not testify to what the responding officer told
Appellant in answering his question. In short, it is mere speculation that
Appellant was told that there was an outstanding warrant. As discussed, the
actual evidence was that Appellant called the police station to see whether he
was wanted, which, as noted, we find substantially similar and cumulative to
the testimony of Mr. Siegel that Appellant told him the police were looking for
him.
Second, even if Detective Dissinger had testified as to the response that
Appellant received, and that response indicated that there was an outstanding
warrant, Appellant’s specific knowledge of an outstanding warrant was not an
element of the crime, and thus not “central to conviction,” as the dissent
contends, and therefore would not preclude a finding of harmless error. The
Crimes Code defines flight to avoid apprehension in the following manner:
(Footnote Continued Next Page)
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A person who willfully conceals himself or moves or travels within
or outside this Commonwealth with the intent to avoid
apprehension, trial or punishment commits a felony of the third
degree when the crime which he has been charged with or has
been convicted of is a felony and commits a misdemeanor of the
second degree when the crime which he has been charged with or
has been convicted of is a misdemeanor.
18 Pa.C.S. § 5126(a). The Suggested Standard Jury Instructions pertaining
to this crime provide as follows:
1. The defendant has been charged with flight to avoid
apprehension. To find the defendant guilty of this offense, you
must find that the following elements have been proven beyond a
reasonable doubt:
First, that the defendant willfully [concealed] [moved] [traveled]
within or outside the Commonwealth;
Second, that the defendant did so with the intent to avoid
apprehension, trial, or punishment; and
Third, that the crime with which the defendant was charged or
convicted was:
[a. a felony; [or]
b. a misdemeanor.]
Pa. SSJI (Crim), § 15.5126.
Neither the statute criminalizing flight to avoid apprehension nor the probative
jury instruction includes as an element the defendant’s awareness of an arrest
warrant. Indeed, we previously rejected an argument seeking to impose such
an element, concluding that the defendant had “fail[ed] to provide any legal
support for grafting such a requirement onto the statute.” See
Commonwealth v. Thompson, 217 A.3d 402, 2019 WL 2121513, at *2
(Pa.Super. 2019) (non-precedential decision) (citation omitted).
We reiterated that holding in the context of a sufficiency challenge in
Commonwealth v. Bronson, 296 A.3d 579, 2023 WL 2360866 (Pa.Super.
(Footnote Continued Next Page)
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2023) (non-precedential decision). There, Bronson contended that the
evidence was insufficient to support his conviction for flight to avoid
apprehension because “in order to establish intent, the Commonwealth was
required to prove that [he] knew that there was an active or outstanding
warrant for his arrest at the time he fled from police.” Id. at *4 (citation
omitted). We rejected Bronson’s argument, reasoning as follows:
[T]he plain language of Section 5126 does not require proof that
a defendant knew that he had an outstanding arrest warrant at
the time he fled from police.6 See 18 Pa.C.S. § 5126(a); see also
Commonwealth v. Steffy, 36 A.3d 1109, 1111-12 (Pa.Super.
2012); Thompson, supra at *2-3. In any event, the
circumstances of [Bronson’s] flight clearly indicate that he
intended to evade police in order to avoid apprehension. As this
Court explained in Thompson, while a person may run from the
police for a number of reasons, it is within the province of the fact-
finder to accept or reject these alternate theories, and conclude
that the defendant fled to avoid apprehension on his outstanding
warrants. See Thompson, supra at *3; see also
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa.Super. 2018)
(noting that the Commonwealth may sustain its burden of proving
every element of the crime using wholly circumstantial evidence).
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6 We recognize that several decisions by this Court involve
[§] 5126 convictions in which a defendant flees from police
after being informed about an active warrant. See e.g.
Steffy, 36 A.3d at 1110; Commonwealth v. Baker, 225
A.3d 1183 (Pa.Super. 2019) (non-precedential decision);
Commonwealth v. Shroyer, 240 A.3d 177 (Pa.Super.
2020) (non-precedential decision). However, as discussed,
the Commonwealth is not required to prove that a defendant
knew he had an active warrant in order to sustain a
conviction under [§] 5126(a). Therefore, to the extent
[Bronson] relies on our prior decisions in support of that
proposition, his reliance is misplaced.
Id. at *5 (some citations altered).
It is beyond the purview of this Court to impose an element on a crime that is
not contemplated by the statute criminalizing the conduct. Based on the
foregoing, we conclude that Appellant’s specific awareness of the arrest
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judge Nichols concurs in the result.
Judge Pellegrini files a Dissenting Memorandum.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/03/2023
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warrant was not a material element of the crime of flight to avoid
apprehension. Accordingly, we conclude that the admission of testimony
regarding a police report where Appellant had asked about the existence of
an arrest warrant was not prejudicial. In short, the error was harmless
because the officer’s testimony did not “contribute . . . to the verdict.”
Fitzpatrick, supra at 483.
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