Com. v. Tabarez, F.

J. A20035/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
FRANKLYN RAFAEL TABAREZ, : No. 1392 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, June 29, 2016,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0005664-2014
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 11, 2018
Franklin Rafael Tabarez appeals from the June 29, 2016 aggregate
judgment of sentence of 4 to 8 years’ imprisonment imposed after a jury
found him guilty of two counts of aggravated assault by physical menace.1
After careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts of this case as follows:
On August 15, 2014, Special Agent Blake Cook
of the Department of Homeland Security, along with
three other agents, contacted [appellant] at his
residence in Harrisburg. [Appellant] reluctantly
complied with Agent Cook’s request to speak with
him. Agent Cook identified himself and told
[appellant] that he was seeking information related
to a criminal investigation. Agent Cook observed a
black semi-automatic handgun on a mattress near
where he and [appellant] conversed. Agent Cook
spoke about the details of the investigation, gave
1 18 Pa.C.S.A. § 2702(a)(6).
J. A20035/17
[appellant] his business card, and told [appellant] to
call if he was willing to assist.
Less than two weeks later, in the late
afternoon hours of August 27, 2014, Dauphin County
Probation Services officers (“P.O.[]s[”]) Daniel
Kinsinger and Daril Foose were on duty in Harrisburg
conducting home visits and looking for offenders on
the street. The probation officers wore uniforms
which included a shirt with the word “Probation” on
the back and drove a vehicle with an antenna on the
trunk.
P.O.s Kinsinger and Foose first encountered
[appellant] at around dusk when they observed a
black pickup truck traveling north on Hummel Street
in front of their vehicle. The black truck stopped, at
which point a person approached the black truck,
spoke to [appellant,] then returned to their [sic]
porch. Kinsinger and Foose had no official interest in
the black truck at that time. They continued on their
planned route northbound on Hummel Street, across
Derry Street and toward Chestnut Street, where they
intended to visit probation clients.
As they drove eastbound on Chestnut Street,
Kinsinger and Foose observed the black truck pull
into an alley and wait for their vehicle to pass. The
black truck then pulled out and drove behind them.
Because P.O. Kinsinger thought this unusual, he
pulled to the side of the road to determine what
action the truck would take. [Appellant] followed
them. Kinsinger resumed his route eastbound.
[Appellant] again followed, at a distance of
approximately half a block. The officers turned
south onto 13th Street then east on Derry Street.
[Appellant] continued to follow. At 14th and Derry
Streets, [appellant] drove close behind the officers,
flashed the lights on his vehicle and honked the
horn. Uncertain as to why the driver would act in
this manner, P.O. Kinsinger turned onto a one-way
street. [Appellant] continued to follow at a distance
of less than one half a block. P.O. Kinsinger turned
west onto Mayflower Street. [Appellant] stopped his
-2-
J. A20035/17
vehicle facing northbound. It appeared to
P.O. Foose that [appellant] was attempting to pin the
officers’ vehicle. The officers heard a loud pop which
they recognized as a gunshot.
P.O. Kinsinger notified Dauphin County
Dispatch that they were being fired upon. As
P.O. Kinsinger proceeded west, then south,
[appellant]’s vehicle approached at a high rate of
speed. P.O. Kinsinger turned eastbound onto Vernon
Street, where [appellant] fired another gunshot.
Kinsinger drove faster in an attempt to get away
from [appellant], maintaining contact with County
Dispatch as to their location. [Appellant]’s vehicle
nearly struck theirs. [Appellant] drove close to the
bumper of the officers’ vehicle at approximately
40 miles per hour. [Appellant]’s vehicle nearly
struck the P.O.’s vehicle a second time at 17th and
Vernon Streets. Kinsinger passed other vehicles in
an attempt to evade [appellant]. They were able to
lose [appellant] when he stopped at a traffic light.
