Com. v. Molina, E.

J-A10018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELTON MOLINA :
:
Appellant : No. 2704 EDA 2018
Appeal from the Judgment of Sentence August 24, 2018
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0001109-2014
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MAY 31, 2019
Elton Molina appeals from the judgment of sentence imposed August
24, 2018, in the Carbon County Court of Common Pleas. The trial court
sentenced Molina to an aggregate term of 11 to 22 years’ imprisonment,
following his jury conviction of robbery1 and related charges for his
participation in a gunpoint holdup of a grocery store in September of 2014.
Molina’s appeal focuses on the trial court’s ruling that precluded him from
introducing proffered evidence based on his failure to file a pretrial notice of
alibi. Because we agree with Molina that the proposed evidence did not
constitute an alibi, and, therefore, he was not required to file a pretrial notice,
we vacate the judgment of sentence and remand for a new trial.
____________________________________________
1 See 18 Pa.C.S. §3701(a)(1).
J-A10018-19
The facts underlying Molina’s conviction, as presented during his jury
trial, are aptly summarized by the trial court as follows:
Around 7:30 P.M. on September 10, 2014, a strong-armed
robbery occurred at the Tresckow Superfood in Tresckow, Banks
Township, Carbon County. Pennsylvania State Police obtained
statements from various witnesses, one of whom identified, in
general terms, what the two suspects were wearing.
This witness, Ashley Cannon (hereinafter “Cannon”)
testified that she was across the street from the Tresckow
Superfood when she heard a commotion1 and saw two individuals
walking towards the Superfood. Cannon was able to initially
identify these two individuals as African-American. One of these
two individuals was wearing a darker jacket and dark pants. The
jacket, as Cannon explained, had a hood which this individual had
used to cover his head, and in the words of Cannon was “pulled
tight”, presumably in an attempt to obscure his face. Cannon next
observed these individuals enter the store with the other shorter,
stockier individual, striking the victim, Manoj Patel, with a gun.
Molina was observed by Cannon, behind the counter. At that point
Cannon ran to another location of the residence where she was
visiting, but returned moments later to observe these same two
individuals running from the store in the same direction from
which they came.
__________
1 Cannon described the “commotion” as whooping and
clapping.
__________
The State Police also obtained a video from a nearby
residence which depicts two similarly dressed individuals walking
towards the scene prior to the time the robbery occurred and then
moments later that same video shows what appears to be the
same two individuals running away from the scene.
Found near the crime scene by the State Police was a right-
handed glove and a CO2 gun which was seized and retained as
possible evidence in this investigation.
The victim, Manoj Patel, also testified regarding this
incident. He described the attack by these individuals as well as
the serious injuries he sustained from being struck. He also
-2-
J-A10018-19
provided testimony that mirrored that of Cannon regarding
general descriptions of the individuals but more specific
information regarding what they were wearing. Patel also testified
that the individual with the hood pulled up was also wearing ski
goggles.
During an unrelated criminal investigation involving Molina’s
co-defendant, Amir Edwards (hereinafter “Edwards”), police
seized items of evidence from a vehicle including a left-handed
glove, that matched the right-handed glove found near the crime
scene, and a set of ski googles and a BC/BS card belonging to the
victim, Manoj Patel. Edwards was a passenger in that vehicle at
the time of the stop and prior to seizure of these items.
The Commonwealth then produced Michele Berger
(hereinafter “Berger”) as a witness. Berger was the ex-girlfriend
of Molina and mother of his child, and was still friendly with him.
Berger testified that at some time after this incident she had
occasion to be in Molina’s company and testified that Molina told
her that the police wanted to talk to him about a robbery. Berger
also testified that Molina showed her a selfie2 of himself dressed
in a black sweater (as Berger describes it) and wearing goggles.
