Com. v. Nobblen, W. ( 2021 )

J-A01043-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM NOBBLEN, :
:
Appellant : No. 2726 EDA 2019
Appeal from the Judgment of Sentence Entered April 2, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007012-2015
BEFORE: BENDER, P.J.E., OLSON, J. and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: Filed: August 12, 2021
Appellant, William Nobblen, appeals nunc pro tunc from the judgment
of sentence of four to ten years’ incarceration, imposed after his conviction
for aggravated assault. After careful review, we affirm.
On June 3, 2015, Appellant was arrested and charged with aggravated
assault and possession of an instrument of crime (PIC),1 among other
offenses,2 following an incident on April 16, 2015. Appellant proceeded to a
jury trial on November 6, 2018.
1 18 Pa.C.S. § 2702(a) and 18 Pa.C.S. § 907(a), respectively.
2 The Commonwealth withdrew prosecution on the following charges: simple
assault, recklessly endangering another person, robbery, possession of
firearm prohibited, carrying firearms in public in Philadelphia, theft by
unlawful taking, receiving stolen property, and firearms not to be carried
without license pursuant to 18 Pa.C.S. §§ 2701(a), 2705, 3701(a)(1),
6105(a)(1), 6108, 3921(a), and 3925(a), respectively.
*Retired Senior Judge assigned to the Superior Court.
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The trial court summarized the facts adduced during the jury trial as
follows:
At trial, the Commonwealth first presented the testimony
of the complainant, Malik Coyett. [Mr. Coyett] initially testified
that he did not remember anything about April 16, 2015. He
then testified that he did not recall anything happening to him
physically in April of 2015. [Mr. Coyett] remembered leaving
Presbyterian Hospital that same month, but he did not
remember going to the hospital or whether he received any
treatment. He testified that he suffered “some bruising on my
head and like stuff like that,” specifically on the left side of his
forehead. N.T., 11/06/2018, at 32. [Mr. Coyett], at the
Commonwealth’s request, lifted up his hair, revealing scars that
he suffered from “whatever [he was] in the hospital for.” Id.
[Mr. Coyett] testified that about a month later[,] the police
asked him to follow them to the Southwest Detective Division.
[Mr. Coyett] remembered that the police showed him a video,
but he did not remember making a statement about what
happened to him on the night of April 16, 2015. [Mr. Coyett]
testified, “To be honest with you, I really don’t want to do
this….” Id. at 35-36. When asked why, [Mr. Coyett] testified,
“I’m just saying whatever happened[,] I’m pas[t] that. You know
what I mean? I’m pas[t] it and trying to do things for the
future.” Id. at 36.
At this point, the Commonwealth confronted [Mr. Coyett]
with a statement he gave to detectives during an interview on
May 13, 2015. As introduced at trial, the [statement conveyed
that] [Mr. Coyett] went to Spiro’s Bar, located at the intersection
of 40th Street and West Girard Ave. on the night of April 16,
2015. [Mr. Coyett] was standing outside the bar around 11:45
p.m. when someone hit [Mr. Coyett] from behind. [Mr. Coyett]
blacked out and woke up in the hospital with six to seven
fractured bones in his face, thirty stitches in his face, and about
six staples in his head.
[Mr. Coyett]’s medical records from Presbyterian Hospital
in the early morning hours on April 17, 2015[, were admitted
into evidence]. [Mr. Coyett] had been “pistol whipped” and
received treatment for “assault, loss of consciousness, and
several fractures” as well as “loss of vision in his left eye.” N.T.,
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11/07/2018, at 115. He “was treated with the staples, stitches,
and stabilization, and was given medication, including antibiotics
and pain medication.” Id. at 116. [Mr. Coyett] was discharged
from the hospital in the evening on April 20, 2015.
Officer Calvin Vaughn testified that he received a radio call
regarding an assault around 11:57 p.m. on the night of April 16,
2015. He explained that the assault probably took place around
11:45 p.m. based on the time he received the radio call, as well
as information later obtained from [Mr. Coyett]. He went to
Presbyterian Hospital’s emergency room where he encountered
[Mr. Coyett], who “had blood coming out of his face” and “knots
on his face.” Id. at 12. Officer Vaughn testified that [Mr. Coyett]
was “uncooperative” and “didn’t want to give me the right
information I needed to put in my report.” Id. at 13.
