Com. v. Sondari, J.

J-S33034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JELANI SONDARI :
:
Appellant : No. 2939 EDA 2017
Appeal from the Judgment of Sentence August 10, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007327-2013
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 05, 2018
Appellant Jelani Sondari appeals from the judgment of sentence of two
years’ probation entered in the Court of Common Pleas of Philadelphia County
on August 10, 2017, following his conviction of resisting arrest.1 We affirm.
The trial court set forth the relevant procedural and factual history
herein as follows:
Procedural History
On August 10, 2017, Appellant [ ] proceeded to trial before
this [c]ourt, sitting without a jury. The [c]ourt found Appellant
guilty of resisting arrest, only. Appellant was sentenced
that same date to two years probation[.]
A timely Notice of Appeal was filed on September 8, 2017[.]
On September 31, 2017, the [c]ourt entered an order
directing the filing of a Statement of Matters Complained of on
Appeal, pursuant to Pa. R. A. P. 1925(b)[.]
A timely Statement pursuant to Pa.R A P 1925(b) was filed
on October 6, 2017.
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1 18 Pa.C.S.A. § 5104.
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* Former Justice specially assigned to the Superior Court.
J-S33034-18
Factual History
The evidence adduced at trial, viewed in the light most
favorable to the Commonwealth as the verdict winner, established
the following:
On the afternoon of Wednesday, November 23, 2012, police
officers were in the vicinity of 4100 Germantown Avenue
investigating a narcotics transaction, involving entry into a parked
white van[.] N.T. 8/10/17, pp 8-9[.] As the officers attempted to
stop the two men, they fled and the officers gave chase. Crack
cocaine was recovered from one male, while the second discarded
several dozen Percocets and Xanax pills. N T 8/10/17, pp. 9-11[.]
Because of the possible involvement of the van, the officers
sought to secure it for investigation[.] N.T. 8/10/17, pp. 10, 12.
Upon returning to the van, the officers observed Appellant enter
the van and sit in the driver's seat[.] [T]here was a three-year-
old child, identified as Appellant's son, [ ] in the back seat[.] N T
8/10/17, pp 13, 39[.]
Officer Strubinger explained to Appellant that the van was
being held for investigation, then requested that Appellant exit the
van[.] N.T 8/10/17, pp 12, 40, 51. Appellant refused to exit the
vehicle. N.T. 8/10/17, pp. 12-13[.] Officer Russel[] drew his taser
and directed Appellant to exit the vehicle, which he refused to
do[.] N T 8/10/17. pp. 40, 42, 46. Instead Appellant pulled the
child into his lap. N T. 8/10/17, pp. 14-15, 26, 40, 45.
After a few minutes of Officer Strubinger attempting to
convince Appellant to leave the vehicle, Officer Waltman stepped
up and open[ed] the passenger door to pull Appellant from the
vehicle as Officer Russel attempted to get Appellant's attention[.]
N.T. 8/10/17, pp 13-14, 33-34, 42. As Officer Waltman grabbed
Appellant, Appellant turned and punched Officer Waltman in the
jaw, snapping his head back. N T. 8/10/17, pp. 13-14, 48[.]
Officer Waltman suffered a laceration to his chin from being
punched[.] N.T. 8/10/17, pp 30-32, 41, 49, 53; Exhibit D -2(a)
and (b)[.] At that point, Officer Russell, who was standing at the
open front passenger window of the van, discharged his taser at
Appellant. N T 8/10/17, pp. 14-15[.] Appellant fell from the
vehicle, [was] handcuffed and transported to the hospital. N.T.
8/10/17, pp 15. 28, 32-33.
Trial Court Opinion, filed 10/19/17, at 1-2.
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In his brief, Appellant presents the following “Statement of the
Questions Involved”:
Did the lower court violate Appellant’s state and federal
constitutional rights to confront his accuser by improperly
curtailing trial counsel’s cross-examination of both
Commonwealth witnesses while attempting to show that the
witnesses had a bias, motive to lie and were offering inaccurate
and deceitful testimony[?]
