Com. v. Fiorentino, A.

J-S71005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

ANDRE FIORENTINO,

Appellant No. 3103 EDA 2015

Appeal from the Judgment of Sentence September 24, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000309-2014

BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED JANUARY 18, 2017

Andre Fiorentino appeals from the judgment of sentence of twenty-five

to fifty years incarceration imposed after a jury found him guilty of two

counts each of aggravated assault – attempt to cause serious bodily injury,

aggravated assault – attempt to cause serious bodily injury to an

enumerated person, aggravated assault – attempt to cause serious bodily

injury with a deadly weapon, aggravated assault – physical menace, person

not to possess a firearm, and a single count of possession of a firearm with

altered manufacturer’s number. We affirm.

The facts underlying this matter are as follows. In the early morning

hours of November 23, 2013, Appellant exited his mother’s home along

Merchant Street in Coatesville, Chester County. At that time, Coatesville

* Former Justice specially assigned to the Superior Court.
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police officers Joseph Thompson and Ryan Corcoran were patrolling

Merchant Street in a marked police vehicle. Officer Thompson observed

Appellant crouching near a parked car and decided to investigate further. As

Officer Thompson approached Appellant he requested identification.

Appellant turned away from the officer and attempted to flee. A short

pursuit ensued.

While chasing Appellant, Officer Thompson ordered him to stop and

threatened to tase him. Appellant did not heed the officer’s warning, but

rather, turned and fired a weapon at Officer Thompson. Both officers

immediately drew their service weapons and returned fire, striking Appellant

several times in the abdomen and legs. Appellant dropped his weapon as he

collapsed to the ground. The officers approached Appellant, kicked the

firearm out of his reach, and attempted to secure the area as people from

the neighborhood began amassing in the street.

Appellant’s injuries were treated at the scene by emergency medical

technicians who arrived shortly thereafter. Appellant was then transported

to Paoli Memorial Hospital’s trauma ward. As they extracted Appellant from

the ambulance, the paramedics moved a pile of his clothing, which had been

removed during treatment of Appellant’s injuries. A second firearm tumbled

from the bundle. That firearm was taken into custody by an officer who had

accompanied Appellant to the hospital.

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Based on the foregoing, Appellant was charged with the

abovementioned offenses as well as two counts of attempted murder.

Appellant filed a motion to suppress incriminating statements made by him

to Detective Joseph Nangle while hospitalized. He argued that Detective

Nangle violated his rights under the 5th and 6th Amendments of the United

States Constitution and Article I, Section 9 of the Pennsylvania Constitution

by engaging him in conversation in the absence of counsel after he had been

formally arraigned and without the benefit of Miranda warnings.1 After a

hearing on the matter, the trial court denied Appellant’s motion by order of

November 13, 2014.

The Commonwealth filed a motion in limine seeking to exclude

evidence of, inter alia, prior altercations wherein Officer Thompson

discharged his service firearm. Subsequently, Appellant served a subpoena

on the Pennsylvania State Police (“PSP”) requesting access to Officer

Thompson’s employment records, including investigation reports created by

the agency’s Internal Affairs Division. The PSP filed a protective order

seeking to preclude from discovery all department records.

By order of March 6, 2015, the court directed PSP to turn over

documents pertaining to a single prior incident involving Officer Thompson,

but did not determine the admissibility of those documents at that time. The
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1
Miranda v. Arizona, 384 U.S. 436 (1966).

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court denied discovery of the remaining documents. By order dated June 8,

2015, the court granted the Commonwealth’s motion to preclude improper

character evidence of Officer Thompson, and denied Appellant’s motion to

introduce additional instances of misconduct by Officer Thompson.