Detective Thomas DiLauro testified that he went to Spiro’s
Bar and reviewed the bar’s outdoor surveillance videos on April
18, 2015, that depicted the assault, but he was unable to
retrieve a diskette copy of the video. He instead recorded the
surveillance video with his cellular phone....
Officer Brian McCarthy testified that he went to Encore’s
Bar, located across the street form Spiro’s Bar, on April 26,
2015. He obtained a copy of Encore’s surveillance video from the
night of April 16, 2015, which shows a male wearing a two-toned
Phillies jacket in the area of Spiro’s bar around 11:25 p.m.
Officer McCarthy identified [Appellant] as the male in the Phillies
jacket based on their previous encounters....
The police showed [Mr. Coyett] three still photographs
captured from Encore’s surveillance video[] during his interview
on May 13, 2015. The photographs depict a male standing
outside wearing a two-toned Phillies jacket, who [Mr. Coyett]
identified as [Appellant]. The police then showed [Mr. Coyett]
the Spiro’s surveillance video from the night of April 16, 2015.
[Mr. Coyett] again identified [Appellant. Detective Francesco
Campbell testified that a]fter the police showed [Mr. Coyett] a
photo array, [Mr. Coyett] signed a photograph of [Appellant] and
stated that “he pistol whipped me[ with a] gun [in] my face and
head.” N.T., 11/0[7]/2018, at [108].
Detective Matthew Carey testified that he was the
detective who documented [Mr. Coyett]’s interview on May 13,
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2015. Detective Carey testified regarding the written statement
[Mr. Coyett] signed and explained that [Mr. Coyett] did not have
any difficulty understanding the directions and interview
questions. Detective Carey then read into evidence specific
questions and answers contained in [Mr. Coyett]’s statement,
including the following:
… “Do you recall being assaulted on April 16, 2015 at
11:45 p.m. at 4002 Girard Avenue?” [“]I remember
getting hit the first time and then I blacked out. I
don’t remember anything else. I remember waking
up in the hospital.[”]
“Where were you prior to getting hit?” “Inside Spiro’s
Bar.” …
“Did you have an altercation inside the bar?”
[“N]o.[”]
“Who did you leave the bar with?” [“]I left by
myself.[”]
“Do you recall talking to anyone leaving Spiro’s Bar?”
[“]I was talking to a couple of girls.[”]
[“]Police Officer Kennedy... just showed you three
still images. Do you recognize this male?[”]
[“Y]es.[”]
[“What is his name?[” “T]hey call him Nobs or
Nobes.[”]
[“H]ow do you know this male?[”] [“]I just seen him
around the neighborhood.[”]
[“]Malik, you were just shown a video of yourself. Do
you remember the male in the Phillies jacket?”
[“Y]es.[” “]Who was the male in the Phillies
jacket?[”] [“]Nobes.[”]
“Do you recall Nobes hitting you?” “I was hit from
behind. I didn’t see him hit me.”
N.T., 11/07/2018, at 87-93.
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Trial Court Opinion (TCO), 2/21/2020, at 2–4 (unnumbered, some citations
omitted or altered for consistency).
On November 8, 2018, after a three-day trial, the jury found Appellant
guilty of aggravated assault and not guilty of PIC. On April 2, 2019,
Appellant was sentenced to four to ten years’ imprisonment. Appellant filed a
timely post-sentence motion, which was denied without a hearing on April
23, 2019. On July 2, 2019, Appellant filed a timely petition pursuant to the
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, seeking the
reinstatement of his appellate rights. On September 16, 2019, the trial court
granted Appellant’s petition, and he filed a notice of appeal nunc pro tunc.
Appellant thereafter complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and the trial
court filed its Rule 1925(a) opinion.
Herein, Appellant states four issues for our review:
I. Is the evidence legally sufficient to support the conviction of
Appellant?
