Com. v. Shoop, R., Jr.

J-S47019-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD RAY SHOOP, JR. :
:
Appellant : No. 381 MDA 2019
Appeal from the Judgment of Sentence Entered February 7, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000702-2018
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 06, 2019
Appellant Ronald Ray Shoop, Jr. appeals from the judgment of sentence
imposed following his jury trial convictions for two counts of criminal
conspiracy and one count each of possession of a controlled substance with
intent to deliver and transmission of contraband to a prison inmate.1 Appellant
argues that the trial court erred by not allowing him to cross-examine a
Commonwealth witness about her drug dealing activities. We affirm.
The relevant facts and procedural history of this appeal are as follows.
On February 19, 2018, Estee Fritz executed a plan to deliver
Buprenorphine, [also known as Suboxone,] hidden in a red
balloon, to Casey Nicodemus, an inmate at SCI Rockview. Estee
Fritz and Casey Nicodemus were caught and interrogated by both
corrections and police officers, [and] they reported [Appellant] as
the mastermind of the plan, and his girlfriend, Angel Hart, as an
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118 Pa.C.S. § 903(a)(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. § 5123(a),
respectively.
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accomplice.[fn1] Estee Fritz, Casey Nicodemus, [Appellant], and
Angel Hart were charged as co-conspirators on March 22, 2018.
Despite contrary police reports, Casey Nicodemus took
[fn1]
the stand at [Appellant’s] trial and denied implicating
[Appellant] in the conspiracy to bring Buprenorphine into
SCI Rockview.
The amended information filed on January 4, 2019 charged
[Appellant with the aforementioned offenses]. A notice of
consolidation was filed . . . joining [Appellant’s] case with co-
conspirators Estee Fritz, Angel Hart, and Casey Nicodemus. All
defendants, with the exception of [Appellant], entered plea deals
before their scheduled trial. [Appellant] was tried before a jury of
his peers on January 7, 2019 . . . .
Trial Ct. Op., 5/2/19, at 1-2 (some capitalization omitted).
At trial, the Commonwealth called Ms. Fritz to explain her role in the
delivery of drugs to SCI Rockview. Ms. Fritz testified that she smuggled drugs
into the prison on three different occasions during visits with her fiancé, Mr.
Nicodemus. See N.T. Trial, 1/7/19, at 32. Regarding the incident at issue,
Ms. Fritz testified that Appellant’s girlfriend, Ms. Hart, came to her apartment
and provided the drugs for her to take to the prison. Id. at 49. Ms. Hart also
informed Ms. Fritz that the drugs would end up with Appellant. Id. at 50.
On cross-examination, Appellant’s counsel2 asked Ms. Fritz about the
other occasions when she smuggled drugs into the prison. Id. at 73-74.
Appellant’s counsel asked whether Ms. Fritz was acting as a “puppet” on behalf
of her co-conspirators, and Ms. Fritz responded affirmatively. Id. Thereafter,
the following exchange occurred:
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2 Shannon M. Malone, Esq., represented Appellant at trial and continues to
represent him on appeal.
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[Appellant’s Counsel:] You told [Pennsylvania State Police]
Trooper [Michael] Brown that you brought that K2 in for Casey
Nicodemus, correct?
[Ms. Fritz:] Correct.
[Appellant’s Counsel:] You were actually selling drugs on the
street, too? Would that be a fair statement?
[Ms. Fritz:] No.
[Commonwealth]: Objection, Your Honor. Relevance.
[Appellant’s Counsel]: Can we approach?
The Court: You may.
(Whereupon, the following conversation was held at side bar:)
[Commonwealth]: Your Honor, whether or not she was selling
drugs on the street has no relevance to today’s proceeding about
smuggling Suboxone into SCI Rockview.
[Appellant’s Counsel]: If she has―if she is selling drugs on the
street, she is bringing drugs in for Casey Nicodemus and my client
had nothing to do with that, I think it certainly goes to her
credibility when she is implicating my client in this situation.
The Court: I will sustain the objection.
Id. at 75.
At the conclusion of trial, the jury convicted Appellant of all charges. On
February 7, 2019, the trial court sentenced Appellant to an aggregate term of
thirty to sixty months’ incarceration. Appellant did not file post-sentence
motions.
Appellant timely filed a notice of appeal March 4, 2019, and a court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
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appeal on March 22, 2019. The trial court filed a responsive opinion on May
2, 2019, concluding as follows:
Any testimony elicited by [Appellant] from Estee Fritz concerning
her past conduct as a drug dealer was irrelevant to whether
[Appellant] was guilty of masterminding a conspiracy to bring
drugs into SCI Rockview. Even if [the trial c]ourt found the
evidence to be relevant, its probative value did not outweigh its
effect of confusing and misleading the jury because Fritz was not
on trial, and the Commonwealth had not otherwise opened the
door to this specific instance of bad conduct from Fritz’s past.
Trial Ct. Op. at 3.
Appellant now raises one question for our review:
Did the trial court err when it denied [Appellant] the ability to
cross examine the Commonwealth’s main witness against him
concerning her selling drugs outside the prison, which would tend
to impeach her testimony by showing corrupt motive and diminish
her credibility?
Appellant’s Brief at 7.