Harrisburg City Police Officer Scott Johnson
was working approximately one block away when he
heard a radio call of shots fired upon [probation]
officers. He proceeded to the area with his patrol
vehicle lights and siren engaged. As he neared the
intersection of 17th and Derry Streets,
Officer Johnson saw two vehicles proceed through a
red light. [Appellant]’s vehicle stopped at the next
intersection at which point Officer Johnson stopped,
exited his patrol vehicle with his gun drawn and
ordered [appellant] out of the vehicle.
Harrisburg Police Officer Jon Fustine arrived
within moments of the stop. Officer Fustine
observed a black handgun tucked into the passenger
seat of [appellant]’s vehicle.
Harrisburg Police Officer Michael Maurer
responded to the scene to collect evidence.
Officer Maurer photographed the vehicles and
recovered two 40-caliber S&W cartridge cases in the
areas of North 15th Street and Mayflower Streets and
-3-
J. A20035/17
South 14th and Vernon Streets. He collected a
semiautomatic pistol tucked into the passenger seat.
When the [probation] officers learned that
police had detained the driver of the black truck,
they returned to the intersection of 17th and Berryhill
Streets, where they saw the vehicle and [appellant].
P.O. Kinsinger testified that hearing the
gunshots and nearly being struck by [appellant]’s
much larger vehicle caused him to fear for his life
and that of his partner.
P.O. Foose testified that the flashing lights,
beeping and aggressive following made her
extremely nervous. She feared for her life when she
heard gunshots and vividly recalls the smell of gun
powder. Officer Foose believed [appellant] intended
to harm them.
[Appellant] testified that he honked and
flashed his lights so that the people in the vehicle
would identify themselves because he “wanted to
know who those people were”. [Appellant] admitted
that he fired two shots.
Trial court opinion, 1/6/17 at 2-5 (citations to notes of testimony and
footnotes omitted).
Appellant was arrested in connection with this incident and proceeded
to a jury trial on May 16, 2016. Following a two-day trial, appellant was
found guilty of two counts of aggravated assault by physical menace on
May 17, 2016. The jury acquitted appellant of four counts of aggravated
assault and two counts of assault of a law enforcement officer. 2 As noted,
appellant was sentenced to an aggregate term of 4 to 8 years’ imprisonment
2 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(2), and 2702.1(a), respectively.
-4-
J. A20035/17
on June 29, 2016. On July 11, 2016, appellant filed a timely post-sentence
motion to modify his sentence, which was denied by the trial court on
July 18, 2016. This timely appeal followed on August 16, 2016. On
August 19, 2016, the trial court ordered appellant to file a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Appellant was subsequently granted an extension by the trial court and filed
a timely Rule 1925(b) statement on September 29, 2016. The trial court
filed its Rule 1925(a) opinion on January 6, 2017.
Appellant raises the following issues for our review:
I. DID NOT THE [TRIAL] COURT ERR IN
OVERRULING [APPELLANT’S] OBJECTION TO
THE ADMISSION OF THE COMMONWEALTH’S
CRIME-SCENE DIAGRAM WHEN THE EXHIBIT
WAS NOT AUTHENTICATED FOR FAIRNESS
AND ACCURACY UNDER PA.R.E. 901 AND
WHEN THE EXHIBIT INCLUDED AN
UNNECESSARY AND PREJUDICIAL TITLE
REFERRING TO THE CHARGED CRIMINAL ACT?
II. WAS NOT [APPELLANT] DENIED HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL
WHEN THE [TRIAL] COURT, OVER
[APPELLANT’S] OBJECTION, PERMITTED A
LARGE NUMBER OF UNIFORMED POLICE
OFFICERS AND PAROLE OFFICERS TO REMAIN
IN THE COURTROOM?
III. DID NOT THE [TRIAL] COURT ERR IN DENYING
[APPELLANT’S] OBJECTION TO THE DISTRICT
ATTORNEY’S INADMISSIBLE, BUT AUDIBLE,
SIDE-BAR COMMENTS REFERRING TO A
CRIMINAL ARREST OF [APPELLANT] THAT DID
NOT LEAD TO A CONVICTION?