Following a jury trial, Appellant was found guilty of the aforementioned

crimes. However, the jury did not reach a verdict on the two counts of

attempted murder. The court sentenced Appellant to an aggregate term of

twenty-five to fifty years imprisonment on September 24, 2015. Appellant

filed a notice of appeal on October 14, 2015, and complied with the court’s

directive to file a Rule 1925(b) concise statement of matters complained of

on appeal. The court then authored its Rule 1925(a) opinion, which

incorporated its orders of November 13, 2014, March 6, 2015, and June 8,

2015. This matter is now ready for our review.

Appellant raises four issues for our consideration:

I. Whether the trial court erred in denying [Appellant’s]
motion to suppress the statement pursuant to the Sixth
Amendment of the United States Constitution as well as
Article I, Section 9 of the Pennsylvania Constitution.

II. Whether the trial court erred in denying [Appellant’s]
motion to suppress under the Fifth Amendment of the
United States Constitution, as well as Article I, Section 9 of
the Pennsylvania Constitution, as well as protections
provided pursuant to Miranda v. Arizona.

III. Whether the trial court erred in denying Appellant access
to the entire file of former State Trooper/complaining
witness Joseph Thompson.

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IV. Whether the trial court erred in precluding the defense
from introducing evidence of four prior police shootings in
which police officer Thompson was responsible. Appellant
has the right to cross-examine police officer Thompson
regarding this evidence as the officer’s motive and bias to
fabricate the circumstances of the shooting in this case.
Particularly, Appellant should have been permitted to
cross-examine Officer Thompson regarding the shooting
that occurred in December of 2008, shortly after which he
resigned from the State Police while that investigation was
pending.

A. [Appellant’s] right to cross-examine the witness
regarding motive/bias is essential to his right to
present his defense.

B. Evidence regarding this 2008 incident in conjunction
with other evidence is admissible under 404(b).

C. Evidence regarding the 2008 incident and other
incidents not precluded under Rule 608(b)(2).

Appellant’s brief at 7-8 (unnecessary capitalization omitted).

As a preliminary matter, we must determine whether this appeal

should be dismissed since the notice of appeal indicated that it was taken

from the conviction of June 29, 2015, as opposed to the judgment of

sentence imposed on September 24, 2015. After identifying this procedural

misstep, this Court issued a rule to show cause why the appeal should not

be quashed as interlocutory. Appellant did not respond within ten days as

required by the rule to show cause. Nevertheless, he filed a subsequent

response and a motion to correct the docket explaining that counsel had

converted to an online system of receiving documents from the Superior

Court which had created confusion within counsel’s office. In addition,

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Appellant clarified that he had inadvertently included the wrong date on the

notice of appeal, and requested that this Court correct the docket to reflect

the appropriate date for the judgment of sentence.

We observe that the appellate rules “shall be liberally construed to

secure the just, speedy, and inexpensive determination of every matter to

which they are applicable.” Pa.R.A.P. 105(a). That rule further provides

that this Court may, on its own motion, “disregard the requirements or

provisions of any of these rules[.]” Id. It is clear from the briefs presented

that Appellant is appealing from his sentence imposed on September 24,

2015. Appellant filed a timely notice of appeal with respect to his imposition

of sentence. He complied with Rule 1925(b), and the trial court issued its

own Rule 1925(a) opinion addressing Appellant’s claims. Furthermore, the

Commonwealth has not objected to Appellant’s mistaken notice of appeal,

nor called for this case to be dismissed. Rather, the Commonwealth filed a

brief responding to the issues raised in Appellant’s 1925(b) statement.

Accordingly, we order that the docket be corrected to reflect that Appellant’s

notice of appeal was taken from the September 24, 2015 judgment of

sentence, and we will proceed to consider the merits of this case.

As Appellant’s first two issues concern the denial of his motion to

suppress certain statements, we set forth our standard of review at the

outset. In cases involving a review of the denial of a defendant’s

suppression motion, our standard of review

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is limited to determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. Where the
suppression court’s factual findings are supported by the record,
[the appellate court] is bound by [those] findings and may
reverse only if the court’s legal conclusions are erroneous.
Where . . . the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the courts
below are subject to [] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015)

(quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

citations and quotation marks omitted)).

