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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RONALD REDDEN
Appellant No. 103 EDA 2016
Appeal from the Judgment of Sentence August 19, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001975-2015
BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2016
Ronald Redden appeals the judgment of sentence of seven days to six
months incarceration, plus fines and costs, imposed following his convictions
for driving under the influence – general impairment (“DUI”), driving while
operating privilege is suspended or revoked, driving on roadways laned for
traffic, and careless driving. We affirm.
Appellant’s offenses arose from the following factual scenario. On
November 12, 2014, after loading concrete blocks into the bed of his Ford F-
150 pick-up truck, Appellant left his friend’s house in Chester County to
return to his home in Delaware. While spanning an overpass along
southbound Route 202, Appellant hit a bump, blew out a tire, and lost
control of his vehicle. The truck spun, struck the median, and came to rest
* Former Justice specially assigned to the Superior Court.
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facing northbound in the left lane. A passing motorist alerted police to the
accident. Local police Officer William Cooper responded first to the scene,
followed by State Trooper Wesley Foster.
When Officer Cooper arrived on location, Appellant was standing
outside the vehicle. No one else was present. Officer Cooper detected the
odor of alcohol emanating from Appellant and noted that he was slurring his
speech. When asked what had happened, Appellant relayed to the officer
that he hit a bump and lost control of the truck.
Approximately ten minutes later, Trooper Foster arrived. Trooper
Foster noted that Appellant smelled of alcohol, slurred his speech, and
presented with bloodshot eyes. Appellant had difficulty providing the
necessary documentation to the trooper. When he did ultimately provide it,
a routine status check revealed Appellant’s license was revoked. When
Trooper Foster pressed Appellant as to the cause of the accident, Appellant
changed his version of events, claiming that his friend John McConnell had
been driving the truck. He maintained that Mr. McConnell fled after the
accident by jumping the median, crossing the northbound lane, and then
jumping off the side of the overpass. To verify this account, Trooper Foster
asked Appellant to call Mr. McConnell, who thereafter denied being the driver
of the truck. Trooper Foster then placed Appellant under arrest for suspicion
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of DUI. Subsequently, Appellant refused a breath test after Trooper Foster
provided Appellant his O’Connell1 warning.
Appellant was charged with DUI, driving while operating privilege is
suspended or revoked, driving on roadways laned for traffic, careless
driving, and exceeding the registered gross weight. Following a bench trial,
Appellant was convicted of all counts, except violating the registered gross
weight provision. Appellant filed a timely post-sentence motion challenging
the weight of the evidence and requesting that the court reconsider his
sentence. The court denied Appellant’s motion. Appellant then filed a timely
appeal and complied with the strictures of Rule 1925(b). The court filed a
Rule 1925(a) opinion and this matter is now ready for our review.
Appellant presents two questions for our consideration:
1. Was the verdict against the weight of the evidence presented?
2. Did the trial court err in admitting and considering evidence of a
Criminal Trespass conviction from 2002 on cross-examination of
a defense witness, Joseph Stein?
Appellant’s brief at 5.
Appellant first raises a challenge to the weight of the evidence. When
reviewing a weight-of-the-evidence challenge, we do not actually examine
the underlying question; instead, we examine the trial court's exercise of
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Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873
(Pa. 1989). As a result of Appellant’s refusal to allow a blood-test, he
became automatically subject to a twelve-month license suspension.
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discretion in resolving the challenge. Commonwealth v. Konias, 136 A.3d
1014, 1022 (Pa.Super. 2016) (citation omitted). We do not substitute our
view for that of the trial court. Our deference to the trial court is based on
the fact that the trial judge heard and observed the evidence presented. Id.
Simply put, “one of the least assailable reasons for granting or denying a
new trial is the lower court's conviction that the verdict was or was not
against the weight of the evidence and that a new trial should be granted in
the interest of justice.” Id. A new trial is warranted only when the verdict is
“so contrary to the evidence that it shocks one's sense of justice and the
award of a new trial is imperative so that right may be given another
opportunity to prevail.” Id.
Of equal importance is the precept that, “The finder of fact . . .
exclusively weighs the evidence, assesses the credibility of witnesses, and
may choose to believe all, part, or none of the evidence.” Id. at 1023; see
also Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (“A
determination of credibility lies solely within the province of the factfinder.”);
Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super. 2006) (“It is
not for this Court to overturn the credibility determinations of the
factfinder.”).