-5-
J. A20035/17
IV. DID NOT THE [TRIAL] COURT ERR IN
PERMITTING THE COMMONWEALTH OVER
[APPELLANT’S] OBJECTION TO QUESTION
[APPELLANT] REGARDING HIS BEING THE
SUBJECT OF A FEDERAL CRIMINAL
INVESTIGATION WHEN SUCH EVIDENCE WAS
IRRELEVANT AND DID NOT QUALIFY UNDER
THE EXCEPTIONS FOR “PRIOR BAD ACT”
EVIDENCE AS SET FORTH AT PA.R.E. 404(b)?
V. DID NOT THE [TRIAL] COURT ERR IN
PERMITTING THE COMMONWEALTH OVER
[APPELLANT’S] OBJECTION TO QUESTION
[APPELLANT] REGARDING HIS BEING A
FOREIGN NATIONAL WHEN SUCH EVIDENCE
WAS IRRELEVANT UNDER PA.R.E. 401 AND
402 AND OTHERWISE INADMISSIBLE UNDER
PA.R.E. 403?
Appellant’s brief at 6-7 (capitalization in original). For the ease of our
discussion, we elect to address appellant’s claims in a slightly different order
than presented in his appellate brief.
We begin by addressing appellant’s claim that his right to a fair trial
was violated “when the [trial] court, over [appellant’s] objection, permitted
a large number of uniformed police officers and parole officers to remain in
the courtroom” during the second day of the trial. (Id. at 36.) For the
following reasons, we disagree.
The record reflects that at the close of the Commonwealth’s case,
appellant’s counsel objected to the presence of “at least a dozen” uniformed
police officers in the courtroom on the grounds that they unfairly prejudiced
appellant:
-6-
J. A20035/17
[Appellant’s counsel]: Judge, I do have to say one
thing on the record. I just have to put it on the
record. We have a large presence of police officers
in the courtroom in full uniform. It looks like full
street riot uniform to me, the lay observer.
Notes of testimony, 5/16-17/17 at 98. The trial court overruled appellant’s
objection, noting as follows:
THE COURT: That’s not riot uniform. That’s the
regular uniform of our police department.
Unfortunately[,] they have to wear the bulletproof
vests because of what we live with in this
community.
....
THE COURT: I see no harm. Some of them are
probation officers, by the way. They’re here
watching the trial, I’m sure for the same reasons.
It’s one or two of their brothers that they believe
were placed in danger. That’s why they’re here.
Id. at 98-99.
Upon review, we discern no abuse of discretion on the part of the trial
court in overruling appellant’s objection to the presence of police officers in
the courtroom. Our supreme court addressed a similar issue in
Commonwealth v. Gibson, 951 A.2d 1110 (Pa. 2008). Gibson involved a
defendant who was convicted of first-degree murder where multiple police
officers were present at his trial. In Gibson, the defendant argued that his
trial counsel was ineffective for not objecting to this police presence in the
courtroom and that his rights to a fair trial were violated pursuant to
principles articulated by the United States Supreme Court in Holbrook v.
-7-
J. A20035/17
Flynn, 475 U.S. 560 (1986).3 In rejecting this argument, the Gibson court
held that “where the record does not indicate the number of uniformed
officers present or any disturbance caused thereby, we conclude . . . [a
defendant] cannot demonstrate that an unacceptable risk of the jury
considering impermissible factors was created.” Gibson, 951 A.2d at 1139
(citations omitted).4
Similarly, we acknowledge that although the presence of multiple
uniformed police officers at a jury trial may cause concern with regard to
jurors’ perceptions and courtroom atmosphere, the record does not indicate
that the officers in this instance caused even the slightest disturbance.
3 Holbrook involved a situation where four uniformed police officers were
present in the first row of a courtroom at the request of the trial court to
provide security, and defendant Flynn subsequently challenged their
presence as inherently prejudicial. Holbrook, 475 U.S. at 562-563. The
Holbrook Court ultimately concluded that Flynn was unable to show he was
denied a fair trial and that there was sufficient cause for this police presence
because there was a state interest in maintaining courtroom security,
offsetting any minor prejudice Flynn may have suffered. Id. at 572. In
reaching this decision, however, the Holbrook Court cautioned that courts
should “not minimize the threat that a roomful of uniformed and armed
policemen might pose to a defendant’s chances of receiving a fair trial.” Id.
at 570.