Brief for Appellant at 3.
The Sixth Amendment guarantees a criminal defendant the right
to confront witnesses against him, which includes the right to
cross-examine witnesses. However, it is well settled that it is
within the discretion of the trial court to determine the scope and
limits of cross-examination and that an appellate court cannot
reverse those findings absent a clear abuse of discretion or an
error of law.
Commonwealth v. Whiting, 668 A.2d 151, 157 (Pa.Super. 1995) (citations
and internal quotations omitted), appeal denied, 544 Pa. 629, 675A.2d 1247
(1995). Although “the allowance or disallowance of questions on cross-
examination is normally left to the sound discretion of the trial judge[,] where
limitations imposed by the court upon cross-examination are such as plainly
inhibit the ability of the accused to obtain a fair trial, the general rule is
manifestly inapplicable.” Commonwealth v. Spiewak, 533 Pa. 1, 13, 617
A.2d 696, 702 (1992).
Appellant maintains that the trial court’s act of curtailing defense
counsel’s cross-examination violated his right to confront witnesses against
him secured by the Sixth and Fourteenth Amendments to the United States
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Constitution and Article 1, Section 9 of the Pennsylvania Constitution in that
it prohibited counsel from “assessing the officers’ bias, motivation to lie,
imperfections of perception, memory and narration.” Brief for Appellant at
11. Appellant highlights the following exchanges to support his argument:
During cross-examination, trial counsel attempted to elicit
from the testifying officers that their conduct-and in particular
Officer Russel's conduct-ran directly counter to the Philadelphia
Police Department's directives regarding the use of tasers. As
soon as trial counsel mentioned the directives-and without
objection from the Commonwealth-the lower court stated: "I just
want to make sure we're going to try this like a criminal case and
not a civil rights case-which I would love to hear one day-but
that's not where we are." (id. at 18-23).
After trial counsel elucidated from Officer Strubinger that it
was counter to the department's directives to draw a taser on a
suspect who is merely passively resisting, counsel asked, "[i]f
somebody had pulled out their taser ahead of time, before the
punch, that would not be appropriate, correct?" Again, without
objection from the Commonwealth, the lower court jumped in
prior to the officer answering the question and the following
exchange occurred:
THE COURT: We're going to stop it here, see, because
this is what happens when we get into directives, we get
into speculation of how they should be applied. How they
should be applied is really up to the fact finder, whether
it be a panel or a CP judge in a criminal trial. I've heard
the facts from his perspective, and I'm happy to hear
anything else. Just, I'm done with the directives.
TRIAL COUNSEL: Well, Your Honor, that's what we're
-- when they're allowed to use this force and when they
are not. If an officer breaks a directive, it's reasonable
to think that he may not be honest down the road to
cover up, especially in a situation like that where there
were multiple officers who have since been promoted.
THE COURT: Again, you've established his
understanding of what the directives are. He's told you
what happened in his mind.
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TRIAL COUNSEL: Fair enough.
THE COURT: Let's move on.
(id. at 23). Later, when trial counsel began cross-examining
Officer Waltman along the same lines, counsel was again shut
down (id. at 46).
During cross-examination of the same witness, trial counsel
asked whether any officer documented who the toddler was
released to or anything else about the child. The lower court
indicated "[t]hat might be the subject of a discovery motion in
which case I would rule as to whether or not you need that. We're
at trial. This is not a discovery dep[osition] or anything like
that[.]" (id. at 35).
In addition, during cross-examination of Officer Waltman,
trial counsel asked, "I'm assuming, given what's going on, the
child was pretty hysterical, pretty upset?" Again without a
Commonwealth objection, the lower court prohibited that line of
questioning and stated, "I'm done talking about that" (id. at 51).
Prior to that question, there had been no questions or discussion
regarding the child's demeanor throughout the trial.
Brief for Appellant at 7-9.