II. Is the verdict of guilty against the weight of the evidence and
so contrary to the evidence that it shocks one’s sense of justice
under the circumstances of this case?
III. Did the trial court err and/or abuse its discretion when it
allowed into evidence testimony which was in violation of Rule of
Evidence 403[?]
IV. Did the trial court make an error of law by not granting a
mistrial when a Commonwealth witness read a statement into
evidence in violation of Commonwealth v. Brady, 507 A.2d 66([Pa. ]1986)[?]
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Appellant’s Brief at 5 (trial court answers omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
conviction for aggravated assault. To begin, we note our standard of review
of a challenge to the sufficiency of the evidence:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable
doubt. Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Additionally, “we are required to consider all evidence that was actually
received, without consideration as to the admissibility of that evidence or
whether the trial court’s evidentiary rulings are correct.” Commonwealth v.
Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (citation omitted).
Appellant does not challenge that the Commonwealth proved the
elements of aggravated assault but, rather, he claims that the
Commonwealth failed to prove that he was the individual who assaulted Mr.
Coyett. See Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa. Super.
2010) (“In addition to proving the statutory elements of the crimes charged
beyond a reasonable doubt, the Commonwealth must also establish the
identity of the defendant as the perpetrator of the crimes.”). He argues that
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Mr. Coyett did not provide a reliable identification of Appellant because Mr.
Coyett could not remember the incident at trial and his testimony was
“inconsistent, erratic, and vague.” Appellant’s Brief at 16. Appellant further
contends that “the only evidence that purports to identify Appellant as
committing the assault is a video from outside Spiro’s Bar. However, the
video is of extremely poor quality, making it impossible to identify anyone
who is observed.” Id. at 15. Finally, he asserts that the Commonwealth
failed to offer any “physical, scientific, or corroborative evidence” to support
his guilt. Id.
We disagree. Mr. Coyett identified Appellant as his assailant in his
statement to the police. Additionally, the police presented Mr. Coyett with a
photo array, and Mr. Coyett selected the photograph of Appellant as the
person who assaulted him, identifying Appellant by name. N.T., 11/07/2018,
at 95-96. Both Mr. Coyett’s statement to police and the photo array were
introduced at trial as substantive evidence. Contrary to Appellant’s
argument, Mr. Coyett’s statement is sufficient to identify Appellant,
notwithstanding his subsequent inability to recall the incident. See
Commonwealth v. Hanible, 836 A.2d 36, 39 (Pa. 2003) (holding that the
out-of-court statement of the sole eyewitness who recanted at trial was
sufficient to sustain Hanible’s conviction for first-degree murder).
To the extent Appellant is arguing Mr. Coyett’s testimony at trial
should be credited over his prior identification, Appellant’s claim concerns
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the weight of the evidence, not its sufficiency. See Commonwealth v.
Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006) (“[U]ncertainty in an
eyewitness’s identification of a defendant is a question of the weight of the
evidence, not its sufficiency.”).
Moreover, Mr. Coyett’s prior statement was not the only evidence
identifying Appellant as the person who assaulted Mr. Coyett. The
Commonwealth also presented videos recorded by Encore and Spiro’s Bar.
Officer McCarthy candidly acknowledged that the Spiro’s Bar video was
“pretty bad,” and that he would not have been able to identify Appellant
solely based on that video. N.T., 11/07/2018, 65-66. However, he was able
to identify Appellant because Appellant’s face was clearly visible in the
Encore video and his Phillies Jacket was visible in both videos. Id. at 55, 65-
66. Accordingly, the Commonwealth presented sufficient evidence to identify
Appellant as Mr. Coyett’s attacker to sustain his aggravated assault
conviction.
Next, Appellant asserts the trial court abused its discretion by denying
his motion for a new trial based on his claim that the verdict was against the
weight of the evidence. Our standard of review for evaluating a weight-of-
the-evidence claim is well-established:
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review. Moreover, where the trial court
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has ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate review is
limited to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations
omitted). “A true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super.
