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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HERBERT EDWARD, JR.
Appellant No. 1066 MDA 2015
Appeal from the Judgment of Sentence June 1, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004803-2014
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 12, 2016
Appellant, Herbert Edward, Jr., appeals from the June 1, 2015
judgment of sentence of five to ten years’ imprisonment, imposed after the
trial court found him guilty of one count of persons not to possess, use,
manufacture, control, sell, or transfer firearms.1 After careful review, we
affirm.
We summarize the facts of this case from the certified record as
follows. On September 10, 2014, Sergeant Christian Rothermel of the City
of Reading Police Department responded to a call reporting an unidentified
male walking with a long gun, either a shotgun or rifle. N.T., 6/1/15, at 10.
The police also had information that the person carrying the gun could be in
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18 Pa.C.S.A. § 6105(a)(1).
*Former Justice specially assigned to the Superior Court.
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one of several vacant houses in the area. Id. at 11. Sergeant Rothermel
searched one of those vacant houses, at 927 Franklin Street, and discovered
a loaded 12-gauge shotgun. Id.
Officer James Thomas was also searching the house at the time
Sergeant Rothermel found the shotgun. Id. at 16. During Officer Thomas’s
search, he discovered a box containing court-related documents in the next
room, approximately 20 feet away from the shotgun. Id. at 17-18. All of
the documents were addressed to Appellant at 37 South Tenth Street. Id.
at 18. Later that day, a Reading police officer located and arrested
Appellant. Id. at 30-31.
The next day, September 11, 2014, Officer Thomas spoke to Jean
Dorisca, who made the report of a man with a gun to police. Id. at 21, 25.
During the interview, Officer Thomas showed a photo identification line-up to
Dorisca. Id. at 22. Dorisca identified Appellant as the man with the gun he
saw the previous day. Id. at 23. Dorisca picked Appellant from the line-up
by circling Appellant’s picture, and signing and dating the line-up. Id.;
Commonwealth Exhibit 2.
In its October 31, 2014 criminal information, the Commonwealth
charged Appellant with the above-mentioned offense and one count of
possession of a controlled substance.2 On June 1, 2015, Appellant
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35 P.S. § 780-113(a)(16).
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proceeded to a bench trial. That same day, the trial court found Appellant
guilty of persons not to possess firearms, but not guilty of possession of a
controlled substance. Immediately thereafter, the trial court sentenced
Appellant to five to ten years’ imprisonment. Appellant did not file a post-
sentence motion. On June 18, 2015, he filed a timely notice of appeal.
On July 2, 2015, the trial court entered an order directing Appellant to
file, within 21 days, a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The trial
court sent notice of the Rule 1925(b) order to Appellant and his counsel.
Appellant did not timely file a Rule 1925(b) concise statement. On July 29,
2015, the trial court issued a statement in lieu of an opinion, requesting that
this Court dismiss the appeal due to Appellant’s failure to comply with Rule
1925(b). Thereafter, on August 10, 2015, Appellant’s counsel filed a motion
for extension of time to file a Rule 1925(b) concise statement nunc pro tunc,
which the trial court denied in an August 19, 2015 order. On August 25,
2015, Appellant’s counsel filed a Rule 1925(b) concise statement. The trial
court did not issue a Rule 1925(a) opinion.
This Court has held that the untimely filing of a Rule 1925(b)
statement is per se ineffectiveness of counsel. Commonwealth v. Burton,
973 A.2d 428, 433 (Pa. Super. 2009) (en banc). Rule 1925(c)(3) provides
that the remedy for such per se ineffectiveness is generally for this Court to
“remand for the filing of a [Rule 1925(b)] Statement nunc pro tunc and for
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the preparation and filing of an opinion by the [trial] judge.” Pa.R.A.P.
1925(c)(3). The comment to Rule 1925 explains that Rule 1925(c)(3) was
adopted as a more efficient process to resolve direct appeals, to replace the
previous procedure of requiring appellants to first resort to post-conviction
relief proceedings to restore their direct appeal rights. Id. at note.
However, we have explained “if there has been an untimely filing [of a Rule
1925(b) concise statement], this Court may decide the appeal on the merits
if the trial court had adequate opportunity to prepare an opinion addressing
the issues being raised on appeal.” Burton, supra.
Here, the trial court declined to allow Appellant to file a Rule 1925(b)
concise statement nunc pro tunc. See Trial Court Order, 8/19/15. The
Commonwealth urges us to resolve this issue without remanding for a trial
court opinion. Commonwealth’s Brief at 4, n.2. Appellant has filed a
1925(b) statement raising a single evidentiary issue, and in the interest of
judicial economy, we elect to review Appellant’s issue on its merits.
On appeal, Appellant presents the following issue for our review.
Whether the sentencing court abused its discretion
by permitting a police officer to testify to an out-of-
court statement by another witness at trial for the
purpose of identifying [Appellant] as the person
possessing a firearm[?]
Appellant’s Brief at 5.
The following principles guide our consideration of this issue.
