J. A18012/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
FRANCISCO FELIZ, : No. 1958 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, July 14, 2014,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0000952-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2015
Francisco Feliz appeals from the judgment of sentence of July 14,
2014, following his conviction of one count of indecent assault, complainant
less than 13 years of age. On appeal, appellant contends that the trial court
erred in ruling that the Commonwealth could cross-examine appellant’s
proposed character witnesses regarding a 1992 out-of-state felony weapons
conviction. In light of the trial court’s ruling, appellant declined to call the
character witnesses. Appellant argues that the 1992 conviction was
irrelevant and inadmissible, as it was too temporally remote and the
proffered witnesses did not know him at that time. Appellant asserts that
any minimal probative value the 1992 conviction had was outweighed by its
potential for prejudice, and that the trial court’s ruling cannot be considered
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harmless error in a case such as this, which boils down to credibility. After
careful review, we are constrained to agree.
The trial court has summarized the history of this case as follows:
On July 15, 2013, the Commonwealth filed an
Information that charged [appellant] with
Aggravated Indecent Assault of a Child, Rape of a
Child, and Indecent Assault of a Complainant who is
less than 13 years of age.[1] On March 4, 2014,
following a trial by jury, [appellant] was acquitted of
Aggravated Indecent Assault of a Child and Rape of a
Child but was found guilty of Indecent Assault of a
Complainant who is less than 13 years of age. On
July 14, 2014, [appellant] was sentenced to 12 to
60 months of imprisonment. On July 21, 2014,
[appellant] filed his Post Sentence Motion, where he
sought to vacate his July 14, 2014 sentence and
receive a new trial. The Post Sentence Motion was
based on the alleged error of this Court in not
excluding [appellant]’s prior 1992 New York felony
weapons conviction that was “too remote and that
. . . was beyond the scope of the proffered
testimony, as it occurred . . . before the character
witnesses came to know [appellant].” [Appellant]
stated in his Post Sentence Motion that he did not
call character witnesses due to this Court’s ruling.
The Commonwealth responded to [appellant]’s
Post Sentence Motion by stating that this Court did
not abuse its discretion as the evidence was relevant
character evidence that can be used by the
Commonwealth to cross-examine character
witnesses. The Commonwealth claims that the
inclusion of the 1992 weapons conviction during the
Commonwealth’s cross-examination of character
witnesses would assist the jury in making witness
credibility determinations.
1
The charges related to appellant’s alleged sexual abuse of J.S., who was
six years old at the time of the alleged offenses. Appellant and his wife,
Miguelina, regularly babysat J.S.
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Opinion and Order, 10/22/14 at 2-3 (emphasis deleted). A timely notice of
appeal was filed on November 17, 2014. Appellant has complied with
Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed a
Rule 1925(a) opinion, relying on its previous opinion and order of
October 22, 2014, disposing of appellant’s post-sentence motion.
Appellant has raised the following issue for this court’s review:
Did the trial court err when it denied Appellant Feliz’s
motion to exclude from cross-examination of
proffered character witnesses inquiry about a prior
out-of-state conviction from 1992 which was too
remote and beyond the scope of the proffered direct
testimony?
Appellant’s brief at 4.
Pennsylvania courts have long recognized the
importance of character or reputation evidence in
criminal trials. The purpose of this evidence is to
show that the accused possesses character traits
that are at odds with the alleged criminal behavior.
As we noted in Commonwealth v. Luther, 317
Pa.Super. 41, 463 A.2d 1073 (1983):
Such evidence has been allowed on a
theory that general reputation reflects
the character of the individual and a
defendant in a criminal case is permitted
to prove his good character in order to
negate his participation in the offense
charged. . . . The rationale for the
admission of character testimony is that
an accused may not be able to produce
any other evidence to exculpate himself
from the charge he faces except his own
oath and evidence of good character.
Id. at 49, 463 A.2d at 1077 (citations omitted); see
also Pa.Stand.Jury Inst. § 3.06(3) (“The law
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recognizes that a person of good character is not
likely to commit a crime which is contrary to his
nature.”) A defendant who presents character
testimony runs certain risks, however, character
witnesses, like other witnesses, can be subjected to
cross-examination. See Commonwealth v. Scott,
496 Pa. 188, 195, 436 A.2d 607, 611 (1981). Such
cross-examination may include questions regarding
the defendant’s prior convictions for crimes involving
the relevant character trait. See id.; see also
Commonwealth v. Vander Weele, 356 Pa.Super.