2006) (citation omitted). Therefore, “[a]n appellate court will give the
gravest consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict is against
the weight of the evidence,” as the trial judge is in the best position to view
the evidence presented. Id. (quoting Commonwealth v. Wright, 865 A.2d
894, 915 (Pa. Super. 2004)). Moreover, “it is for the fact-finder to make
credibility determinations, and the finder of fact may believe all, part, or
none of a witness’s testimony.” Gibbs, 981 A.2d at 282 (citation omitted).
Instantly, Appellant reiterates his argument that there was no credible
identification of Appellant as the person who assaulted Mr. Coyett. As with
his sufficiency claim, Appellant’s weight challenge is based on the credibility
of Mr. Coyett and the quality of the video from Spiro’s Bar. Appellant’s Brief
at 19-20. Appellant asserts that Mr. Coyett’s prior statement identifying
Appellant is unreliable because Mr. Coyett “admits [to] having been drinking
alcohol,” and his trial “testimony was untrustworthy at best” because of prior
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convictions for crimen falsi offenses and lack of memory.3 Id. Regarding the
video evidence, Appellant claims that the Spiro’s Bar video was too low-
quality to provide an identification. Furthermore, he avers the video is
unreliable because Detective DiLauro recorded the footage on his cell phone
and “no scientific analysis authenticated the video.” Id. at 20.
In rejecting Appellant’s weight-of-the-evidence claim, the trial court
explained that
[a] surveillance video from Spiro’s Bar showed that a male in a
two-tone Phillies jacket assaulted [Mr. Coyett]. The surveillance
video from Encore’s Bar showed that [Appellant] was wearing a
two-tone Phillies jacket in the area of Spiro’s Bar around 11:25
p.m., roughly twenty minutes before the assault took place.
TCO at 12 (unnumbered) (citations omitted). The trial court concluded that
“the evidence is not so tenuous, vague, and uncertain that it would shock
one’s conscience.” Id. We agree with the trial court that the verdict was not
against the weight of the evidence. The jury was free to believe Mr. Coyett’s
statement to police and Officer McCarthy’s testimony identifying Appellant as
the individual in the Phillies jacket in the Encore’s Bar video, and Officer
McCarthy’s testimony that the same person can be seen attacking Mr. Coyett
3 At trial, Appellant impeached Mr. Coyett’s credibility by cross examining
him regarding five prior convictions for burglary, which he admitted. N.T.,
11/06/2018, at 87. A jury may consider a witness’s crimen falsi offenses as
casting doubt on the witness’s overall credibility. Commonwealth v. Cole,
227 A.3d 336, 340 (Pa. Super. 2020) (explaining that a witness may be
impeached with a prior conviction for burglary because burglary is a crimen
falsi offense, or an offense involving dishonesty or false statement).
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in the Spiro’s Bar video. See Commonwealth v. Jacoby, 170 A.3d 1065,
1080 (Pa. 2017) (“[T]he jury [is] the ultimate fact-finder and the sole arbiter
of the credibility of each of the witnesses.”). Moreover, the jurors were able
to watch both videos and make their own identification as to whether the
individual who assaulted Mr. Coyett was Appellant. Accordingly, we conclude
that the trial court did not abuse its discretion in denying Appellant’s weight
claim.
In Appellant’s third issue, he asserts that the trial court erred by
permitting the Commonwealth to introduce evidence that he was involved in
a prior murder. He contends that this evidence was improperly admitted
because evidence of prior criminal conduct cannot be introduced to prove
guilt in the instant case, and “‘the effect of such evidence is to create
prejudice against the defendant in the jury’s mind.’” Appellant’s Brief at 21-
22 (quoting Commonwealth v. Laughman, 452 A.2d 548, 549 (Pa. Super.
1982)). Appellant further argues that the evidence was so prejudicial he
should be granted a new trial.