The standard of review for a trial court’s evidentiary
rulings is narrow. The admissibility of evidence is
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solely within the discretion of the trial court and will
be reversed only if the trial court has abused its
discretion. An abuse of discretion is not merely an
error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation
omitted), appeal denied, 87 A.3d 319 (Pa. 2014). In order to be entitled to
relief based on a showing of a clear abuse of discretion in an evidentiary
ruling, actual resulting prejudice must be established. Commonwealth v.
O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citation omitted).
Specifically, Appellant contends that Officer Thomas’s trial testimony
that Dorisca identified Appellant in a photo line-up as the person he saw
carrying a gun was inadmissible hearsay. Appellant’s Brief at 13. The trial
court held that Officer Thomas’s testimony that Dorisca identified Appellant
was admissible. N.T., 6/1/15, at 23. We conclude that the trial court did
not abuse its discretion.
At trial, the Commonwealth called Dorisca as a witness. On direct
examination, Dorisca recanted his identification of Appellant by testifying
that he did not recall picking Appellant’s picture out of the line-up. N.T.,
6/1/15, at 5-9. However, when Dorisca was shown the line-up, he
confirmed that the initials were his in the following exchange. Id. at 8-9.
[The Commonwealth:] … I’m gonna [sic] direct your
attention to the top left-hand corner of
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Commonwealth’s Exhibit No. 2[, the photo line-up].
There’s two initials there. What are those initials?
[Dorisca:] This is mine.
Q. Those are your initials?
A. Yes.
…
Q. And you’re saying those are your initials?
A. Yes.
Q. You don’t recall circling that photograph?
A. No.
Id.
Subsequently, the Commonwealth called Officer Thomas, who testified
that Dorisca identified Appellant as follows.
[The Commonwealth:] After your search of that
building or sometime after that, did you have an
opportunity to speak to a person by the name of
Jean Dorisca?
[Officer Thomas:] Yes. I spoke to him that day.
Q. Upon speaking to Mr. Dorisca, can you
describe what he told you?
[Appellant’s Counsel:] I’m gonna [sic] object, Your
Honor. It’s asking for hearsay.
[The Commonwealth:] I’ll rephrase the question,
Your Honor. … Upon speaking to Mr. Dorisca, was he
able to tell you who the person it was that he
witnessed with the gun or did he indicate that he
knew that person?
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A. He did.
Q. And who is it that he indicated to you that he
knew who he was?
[Appellant’s Counsel:] Your Honor, again I’m going
to object.
[The Trial Court:] Objection sustained.
Q. And based upon your discussions with Mr.
Dorisca, did you or someone else compile a photo
identification line-up?
A. I did.
…
Q. Officer Thomas, I’m going to show you what’s
been marked as Commonwealth’s Exhibit No. 2.
What is it that’s depicted on Commonwealth’s Exhibit
No. 2?
A. It is the photo line-up that I had shown Mr.
Dorisca.
Q. And upon showing Mr. Dorisca that photo line-
up, were you present for that?
A. I was present.
Q. And what is it that you said to Mr. Dorisca?
A. I asked Mr. Dorisca if there was anybody in
these pictures that [he] recognized. And he said he
---
[Appellant’s Counsel]: Objection. Hearsay.
[The Trial Court]: The objection is sustained to
that question.
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Q. Did you -- did you explain to him what to do if
he recognized anybody on that photo identification
line-up?
A. I did.
Q. And what is it you told him to do?
A. I told him if he recognized this person, I had
him circle, initial, and date it.
Q. And did you observe Mr. Dorisca perform any
actions when you told him that?
[Appellant’s Counsel:] Objection. Calls for hearsay.
[The Trial Court:] Objection’s overruled.
…
Q. What actions did Mr. Dorisca take upon you
explaining to him to circle anybody that he
recognized?
[Appellant’s Counsel:] Objection. I think it still calls
for hearsay.
[The Trial Court:] The objection is overruled.
[Officer Thomas:] He circled picture number
one of the line-up that I produced.
Q. And did he sign and date that?
A. Yes, he did.
Q. And Commonwealth’s Exhibit No. 2, does that
fairly and accurately depict that photo line-up?
A. Yes.
[The Commonwealth:] Taking what’s marked as
Commonwealth’s Exhibit No. 2.
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I move for admission of Commonwealth’s
Exhibit No. 2.
[Appellant’s Counsel:] No objection, Your Honor.
…
Q. And the person who is indicated on the top left
corner, or spot number one I believe as you referred
to, who was that person?
A. It’s [Appellant].
Id. at 21-24.
On appeal, Appellant argues that the trial court improperly admitted
Officer Thomas’s testimony that Dorisca identified Appellant as the man
carrying a gun because it is impermissible hearsay and the exceptions in
Pennsylvania Rule of Evidence 803.1 do not apply. Appellant’s Brief at 14.
The Commonwealth responds the testimony is not hearsay because the
exception in Rule 803.1 applies.3 Commonwealth’s Brief at 12-13. We
agree with the Commonwealth that the testimony was not hearsay under
Rule 803.1(1)(B).