Molina asked Berger “if [she] could recognize him?” She testified
that she could tell it was him. Berger also testified that Molina
asked her for money to go to Canada and that Edwards3 pistol
whipped a man. Berger also testified that while being questioned
by the police, she was shown the surveillance video from that
same neighborhood camera and that one of the individuals in that
video was wearing the same clothing that was worn by Molina in
the selfie.
__________
2 A selfie, for those who are not technologically advanced,
is a picture of oneself taken by oneself.
3 Berger testified that Molina referred to Edwards as
“BooBoo” and that she knew Edwards by that nickname.
__________
The Commonwealth also called Lauren Force from the
Bureau of Forensic Sciences at the Wyoming State Police Lab. Ms.
Force was qualified as an expert in DNA analysis. She testified
that she received two known DNA samples, one each from Molina
and Edwards. She further testified that she analyzed several
pieces of evidence including the gloves and ski go[g]gles. It was
her expert opinion that the sample piece taken from the left-
-3-
J-A10018-19
handed glove contained DNA compatible to that of both Molina
and Edwards. She further opined that neither of these individuals
could be excluded as possible sources of the DNA found on this
glove and based on her analysis that the likelihood of two other
African–Americans providing that combination of DNA was one in
790 quadrillion and of two Hispanic individuals, one in 2.8
quintillion. Force also testified that, as to the goggles, she could
not provide an opinion as the results of her testing were
“uninterpretable”, meaning there were too many overlaps in the
DNA she found to specifically identify a source of the DNA found
on the go[g]gles.
Trial Court Opinion, 10/18/2018, at 1-5.
Based on the above-stated evidence, Molina was arrested and charged
with robbery, theft, conspiracy (two counts), and simple assault. 2 The case
proceeded to a jury trial commencing on May 7, 2018.3 After the
Commonwealth rested its case-in-chief on May 8, 2018, Molina’s counsel
informed the court that a defense witness would not be available until the next
day. See N.T., 5/8/2018, at 129. When the Commonwealth asked for an
offer of proof, Molina’s counsel stated: “He is going to be doing an
identification of an individual.” Id. The court then recessed the trial until the
next morning.
On May 9, 2018, defense counsel called Daniel Shitovich as her first
witness. The Commonwealth immediately asked to approach the court at
____________________________________________
2 See 18 Pa.C.S. §§ 3701(a)(1), 3921(a), 903, and 2701(a)(1), respectively.
3 Molina’s co-defendant, Amir Edwards, entered a guilty plea to one count of
robbery on September 20, 2016. His judgment of sentence was affirmed on
direct appeal by this Court on May 1, 2019. See Commonwealth v.
Edwards, ___ A.3d ___, 2305 EDA 2018 (Pa. Super. 2018) (unpublished
memorandum).
-4-
J-A10018-19
sidebar, where it requested an offer of proof. See N.T., 5/9/2018, at 2.
Defense counsel explained that Shitovich would establish a foundation for a
video she intended to introduce. The video purported to show another
individual (not Molina), dressed similarly to one of the perpetrators, using the
victim’s credit cards at a Giant Store in Hazelton several hours after the
robbery at issue. See id. at 2-4. Counsel then intended to call a private
investigator, who would identify the person in the video as Seth Hughes, not
Molina. See id. at 3-4. The Commonwealth objected on the basis that Molina
never provided a pretrial alibi notice. After a lengthy discussion, the trial court
concluded Molina’s counsel was attempting to present a “backdoor alibi”
without having sent the requisite pretrial notice to the Commonwealth, and
precluded the evidence from being admitted at trial. Id. at 23. The jury
subsequently returned a verdict of guilty on the charges of robbery, theft, and
two counts of conspiracy.4 Thereafter, on August 24, 2018, the trial court
sentenced Molina to an aggregate term of 11 to 22 years’ imprisonment. This
timely appeal follows.5
Although Molina identifies three issues on appeal, they all focus on the
trial court’s exclusion of his evidence concerning the Giant store surveillance
____________________________________________
4 The jury found Molina not guilty of simple assault.
5 On September 4, 2018, the trial court ordered Molina to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Molina complied with the court’s directive, and filed a concise statement on
September 18, 2018.