The following facts, relevant to Appellant’s first two issues, were

gleaned from the record of the suppression hearing. On November 25,

2013, Detective Nangle approached Appellant in Paoli Memorial Hospital in

order to determine if he was willing to speak to investigators prior to his

arraignment, which was scheduled to occur later that day. Appellant

informed Detective Nangle that he was represented by counsel and did not

wish to speak with him.

On November 27, 2013, Detective Nangle went to the hospital to

inquire whether Appellant could be safely transferred to Chester County

Prison in light of his injuries. While he was waiting for hospital staff to

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provide that information, Detective Nangle entered Appellant’s hospital

room. The detective greeted Appellant and proceeded to engage the

correctional officer charged with guarding Appellant in conversation. While

the two officers were talking, Appellant interjected and asked Detective

Nangle whether all the guns involved in the incident would be tested.

Detective Nangle assured him that they would be. After a brief pause,

Appellant then stated that he recently received the Kel Tec 40, the firearm

recovered from the ambulance, from another person. He added that he had

possessed the revolver recovered from the crime scene for some time.

Detective Nangle did not respond to Appellant’s statements, but rather, left

the room shortly thereafter upon hearing from hospital staff that Appellant

could not be moved at that time.

Appellant first contends that the trial court erred in failing to suppress

the statements he made to Detective Nangle, without counsel present,

pursuant to the protections afforded by the Sixth Amendment of the United

States Constitution and Section I, Article 9 of the Pennsylvania Constitution.

The Sixth Amendment right to assistance of counsel, and its

Pennsylvania counterpart, attaches at the initiation of formal judicial

proceedings against an individual by way of formal charge, preliminary

hearing, indictment, information, or arraignment. Commonwealth v.

Briggs, 12 A.3d 291, 324 (Pa. 2011). Statements made by the individual

after judicial proceedings have been initiated which are “deliberately elicited”

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by police, without the individual making a valid waiver of the right to

counsel, are deemed a contravention of this right. Id. We note that

“deliberate elicitation” is not limited to police conduct which constitutes

interrogation, but also, it will be found “in every instance where the police

‘deliberately and designedly set out to elicit information from [an

individual].’” Id. (citation omitted).

In this vein, Appellant alleges that Detective Nangle’s encounter with

him in his hospital room was pretextual and designed to elicit incriminating

statements. He posits that the detective was aware that Appellant was

represented by counsel, and that Appellant had been arraigned two days

prior. Alternatively, Appellant argues that his statements to Detective

Nangle should have been suppressed pursuant to the Fifth Amendment

protections espoused in Miranda, supra. The Fifth Amendment right to

counsel attaches when an individual in police custody requests

representation of counsel and is subject to police interrogation. Briggs,

supra at 321-322. Moreover, “the term ‘interrogation’ under Miranda

refers not only to express questioning, but also to any words or actions on

the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” Id. at 322 (citation omitted).

Appellant maintains that Detective Nangle’s presence in his hospital room

could have no purpose other than to elicit information from him. As

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Detective Nagle did not provide Appellant with the requisite Miranda

warnings prior to their conversation, he concludes that his subsequent

statements were obtained in violation of the Fifth Amendment.

Upon review of the suppression record, we find the trial court did not

err in denying Appellant’s motion to suppress. Detective Nangle testified

that his presence in Appellant’s hospital room was premised solely upon

determining whether Appellant could be transferred to the county prison.

