J-A10020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GUIPING ZHENG,
Appellant No. 533 WDA 2015
Appeal from the Judgment of Sentence February 2, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003431-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 11, 2016
Guiping Zheng appeals from the judgment of sentence of fifteen to
thirty months’ incarceration followed by three years’ probation, imposed
February 2, 2015, following a jury trial resulting in his conviction for
indecent assault, unlawful contact with a minor, endangering the welfare of
children, and two counts of corruption of minors.1 We affirm.
The evidence adduced at the trial in this matter established that
Appellant lay on top of the victim, E.S., fondled her over her clothing, and
attempted to kiss her. This conduct occurred frequently over the course of
approximately four years, commencing when the victim was six years old.
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1
See respectively 18 Pa.C.S. §§ 3126(a)(7), 6318(a)(4), 4304(a)(1),
6301(a)(1)(i) and (ii).
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Eventually, the victim revealed the ongoing abuse to her mother who
reported Appellant’s behavior.
At the trial, which commenced in July 2014, the Commonwealth
presented testimony from the victim and her mother. Of relevance to this
appeal, Appellant objected to a portion of the mother’s testimony:
[The Commonwealth]: What did you say back to [E.S.], when
she disclosed to you?
[Mother]: I tried to keep composed the best I could, because I
knew she was watching me, like, [h]ow is mommy going to take
this? It was like she was disclosing a secret to me. Not that she
thought it was really wrong, but it was a secret. And so she was
telling me about what was going on.
[Attorney for Appellant]: I’m going to object to that part of the
testimony. I think anything that this witness saw is clearly
relevant.
[Trial Court]: That this witness saw?
[Attorney for Appellant]: The objection is what she is thinking or
what she thought. Clearly what she is telling the jury about
what happened is relevant.
[Trial Court]: These are her personal observations of her
daughter’s demeanor, and I will allow that. Personal
observations.
Notes of Testimony (N.T.), 07/17-21/2014, at 78-79.
Appellant testified on his own behalf, denying the allegations.
Appellant also presented character witnesses. For example, neighbor Ning
Jiang testified as to Appellant’s reputation for having a peaceful and law-
abiding character. Id. at 153-56. On cross-examination, the following
exchange took place:
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[The Commonwealth]: Ma’am, you know [Appellant]; is that
correct?
[Ning Jiang]: Yes.
[The Commonwealth]: And do you think [Appellant] would tell
you if he was molesting a juvenile female?
[Attorney for Appellant]: I’m going to object to that question.
[Trial Court]: It is appropriate character witness cross.
Overruled.
[The Commonwealth]: Do you think [Appellant] would talk to
you about molesting a little girl?
[Ning Jiang]: No, I don’t.
Id. at 156. Thereafter, Mr. Nan Wu also testified on Appellant’s behalf. Id.
at 157-63. During cross-examination of Mr. Wu, the Commonwealth asked a
similar question soliciting Mr. Wu’s opinion without objection. Id. at 161
(“Q: Do you think [Appellant] would tell you if he [was] sexually molesting
a juvenile female?”).
Following his trial and conviction, in February 2015, the trial court
sentenced Appellant as outlined above.2 Appellant filed post-sentence
motions that were denied by the court. Thereafter, Appellant timely
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2
The court imposed seven and one-half to fifteen months’ incarceration for
indecent assault; a consecutive period of seven and one-half to fifteen
months’ incarceration for endangering the welfare of children; and
thereafter, concurrent periods of three years’ probation for indecent assault,
unlawful contact with a minor, and corruption of minors. See N.T.,
02/02/2015, at 12.; see also Criminal Docket No. CP-02-CR-0003431-2014
at 3-4.
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appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial
court issued a responsive opinion.
In this appeal, Appellant contends the trial court erred when it
overruled Appellant’s objections to (1) a portion of the testimony solicited
from the victim’s mother and (2) the cross-examination of Appellant’s
character witnesses. See Appellant’s Brief at 4-5.3 Thus, Appellant
challenges evidentiary decisions of the trial court.
The admissibility of evidence is at the discretion of the trial court
and only a showing of an abuse of that discretion, and resulting
prejudice, constitutes reversible error. Where an error is
deemed to be harmless, a reversal is not warranted. Regarding
the erroneous admission of evidence, harmless error exists
where: (1) the error did not prejudice the defendant or the
prejudice was de minimis; (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. Kuder, 62 A.3d 1038, 1053 (Pa. Super. 2013) (internal
citations omitted; quotation marks omitted; formatting modified).
