Opinion
J-S19026-18 No. 2227 EDA 2017
05-15-2018
COMMONWEALTH OF PENNSYLVANIA v. GORDEN LAMOND SUBER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 5, 2017
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0001439-2016 BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J. MEMORANDUM BY NICHOLS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Gorden Lamond Suber appeals from the judgment of sentence entered after a jury trial and convictions for simple assault, recklessly endangering another person (REAP), harassment, and possession of a small amount of marijuana. Appellant contends that the trial court erred by sustaining the Commonwealth's objection to his testimony about what the victim said to him. He also challenges the weight of the evidence for all of his convictions. We affirm.
18 Pa.C.S. § 2709(a)(1), and 35 P.S. § 780-113(a)(31), respectively. The trial court, and not the jury, found Appellant guilty of these two summary offenses.
We incorporate the facts and procedural history set forth by the trial court. See Trial Ct. Op., 10/20/17, at 1-4. We add that at trial, the following exchange transpired during the Commonwealth's direct examination of Vilma Ubiles, the victim:
[Commonwealth]. And what happened when you got to the motel [room with Appellant around 9:30 p.m.]?N.T. Trial, 1/17/17, at 73-74. We note that the victim's testimony was focused on the events that occurred shortly after she and Appellant arrived at the motel. Id.
A. As soon as we got to the room, [Appellant] put a line on the table of cocaine. I then pushed the line off the table, and he immediately got violent with me, grabbed my hand, because I had the rest of his drugs in my hand. He grabbed my hand, started tussling all over the room. He's a lot bigger than me, so I was mostly on the floor. He was dragging me back and forth to try to get the drugs from my hand.
Q. Now, as he was dragging you, were you saying anything to him?
A. I really can't remember word for word what I was saying. Probably why this was going on. I really couldn't say exactly what words were coming out of my mouth at that point. I don't remember that.
Q. Let me just ask you a different way. Were you trying to break free from him? What were you doing?
A. Yeah, I was trying—well, I was asking him to let me go, of course. And I was trying to break free. We were—I was on the floor, we were tangled up somehow. He finally got his drugs out of my hand, and I was pulling on his hand. I remember biting him to try to get free. He then finally—as I said, finally got away. . . .
The victim continued to testify on direct examination about the events that evening, including her pouring Appellant's liquor out in the bathroom, which preceded her leaving the motel room:
[Commonwealth]. Do you remember where [Appellant] was pointing [the gun] at?Id. at 80.
A. Just at me.
Q. And how long did he hold it there?
A. He just asked me, am I leaving or not. And I said I'll leave. I grabbed my stuff. I grabbed my stuff and I left. Went to the lobby and that's when I used the phone to call my son, but the lady at that lobby called the police instead.
Following a cross and re-direct examination, Appellant's counsel elicited the following during re-cross examination of the victim:
[Appellant's counsel]. So when you left the room, you're telling us you hadn't told [Appellant] about calling the police?N.T. Trial, 1/18/17, at 35-36. Appellant's counsel highlighted that the victim did not testify about "look at me" during the Commonwealth's initial direct examination of her, as quoted above. Id. at 36.
A. No. He asked me, are you going to call the police or not? And I said, I don't have to, look at me. As soon as I walk downstairs, they'll call the police.
Subsequently, Appellant testified on his own behalf about the victim's departure from the motel room:
[Appellant's counsel]. What were you doing when the liquor was being poured down the tub?
[Appellant]. I was sitting on the bed with my hands on my head, like in this position (indicating). [The victim is] yelling, she's screaming, she's mad. I just wanted her to leave. I didn't want her to trash that room, because I was responsible for it because it was in my name, I think.
Q. When did she eventually leave the room?
A. When I threatened to call the cops.
Q. Did you call the police?
A. No. I didn't want her to get in trouble. I didn't want her to lose her kids and the whole grabbing the gun thing, Protective Services would have got involved and all.
Q. As she was leaving, did she say anything else?
A. It just resonated now what she said, but—
[Commonwealth]: Objection, Your Honor, to hearsay.
[Appellant's counsel]: Your Honor, the door has been opened.
[Appellant]: No, I'm—she asked me—
The court: Hold on, sir.
[Appellant]: I'm sorry.
The court: I'm sorry, you were going to respond?
[Appellant's counsel]: I was, Your Honor. Just to the fact the door has been opened, [the victim] agreed with me, during my questioning on cross, that as she was leaving the room she said various things in court about what she was going to do and what
happened that night. I'm asking [Appellant] if he has the same recollection of those comments.Id. at 120-21.
The court: I'll sustain the objection.
