Com. v. Gboko, B.

J-S46042-20
2020 PA Super 281COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BERTRAND GBOKO :
:
Appellant : No. 708 EDA 2020
Appeal from the Judgment of Sentence Entered January 30, 2020
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002584-2019
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
OPINION BY MUSMANNO, J.: FILED DECEMBER 10, 2020
Bertrand Gboko (“Gboko”) appeals from the judgment of sentence
imposed following his conviction of recklessly endangering another person and
possession of an instrument of crime.1 We affirm.
The trial court summarized the factual history underlying the instant
appeal as follows:
On the night of March 26, 2019, [Gboko] attended a happy hour
event with co-workers who dropped him off at Front Street and
Girard Avenue when the happy hour ended. While waiting for his
trolley, two men approached [Gboko] and attempted to rob him.
[Gboko], who admitted to being “buzzed,” attempted to fight back
using a pocket knife. [Gboko] then swung the knife and attacked
an uninvolved bystander [(“the Complainant”)], who was forced
to use a table leg to defend himself multiple times. Police showed
up and arrested [] Gboko[,] who was charged with aggravated
assault, possession of an instrument of crime with the intent to
employ it criminally, simple assault, and recklessly endangering
another person. At trial, [] Gboko testified on his own behalf and
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1 See 18 Pa.C.S.A. §§ 2705, 907.
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a stipulation was introduced into the record acknowledging [that]
Gboko is a law abiding and peaceful person.
Trial Court Opinion, 6/29/20, at 1 (unnumbered) (citations to record and some
capitalization omitted).2
Following a bench trial, Gboko was convicted of recklessly endangering
another person and possession of an instrument of crime, and found not guilty
of the remaining offenses. On January 30, 2020, the trial court sentenced
Gboko to concurrent terms of 18 months of probation. The trial court also
ordered Gboko to receive anger management counseling and mental health
treatment.3 Gboko filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
Gboko now raises the following issues for our review:
1. Did the [trial] court err when it did not permit the defense to
present testimony from good character witnesses, and instead
admitted a prosecutor’s objected[-]to stipulation?
2. Did [Gboko] have a right to present evidence of his good
character for truthfulness?
Brief for Appellant at 2.
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2On May 15, 2019, Gboko filed an Omnibus Motion, seeking suppression of
physical evidence, and various discovery orders. From the record, it is unclear
whether the Omnibus Motion was ever litigated or resolved.
3 Prior to sentencing, Gboko filed a Motion for Extraordinary Relief, challenging
the sufficiency and the weight of the evidence. The trial court entered an
Order denying the Motion on the same date that it imposed its sentence.
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We will address Gboko’s claims together. In his first claim, Gboko
argues that the trial court erred by admitting the Commonwealth’s suggested
stipulation, despite objections raised by defense counsel. Id. at 9. Gboko
acknowledges that a trial court has discretion in determining whether to admit
evidence, but states that this discretion is not absolute. Id. Gboko contends
that, essentially, he was forced to abide by a stipulation to which he did not
agree, and a one-party stipulation should not be permitted. See id. at 9-13.
Further, Gboko asserts that the trial court improperly addressed his challenge
as an argument that the court had erred by barring additional character
witnesses, when in fact, Gboko was not able to present any character
witnesses. Id. at 13.
In his second claim, Gboko contends that the trial court erred by
excluding evidence concerning Gboko’s character for truthfulness. Id. at 14.
Gboko claims that the trial court improperly interpreted Pa.R.E. 608 to permit
evidence of a defendant’s character for truthfulness only after the
Commonwealth attacks his reputation for truthfulness. Id. According to
Gboko, “[h]is credibility was critical,” because he and the Complainant
“presented a dramatically different version of events[.]” Id. at 18.
The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.
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Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. 2010) (citation and
quotation marks omitted).
“A stipulation is a declaration that the fact agreed upon is proven, and
a valid stipulation must be enforced according to its terms.” Commonwealth
v. Mitchell, 902 A.2d 430, 460 (Pa. 2006) (citation, quotation marks and
brackets omitted).