The Pennsylvania Rules of Evidence provide that, generally, “[h]earsay
is not admissible except as provided by these rules, by other rules
prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.
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We note that while the trial court did not inquire of the Commonwealth as
to why Officer Thomas’s testimony was not hearsay, both parties agree that
the issue is whether Rule 803.1 excepts the statement from the definition of
hearsay.
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The Rules define hearsay as “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.” Id. at
801(c). Further, a statement is “a person’s oral assertion, written assertion,
or nonverbal conduct, if the person intended it as an assertion.” Id. at
801(a).
Here, Dorisca’s out of court identification of Appellant as the man with
the gun was hearsay. Dorisca’s nonverbal conduct of circling Appellant’s
photo in the line-up was intended to assert that Appellant was the person
Dorisca saw carrying a firearm the day before. Id. Further, Dorisca made
the statement to police on September 11, 2014, and not at Appellant’s trial.
Id. at 801(c). Dorisca’s statement was offered into evidence to prove that
Dorisca had identified Appellant as the person with the firearm. Id.
Therefore, that hearsay statement was not admissible unless a rule of
evidence specifically provides for its admissibility. Id. at 802.
The Commonwealth maintains that the statement was properly
admitted under Rule 803.1, which provides, in part, as follows.
Rule 803.1. Exceptions to the Rule Against
Hearsay—Testimony of Declarant Necessary
The following statements are not excluded by
the rule against hearsay if the declarant testifies and
is subject to cross-examination about the prior
statement:
(1) Prior Inconsistent Statement of
Declarant-Witness. A prior statement by a
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declarant-witness that is inconsistent with the
declarant-witness’s testimony and:
(A) was given under oath subject to the
penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition;
(B) is a writing signed and adopted by the
declarant; or
(C) is a verbatim contemporaneous electronic,
audio-taped, or videotaped recording of an oral
statement.
Pa.R.E. 803.1(1).
Thus, pursuant to this rule, inconsistent
statements made by a witness prior to the
proceeding at which he is then testifying are
admissible as substantive evidence of the matters
they assert so long as those statements, when given,
were adopted by the witness in a signed writing or
were verbatim contemporaneous recordings of oral
statements. At the subsequent proceeding, the
declarant of the original statement need not (indeed,
cannot) adopt the original statement, as the
statement’s inconsistency with the declarant’s
testimony at the present hearing renders the former
statement admissible.
Commonwealth v. Stays, 70 A.3d 1256, 1262 (Pa. Super. 2013) (citations
omitted).
In this case, Dorisca recanted his earlier identification of Appellant in
the photo array. N.T., 6/1/15, at 5-9. Dorisca, however, conceded that his
initials appeared on the line-up, next to the date, and inside the circle
around Appellant’s picture. Id. at 8-9. At trial, he testified that he did not
recall circling the photograph or identifying Appellant to Officer Thomas. Id.
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at 9. He also testified that while he made the report of a man carrying a
gun to the police, he did not remember who he saw with the gun. Id. at 7-
8. Appellant’s counsel did not cross-examine Dorisca regarding his
statement. Id. at 9.
Rule 803.1 rendered the signed photo array admissible. See Pa.R.E.
803.1(1). Specifically, Dorisca testified at trial. During his testimony, he
recanted his prior identification of Appellant to police, rendering inconsistent
his prior identification. In his testimony, Dorisca acknowledged that his
initials were written on the photo array, above Appellant’s picture and inside
the hand-drawn circle around Appellant’s picture. N.T., 6/1/15, at 8-9.
Further, Dorisca conceded that he wrote the date of the identification,
September 11, 2014, next to his initials. Id. at 9. Therefore, we conclude
Dorisca circling Appellant’s picture in the photo array was a prior
inconsistent statement that was not excluded by the rule against hearsay
because it was “a writing signed and adopted by the declarant.” 4 Pa.R.E.
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We note that Appellant did not object to the admission of the initialed and
dated photo line-up, marked at trial as Commonwealth’s Exhibit 2, into
evidence. N.T., 6/1/15, at 24. Instead, Appellant objected to Officer
Thomas’s testimony that Dorisca was the one who circled the photograph to
identify Appellant. However, Officer Thomas’s testimony regarding Dorisca’s
actions was not necessary to establish Dorisca made the assertion the
Appellant was the person with the gun. Officer Thomas’s testimony that
Exhibit 2 was the photo array he showed to Dorisca, combined with Dorisca’s
admission that his initials appeared on the photo array, inside the circle
around Appellant’s picture, is sufficient to establish Dorisca asserted
(Footnote Continued Next Page)
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803.1(1)(B). Accordingly, we conclude the trial court did not abuse its
discretion in admitting the photo array identifying Appellant as the man
carrying the gun. See Mendez, supra.
Based on the foregoing, Appellant’s issue on appeal lacks merit.
Therefore, we affirm the June 1, 2015 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
_______________________
(Footnote Continued)
Appellant was the person he saw carrying the gun. See id. at 8-9, 22;
Commonwealth’s Exhibit 2.
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Com. v. Edward, H., Jr.
Combined Opinion