As set forth above, on January 18, 2017, a jury convicted Appellant of simple assault and REAP. Following a pre-sentence investigation, on April 5, 2017, the court sentenced Appellant to one to twenty-three months' imprisonment for simple assault, followed by a consecutive sentence of two years' probation for REAP. Appellant filed a timely post-sentence motion challenging, among other things, the weight of the evidence. The court denied Appellant's post-sentence motion, and Appellant timely appealed.
The court imposed no penalty for Appellant's convictions for harassment and possession of marijuana.
Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement contending, in pertinent part:
The trial court erroneously sustained the prosecutor's objection to [Appellant's] testimony about what the [victim] said to him during their physical confrontation. [Appellant and the victim] each accused the other of initiating and continuing the confrontation. Where the [victim] testified concerning things that Appellant allegedly said, it was clearly improper for the trial court to preclude Appellant for giving his version of what was said. As a result of the trial court's ruling, the jury was only allowed to hear one version of what the [victim and Appellant] said to each other during that struggle.Appellant's Pa.R.A.P. 1925(b) Statement, 7/26/17, at 1-2.
The trial court filed a Rule 1925(a) opinion, asserting that Appellant's issue, as quoted above, was so overly broad and vague, he waived it. Trial Ct. Op. at 8. The court faulted Appellant for failing to identify where in the record the court made the disputed ruling. Id. The trial court ultimately located the testimony in question, which we quoted above, and concluded that Appellant's claim lacked merit. Id. at 9. The trial court explained that Appellant's counsel's reasoning—that "the door has been opened"—"failed to present the requisite legal basis for the [c]ourt to overrule the Commonwealth's hearsay objection [and] was also insufficient to preserve any claim on appeal." Id.
On appeal, Appellant raises the following issues in his brief:
1. Did the trial court erroneously sustain the prosecutor's objection to [Appellant's] testimony about what the complainant said to him during their physical confrontation, consequently allowing the jury to hear only one version of what the complainant and [Appellant] said to each other during their struggle?Appellant's Brief at 9 (issues reordered to facilitate disposition).
2. Did the trial court abuse its discretion when it determined that Appellant's conviction was not contrary to the weight of the evidence, where it was manifestly unreasonable for the factfinder to base Appellant's conviction upon the contradictory and self-serving testimony of the Commonwealth witnesses?
For his first issue, Appellant contends the court erred by preventing him from testifying about what the victim said to him during the fight. Id. at 21. He explains that the victim, during the Commonwealth's direct examination, initially testified "she could not recall specifically what she had said." Id. at 20 (citing N.T. Trial, 11/17/17, at 73). But, according to Appellant, after the Commonwealth's follow-up question, the victim was able to testify about what each party said. Id. at 20-21.
Appellant argues that although the victim was permitted to testify about what he allegedly said, the court barred him "from testifying about a statement she made to him prior to leaving the room" based on hearsay. Id. at 21. In doing so, Appellant argues, the court improperly permitted the jury to "hear only one side of the story," particularly regarding the end of the fight. Id. Appellant cites caselaw for the proposition that the proposed testimony was appropriate rebuttal evidence. Id. at 20. But Appellant cites no caselaw for the proposition that "opening the door" is a valid exception to the Commonwealth's hearsay objection, particularly when Appellant is rebutting testimony he elicited himself. See , e.g., N.T. Trial, 1/18/17, at 35-36. Further, Appellant does not provide any proffer of what he would have testified to had he been permitted to answer counsel's question about the victim's statements as she was leaving the room.
Because the trial court identified the source of Appellant's evidentiary argument and addressed it in its Rule 1925(a) decision, we decline to find waiver based on a vague Rule 1925(b) statement. We acknowledge and appreciate the trial court's efforts to identify Appellant's issue.
Our standard of review regarding admissibility of evidence is well-settled:
Questions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court's rulings regarding the admissibility of evidence absent an abuse of that discretion. 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. Trinidad , 96 A.3d 1031, 1036 (Pa. Super. 2014) (citations and quotation marks omitted).
Briefly, "'[h]earsay' means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Pa.R.E. 801(c). Pennsylvania Rule of Evidence 103(a) provides that a "party may claim error in a ruling to admit or exclude evidence only . . . if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context." Pa.R.E. 103(a).