Generally, “[e]vidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in
accordance with the character or trait.” Pa.R.E. 404(a)(1). However, in a
criminal case, “a defendant may offer evidence of the defendant’s pertinent
trait, and if the evidence is admitted, the prosecutor may offer evidence to
rebut it[.]” Pa.R.E. 404(a)(2)(A). “When evidence of a person’s character or
character trait is admissible, it may be proved by testimony about the person’s
reputation. Testimony about the witness’s opinion as to the character or
character trait of the person is not admissible.” Pa.R.E. 405(a); see also
Commonwealth v. Kouma, 53 A.3d 760, 769 (Pa. Super. 2012) (stating
that a defendant may “introduce evidence of his or her reputation among
associates or within a particular community.” (citation and quotation marks
omitted)).
Regarding a witness’s character for truthfulness, Rule 608 provides as
follows:
(a) Reputation Evidence. A witness’s credibility may be
attacked or supported by testimony about the witness’s reputation
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for having a character for truthfulness or untruthfulness. But
evidence of truthful character is admissible only after the
witness’s character for truthfulness has been attacked.
Opinion testimony about the witness’s character for truthfulness
or untruthfulness is not admissible.
(b) Specific Instances of Conduct. Except as provided in Rule
609 (relating to evidence of conviction of crime),
(1) 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’[s]
conduct; however,
(2) in the discretion of the court, the credibility of a witness
who testifies as to the reputation of another witness for
truthfulness or untruthfulness may be attacked by cross-
examination concerning specific instances of conduct (not
included arrests) of the other witness, if they are probative
of truthfulness or untruthfulness; but extrinsic evidence
thereof is not admissible.
Pa.R.E. 608 (emphasis added).
Further, this Court has addressed the relationship between Rules 404
and 608 as follows:
Rule 608(a) permits a testifying defendant to call witnesses to
testify as to his or her truthful character whenever the
Commonwealth attacks his or her general reputation for
truthfulness during trial. Conversely, Rule 404[(a)(2)(A)] permits
a defendant (testifying or non-testifying) to call witnesses to
testify as to his or her truthful character when the defendant’s
reputation for truthfulness is pertinent to the underlying criminal
offense, e.g., perjury.
Commonwealth v. Kennedy, 151 A.3d 1117, 1128 (Pa. Super. 2016).
The following exchange occurred during Gboko’s bench trial:
[Defense Counsel]: I would not rest. I actually have several
people here on behalf of [] Gboko. I understand, Your Honor, for
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the sake of brevity, I would just ask that three people of the -- we
have eight people here today -- testify about [] Gboko’s character.
[Assistant District Attorney (“ADA”)]: I said I would stipulate.
[The Court]: I thought you had a stipulation as to his character.
[Defense Counsel]: And I understand we don’t want to stipulate
-- I mean, we don’t want everyone to testify, but I think it is
important that Your Honor see the people who know [] Gboko,
and that they testify live and directly and tell Your Honor exactly
who [] Gboko is.
[The Court]: Okay. I think the stipulation is appropriate. You
can swear in all the people. You can have them all introduce
themselves, what their relationship is to [] Gboko, and how long
they have known him.
[Defense Counsel]: I understand.
[The Court]: So we can do that. So I’ll be clear as who [sic] they
are and what their relationship is and how long he’s known them.
There’s a stipulation as to character, but we want to have an
introduction as to every one of them that is in the room today.
N.T., 8/20/19, at 88-89. All of Gboko’s character witnesses were then sworn
in, and each witness explained to the court the nature of his or her relationship
to Gboko, and how long he or she had known Gboko. See id. at 89-93.
Subsequently, the following exchange occurred:
[Defense Counsel]: Your Honor, there’s been an [sic]
stipulation by and between counsel that if everyone who’s
here for [] Gboko would have testified[,] that they know his
reputation in the community. They know his reputation as that of
-- as one of those -- I’m sorry, as peaceful, as truthful, and as
law abiding.
[ADA]: There’s no stipulation to truthfulness.
[Defense Counsel]: Okay. Well, then what are we doing here? I
can call everybody here and ask them if he’s truthful.
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The Court: Peaceful and law abiding.
[Defense Counsel]: Your Honor, we’re entitled to those
stipulations.
[ADA]: I don’t think you are.
[Defense Counsel]: Yes, we are.