4 We note that on August 8, 2017, appellant filed motions requesting a
remand for an evidentiary hearing and a continuance to accommodate the
remand. These motions pointed out that the transcript did not indicate that
during trial, the trial court directed a number of appellant’s supporters who
were present in the courtroom to turn their supportive t-shirts inside out.
(See “Application to Remand to Conduct Evidentiary Hearing for Purposes of
Modifying or Correcting Record,” 8/8/17 at 3, ¶¶ 5-6.) In light of the fact
that this has no bearing on our resolution of this issue, we deny appellant’s
motions as moot.
-8-
J. A20035/17
Accordingly, appellant is unable to demonstrate that the police presence in
this case created an unacceptable risk of the jury considering impermissible
factors. See Gibson, 951 A.2d at 1139. Based on the foregoing,
appellant’s claim that his right to a fair trial was violated must fail.
Appellant’s next two claims concern the trial court’s various rulings on
the admissibility of evidence, and we will address each of these issues in
turn. “[T]he admissibility of evidence is a matter addressed to the sound
discretion of the trial court and . . . an appellate court may only reverse
upon a showing that the trial court abused its discretion.” Commonwealth
v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (citations and internal
quotation marks omitted), appeal denied, 124 A.3d 308 (Pa. 2015). “An
abuse of discretion is not merely an error of judgment; rather discretion is
abused when the law is overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice, bias, or
ill will, as shown by the evidence or the record.” Commonwealth v.
Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014), appeal denied, 95 A.3d
275 (Pa. 2014) (citation omitted).
This court has long recognized that,
[t]he threshold inquiry with admission of evidence is
whether the evidence is relevant. 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 supports a reasonable inference
or presumption regarding the existence of a material
fact. In addition, evidence is only admissible where
-9-
J. A20035/17
the probative value of the evidence outweighs its
prejudicial impact.
Otherwise relevant evidence may be excluded
if its probative value is outweighed by its potential
for prejudice. The probative value of the evidence
might be outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the
jury, undue delay, pointlessness of presentation, or
unnecessary presentation of cumulative evidence.
Id. at 750, referencing Pa.R.E. 401, 402, and 403 (case citations and
internal quotation marks omitted).
Appellant argues that the trial court abused its discretion in admitting
a diagram of the crime scene into evidence because it was not properly
authenticated under Pennsylvania Rule of Evidence 901 and contained “an
unnecessary and prejudicial title: ‘Aggravated Assault.’” (Appellant’s brief
at 30.) We disagree.
Rule 901 provides, in relevant part, that “[to] satisfy the requirement
of authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Pa.R.E. 901(a). Demonstrative evidence, like the
crime scene diagram at issue, may be admitted into evidence “provided that
[it] fairly and accurately represents that which it purports to depict.”
Commonwealth v. McKellick, 24 A.3d 982, 987 (Pa.Super. 2011) (citation
omitted), appeal denied, 34 A.3d 828 (Pa. 2011). This court has long
recognized that “testimony from a witness who has knowledge that a matter
is what it is claimed to be” is sufficient to satisfy the authentication
- 10 -
J. A20035/17
requirement under Rule 901. Id. at 988 (citations and internal quotation
marks omitted); see also Pa.R.E. 901(b)(1). As with all other evidence, a
trial court should only admit such evidence when “its probative value
outweighs its prejudicial effect.” Commonwealth v. Serge, 896 A.2d
1170, 1177 (Pa. 2006), certiorari denied, 549 U.S. 920 (2006).