Appellant assails the trial court’s determination that he was driving
when the accident occurred. He contends that the trial court abused its
discretion in conferring undue weight to Officer Cooper’s testimony that he
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admitted to being the driver of the truck. Rather, Appellant posits, the trial
court should have given greater weight to his witnesses. He argues that the
testimony of his friend, Joe Stein, revealed that Appellant was not driving
the truck when he left Mr. Stein’s residence prior to the accident. In
addition, John McConnell testified that he was driving the truck.
Furthermore, Appellant asserts that he consistently denied operating the
vehicle. As such, any statements he made to the contrary were either
misspoken or misunderstood and can be attributed to his state of
intoxication during the evening in question. In light of this evidence,
Appellant concludes that the trial court abused its discretion in denying his
weight of the evidence claim.
In considering this issue, the trial court determined “the evidence
strongly supports the verdict,” and thus, it is “not contrary to the evidence
as to shock one’s sense of justice.” Trial Court Opinion, 5/2/16, at 21. In
reviewing the evidence proffered by the Commonwealth, the trial court
noted that Officer Cooper arrived within thirty seconds after the accident
was reported, and observed only Appellant at the scene. The court credited
the officer’s testimony as to Appellant’s original account of the accident,
including his admission that he was operating the vehicle. The court
emphasized Appellant’s apparent lack of concern for his friend, Mr.
McConnell, who purportedly jumped from the overpass.
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Additionally, the court did not credit the testimony of either of
Appellant’s witnesses. Specifically, it observed that Mr. McConnell initially
denied driving the vehicle while conversing with Trooper Foster over the
phone shortly after the accident. Mr. McConnell then made no attempt to
clarify the record during the months preceding Appellant’s trial. Hence, the
trial court did not abuse its discretion in ruling the verdict was not so
contrary to the evidence as to shock one’s sense of justice.
Next, Appellant challenges the trial court’s ruling regarding the
admissibility of Mr. Stein’s past conviction for a crime in the nature of crimen
falsi. Our standard of review of the trial court’s evidentiary rulings is as
follows:
Questions concerning 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 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 or
record. If in reaching a conclusion the trial court overrides or
misapplies the law, discretion is then abused and it is the duty of
the appellate court to correct the error.
Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa.Super. 2016) (citations
and internal quotation marks omitted). The admissibility of prior convictions
in the nature of crimen falsi is governed by Pa.R.E. 609. Pennsylvania Rule
of Evidence 609 reads, in pertinent part:
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(a) In General. For the purpose of attacking the credibility of
any witness, evidence that the witness has been convicted
of a crime, whether by verdict or by plea of guilty or nolo
contendere, must be admitted if it involved dishonesty or
false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed
since the witness’s conviction or release from confinement
for it, whichever is later. Evidence of the conviction is
admissible only if:
(1) its probative value substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party
has a fair opportunity to contest its use.
Pa.R.E. 609 (a) and (b).
Appellant contends the trial court abused its discretion in permitting
the Commonwealth to question Mr. Stein regarding a 2003 conviction for
criminal trespass. First, Appellant asserts that Commonwealth v. Walker,
559 A.2d 579 (Pa.Super. 1989), which found criminal trespass to be an
inherently crimen falsi offense, was called into question by this Court’s
decision in Commonwealth v. Davis, 17 A.3d 390 (Pa.Super 2011).
Alternatively, Appellant avers that, as Mr. Stein’s conviction occurred more
than ten years ago, the Commonwealth failed to demonstrate that its
probative value substantially outweighed its prejudicial effect.
As resolution of this matter involves an interpretation of the statute
related to criminal trespass, we set it forth at the outset:
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(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is
not licensed or privileged to do so, he:
(i) enters, gains entry by subterfuge or surreptitiously
remains in any building or occupied structure or
separately secured or occupied portion thereof; or
(ii) breaks into any building or occupied structure or
separately secured or occupied portion thereof.
....
(b) Defiant trespasser.—
(1) A person commits an offense if, knowing that he is
not licensed or privileged to do so, he enters or remains in
any place as to which notice against trespass is given by:
(i) actual communication to the actor;
(ii) posting in a manner prescribed by law or reasonably
likely to come to the attention of intruders;
(iii) fencing or other enclosure manifestly designed to
exclude intruders;
(iv) notices posted in a manner prescribed by law or
reasonably likely to come to the person’s attention at
each entrance of school grounds that visitors are
prohibited without authorization from a designated
school, center or program official; or
(v) an actual communication to the actor to leave school
grounds as communicated by a school, center or
program official, employee or agent or a law
enforcement officer.