152, 157-58, 514 A.2d 189, 191 (1986). The
purpose of this type of impeachment is to test the
accuracy and completeness of the witness’s
knowledge of the defendant’s reputation.
Commonwealth v. Scott, supra at 192, 436 A.2d
at 609; see also Commonwealth v. Peterkin, 511
Pa. 299, 318, 513 A.2d 373, 382-83 (1986) (“a
character witness may be cross-examined regarding
his knowledge of particular acts of misconduct by the
defendant to test the accuracy of his testimony and
the standard by which he measures reputation.”);
Commonwealth v. Hammond, 308 Pa.Super. 139,
149, 454 A.2d 60, 65 (1982); Commonwealth v.
King, 287 Pa.Super. 105, 108, 429 A.2d 1121,
1122-23 (1981). It is settled that evidence of a
defendant’s character must relate to his reputation
“at or about the time the offense was committed.”
E.g. Commonwealth v. Luther, supra at 50, 463
A.2d at 1077-78; see also Commonwealth v.
White, 271 Pa. 584, 587, 115 A. 870, 872 (1922);
McCormick, Handbook on the Law of Evidence,
§ 191, at 456 (2d Ed. 1972) (character at time of
alleged crime bears mostly on inference of innocence
or guilt--reputation evidence confined to reputation
at that time or reasonable time before).
Commonwealth v. Nellom, 565 A.2d 770, 775 (Pa.Super. 1989) (footnote
omitted).
It has long been the law that a defendant in a
criminal trial may introduce evidence of his own good
character in order to attempt to convince the trier of
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fact of his innocence. Commonwealth v.
Sampson, 445 Pa. 558, 285 A.2d 480 (1971);
McCormick on Evidence, § 191 (2d ed. 1972). As
our Court stated in Commonwealth v. Padden,
160 Pa.Super. 269, 275, 50 A.2d 722, 725 (1947):
Evidence of good character is substantive
and positive evidence, not a mere
make-weight to be considered in a
doubtful case, and, according to all our
authorities, is an independent factor
which may of itself engender a
reasonable doubt or produce a
conclusion of innocence. Hanney v.
Com., 116 Pa. 322, 9 A. 339; Com. v.
Cleary, 135 Pa. 64, 19 A. 1017; Com. v.
Chester, 77 Pa.Superior Ct. 388. To be
sure, it is to be considered with all the
other evidence in the case. Com. v.
Dingman, 26 Pa.Superior Ct. 615. But
it is not to be measured with or by
other evidence. Its probative value, its
power of persuasion, does not depend
upon, and is not to be measured by, or
appraised according to, the might or the
infirmity in the Commonwealth’s case.
Hanney v. Com., supra. Even though,
under all the other evidence a jury could
reach a conclusion of guilt, still if the
character evidence creates a reasonable
doubt or establishes innocence a verdict
of acquittal must be rendered. Com. v.
Cate, supra [220 Pa. 138, 69 A. 322].
Commonwealth v. Farrior, 458 A.2d 1356, 1364 (Pa.Super. 1983)
(emphasis in Padden). See also Nellom, 565 A.2d at 776 (“Our Supreme
Court recently reaffirmed the importance of character evidence, holding that,
when evidence of good character has been presented, the trial court must
instruct the jury that ‘character evidence may, in and of itself, (by itself or
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alone) create a reasonable doubt of guilt and, thus, require a verdict of not
guilty.’”), quoting Commonwealth v. Neely, 561 A.2d 1, 3 (Pa. 1989)
(additional citations omitted).
In the case sub judice, appellant’s proffered character witnesses did
not even know him at the time of the 1992 conviction, which occurred
20 years before his arrest in this case.2 Nevertheless, the trial court found
the evidence was admissible to impeach appellant’s character witnesses and
to assist the jury in determining credibility. (Opinion and Order, 10/22/14 at
11.) The trial court found that the remoteness of appellant’s
1992 conviction went to its weight, not admissibility, and was a jury issue.
(Id. at 10.) The trial court also determined that even assuming, arguendo,
appellant’s prior conviction was inadmissible, it was harmless error where
appellant was found not guilty of two of the three charges and appellant’s
defense did not rely solely on character witnesses. (Id. at 11-12.) We
disagree.
We find this court’s decision in Farrior, supra, to be instructive. In
that case, the trial court determined that the appellant’s proposed character
witnesses could be cross-examined about a 1961 conviction for assault,
2
Although there was some evidence to support a finding that at least one
character witness knew appellant at the time of the 1992 New York
conviction, the trial court relied on defense counsel’s assertion in the
post-sentence motion that the New York conviction occurred before any of
the defense character witnesses came to know appellant. (Opinion and
Order, 10/22/14 at 11.)