Instantly, the record reflects that the trial court acted within its
discretion in admitting the crime scene diagram into evidence. At trial, the
Commonwealth laid a proper foundation under Rule 901(b)(1) by presenting
the testimony of Officer Maurer, who collected the forensics evidence at the
scene. (Notes of testimony, 5/16-17/17 at 85.) Officer Mauer’s testimony
clearly established that the evidence in question was what it was purported
to be, a diagram of the area where the crimes in question occurred.
Specifically, Officer Maurer testified as follows:
Q. In this case did you respond to the area of
14th and Derry Street and surrounding blocks
for that purpose?
A. Yes.
Q. When did you arrive?
A. Shortly after I heard it announced over the
radio the incident was taking place. I
responded from Front and Paxton. I drove east
on Paxton Street and north on 17th Street, and
I found the two vehicles involved parked near
17th and Berryhill.
Q. Now, I’m going to show you what is marked --
a small copy pursuant to local rule -- as
Commonwealth Exhibit No. 1. Does that fairly
- 11 -
J. A20035/17
and accurately depict the area that you
processed in August of 2014?
A. Yes.
[COMMONWEALTH]: Your Honor, I move for the
admission of Commonwealth Exhibit No. 1.
[APPELLANT’S COUNSEL]: My previous objections to
that exhibit, Your Honor, are on the record.
THE COURT: And we note your exception, and it is
admitted.
Id. at 85-86.
Based on our review of the record, we discern no reason to believe
that the crime scene diagram in question depicts anything other than “that
which it purports to depict.” Serge, 896 A.2d at 1177. Moreover, we agree
with the trial court that the inclusion of the phrase “Aggravated Assault” on
the diagram in question was “merely reflective of the crime charged,” and
did not have such an undue prejudicial impact that a new trial was
warranted. (Trial court opinion, 1/6/17 at 7.) Accordingly, appellant’s
authentication argument fails.
Appellant next argues that the trial court abused its discretion in
denying his objection to various comments that the Commonwealth made on
appellant’s prior arrest during a sidebar conference. (Appellant’s brief at
38.) Appellant avers that these comments were overheard by the jury and
he suffered “unfair prejudice” as a result. (Id. at 40-42.) This claim is
meritless.
- 12 -
J. A20035/17
The record reflects that this matter arose following appellant’s attempt
to introduce testimony that he had no prior criminal record. Specifically,
appellant testified on direct examination as follows:
Q. And you have a license to carry that gun?
A. Yes. I have had a license for four years.
Q. In order to get that license, they do a
background check.
A. Yes. They check everything. Everything.
Q. So you have no record?
A. No, because this is the first time in my --
Notes of testimony, 5/16-17/17 at 108.
Following the Commonwealth’s objection to this testimony, the
following discussion took place at sidebar:
[COMMONWEALTH]: Your Honor, the question was,
do you have a prior criminal record. Ordinarily, I
would object to that because that is improper
character evidence. I have forgone the objection for
two reasons. One, the defendant has forgone
presenting character testimony, so I'll give him this
benefit. Ordinarily I would object to this, but I do
have to note that he does have an arrest record in
New York. It does not appear to have resulted in
conviction. I do not intend to pursue that, but I note
that for the record that I’m forgoing that because
he’s decided not to present character testimony. I
just wanted to make a record of that.
[APPELLANT’S COUNSEL]: I have to take exception
because an arrest record and a conviction are
different. If there is no conviction, then common
parlance says you don’t have a record.
- 13 -
J. A20035/17
THE COURT: I think they can hear you. Why are
you taking an exception? He’s not going to raise it.
[APPELLANT’S COUNSEL]: The jury just heard this.
THE COURT: I don’t think they heard anything. I
think you’re overreacting.
Id. at 108-109.
Contrary to appellant’s contention, the record does not reflect that the
jury was exposed to any improper comments made during sidebar. Rather,
the trial court made a brief observation that the jury could overhear
appellant’s counsel and then concluded that it did not hear any of the
substantive sidebar discussion. Thereafter, the trial court overruled
appellant’s anticipatory objection, and appellant failed to request a further
curative instruction on this matter. Accordingly, we find that his claim of
prejudice is waived and no relief is due. See Commonwealth v.