When reviewing a claim concerning the admissibility of
evidence, and specifically evidence of other crimes or bad acts
by a defendant, we note:
The admission of evidence is a matter vested within
the sound discretion of the trial court, and such a
decision shall be reversed only upon a showing that
the trial court abused its discretion. In determining
whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the
evidence against the prejudicial impact of that
evidence. Evidence is relevant if it logically tends to
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establish a material fact in the case or tends to
support a reasonable inference regarding a material
fact. Although a court may find that evidence is
relevant, the court may nevertheless conclude that
such evidence is inadmissible on account of its
prejudicial impact.
Commonwealth v. Reid, 811 A.2d 530, 550 (2002) (citations
omitted). An abuse of discretion is not merely an error of
judgment, but is rather the overriding or 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 record. Further, an abuse of discretion may
result where the trial court improperly weighed the probative
value of evidence admitted against its potential for prejudicing
the defendant.
Commonwealth v. Weakley, 972 A.2d 1182, 1188–89 (Pa. Super. 2009)
(cleaned up).
During the direct examination of Mr. Coyett, the Commonwealth
questioned Mr. Coyett regarding portions of his statement to police where he
explained his previous relationship with Appellant and Appellant’s motive to
attack him. Appellant objected in anticipation of testimony describing an
interaction between Appellant and Mr. Coyett that referred to Appellant’s
presence at a recent murder. After the trial court overruled Appellant’s
objection, the Commonwealth read the following portion of Mr. Coyett’s
interview with the police during the direct examination of Mr. Coyett:
Do you know why you were assaulted[?]
I think it’s because I saw Nobes a couple months ago. I was
talking to him about the night the guy got killed and Nobes was
telling me that Justin killed him because it was some kind of
beef.
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***
Was Nobes there the night that Wink got killed?
[Y]es, he was out there.
N.T., 11/06/2018, at 68. No further elaboration on the prior incident was
provided.
Appellant contends that “the import [of the statement] is
unmistakable—this specific reference to prior unrelated criminal conduct,
notably the connection to a homicide and retaliation against [Mr. Coyett] as
a result, created prejudice against []Appellant in the jury’s mind and
effectively stripped him of his presumption of innocence.” Appellant’s Brief at
24. He argues that the prejudicial effect of the statement is compounded
because “the other evidence presented against Appellant is weak...[, and] no
curative instruction was given.” Id. at 25. Appellant does not offer a
discussion of the probative value of the evidence, instead asserting that it is
“wholly irrelevant.” Id.
The trial court determined that Mr. Coyett’s explanation of his
interaction with Appellant prior to the assault was particularly relevant to
show Appellant’s motive in light of “[Appellant’s] theory that [he] did not
commit the assault.” TCO at 17 (unnumbered). We agree with the trial court
and find Appellant’s argument unconvincing. Mr. Coyett’s statement was
relevant to establish the relationship between Appellant and Mr. Coyett,
which provides context not only for the assault, but also for Mr. Coyett’s
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ability to identify Appellant as the assailant. While there is no doubt that
evidence of prior crimes carries the risk of undue prejudice, we are
unpersuaded that Mr. Coyett’s statement imparts this prejudice. The
statement does not accuse or imply that Appellant committed the murder;
indeed it names someone else as the murderer. To the extent the statement
links both Appellant and Mr. Coyett to the murder, it does so to establish
that they knew one another and were involved, at least tangentially, in
“some kind of beef.” N.T., 11/06/2018, at 68. In offering an explanation and
motive for the assault at issue, this evidence surely prejudiced Appellant;
however, the prejudice was not unfair. Commonwealth v. Akhmedov, 216
A.3d 307, 316 (Pa. Super. 2019) (“Evidence will not be excluded merely
because it is harmful to the defendant’s case.”). Accordingly, we conclude
that the trial court did not abuse its discretion by admitting this portion of
Mr. Coyett’s statement.
In his final issue, Appellant challenges the admission of Mr. Coyett’s
statement to police as substantive evidence. Appellant’s Brief at 25.
Appellant argues that the statement is inadmissible because Mr. Coyett did
not adopt the statement and because the statement is not inconsistent with
Mr. Coyett’s trial testimony that he did not remember the assault. Id. at 26.