Other than greeting Appellant and answering his questions regarding the

testing of the firearms involved in his shooting, Detective Nangle neither

spoke to, nor directly questioned, Appellant. The detective’s mere presence

in the room does not amount to “deliberate elicitation” or “interrogation” as

it was not clearly calculated to elicit a response from Appellant. Briggs,

supra at 325 (finding no deliberate elicitation where the record did not

evince that the trooper “deliberately utilized any methods designed to

improperly induce [the defendant] to make a statement in the absence of

counsel, such as making emotional appeals to conscience, discussing the

facts of the case with him, or confronting him with evidence calculated to

provoke a response[.]”). Rather, Appellant volunteered information to the

detective without prompting as Detective Nangle spoke with the corrections

officer stationed in his room. Hence, those statements were not afforded

protection under the United States Constitution or the Pennsylvania

Constitution, and Appellant is not entitled to relief on either claim.

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Next, the Appellant assails the trial court’s order granting him only

partial access to Officer Thompson’s state police personnel file. Appellant

sought Officer Thompson’s personnel file in order to review past allegations

of police misconduct, especially as it concerned certain prior incidents

wherein Officer Thompson discharged his service weapon. The PSP, in turn,

sought to quash Appellant’s subpoena duces tecum, and Appellant

responded by filing an additional motion seeking disclosure of the PSP’s

internal affairs investigative reports. The trial court granted each party’s

motion in part, permitting Appellant access to the files related to a single

prior shooting in December 2008. Appellant contends the court’s refusal to

permit disclosure of the entire file was an abuse of discretion since the

court’s in camera review of the files did not sufficiently ensure Appellant’s

right to a fair trial.

Evidentiary decisions are left to the trial court’s discretion and will not

be reversed absent a clear abuse of that discretion. Commonwealth v.

Hicks, 91 A.3d 47, 52 (Pa. 2014). In order to gain access to the personnel

records of a police officer, “a defendant must first articulate a reasonable

basis for his request; a criminal defendant is not entitled to a ‘wholesale

inspection’ of investigatory files.” Commonwealth v. Blakeney, 946 A.2d

645, 661 (Pa. 2008). With regard to in camera review, “this Court has held

that a defendant is entitled to court inspection of investigatory files only

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where there is an articulable reason to believe that inspection would lead to

the discovery of some relevant evidence.” Id. at 660-661.

The trial court determined that Appellant had not sustained his burden

of establishing a reasonable basis for requesting Officer Thompson’s PSP

records. Despite that finding, the court nevertheless reviewed the records in

camera. The records disclosed six incidents involving Officer Thompson.

Three of those incidents did not involve a shooting, but rather, involved

attempts by Officer Thompson to disable fleeing vehicles. Of the remaining

three incidents, only one incident, occurring in December 2008, appeared

“remotely relevant” to Appellant’s case. Order, 3/6/15, at unnumbered 4.

Thus, “in an abundance of caution” the court permitted discovery of

documents pertaining to that incident while reserving its discretion to

determine their admissibility. Id.

In so finding, the court distinguished three cases relied upon by

Appellant: Commonwealth v. Shands, 487 A.2d 973 (Pa.Super. 1985),

Commonwealth v. French, 611 A.2d 175 (Pa. 1992), and

Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa.Super. 1999). In those

cases, access to police officers’ personnel files was premised upon

allegations of police misconduct closer in time or related to the

circumstances surrounding that defendant’s arrest. The trial court found

that the incidents Appellant desired to review had occurred several years

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before Appellant’s arrest, and thus, were not relevant to the circumstances

surrounding his arrest.

Instantly, Appellant subpoenaed the PSP in order to gain access to

Officer Thompson’s personnel file after it was disclosed that the officer had

been involved in a number of previous shootings. In his brief, Appellant

relies on the same three cases distinguished by the trial court below.

Instead of renewing his contention that he had a reasonable basis for

reviewing those files, i.e. that the officer’s past misconduct was relevant to

the circumstances surrounding Appellant’s arrest, Appellant now contends

that such an evaluation is a matter of fairness, and that Officer Thompson’s

past alleged misconduct must be studied from the perspective of a zealous

advocate. We find no merit in Appellant’s position.