Sandusky, 77 A.3d 663, 670 (Pa.Super. 2013) (stating, “[e]ven where a
defendant objects to specific conduct, the failure to request a remedy such
as a mistrial or curative instruction is sufficient to constitute waiver.”
(citation omitted)).
Appellant’s final two claims concern the scope of the Commonwealth’s
cross-examination of him during trial. Our supreme court has long
recognized that “[t]he scope of cross-examination is within the trial court’s
discretion, and this Court cannot disturb the trial court’s determinations
- 14 -
J. A20035/17
absent a clear abuse of discretion or an error of law.” Commonwealth v.
Ramtahal, 33 A.3d 602, 609 (Pa. 2011).
Appellant avers that the trial court abused its discretion in permitting
the Commonwealth to elicit testimony from him during cross-examination
that Federal agents had visited him 12 days prior to the incident in question
and informed him that he was the subject of a federal criminal investigation.
(Appellant’s brief at 42.) Appellant maintains this testimony was irrelevant
and inadmissible and that “[a]ny minimal relevance [wa]s certainly
outweighed by undue prejudice[.]” (Id. at 45.) For the following reasons,
we disagree.
Here, the Commonwealth cross-examined appellant as follows:
Q. I want to ask you now about the visit you had
from Homeland Security, the four agents.
Twelve days before the shooting you were
visited by four federal agents.
A. Yes.
Q. One of them was Agent Cook, who testified
earlier today.
A. Yes.
Q. They showed you their credentials?
A. Yes.
Q. They told you that because you were the
subject of a federal investigation --
[APPELLANT’S COUNSEL]: Objection. Objection,
Judge. Objection on relevance.
- 15 -
J. A20035/17
THE COURT: I’m sorry.
[APPELLANT’S COUNSEL]: Objection first of all on
relevance; second of all, that wasn’t the testimony
from Officer Cook; and, thirdly, this is beyond the
scope of direct.
Notes of testimony, 5/16-17/17 at 120. The trial court overruled appellant’s
objection. (Id. at 121.)
Upon review, we conclude that appellant opened the door to this line
of questioning by placing at issue his credibility as to whether he knew that
the individuals he fired upon– POs Kinsinger and Foose –were law
enforcement officers. Appellant was charged, inter alia, with two counts of
assault of a law enforcement officer, 18 Pa.C.S.A. § 2702.1. One of the
requisite elements under Section 2702.1 is that the defendant has
knowledge that the person he is firing upon is a law enforcement officer.
Specifically, Section 2702.1 provides, in relevant part, as follows:
A person commits a felony of the first degree who
attempts to cause or intentionally or knowingly
causes bodily injury to a law enforcement officer,
while in the performance of duty and with
knowledge that the victim is a law enforcement
officer, by discharging a firearm.
Id. § 2702.1(a) (emphasis added).
The record reflects that appellant testified on direct examination that
he was not aware that the persons he fired his gun at were law enforcement
officers and that he had no reason to harm the police:
[A.] The police -- when the car in front of me went
into the alley, I followed him because I wanted
- 16 -
J. A20035/17
to take a picture. I did not know they were
parole officers, never, because they never
identified themselves. And I honked and I
flashed my lights at them so they could
identify themselves, because I wanted to know
who those people were.
....
Q. Do you have any reason to harm anyone in law
enforcement?
A. Never, because I have several members of my
family in my country who are policemen, and
that was also my dream to become a
policeman.
Q. You have no problem with anyone in the
probation department here in Harrisburg?
A. Absolutely no. I play ball against a team of
police officers.
Notes of testimony, 5/16-17/17 at 104, 111-112.