Appellant asserts “Ms. Fritz had a clear corrupt motive and interest to
lie and pin the blame on Appellant in this case,” because she faced up to ten
years’ imprisonment for her charges as a co-conspirator. Id. at 18. Appellant
also maintains that the Commonwealth discovered text messages on Ms.
Fritz’s phone, which revealed that she offered to sell drugs for another
individual unrelated to Appellant or Mr. Nicodemus. Id. “Had [d]efense
counsel been permitted to cross-examine Ms. Fritz about these text messages
and about this situation, that testimony would have diminished the credibility
of Ms. Fritz’s repeated testimony that she just did what she was told and acted
as a puppet.” Id. Further, Appellant cites Commonwealth v. Evans, 512
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A.2d 626, 631 (Pa. 1986), for the proposition that “whenever a prosecution
witness may be biased in favor of the prosecution because of outstanding
criminal charges or because of any non-final criminal disposition against [her]
within the same jurisdiction, that possible bias . . . must be made known to
the jury.”3 Id. at 20. Appellant concludes the trial court erred by prohibiting
him from cross-examining Ms. Fritz about whether she sold drugs outside the
prison, as such testimony would have established the witness’s bias and
motive for testifying against Appellant. Id. at 23.
This Court’s standard of review for issues regarding the admissibility of
evidence is well settled:
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court . . . [and] we will not reverse a
trial court’s decision concerning admissibility of evidence absent
an abuse of the trial court’s discretion. 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. [I]f in reaching a
conclusion the trial court over-rides [sic] or misapplies the law,
discretion is then abused and it is the duty of the appellate court
to correct the error.
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations
and quotation marks omitted); see also Commonwealth v. Radecki, 180
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3 Appellant acknowledges that the Commonwealth had not charged Ms. Fritz
for any unrelated drug dealing incidents at the time of trial. Appellant’s Brief
at 22. Nevertheless, Appellant argues that “the potential for [charging] to
happen certainly existed―as the Commonwealth had evidence of it―and Ms.
Fritz knew of that potential because she herself had handed her phone over
to police voluntarily. . . .” Id. (emphasis in original).
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A.3d 441, 465 (Pa. Super. 2018) (stating that “[t]he scope of cross-
examination is a matter within the discretion of the trial court and will not be
reversed absent an abuse of that discretion” (citation omitted)).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)
(citation omitted).
Evidence is relevant if it logically tends to establish a material fact
in the case, tends to make a fact at issue more or less probable,
or tends to support a reasonable inference or proposition
regarding a material fact. Relevant evidence may nevertheless be
excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation
and quotation marks omitted).
“[C]ross-examination is the primary method for testing the believability
of a witness and the truth of [her] testimony.” Radecki, 180 A.3d at 465
(citation omitted).
Pennsylvania Rule of Evidence 611(b) addresses the scope of
cross-examination, providing that “[c]ross-examination of a
witness other than a party in a civil case should be limited to the
subject matter of the direct examination and matters affecting
credibility; however, the court may, in the exercise of discretion,
permit inquiry into additional matters as if on direct examination.”
Cross-examination may be employed to test a witness’ story, to
impeach credibility, and to establish a witness’s motive for
testifying.
Id. (citations and some quotation marks omitted).
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“[A]n attorney may discredit a witness by cross-examining the witness
about omissions or acts that are inconsistent with [her] testimony.”
Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super. 2005) (citation
omitted). Our rules of evidence, however, provide that except for a
circumstance not applicable here, “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.”4 Pa.R.E. 608(b)(1).
“Additionally, the veracity of a witness may not be impeached by prior arrests
which have not led to convictions.” Commonwealth v. Chmiel, 889 A.2d
501, 534 (Pa. 2005) (footnote and citations omitted).
Instantly, Appellant’s counsel sought to question Ms. Fritz about her
other, alleged drug dealing activities. The trial court did not permit Appellant’s
counsel to continue with this line of questioning, concluding that evidence of
such conduct would not aid in establishing whether Appellant participated in
the instant conspiracy to smuggle drugs into the prison. See Trial Ct. Op. at
3. Because there is no evidence that Ms. Fritz was charged, arrested, or
convicted for the other incidents alleged, the trial court properly precluded
Appellant’s counsel from questioning Ms. Fritz about the incidents. See
Pa.R.E. 608(b)(1); Chmiel, 889 A.2d at 534.
To the extent Appellant also emphasizes that Ms. Fritz testified against
him to receive favorable treatment for her own charges stemming from the
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4 Pennsylvania Rules of Evidence 608(b) and 609 provide an exception for
evidence of conviction of a crime, which does not apply in this case.
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instant case, the jury received ample evidence regarding Ms. Fritz’s plea
agreement. See N.T. Trial at 63-64. Appellant’s counsel also cross-examined
Ms. Fritz about the agreement, eliciting details about the favorable sentencing
treatment Ms. Fritz received in exchange for her cooperation.5 Id. at 70.
Therefore, the trial court did not abuse its discretion when it refused to allow
Appellant to question Ms. Fritz about her other, alleged, drug dealing
activities. See Radecki, 180 A.3d at 465; Belknap, 105 A.3d at 9-10.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2019
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5 Moreover, the trial court provided a “corrupt and polluted source” instruction.
See N.T. Trial at 227. The trial court also expressly informed the jury that
Appellant’s accomplice “may testify falsely in the hope of obtaining favorable
treatment or for some corrupt or wicked motive.” Id. at 226.
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