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which occurred 19 years prior to trial. Farrior, 458 A.2d at 1361. Of
appellant’s eleven proposed character witnesses, only two had known him in
excess of 19 years. Id. It was unclear from the record how long two other
proposed witnesses had known him. Id. As a result of the trial court’s
ruling, no character witnesses were called on the appellant’s behalf. Id. at
1360. On appeal, this court held that with respect to those witnesses who
had not known the appellant at the time of the conviction, the conviction
was too remote in time to have any bearing on the credibility of the
witnesses:
In this case, appellant’s assault conviction occurred
nineteen years prior to trial. With respect to the
witnesses who had known appellant for substantially
shorter periods of time, we are of the opinion that
the impeachment value of questions concerning the
conviction would be negligible and would be
overwhelmingly outweighed by their prejudicial
effect. With respect to the two character witnesses
who had known appellant at the time of the
conviction, however, such questions would have
been proper because the conviction was related to
the length of time concerning which the witnesses
would testify. See generally Michelson v. U.S.,
335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).
Therefore, the trial court’s ruling, as it related to the
two character witnesses who had known appellant at
the time of the conviction was correct. As to the
other proposed witnesses, however, the ruling was
erroneous.
Id. at 1361.
Similarly, in Commonwealth v. Hammond, 454 A.2d 60 (Pa.Super.
1982), disapproved of on other grounds by Commonwealth v.
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Brachbill, 555 A.2d 82 (Pa. 1989), the trial court permitted the prosecution
to cross-examine the appellant’s character witnesses concerning a prior
conviction for attempted assault which occurred 14 years prior to trial,
before any of the character witnesses knew the appellant. Id. at 65. This
court held that the ruling was in error, as the conviction was too remote to
be an effective tool for impeachment:
This sole prior conviction occurred in the state of
Virginia in 1966. All of the character witnesses
testified to having met appellant subsequent to
1966. It is not unlikely that appellant reformed after
serving two years, and subsequently enjoyed a
reputation as a peaceful and law-abiding citizen as
testified to by his witnesses. Under these
circumstances, the remoteness of the conviction may
outweigh its effectiveness as a tool of impeachment,
and may have served only to prejudice appellant.
Id. (citation omitted).
Following this court’s decisions in Hammond and Farrior, it is clear
that the trial court erred in ruling that appellant’s proposed character
witnesses could be cross-examined regarding his 1992 out-of-state weapons
conviction. The past conviction occurred more than 20 years before trial,
and the character witnesses did not know him at that time. The
1992 conviction was simply not relevant to impeach the witnesses’ credibility
concerning appellant’s reputation in the community at the time of the
alleged offenses.
Furthermore, we disagree with the trial court that its ruling constituted
harmless error. As stated above, evidence of good character can, in and of
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itself, create reasonable doubt, particularly in a case such as this, which
comes down to credibility.
In Pennsylvania, the importance of good character
evidence is well-recognized. “[E]vidence of good
character is to be regarded as evidence of
substantive fact just as any other evidence tending
to establish innocence and may be considered by the
jury in connection with all of the evidence presented
in the case on the general issue of guilt.”
Commonwealth v. Luther, supra at 49, 463 A.2d
at 1077. Character evidence is substantive and
positive evidence, not a mere “make weight” to be
considered in a doubtful case. Id. (quotation and
citation omitted).
Nellom, 565 A.2d at 776. See also Farrior, 458 A.2d at 1364 (“the
evidence that the proposed character witnesses would have presented
concerning appellant’s law abiding reputation, if believed by the jury, may
have created a reasonable doubt as to his guilt of the crime charged. Thus,
we cannot say that the trial court’s ruling which resulted in the appellant’s
decision not to call his character witnesses did not effect [sic] the outcome
of the case.” (emphasis in original)). Cf. Hammond, 454 A.2d at 65-66
(finding harmless error where the appellant admitted to shooting his wife
and asked for a finding of voluntary manslaughter which he received).
As is typical in the child sexual abuse context, there were no
third-party eyewitnesses and little, if any, forensic evidence. The case
boiled down to whom the jury believed, appellant or J.S. By its erroneous
ruling that appellant’s proposed character witnesses could be
cross-examined about his 1992 New York conviction, the trial court denied
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appellant the use of a major portion of his defense. For these reasons, it is
necessary to remand for re-trial on the charge of indecent assault.
Judgment of sentence reversed. Remanded for new trial. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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Com. v. Feliz, F.
Combined Opinion