A review of the record reveals that Appellant did not request a sidebar
or otherwise act to preserve his claim that his right to confrontation under
both the state and federal constitutions was violated when the trial court made
its rulings. Rather, the record reflects that Appellant continued cross-
examination by pursuing other lines of questioning. Additionally, Appellant
failed to preserve the issue he now attempts to raise in a post-trial motion. In
fact, Appellant stated in his notice of appeal filed on September 8, 2017, that
“[n]o post-sentence motions were filed.” Therefore, Appellant has waived this
issue on appeal. See Pa.R.A.P. 302(a) (issues not raised in the lower court
are waived and cannot be raised for the first time on appeal); see also
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Commonwealth v. Sanchez, 623 Pa. 253, 297, 82 A.3d 943, 969 (2013)
(same).
Even assuming arguendo that Appellant properly preserved this claim
for appellate review, he fails to demonstrate how the trial court’s controlling
the scope of the officers’ cross-examination plainly inhibited Appellant's ability
to obtain a fair trial. Contrary to Appellant’s assertions, the trial court did not
forbid counsel from exploring the question of whether the officers violated the
police department’s regulations. Indeed, Appellant admits “the
Commonwealth’s case showed that Officer Russel violated Philadelphia Police
Department Directive 10.3.” Brief for Appellant at 15. Moreover, Appellant
acknowledges “the Commonwealth and Appellant presented incompatible
accounts through competent evidence. The primary question to be resolved
by the finder of fact was a question of credibility- who to believe.” Id. at 19.
The trial court acted as fact finder, and the record supports its
conclusions that it had provided Appellant’s counsel significant leeway to
cross-examine police officers on police department directives and policy. The
trial court stressed that Officer Geoffrey Strubinger was examined regarding
taser training and procedures, and Officer Ryan Waltman answered similar
questions as well as discussed his familiarity with taser use. The trial court
explained it limited Officer Strubinger’s testimony only after defense counsel
had posed sixteen questions pertaining to taser training and even thereafter
permitted an additional five interrogatories on this point before counsel
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“drifted off point.”2 The court further stated it did not permit examination
regarding the use of an ASP3 or other type of baton, because no such
instrument was involved in the instant matter. Trial Court Opinion, 10/19/17,
at 3-5 (citing N.T., 8/10/17, at 18-25, 46, 53).
In addition, the trial court pointed out it allowed defense counsel to
cross-examine officers regarding documentation and paperwork they
prepared during the course of their investigation. The court noted it sustained
the Commonwealth’s objection to defense counsel’s questioning of Officer
Strubinger concerning who picked up Appellant’s son after Appellant’s arrest
as it deemed it to be irrelevant to the charge of resisting arrest. Trial Court
Opinion, 10/19/17, at 5 (citing N.T., 8/10/17, at 35). The trial court added
that despite Appellant’s claims to the contrary, it permitted defense counsel
ample leeway in questioning the officers about their treatment of the child at
the time of Appellant’s arrest. While defense counsel asked twenty-one
questions in this regard, the only objection the trial court sustained was that
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2 The trial court indicated it would allow questions concerning the procedure
followed in this case “with limitations” and maintained that in its view
“someone can act wrongfully even if they’re [sic] in compliance with directives
and vice versa.” N.T., 8/10/17, at 20.
3An ASP collapsible baton is a metal weapon that extends to approximately
30 inches in length and is used by law enforcement and marketed to the public
as a self-defense weapon.
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which followed the query regarding the child’s demeanor. Id. at 6 (citing N.T.,
8/10/17, 18, 26, 27, 29, 43, 35, 44, 45, 47, 49, 50, 51-52).
Following our review of the record and in light of the foregoing, had
Appellant’s issue not been waived on appeal, we would find that it lacks merit,
because he has entirely failed to demonstrate how the trial court abused its
discretion or otherwise inhibited his ability to obtain a fair trial by restricting
his cross-examination of the officers. Therefore, we affirm Appellant’s
judgment of sentence.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/18
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4 This Court is not bound by the rationale of the lower court, and we may
affirm it on any basis. Commonwealth v. Williams, 73 A.3d 609, 617
(Pa.Super. 2013), appeal denied, 624 Pa. 690, 87 A.3d 320 (2014).
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