-5-
J-A10018-19
video. Specifically, Molina argues the trial court erred or abused its discretion
in concluding: (1) the proposed evidence constituted alibi evidence, for which
Molina had neglected to file a pretrial notice of alibi; (2) the evidence was, in
any event, not relevant; and (3) any error of the trial court was harmless.
See Molina’s Brief at 4.
Our review of a challenge to the trial court’s exclusion of evidence at
trial is guided by the following:
The admissibility of evidence is within the sound discretion of the
trial court, wherein lies the duty to balance the evidentiary value
of each piece of evidence against the dangers of unfair prejudice,
inflaming the passions of the jury, or confusing the jury.
Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (2010);
Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 141
(2007). We will not reverse a trial court’s decision concerning
admissibility of evidence absent an abuse of the trial court's
discretion. Flor, 998 A.2d at 623; Commonwealth v.
Champney, 574 Pa. 435, 832 A.2d 403, 416 (2003).
Commonwealth v. Chamberlain, 30 A.3d 381, 420 (Pa. 2011), cert. denied,
566 U.S. 986 (2012).
In his first issue, Molina contends the trial court “misapplied the law of
alibi defense” when it determined his proposed evidence constituted an alibi,
and, accordingly, excluded the evidence because Molina failed to provide
pretrial notice to the Commonwealth pursuant to Pa.R.Crim.P. 567.6
____________________________________________
6 We note Molina consistently, and incorrectly, cites to Pennsylvania Rule of
Criminal Procedure 305. The requirement that a defendant must file a pretrial
notice of alibi was originally codified in Rule 305. However, in 2001, that Rule
was renumbered as Rule 573, under the heading, “Pretrial Discovery and
Inspection.” See Pa.R.Crim.P. 573, Note. Subsequently, in 2006, Rule 567
-6-
J-A10018-19
When a defendant intends to offer an alibi defense at trial, Rule 567
requires the defendant file a notice of the alibi with the court, and serve it on
the Commonwealth. See Pa.R.Crim.P. 567(A). The Rule mandates:
The notice shall contain specific information as to the place or
places where the defendant claims to have been at the time of the
alleged offense and the names and addresses of the witnesses
whom the defendant intends to call in support of the claim.
Pa.R.Crim.P. 567(A)(2). Furthermore, if a defendant fails to file and serve the
requisite notice of alibi, Subsection (B)(1) provides:
[T]he court may exclude entirely any evidence offered by the
defendant for the purpose of proving the defense, except
testimony by the defendant, may grant a continuance to enable
the Commonwealth to investigate such evidence, or may make
such other order as the interests of justice require.
Pa R.Crim.P. 567(B)(1). Accordingly, “[t]he imposition of sanctions for
violations of [Rule 567] rests in the sole discretion of the trial court.”
Commonwealth v. Zimmerman, 571 A.2d 1062, 1067 (Pa. Super. 1990)
(citations omitted), appeal denied, 600 A.2d 953 (Pa. 1991), cert. denied, 503
U.S. 945 (1992).
In the present case, Molina concedes he did not file a pretrial notice of
alibi defense. However, he insists the evidence he intended to present did not
constitute an alibi, and, therefore, he was not required to provide Rule 567
notice. We agree.
____________________________________________
was codified to pertain specifically to the notice requirements for an alibi
defense. See Pa.R.Crim.P. 567 (“Notice of Alibi Defense”), Comment.