The first such incident, occurring on June 6, 2006, involved a police

intervention into a suspected drive-by shooting. The police had learned of

the scheduled shooting and placed officers in position at the scene. The

suspects fired shots, and the police, including Officer Thompson, returned

fire during the ensuing pursuit. No one was injured. Subsequent

investigation deemed Officer Thompson’s actions justified, and no charges

were filed. The second incident occurred on January 21, 2007, during a

traffic stop. Shots were exchanged between Officer Thompson and his

partner and the driver and passenger of the vehicle. Again, the PSP found

the use of force justified and no charges were filed. Finally, Officer

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Thompson discharged his weapon a third time during a traffic stop on

December 15, 2008, striking the passenger after that passenger reached for

a gun. Again, the officer’s actions were found to be justified and no charges

were filed.

Appellant presented no reasonable and articulable basis for finding

that access to Officer Thompson’s entire personnel record was warranted

herein. Furthermore, the previous incidents involving Officer Thompson

were far removed in time, and did not involve the circumstances surrounding

Appellant’s arrest. Compare Mejia-Arias, supra (permitting review of

officers’ personnel files for potentially exculpatory, non-privileged

information where defendant was arrested by officers being investigated for

falsifying warrants). Hence, we discern no abuse of discretion in the trial

court’s denial of Appellant’s request for access to Officer Thompson’s entire

PSP personnel record.

Appellant also challenges the trial court’s preclusion of certain

evidence related to Officer Thompson’s activities as a police officer on

several bases. First, he contends that prohibiting the defense from cross-

examining Officer Thompson regarding his alleged misconduct violated

Appellant’s rights under the Confrontation Clause. Appellant maintains that

the officer’s involvement in these events motivated the officer to fabricate

evidence and testify falsely. Thus, Appellant concludes, the trial court erred

in prohibiting him from questioning the officer about these incidents.

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Determinations regarding the admissibility of evidence are reviewed

for an abuse of discretion. Commonwealth v. Sitler, 144 A.3d 156, 163

(Pa.Super. 2016). 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.” Id.

(citation omitted).

The Confrontation Clause of the Sixth Amendment provides a

defendant with a constitutional right to conduct cross-examination of a

witness in order to reveal any motive that the witness may have to testify

falsely. This clause

guarantees the right of an accused in a criminal prosecution to
be confronted with the witnesses against him. The right of
confrontation, which is secured for defendants in state as well as
federal criminal proceedings means more than being allowed to
confront the witness physically. Indeed, the main and essential
purpose of confrontation is to secure for the opponent the
opportunity of cross-examination. Of particular relevance here,
we have recognized that the exposure of a witness’ motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-examination. It does not
follow, of course, that the Confrontation Clause of the Sixth
Amendment prevents a trial judge from imposing any limits on
defense counsel’s inquiry into the potential bias of a prosecution
witness. On the contrary, trial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about,
among other things, harassment, and prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.

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Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa.Super. 2009) (internal

citations and quotation marks omitted). Where the defense seeks to cross-

examine a police witness regarding prior misconduct, that conduct must be

related to the defendant’s underlying criminal charges and establish a

motive to fabricate. Id. at 757. If the prior police behavior is unrelated to

the present matter and irrelevant, “the trial court is permitted to restrict

questioning on the prior incident.” Id.

The trial court found that Officer Thompson’s prior conduct was

unrelated to Appellant’s criminal charges and did not establish a motive to

fabricate. It noted that Officer Thompson was not under investigation for his

prior actions and that he was never disciplined for his role in those events.

Specifically, the court found the 2008 incident collateral and irrelevant to the

current proceedings. With regard to any other purported misconduct, the

court concluded that it had no bearing on Appellant’s case. Hence, it found

Appellant was properly precluded from cross-examining Officer Thompson

concerning his police record. We find the trial court did not abuse its

discretion in determining that evidence of Officer Thompson’s past conduct,

for which he was investigated but never disciplined, was collateral to

Appellant’s defense, and therefore, relief is not warranted.

