Com. v. Lu, C.

J-S45009-19
2019 PA Super 339COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHENG JIE LU, :
:
Appellant : No. 2658 EDA 2017
Appeal from the Judgment of Sentence Entered August 3, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009321-2016
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
DISSENTING OPINION BY MURRAY, J.: FILED NOVEMBER 13, 2019
I respectfully dissent. While I agree that it was error for the trial court
to admit the out-of-court statement of an unavailable witness, I would
conclude that the error was harmless and thus would affirm the judgment of
sentence.
This Court has stated:
“Not all errors at trial . . . entitle an appellant to a new trial, and
[t]he harmless error doctrine, as adopted in Pennsylvania, reflects
the reality that the accused is entitled to a fair trial, not a perfect
trial . . . .” Harmless error is “a technique of appellate review
designed to advance judicial economy by obviating the necessity
for a retrial where the appellate court is convinced that a trial error
was harmless beyond a reasonable doubt.” “An error will be
deemed harmless where the appellate court concludes beyond a
reasonable doubt that the error could not have contributed to the
verdict.”
The Commonwealth bears the burden to establish that the
error was harmless. The Commonwealth satisfies the harmless
error burden when the Commonwealth is able to show:
* Retired Senior Judge assigned to the Superior Court.
J-S45009-19
(1) the error did not prejudice the defendant or the
prejudice was de minimis; or (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 so insignificant by comparison that the
error could not have contributed to the verdict.
Commonwealth v. Green, 162 A.3d 509, 519 (Pa. Super. 2017) (citations
omitted).
Here, the Commonwealth asserts that it was harmless error for the trial
court to admit Police Officer Stanley Kaluza’s testimony that Xiu Xui said, in
reference to Appellant, “[H]e’s the manager.” Commonwealth Brief at 16-17;
see N.T. Trial, 4/11/17, at 57. In support, the Commonwealth contends that
the trial evidence established that Appellant facilitated the transaction
between the officer and Ms. Xui for payment for sex, where Appellant opened
the door and invited the officer in, and then led the officer upstairs and
gestured to three women wearing lingerie.
I agree with the Commonwealth’s reasoning. I emphasize the testimony
of Officer Kaluza, an 18-year veteran of the Philadelphia Police Department
City Wide Vice Enforcement Unit, that his perception of Appellant as the
manager “started with [Appellant] opening the door.” N.T. Trial, 4/11/17, at
43, 65 (emphasis added). Officer Kaluza further testified: “Secondly, when
[Appellant] did the open hand [gesture] and presented me the girls, that
showed to me he was saying here you are.” Id. Officer Kaluza testified that
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it was after the aforementioned actions that Ms. Xui indicated that Appellant
was the manager.1
The evidence also established that while the three women spoke limited
English, Appellant showed some proficiency. See N.T. Trial, 4/11/17, at 49-
50 (Officer Kaluza’s testimony that when he asked Appellant whether the
officer was in the right place, Appellant responded “yes”), 62 (Officer Kaluza’s
testimony that Xiu Xui spoke “[t]he best English”), 73 (trial court stating its
belief that Appellant understood the proceedings because he answered
questions prior to the interpreter finishing). Furthermore, the record showed
that Appellant was the sole participant in the transaction who did not appear
to be a prostitute.2
The foregoing evidence — especially Officer Kazula’s testimony that
facts arising prior to Ms. Xui’s statement had already led him to believe that
Appellant was the manager — support the inference that Appellant was
managing or supervising a prostitution business. See 18 Pa.C.S.A. §
5902(b)(1) (promoting prostitution). Accordingly, while I agree with the
1 Appellant denied any knowledge of a prostitution business. He testified that
he had been at the house for one day, was travelling from New York to
Chicago, his friend took him to the house and told him to wait there, and he
did not know there were three women upstairs wearing lingerie. N.T. Trial,
4/11/17, at 74, 78. Appellant conceded that he let Officer Kaluza into the
house and led him upstairs, but testified that he “made [the] gesture to [the
officer] because [Appellant] really didn’t know what was going on.” Id. at 81-
82.
2A fourth woman was sleeping at the house; she was not arrested. N.T. Trial,
4/11/17, at 62.
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majority that it was error to admit Xiu Xui’s statement, I find the error to be
harmless. See Green, 162 A.3d at 519. I would affirm the judgment of
sentence.
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