-7-
J-A10018-19
“The long-accepted definition of alibi is ‘a defense that places the
defendant at the relevant time in a different place than the scene involved and
so removed therefrom as to render it impossible for him to be the guilty
party.’” Commonwealth v. Roxberry, 602 A.2d 826, 827 (Pa. 1992)
(quotation omitted). See also Black’s Law Dictionary (10th Ed. 2014)
(defining “alibi” as “[a] defense based on the physical impossibility of a
defendant’s guilt by placing the defendant in a location other than the scene
of the crime at the relevant time.”). Indeed, “[a]ll that is required [to
demonstrate an alibi defense is] that, due to separation, it is impossible for
the defendant to have committed the crime.” Commonwealth v. Dennis,
17 A.3d 297, 302 (Pa. 2011). A panel of this Court has explained:
There is a difference between a “general denial of guilt” and an
alibi. When the defendant generally denies his guilt, he is simply
saying “I didn't do it.” An alibi defense, on the other hand, not
only declares “I didn't do it” but also says: “and it
couldn't possibly have been me since I was someplace else when
the crime occurred.”
Commonwealth v. Hall, 867 A.2d 619, 636 (Pa. Super. 2005) (internal
citation omitted), appeal denied, 895 A.2d 549 (Pa. 2006). Obviously, the
focus of an alibi defense is the location of the defendant at the time of the
crime.
As noted supra, a defendant who intends to present an alibi defense at
trial must file a pretrial notice of this defense pursuant to Rule 567. “The
purpose of the Rule is to insure ‘both the defendant and the State ample
opportunity to investigate certain facts crucial to the determination of guilt or
-8-
J-A10018-19
innocence.’” Commonwealth v. Lyons, 833 A.2d 245, 257 (Pa. Super.
2003) (quotation omitted), appeal denied, 879 A.2d 782 (Pa. 2005). In
Commonwealth v. Fernandez, 482 A.2d 567 (Pa. Super. 1984), a panel of
this Court considered whether the notice rule violated a defendant’s
constitutional right to present a defense. See id. at 571. In concluding it did
not, and that the trial court properly excluded the defendant’s alibi evidence
in the absence of proper notice, the panel opined:
Rule [567] addresses the delicate balance between the
interest of the accused in presenting a full and complete defense
and the interest of the Commonwealth in avoiding fabricated
alibis, unfair surprise, and the inevitable delay of justice wrought
by an “eleventh-hour defense.” See Williams v. Florida, 399
U.S. 78, 81–82, 90 S. Ct. 1893, 1895–1896, 26 L. Ed. 2d 446
(1983). Appellant’s argument is all the more poignant where he
faces life sentences for his murder convictions.
The Supreme Court of the United States has expressly
reserved the question of the constitutionality of the preclusion of
witness alibi testimony for noncompliance with notice provisions.
Wardius v. Oregon, 412 U.S. 470, at 472 n. 4, 93 S. Ct. 2208,
at 2211 n. 4, 37 L. Ed. 2d 82 (1973); Williams v. Florida, 399
U.S. at 83 n. 14, 90 S. Ct. at 1897 n. 14, 26 L. Ed. 2d 446
(1970). Williams is of particular interest to us. There, the Court
held that a Florida statute requiring advance notice of an alibi
defense was valid on its face. The Court reasoned that there is
ample room in the adversary system for a rule “designed to
enhance the search for truth in the criminal trial by insuring both
the defendant and the State ample opportunity to investigate
certain facts crucial to the determination of guilt or innocence.”
399 U.S. at 82, 90 S.Ct. at 1896. Rule [567] serves this same
pursuit of justice and is constitutional on its face.
Id. at 571-572.
From these cases, we extract the following principles. An alibi defense
is one that places the defendant at a different location than the scene of the
-9-
J-A10018-19
crime, so that it would have been physically impossible for the defendant to
commit the offense. Furthermore, when a defendant intends to present an
alibi defense, he must provide notice to the Commonwealth, detailing his
location at the time of the crime, and listing any persons he was with, so that
the Commonwealth may conduct its own investigation of the defense before
trial.