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Second, Appellant claims that evidence pertaining to Officer

Thompson’s supposed on-the-job misconduct was admissible under Pa.R.E.

404(b).2 We observe,

Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. In determining whether
evidence of prior bad acts is admissible, the trial court is obliged
to balance the probative value of such evidence against its
prejudicial impact.

Sitler, supra at 163 (internal citation omitted); Pa.R.A.P. 404(b). In

support of his position, Appellant emphasizes three other cases wherein

Officer Thompson was alleged to have acted without reasonable suspicion.

Appellant also notes two complaints filed by Coatesville citizens calling into

question Officer Thompson’s activities. He claims that such evidence

demonstrates a pattern of unconstitutional conduct, and thus, he should be

permitted to introduce that evidence to establish Officer Thompson’s motive,

intent, and a common scheme of violating citizen’s rights without reasonable

suspicion.

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2
We address the merits of Appellant’s contention, but note that no
Pennsylvania court has found that the exceptions provided in Pa.R.E.
404(b)(2) apply to prior bad acts committed by a party other than the
defendant since those exceptions appear to concern the crimes charged.

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The trial court characterized Appellant’s desire to proffer evidence of

Officer Thompson’s conduct as improper character evidence, and thus, it was

not admissible under Pa.R.E. 404(b). The court opined that, even if the

evidence was offered for a permissible purpose under Pa.R.E. 404(b)(2), its

probative value was outweighed by its potential for unfair prejudice since the

officer’s past actions had no nexus to Appellant’s case. We find the court did

not abuse its discretion in barring introduction of this evidence.

Instantly, Officer Thompson merely approached Appellant and

requested his identification after witnessing him crouched by a vehicle.

Thus, reasonable suspicion was not required to justify the encounter. See

Commonwealth v. Baldwin, 147 A.3d 1200 (Pa.Super. 2016) (police

officer request of identification was mere encounter and did not require

reasonable suspicion). Appellant fled before a stop could be initiated and

fired a weapon at the pursuing officers. Thus, past allegations that Officer

Thompson acted without reasonable suspicion or engaged in other

impropriety have no bearing on this matter. Thus, the court properly

excluded such evidence.

Lastly, Appellant asserts that evidence of Officer Thompson’s prior

misconduct was admissible under Pa.R.E. 608(b)(2). Rule 608(b) states:

(b) Specific Instances of Conduct. Except as provided in Rule
609 (relating to evidence of conviction of crime),

(1) the character of a witness for truthfulness may not be
attacked or supported by cross-examination or extrinsic

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evidence concerning specific instances of witness’
conduct; however,

(2) in the discretion of the court, the credibility of a witness
who testifies as to the reputation of another witness for
truthfulness or untruthfulness may be attacked by
cross-examination concerning specific instances of
conduct (not including arrests) of the other witness, if
they are probative of truthfulness or untruthfulness; but
extrinsic evidence thereof is not admissible.

Pa.R.E. 608(b). Appellant maintains that the trial court erred in finding that

he sought admission Officer Thompson’s past acts as character evidence

since such evidence was relevant to establish a pattern of conduct.

According to Appellant, Officer Thompson’s course of conduct signified a

motive to testify falsely in this case, and reflected his bias against Appellant.

Thus, Appellant should have been permitted to cross-examine the officer

regarding those specific instances in order to present a picture of the

officer’s improper motive and bias as a whole, thereby impeaching his

credibility as a witness.

Here, the trial court found that specific instances of Officer Thompson’s

prior conduct were not admissible pursuant to Pa.R.E. 608 and we discern no

abuse of discretion. The allegations of Officer Thompson’s past misconduct,

whether viewed individually or as a whole, do not bear upon his character

for truthfulness. His involvement in prior shootings and supposed failure to

act with reasonable suspicion are not probative of his credibility and

reputation for truthfulness. Hence, Rule 608 does not apply.

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Application for correction of the docket granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/18/2017

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