Appellant asserts that the mother’s testimony constituted an
inappropriate lay opinion, as it was not rationally based on her perceptions.
See Appellant’s Brief at 41-43. Appellant’s assertion is without support in
the record.
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3
We have reversed the order of the issues raised by Appellant.
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A witness is permitted to offer her opinion, where it is rationally based
upon her perception. See, e.g., Commonwealth v. Counterman, 719
A.2d 284, 301 (Pa. 1998) (concluding that a medical social worker could
testify to her personal observations of the appellant’s condition and
appearance, including that appellant “did not appear to be grieving over the
deaths of his children”); see also Pa.R.E. 701(a) (permitting a lay witness
to offer opinion testimony “rationally based on the witness’s perception”).
As noted above, the victim disclosed Appellant’s longtime abuse to her
mother. The mother testified to her daughter’s demeanor at the time of the
disclosure. See N.T., 07/17-21/2014, at 78-79. Appellant objected to this
testimony, but the trial court overruled the objection, stating, “These are her
personal observations of her daughter’s demeanor, and I will allow that.”
Id. This testimony was proper. See Counterman, 719 A.2d at 301;
Pa.R.E. 701. Thus, we discern no abuse of the trial court’s discretion. See
Kuder, 62 A.3d at 1053.
Appellant also asserts that the Commonwealth’s cross-examination of
his character witness, Ms. Ning Jiang, was improper. 4 Appellant elicited
testimony from Ms. Jiang that Appellant had a reputation in the community
for being peaceful and law-abiding. See N.T., 07/17-21/2014, at 153-56.
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4
Appellant did not specifically object to similar questioning of Mr. Nan Wu.
Accordingly, any claim pertaining to his testimony is waived. See, e.g.,
Commonwealth v. Montalvo, 641 A.2d 1176, 1184-85 (Pa. Super. 1994).
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Thereafter in response, the Commonwealth challenged this testimony,
questioning Ms. Jiang, “[D]o you think [Appellant] would tell you if he was
molesting a juvenile female?” Id. at 156. According to Appellant, this
question was improper because it called for Ms. Jiang’s opinion of Appellant’s
character. See Appellant’s Brief at 26-28 (citing in support Pa.R.E. 405(a)
(“Testimony about the witness's opinion as to the character or character trait
of the person is not admissible.”)). Moreover, according to Appellant, with
this single query the Commonwealth’s cross-examination of Ms. Jiang
unfairly prejudiced Appellant because it worked to undermine his credibility.
Id. at 32-37.
We conclude that Appellant is entitled to no relief. We agree that the
Commonwealth’s question, as phrased, elicited the personal opinion of Ms.
Jiang and that such opinion testimony is inadmissible from a character
witness. See Pa.R.E. 405(a). However, we are also mindful that the
Commonwealth is permitted to cross-examine a character witness “to test
the accuracy of [her] testimony and the standard by which [she] measures
reputation.” Commonwealth v. Morgan, 739 A.2d 1033, 1036 (Pa. 1999);
see also Trial Court Opinion, 08/04/2015, at 8 (noting that the
Commonwealth’s question challenged Appellant’s law-abiding character).
Accordingly, despite the awkward phrasing of the Commonwealth’s question,
we discern no abuse of the trial court’s discretion in overruling Appellant’s
objection.
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As a result of the Commonwealth’s cross-examination, Appellant’s
evidence of good character was merely tempered by Ms. Jiang’s concession
that Appellant may not disclose criminal activity to her. Appellant suggests
that this concession so undermined the credibility of his denial of culpability
that a new trial is warranted. We disagree. Even were we to conclude that
the trial court abused its discretion, any resulting prejudice to Appellant was
de minimis. Simply put, we are not persuaded that the Commonwealth’s
single question diminished the effectiveness of Ms. Jiang’s character
testimony such that Appellant is entitled to a new trial. Thus, to the extent
the trial court could have directed the Commonwealth to re-phrase its
question in manner more clearly compliant with Rule 405(a), we deem the
court’s error to be harmless. Kuder, 62 A.3d at 1053.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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