In the case sub judice, Molina sought to present evidence that another
person, wearing clothing similar to one of the perpetrators in the surveillance
video, was caught on video in a Giant grocery store several hours after the
robbery, using Patel’s credit cards. See N.T., 5/9/2018, at 4. The trial court
determined this evidence constituted a “back door alibi:”
Since Molina was attempting to show that the person in the store
video was the person who committed the crime and was present
at the scene of the crime wearing clothing similar to that observed
by eyewitnesses and on a video and on Molina’s selfie and was
someone other than himself, he is therefore placing himself
elsewhere. By doing this, he was attempting to present an alibi
defense or as this Court called it, a “back door alibi” by attempting
to show someone else was at the scene wearing clothing observed
and proving to be worn by the perpetrator as shown by the
Commonwealth.
Trial Court Opinion, 10/18/2018, at 16-17. Because Molina failed to notify
the Commonwealth of this proposed evidence before trial pursuant to Rule
567, the court excluded the evidence.
Here, however, we agree with Molina that his proposed evidence did not
place him at a different location than the scene of the crime at the time of the
offense. See Roxberry, supra; Molina’s Brief at 20. In fact, the evidence
- 10 -
J-A10018-19
did not speak to Molina’s whereabouts at all. Rather, Molina’s proposed
testimony - that another person, dressed similarly to the perpetrator who was
“identified” as Molina,7 was using the victim’s credit cards a few hours after
the crime – could create a reasonable doubt as to the identity of the
perpetrator. A defendant is not required to notify the Commonwealth before
trial of all exculpatory evidence he intends to present, including evidence such
as in the present case, which supports a mistaken identity defense.
While the trial court found Molina’s proposed evidence constituted a
“back door alibi,” it provides no authority for its ruling. Our research confirms
an alibi constitutes evidence that the defendant was somewhere other than
the scene of the crime; evidence that does not pertain to the defendant’s
location at the time of the crime does not constitute an alibi. Accordingly, we
conclude the trial court erred when it precluded Molina’s proposed evidence
because he did not provide the Commonwealth with pretrial notice of an alibi
defense pursuant to Pa.R.Crim.P. 567.8
____________________________________________
7 It bears emphasis that the only witness who “identified” Molina as one of the
masked robbers was Berger, and her identification was based solely on the
clothing the perpetrator was wearing. Although Berger identified Molina in the
surveillance footage on direct examination, she admitted under cross-
examination that she believed the person was him because the perpetrator
was “wearing the outfit that [Molina] had the selfie in.” N.T., 5/8/2018, at
76. She also stated, “He wears that outfit a lot.” Id. at 83.
8 The trial court’s insistence that Molina was attempting to “plac[e] himself
elsewhere” by introducing this evidence runs afoul of a defendant’s burden of
proof in a criminal case. Trial Court Opinion, 10/18/2018, at 16-17. Indeed,
Molina has no burden to explain where he was on the night of the robbery;
- 11 -
J-A10018-19
In his second issue on appeal, Molina argues the trial court’s alternative
basis for precluding the proposed evidence fails as well. The trial court found
that even if the evidence did not constitute “a true alibi defense,” the court
“could have limited or denied this testimony on pure relevancy or hearsay
grounds.” Trial Court Opinion, 10/18/2018, at 17. The court opined:
[The private investigator] could not have testified to any more
than that he observed a person wearing similar clothing. He would
not have been able to identify the person in the store video; he
would not be able to make a comparison of the person in that
video to the person in the other video; he would not be able to
testify as to what that other person was doing … all of that would
be inadmissible hearsay and properly excluded. Further, the
quality of the evidence was suspect as well. As proffered by
Molina, all [the private investigator] would testify to would be that
the clothing was “similar” to that worn by the person identified by
Commonwealth witnesses. There were no identifying logos or
insignias on the clothing worn by the person in the Commonwealth
video. Thus, it would be pure speculation for [the private
investigator] to say definitely that it was the exact same clothing
worn by the individual in the Commonwealth’s video, Molina’s
selfie shown to Berger as well as the testimony of the
eyewitnesses and the victim himself.