18 Pa.C.S. § 3503 (a) and (b).
In Walker, supra, we stated that “[t]he crime of criminal trespass
involves either entering or remaining in a place, while knowing that one is
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not licensed or privileged to do so.” Walker, supra at 582. Moreover,
since “the offense involves the commission of an act that the offender
knows he or she is not licensed or privileged to do, it reflects adversely on
the offender’s honesty.” Id. (emphasis in original). Hence, we concluded
that criminal trespass is an offense in the nature of crimen falsi, and the trial
court should have permitted the defendant to impeach the witness on that
basis.
This Court revisited the Walker decision in Davis, supra. Therein,
the appellant asserted that the trial court erred in precluding impeachment
of a witness regarding that witness’s prior convictions for defiant trespass
under 18 Pa.C.S. § 3503(b). Davis argued that, as criminal trespass is
inherently crimen falsi pursuant to Walker, then defiant trespass must also
be crimen falsi, since both crimes require knowledge of a lack of license or
privilege to enter.
In analyzing Davis’s claim, this Court first observed that Walker did
not carry precedential value. We noted that one member of the Walker
panel concurred in result, another dissented, and therefore, it did not reflect
the opinion of the majority of the panel.2 Only one subsequent case,
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2
Judge Montemuro’s dissent in Commonwealth v. Walker, 559 A.2d 579
(Pa.Super. 1989), was not premised upon a disagreement concerning the
majority’s findings with regard to criminal trespass as a crimen falsi offense.
Despite Judge Montemuro’s dissent to a separate issue, he nevertheless
(Footnote Continued Next Page)
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Commonwealth v. Hall, 867 A.2d 619 (Pa.Super. 2005), adopted the
Walker court’s holding that criminal trespass is crimen falsi, but did so
without relying on its reasoning. Hence, we determined that Hall did not
provide a basis to apply Walker’s reasoning to defiant trespass.
Notwithstanding Walker’s lack of precedential effect, this Court in
Davis refrained from extending the Walker decision to defiant trespass. In
so holding, we reasoned that to be found guilty of criminal trespass, “a
defendant typically either ‘gains entry by subterfuge or surreptitiously
remains in any building or occupied structure[.]’” Davis, supra at 389. In
comparison, defiant trespass “does not require the defendant to act with
‘subterfuge,’ or ‘surreptitiously[.]’” Id. As such, defiant trespass “merely
requires that a person enter a place with knowledge of a lack of license or
privilege . . . [which] does not of necessity involve either dishonesty or false
statement.” Id. at 398-399. Thus, we determined that defiant trespass was
not inherently a crime in the nature of crimen falsi.
We find that Davis, supra, calls into question the determination that
criminal trespass is an inherently crimen falsi crime pursuant to Walker,
supra. We agree with the reasoning presented in Davis that mere
knowledge of a lack of license or privilege does not necessarily reflect
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(Footnote Continued)
concurred in the majority’s result. As such, Walker carries no precedential
value since two judges concurred in the result reached by the authoring
judge, Judge Hoffman.
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negatively upon a person’s character for honesty. In that sense, the
Walker court’s analysis did not go far enough. Nevertheless, we are
persuaded by the analysis in Davis that requiring a defendant to act with
subterfuge, or gain entry surreptitiously, under 18 Pa.C.S. § 3503(a)(1)(i),
implicates deceitful conduct.
Herein, the record does not reveal whether Mr. Stein was convicted of
criminal trespass pursuant to 18 Pa.C.S. § 3503(a)(1)(i) or (ii). Insofar as a
conviction for criminal trespass under § 3503(a)(1)(ii) does not require
subterfuge or surreptitious entry, it is unclear whether it constitutes an
offense in the nature of crimen falsi. Hence, in light of the record before us,
we cannot determine whether the trial court abused its discretion in
permitting testimony regarding Mr. Stein’s past criminal trespass conviction.
Assuming, arguendo, that the trial court erred, we find any error to be
harmless. Harmless error exists, inter alia, where the error did not prejudice
the defendant or the prejudice was de minimis. Commonwealth v.
Ballard, 80 A.3d 380, 398 (Pa. 2013). Instantly, the trial court indicated
that “this offense of a lesser crimen falsi conviction was not to be given
much weight,” and that “the conviction had no effect on [the] court’s
weighing the credibility of Mr. Stein.” Trial Court Opinion, 4/28/16, at 24.
The court’s decision to convict Appellant was premised upon its conclusions
that Officer Cooper was being truthful about Appellant’s initial statement and
Trooper Foster was believable when he reported that Mr. McConnell denied
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that he was driving the truck on November 12, 2014. Since any error in the
introduction of Mr. Stein’s prior conviction did not affect the trial court’s
verdict herein, we find no prejudice to Appellant, and thus, this claim does
not warrant relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2016
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