In Commonwealth v. Newman , 555 A.2d 151 (Pa. Super. 1989), this Court explained that the party making an offer of proof waives any grounds other than those actually presented for the trial court's consideration:
An offer of proof must be sufficient to alert the trial judge to the purpose for which the evidence is being offered, and a trial court's exclusion of evidence must be evaluated on appeal by a review of the contents of the offer at the time it was made. The party specifying the purpose for which the testimony is admissible cannot argue on appeal that the evidence was admissible for a purpose other than that offered at trial. Appellant is deemed to have waived any grounds, other than those offered at trial, for the admission of the evidence at trial.Id. at 156 (citations omitted). In Commonwealth v. Fisher , 681 A.2d 130 (Pa. 1996), the Pennsylvania Supreme Court held that a failure to make an offer of proof results in waiver, because if an appellate court does not "know the substance of [the] statements, [it] cannot determine if the lower court erred in excluding the disputed testimony." Id. at 143 (citation omitted).
We may rely on caselaw predating the enactment of the Pennsylvania Rules of Evidence to the extent the caselaw does not contradict the rules. Commonwealth v. Aikens , 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).
According to the Pennsylvania Supreme Court in Commonwealth v. Tedford , 960 A.2d 1 (Pa. 2008), the law in effect at the time of the Fisher decision precluded victim-impact testimony in a capital case—a holding that was superseded by a statutory amendment. Tedford , 960 A.2d at 40 n.28.
Here, Appellant failed to make an offer of proof as to what he would have testified to had he been permitted to respond. Initially, Appellant was asked if the victim said anything else as she was leaving the motel room. N.T. Trial, 1/18/17, at 120. Rather than present an offer of proof and an explanation that Appellant's proposed response would not be hearsay or would fall within a hearsay exception, Appellant construed the question of "did she say anything else?" as an inquiry into whether he had the same recollection of the victim's comments. Id. at 121. Without knowing the substance of Appellant's anticipated response, we cannot ascertain whether the trial court correctly sustained the Commonwealth's hearsay objection. See Fisher , 681 A.2d at 143; Newman , 555 A.2d at 156. In any event, we add that Appellant himself "opened the door" by questioning the victim about what she said shortly before she left that evening. See , e.g., N.T. Trial, 1/18/17, at 35-36. Thus, because Appellant failed to make an appropriate offer of proof, we cannot discern whether the trial court abused its discretion, and we therefore affirm. See Trinidad , 96 A.3d at 1036.
We acknowledge that counsel's question does not necessarily call for a hearsay response, but Appellant—instead of responding yes or no—seemingly began to expound on what the victim asked him before the court stopped him. N.T. Trial, 1/18/17, at 120-21. Indeed, Appellant's counsel subsequently clarified that he wanted to know if Appellant recalled the victim's comments. Id. at 121. Regardless, Appellant has not articulated how the contents of his unpreserved response would have established reversible error by the trial court.
In support of his second issue, Appellant contends that the Commonwealth's evidence was not credible for three reasons. First, he maintains that the evidence does not support the victim's assertion that their argument started when he used cocaine. Appellant's Brief at 16. Appellant notes he is subject to randomized drug tests at his job and the police never recovered cocaine from the motel room. Id. He claims he had insufficient time to hide the cocaine before the police arrived given that the police, upon searching his person, found marijuana. Id. at 16-17.
Second, Appellant asserts that the victim's testimony about her seizure, see Trial Ct. Op. at 2, supports his version of events. Specifically, that the victim became enraged after learning of his infidelity, began physically assaulting him, and, as a result, suffered a seizure. Appellant's Brief at 17-18. In other words, the victim—not Appellant—started the fight. Id. at 18.
Third, Appellant maintains that the photographic evidence of the motel room does not "depict a room in which a violent struggle" occurred. Id. at 18-19. Appellant concludes by arguing that his testimony contained less contradictions than the victim's testimony, and given his lack of a criminal history and cooperation with the police, the convictions were against the weight of the evidence. Id. at 19.
The standard of review for a challenge to the weight of the evidence is well-settled:
A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the fact-finder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the factfinder's verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. . . .
[A] new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial court is to determine that notwithstanding all the evidence, certain facts are so clearly of greater weight that to ignore them, or to give them equal weight with all the facts, is to deny justice. A motion for a new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient evidence to sustain the verdict; thus the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner.Commonwealth v. Landis , 89 A.3d 694, 699 (Pa. Super. 2014) (citations and original brackets omitted).
After careful consideration of the parties' briefs, the record, and the decision by the Honorable Thomas C. Branca, we discern no abuse of discretion. See Trial Ct. Op. at 6-7 (summarizing conflicting testimony and concluding jury found the testimony of the victim and police more credible than Appellant's testimony). We decline to reweigh the testimony and evidence presented at trial, and hold the trial court did not abuse its discretion by concluding that the verdict was not so contrary to the evidence as to shock the court's conscience. See Landis , 89 A.3d at 699.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/15/18
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