The Court: All right. Some of this you all needed to work out
ahead of time because at this point we’re like at a protracted
hearing. You know what I’m saying? Because we’ve been doing
this for a[ ]while. This is the only trial we’ve done, and we’ve
been doing it for a[ ]while. You know, I’m going to take a break,
and so is the steno[grapher]. I’m going to be back out in five
minutes. You need to figure this out.
(Recess.)
(Off the record.)
Court Crier: Court’s back in session.
The Court: All right. You guys still don’t have a stip -- that is my
understanding, and this is where I am with this. His testimony for
law -- his reputation for law abiding and peacefulness is
something that you can stipulate. That truthfulness does
not have to be part of it unless his truthfulness was
specifically attacked, then truthfulness testimony -- that’s when
truthfulness testimony could be brought in. Now, and the fact
that obviously there’s two different versions of the story, does not
mean specifically that his reputation for truthfulness was attacked.
So, we can have a stipulation for peaceful and law abiding. As far
as truthfulness, nobody can really testify to truthfulness. So,
that’s where I am with having read the rule and looked at some
cases really quickly. So that’s where we are.
So, at this point, as far as I see things, I feel that for the truthful-
-for the peaceful and law abiding, there’s a stipulation as
related to that. I got testimony as related to each person and
how long they have known [] Gboko. And then, as far as I’m
concerned, I feel like that’s where we -- I would assume at this
point defense can rest, and then we need to do brief closings.
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[Defense Counsel]: Yes, Your Honor. So, I would at this point --
I understand Your Honor’s ruling. I would just object for the
record. …
Id. at 93-94 (emphasis added; some paragraph breaks omitted).
The trial court stated in its Opinion that the parties stipulated that Gboko
is a peaceful and law-abiding person. Trial Court Opinion, 6/29/20, at 1
(unnumbered). Our review of the record confirms that, initially, defense
counsel intended for at least three of Gboko’s character witnesses to testify at
trial. See N.T., 8/20/19, at 88. However, following subsequent discussion,
defense counsel agreed to stipulate that each of Gboko’s character witnesses
would testify that Gboko is a peaceful and law-abiding person. See N.T.,
8/20/19, at 93 (wherein defense counsel stated, “there’s been an [sic]
stipulation by and between counsel….”). Additionally, the trial court had the
opportunity to speak with each of Gboko’s character witnesses, and to learn
the nature of each witness’s relationship to Gboko. See id. at 89-93. Defense
counsel objected only after the Commonwealth stated it would not agree to
stipulate to Gboko’s truthfulness, and the trial court agreed that such
stipulation would not be appropriate. See id. at 96. Thus, Gboko’s claim that
the trial court prevented him from presenting character witnesses is belied by
the record.
Moreover, truthfulness is not relevant to the offenses of recklessly
endangering another person or possession of an instrument of crime.
Additionally, Gboko testified on his own behalf at trial, and the Commonwealth
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did not attack Gboko’s general reputation for truthfulness.4 See Kennedy,
supra; see also id. (stating that “when truthfulness is not relevant to the
underlying criminal offense, a defendant may only call witnesses to testify as
to his or her truthfulness when (a) he or she chooses to testify on his or her
own behalf, and (b) the Commonwealth attacks the defendant’s truthfulness
through either cross-examination or by other witness’ testimony.” (emphasis
added)). Accordingly, Gboko was not entitled to a stipulation regarding his
character for truthfulness, nor was he entitled to introduce such evidence
under either Rule 404 or Rule 608.
Based upon the foregoing, we affirm Gboko’s judgment of sentence.
Judgment of sentence affirmed.
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4 In fact, Gboko makes no attempt to argue that the Commonwealth attacked
his general character for truthfulness. Instead, Gboko argues only that his
credibility was critical to the issue. “[W]here the prosecution has merely
introduced evidence denying or contradicting the facts to which the defendant
testified, but has not assailed the defendant’s community reputation for
truthfulness generally, evidence of the defendant’s alleged reputation for
truthfulness is not admissible.” Kennedy, 151 A.3d at 1128 (citation and
quotation marks omitted); see also id. (concluding that the defendant was
not entitled to introduce evidence of truthfulness in light of testimony by two
witnesses who contradicted the defendant’s testimony).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2020
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