However, the fact that appellant was informed by Federal agents a
mere 12 days prior to the incident in question that he was subject to a
federal investigation creates reasonable inference that he believed the
individuals who initially followed him in an unmarked dark-colored Ford
sedan through four different street turns and then parked and waited for him
outside his garage for “almost six minutes” were law enforcement officers of
some kind and related to the underlying federal investigation. (See id. at
29-30, 47-49, 101-102.) This inference goes directly to whether he testified
credibly on direct examination. Moreover, appellant’s testimony that he was
aware he was under investigation by law enforcement is clearly relevant to
- 17 -
J. A20035/17
whether he possessed a motive to do harm against said law enforcement
officers, and far outweighed any potential for prejudice.
“[E]vidence of bias, interest, or corrupt motive is generally admissible
and a proper inquiry on cross-examination.” Commonwealth v. Murray,
83 A.3d 137, 159 (Pa. 2013) (citation omitted). Our supreme court has long
recognized that “[c]ross-examination may be employed to test a witness’
story, to impeach credibility, and to establish a witness’ motive for testifying.
Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citation
omitted), certiorari denied, 549 U.S. 848 (2006). Courts in this
Commonwealth are “not required to sanitize the trial to eliminate all
unpleasant facts from the jury’s consideration where those facts are relevant
to the issues at hand . . . .” Antidormi, 84 A.3d at 752 (citation and
internal quotation marks omitted). Based on the foregoing, we discern no
abuse of discretion on the part of the trial court in permitting the
Commonwealth to cross-examine appellant in this manner.
In his final claim, appellant argues that the trial court abused its
discretion in permitting the Commonwealth to cross-examine him with
regard to the fact that he was not a citizen of the United States and was
subject to deportation if convicted in this matter.5 (Appellant’s brief at 48.)
Specifically, the Commonwealth cross-examined appellant as follows:
5 The record reflects that appellant was born in the Dominican Republic.
(See notes of testimony, 5/16-17/17 at 122.)
- 18 -
J. A20035/17
Q. Now, you obviously have concerns for your
future?
A. Yes.
Q. You are a national of the Dominican Republic?
A. Yes. I was born and raised.
[APPELLANT’S COUNSEL]: Objection as to
relevance.
[D.A. CHARDO]: Judge, you’re going to instruct the
jury that they can consider any future consequences
of an adverse verdict in evaluating his credibility as a
witness. If he knows he’s subject to removal if
convicted, that is a greater incentive than any other
defendant.
THE COURT: Your objection is overruled.
Q. You are not an American citizen; is that
correct?
A. Yes. No, I was not born here.
Q. And you’re not a naturalized citizen?
A. I have a visa.
Q. You know that if you’re convicted of an
offense, you may be subject to removal from
this country?
A. I perfectly understand it.
Notes of testimony, 5/16-17/17 at 122-123.
Appellant maintains that he was unfairly prejudiced by the
Commonwealth’s line of inquiry because at the time of his jury trial, “[t]he
nation was in the midst of a contentious presidential campaign in which
- 19 -
J. A20035/17
immigration reform was a central focus [and t]he winning candidate vowed
to build a massive wall to keep ‘bad hombres’ out of the United States of
America.” (Appellant’s brief at 50.) We disagree.
Contrary to appellant’s contentions, our review of the record indicates
that this line of questioning was not inflammatory or done so with the intent
to arouse the jury’s sensibilities. Rather, appellant’s status as a foreign
national was relevant to his interest in the outcome of the case, namely,
avoiding deportation if convicted, and was clearly a matter of credibility for
the jury’s consideration. Although we have found no authority in this
Commonwealth that has specifically addressed the scope of
cross-examination on this particular issue, our supreme court’s holding in
Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), is particularly helpful.
In Lesko, our supreme court recognized that a trial court is permitted to
instruct the jury that it may consider whether the defendant has a vital
interest in the outcome of the trial in evaluating his credibility. Id. at 397;
see also Pennsylvania Suggested Standard Criminal Jury Instruction
§ 3.09(2). Based on the foregoing, appellant’s final claim of trial court error
must fail.
- 20 -
J. A20035/17
For all the foregoing reasons, we affirm appellant’s June 29, 2016
judgment of sentence. Motion to remand for an evidentiary hearing and
motion to continue denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2018
- 21 -