A prior statement is admissible when a declarant-witness claims an
inability to remember the subject matter of the statement and the statement
is in writing and adopted by the witness, unless the court determines the
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memory loss to be credible, pursuant to Pa.R.E. 803.1(4). The comment to
that rule provides, in pertinent part:
The purpose of this hearsay exception is to protect against the
“turncoat witness” who once provided a statement, but now
seeks to deprive the use of this evidence at trial. It is intended
to permit the admission of a prior statement given under
demonstrably reliable and trustworthy circumstances, see, e.g.,
Commonwealth v. Hanible, 30 A.3d 426, 445 n.15 (Pa. 2011),
when the declarant-witness feigns memory loss about the
subject matter of the statement.
Pa.R.E. 803.1(4) (Comment).
First, as the trial court determined, Mr. Coyett’s statements to police
“were in writing and he signed and adopted them. Although [Mr. Coyett] did
not remember answering the questions or signing the writing, he verified
that his signature was located at the bottom of each page[.]” TCO at 14
(unnumbered); See Commonwealth v. Enix, 192 A.3d 78, 81-82 (Pa.
Super. 2018) (providing that a statement to police that has been reduced to
a writing and signed by the witness is reliable and trustworthy). Thus, the
statement was given under demonstrably reliable circumstances, and we
proceed to considering whether Mr. Coyett was feigning his memory loss at
trial.
Although we acknowledge the trial court credited some memory loss
as a symptom of Mr. Coyett’s injuries, TCO at 10-11, Mr. Coyett explained
his lack of cooperation as a Commonwealth witness, testifying:
To be honest with you, I really don’t want to do this. … Because
I really don’t care about—I never wanted this court situation to
happen. I never wanted to go and press charges on nobody. You
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know, whatever happened, it happened. You know what I mean?
That’s how life goes. … It happened. You know, I moved on with
my life, trying to, you know, go to the next step of my life. … I’m
just saying whatever happened, happened…. I’m pas[t] it and
trying to do things for the future.
N.T., 11/06/2018, at 35-36. Because Mr. Coyett’s refusal to testify about the
April 16, 2015 assault was grounded in his hostility to the court proceedings
and not, as he claimed, an inability to remember, his prior statement to
police was properly admitted pursuant to Pa.R.E. 803.1(4).4 Accordingly,
Appellant’s fourth claim is meritless.
Judgment of sentence affirmed.
4 The trial court admitted the statement pursuant to Pa.R.E. 803.1(1), which
permits prior statements that are a writing signed and adopted by the
declarant and inconsistent with the declarant-witness’s testimony to be used
as substantive evidence. Pa.R.E. 803.1(1); TCO at 13 (unnumbered). The
trial court noted that Mr. Coyett’s testimony on direct-examination was
internally inconsistent; Mr. Coyett remembered giving a statement to police,
but did not remember the specifics of that statement, and he remembered
seeing a video of the incident, but did not remember if he had identified
anyone in the video. TCO at 15.
Generally, failure to remember is not inherently contradictory to any
prior statements given. See Commonwealth v. Watley, 153 A.3d 1034(Pa. Super. 2016); Commonwealth v. Morris, 417 A.2d 748 (Pa. Super.
1979); and Commonwealth v. Moore, 340 A.2d 447, 449 (Pa. 1975). As
Appellant argues, Mr. Coyett did not refute or contest the accuracy of the
statement he gave to police. Appellant’s Brief at 25-27. Instead, he
maintained that he had no direct memory of April 16, 2015, saying “I don’t
remember the day. All you [sic] doing is showing me stuff that was either
said or that was written down and the video. That doesn’t make me
remember the incident.” N.T., 11/06/2018, at 60. Accordingly, Pa.R.E.
803.1(4), not 803.1(1), is the appropriate exception to the hearsay rule
allowing Mr. Coyett’s prior statements to be admitted into evidence.
Nevertheless, “we may affirm the trial court’s determination on any grounds,
even where those grounds were not suggested to or known by the trial
court.” Commonwealth v. Gatlos, 76 A.3d 44, 62 n.14 (Pa. Super. 2013).
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Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/21
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