…
Even if Molina was attempting to show “misidentification” as
a defense here, his proffered testimony falls woefully short to
evidence this defense. The clothing worn by the individuals is not
on trial; [Molina] is and the testimony proposed to be elicited from
[the private investigator] was not going to the issue of
misidentification of the person involved. Thus, it was properly
excluded.
Id. at 17-18.
____________________________________________
rather, he need only hold the Commonwealth to its burden to prove beyond a
reasonable doubt that he was one of the perpetrators.
- 12 -
J-A10018-19
Molina maintains, however, that the proffered evidence was
“undoubtedly relevant” because it “tended to show that another individual
committed the crime in question.” Molina’s Brief at 22. Again, we agree.
Pursuant to Pennsylvania Rule of Evidence 401, “[e]vidence is relevant
if: (a) it has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining
the action.” Pa.R.E. 401. The trial court’s ruling focuses on only one aspect
of the proposed evidence – that is, a person wearing clothing similar to one of
the perpetrators was captured on surveillance video hours after the robbery.
If that was the full extent of Molina’s proposed evidence, we would agree with
the court’s decision. However, the court ignores several key points concerning
the evidence Molina sought to present.
First, according to counsel’s proffer, the Giant surveillance video was
provided to the defense by the Commonwealth, and pursuant to the state
trooper’s investigation, “[t]he person in the video used the [victim’s] credit
cards[.]” See N.T., 5/9/2018, at 3. Second, counsel stated the Giant
surveillance video provided “a very clear shot of that person’s face” and it is
clear the person was not Molina.9 N.T., 5/9/2018, at 14. When asked why
the evidence was relevant, counsel explained: “He used the credit cards of
the victim and he is wearing the exact same outfit that [Molina] was allegedly
wearing when the robbery took place.” Id. at 4.
____________________________________________
9 Counsel also stated her private investigator ultimately identified the person
in the Giant video as Seth Hughes. See N.T., 5/9/2018, at 3-4.
- 13 -
J-A10018-19
Third, the trial court downplays the similarities in the clothing worn by
the perpetrator and the person observed in the Giant video. Both Cannon and
Patel described one of the perpetrators as wearing light colored shorts and a
dark jacket or hoodie, with the hood tight around his face, and covering his
eyes with ski goggles. See N.T., 5/7/2018, at 100, 119, 142. Neither was
able to identify the face of the perpetrator, and their description of the clothing
was generic. The jury had the opportunity to observe the surveillance video
of the perpetrators on the street, and a still photo that was derived from the
video. See id. at 102, 166. Although Berger identified Molina on the
surveillance video, she acknowledged she did so based solely on the clothing
the perpetrator was wearing. See N.T., 5/18/2018, at 76. She explained
Molina had shown her a photograph of himself wearing tan pants, a black
sweater and goggles, which matched the outfit of the perpetrator in the video.
See id. at 57-58, 76. That “selfie,” however, was not introduced into evidence
or shown to the jury. Accordingly, the similarities between Molina’s outfit in
the “selfie” and the perpetrator’s generic black jacket and tan shorts was
based solely on Berger’s opinion. As Molina’s counsel argued before the trial
court:
[I]t is not just about the clothing he was wearing. This is the same
– this person used the victim’s credit cards less than four hours
later, on the same day, wearing the same outfit. It’s not just a
person off the street.
N.T., 5/9/2018, at 19.
- 14 -
J-A10018-19
Therefore, we find that, to the extent the trial court precluded Molina’s
proffered evidence on relevancy grounds, the court abused its discretion. The
fact that another person (not Molina) was wearing the same clothing as the
perpetrator hours after the robbery while attempting to use the victim’s stolen
credit cards is relevant to Molina’s misidentification defense.
Lastly, Molina addresses the trial court’s ultimate determination that,
even if its decision was incorrect, the ruling would constitute harmless error.
See Molina’s Brief at 23-28.
The well-established analysis for determining if an erroneous evidentiary
ruling constituted harmless error is as follows:
Harmless error exists if the record demonstrates either: (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 was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Hairston, 84 A.3d 657, 671–672 (Pa. 2014), cert.
denied, 135 S. Ct. 164 (U.S. 2014).
In the present case, the trial court concisely opined:
[E]ven if the trial court was incorrect in its ultimate ruling, the
refusal to allow this evidence is harmless error in light of the
cumulative testimony identifying Molina as the perpetrator of
these offenses, including Berger’s testimony, DNA evidence and
Molina’s statements to Berger.
- 15 -
J-A10018-19
Trial Court Opinion, 10/18/2018, at 19.10 However, Molina asserts, and we
agree, the evidence presented at trial was not so overwhelming that the error
could not have contributed to the verdict. See Molina’s Brief at 25-28.
As noted supra, the “identification” testimony was speculative at best.
Neither Patel nor Cannon identified Molina as one of the robbers.
Furthermore, Berger identified him based solely on the clothing worn by the
perpetrator, which she claimed was the same as clothing Molina was wearing
in a “selfie” he showed her a few days later. Although Berger also testified
that Molina made some incriminating statements to her, none of his
statements amounted to an explicit confession,11 and the weight to be
accorded Berger’s testimony was a question for the fact-finder. Finally, with
regard to the DNA evidence, the only item which contained Molina’s DNA
____________________________________________
10 The Commonwealth does not provide any further analysis of this argument.
See Commonwealth’s Brief at 6-7.
11 Berger testified she and Molina spent the evening of September 13, 2014,
together and stayed up all night drinking. See N.T., 5/8/2018, at 62-63.
Sometime during the night, she claimed Molina told her “officers wanted to
talk to him about something” and that “there was an incident with a robbery.”
Id. at 56. On direct examination, Berger testified Molina “just told me that
his friend [Edwards] – they got in a car and robbed somebody” and that
Edwards “[p]istol whipped a man.” Id. at 57. She also stated he showed her
picture of himself wearing tan pants, a black sweater and goggles, and asked
“Can I recognize him.” Id. at 58. Berger said they separated the next
morning, but Molina called her later that afternoon and asked her for money
“[t]o go to Canada” because “he wanted to run.” Id. at 58-59. Under cross-
examination, Berger conceded that Molina did not “exactly” say he committed
a robbery, but rather, he told her “his friend did.” Id. at 66. However, she
did later state Molina told her his motive was “[t]o help pay his father[’s]
rent.” Id. at 87.
- 16 -
J-A10018-19
profile was the left-handed glove, which was not recovered at the crime scene.
See N.T., 5/8/2018, at 44, 115. While we could find this evidence was
sufficient to sustain Molina’s conviction, we are hard pressed to conclude the
evidence supporting an inference guilt was so overwhelming, and the
prejudicial effect of precluding Molina’s proffered evidence was so
insignificant, that it could not have contributed to the verdict. 12 Accordingly,
Molina is entitled to a new trial.
In summary, we conclude: (1) the trial court erred in determining
Molina’s proposed evidence constituted an alibi defense, and (2) the court
abused its discretion in finding that even if its initial ruling was incorrect, the
proffered evidence was either not relevant, or was so insignificant in light of
the overwhelming evidence of guilt that its ruling was harmless error.
Consequently, we vacate the judgment of sentence and remand for a new
trial.
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
____________________________________________
12Neither the trial court nor the Commonwealth suggest the prejudice from
the precluded evidence was de minimis, or that the precluded evidence would
have been simply cumulative of other properly admitted evidence. See
Hairston, supra.
- 17 -
J-A10018-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/19
- 18 -