J-S51028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LESTER CARNELL STUBBS,
Appellant No. 3807 EDA 2016
Appeal from the Judgment of Sentence November 3, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003272-2015
BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 22, 2017
Appellant, Lester Carnell Stubbs, appeals from the judgment of
sentence entered on November 3, 2016, following his conviction of false
imprisonment of a minor by a parent, criminal trespass, endangering the
welfare of a child, recklessly endangering another person and simple
assault.1 We affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
[Appellant] was arrested and charged with assault,
endangering the welfare of a child, and related charges arising
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 2903(c), 3503(a)(1)(i), 4304(a)(1), 2705, and 2701(a)(1),
respectively.
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out of an altercation between [Appellant] and his then 15 year-
old son [(“the victim”)] on August 4, 2015. [Appellant] entered
the residence where his son was residing with his grandparents
and forcibly removed him from the premises. [Appellant]
transported his son back to his home on Diamond Street in
Coatesville, PA where he proceeded to assault him. The victim
eventually ran from [Appellant’s] residence to the Coatesville VA
Medical Center, where a staff member rendered assistance and
contacted the police.
Following a two day jury trial, on April 20, 2016,
[Appellant] was found guilty of simple assault, recklessly
endangering another person, endangering the welfare of a child,
criminal trespass and false imprisonment of a minor where the
offender is the parent. On November 3, 2016, [Appellant] was
sentenced to 111/2 to 23 months imprisonment on Count 10,
false imprisonment of a minor where the offender is a parent
and 111/2 to 23 months imprisonment on Count 7, endangering
the welfare of a child, to be served concurrently with Count 10.1
[Appellant] timely filed his Notice of Appeal on December 2,
2016.
1[Appellant]received 3 years’ probation on Count 9,
criminal trespass, to be served consecutively to
Counts 10 and 7 and 2 years’ probation for simple
assault, Count 2, to be served concurrently with
Count 9 and consecutively to Counts 10 and 7.
Count 3, recklessly endangering another person,
merges with Counts 10, 7 and 2.
Trial Court Opinion, 1/27/17, at 1-2. Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Did the trial court err in granting [the] Commonwealth’s
pretrial motion to exclude school attendance, disciplinary and
behavioral records and also exclude “indicated” or
“unfounded” determinations made by Chester County
Children, Youth and Families?
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2. Did the trial court err in granting [the] Commonwealth’s
Motion in Limine to admit evidence of other crimes, wrongs or
acts pursuant to Pennsylvania Rule of Evidence 404(b)?
Appellant’s Brief at 4.
Our standard of review of evidentiary determinations is well
established:
The admission of evidence is a matter vested within the
sound discretion of the trial court, and such a decision shall be
reversed only upon a showing that the trial court abused its
discretion. In determining whether evidence should be admitted,
the trial court must weigh the relevant and probative value of
the evidence against the prejudicial impact of the evidence.
Evidence is relevant if it logically tends to establish a material
fact in the case or tends to support a reasonable inference
regarding a material fact. Although a court may find that
evidence is relevant, the court may nevertheless conclude that
such evidence is inadmissible on account of its prejudicial
impact.
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. An abuse of discretion may result where the
trial court improperly weighed the probative value of evidence
admitted against its potential for prejudicing the defendant.
Commonwealth v. Antidormi, 84 A.3d 736, 749-750 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
In his first issue, Appellant argues that the trial court erred in granting
the Commonwealth’s pretrial motion to exclude the victim’s school
attendance, disciplinary and behavioral records, and “indicated” or
“unfounded” determinations made by Chester County Children, Youth and
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Families. Appellant’s Brief at 15. Appellant maintains that he sought to
introduce this evidence “to try to explain to this jury why he did the things
that he did in terms of disciplining this child.” Id. at 18. Further, Appellant
contends that:
[he] sought to introduce evidence that [the victim] was not
attending school as he should, he was hanging out with the
wrong crowd, smoking marijuana, and having some discipline
problems. Appellant was attempting to show that he was having
many disagreements with [the victim] regarding his behavior,
school, and his friends. The evidence was offered to show that
[the victim] had turned against his father and had a motive to
fabricate the story underpinning the charges.
Id. Appellant argues that this evidence should have been admitted pursuant
to Pa.R.E. 404(b)(2),2 which addresses the permitted uses of evidence
pertaining to crimes, wrongs, or other acts. Id. at 19.
The basic requisite for the admissibility of any evidence in a case
is that it be competent and relevant. Though “relevance” has
not been precisely or universally defined, the courts of this
Commonwealth have repeatedly stated that evidence is
admissible if, and only if, the evidence logically or reasonably
tends to prove or disprove a material fact in issue, tends to
make such a fact more or less probable, or affords the basis for
or supports a reasonable inference or presumption regarding the
existence of a material fact.
Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
____________________________________________
2 Pa.R.E. 404 (b)(2) provides:
This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. In
a criminal case this evidence is only admissible if the probative
value of the evidence outweighs its potential for unfair prejudice.
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Moreover, with respect to the admissibility of evidence regarding a
witness, we are guided by the following:
Pa.R.E. 608 is tailored to a specific purpose: the admission of
evidence for purposes of impeaching or bolstering a witness’s
credibility. It provides:
Pa.R.E. 608. Evidence of character and conduct
of witness
(a) Reputation evidence of character.
The credibility of a witness may be
attacked or supported by evidence in the
form of reputation as to character, but
subject to the following limitations:
(1) the evidence may refer only to
character for truthfulness or
untruthfulness; and
(2) evidence of truthful character is
admissible only after the character of the
witness for truthfulness has been
attacked by reputation evidence or
otherwise.
(b) Specific instances of conduct. Except as
provided in Pa.R.E. 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 evidence concerning specific
instances of the 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
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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.
Pa.R.E. 608 codifies the long established rule limiting the
type of evidence admissible to challenge a witness’s credibility,
to evidence of the witness’s general reputation for truthfulness
or untruthfulness. See Commonwealth v. Payne, 205 Pa.
101, 104, 54 A. 489, 491 (1903); Commonwealth v. Fisher,
2000 PA Super 379, 764 A.2d 82, 87 (Pa.Super.2000). Further,
subsection (b)(1) of this rule specifically prohibits a witness from
supporting or attacking another witness’s credibility with
instances of specific conduct. Pa.R.E. 608(b)(1).
In contrast to the narrow focus of Pa.R.E. 608 on
truthfulness or untruthfulness, Pa.R.E. 404(a) covers wider
ground. It provides,
Pa.R.E. 404. Character evidence not admissible
to prove conduct; exceptions; other crimes
(a) Character evidence generally. Evidence of a
person’s character or a trait of character is not
admissible for the purpose of proving action in
conformity therewith on a particular occasion,
except:
(1) Character of accused. In a criminal
case, evidence of a pertinent trait of
character of the accused is admissible
when offered by the accused, or by the
prosecution to rebut the same. If
evidence of a trait of character of the
alleged victim of the crime is offered by
an accused and is admitted under
subsection (2), evidence of the same
trait of character of the accused is
admissible if offered by the prosecution.
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(2) Character of alleged victim.
(i) In a criminal case, subject
to limitations imposed by
statute, evidence of a
pertinent trait of character of
the alleged victim is
admissible when offered by
the accused, or by the
prosecution to rebut the
same.
...
(3) Character of witness. Evidence of a
pertinent trait of character of a witness is
admissible as provided in Rules 607
(Impeachment of Witness), 608
(Character and Conduct of Witness) and
609 (Evidence of Conviction of Crime).
Pa.R.E. 404(a) (emphasis added). Thus, while Pa.R.E. 608
addresses only one character trait (truthfulness or
untruthfulness), and prohibits the use of instances of specific
conduct to establish the trait, Pa.R.E. 404(a) applies to evidence
regarding any “pertinent” character trait and, through the
operation of case law codified in Pa.R.E. 405, allows evidence of
specific conduct to prove the “pertinent” trait.
Commonwealth v. Minich, 4 A.3d 1063, 1068–1070 (Pa. Super. 2010).
Thus, “whenever the accused seeks to offer character evidence for purposes
of attacking or supporting the credibility of a victim who testifies, the
admissibility of such evidence is governed by Pa.R.E. 608 and proof of
specific incidents of conduct by either cross-examination or extrinsic
evidence is prohibited.” Id. at 1072.
Additionally, Pa.R.E. 404(b) provides:
(b) Crimes, Wrongs or Other Acts.
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(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this
evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the
prosecutor must provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such
evidence the prosecutor intends to introduce at trial.
Pa.R.E. 404(b). Our Court has explained, “To be admissible under this
exception, there must be a specific ‘logical connection’ between the other act
and the crime at issue which establishes that the crime currently being
considered grew out of or was in any way caused by the prior set of facts
and circumstances.” Commonwealth v. Cox, 115 A.3d 333, 337 (Pa.
Super. 2015).
Moreover, “[t]he court may exclude evidence if its probative value is
outweighed by the danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403. “Unfair prejudice”
is defined as “a tendency to suggest decision on an improper basis or to
divert the jury’s attention away from its duty of weighing the evidence
impartially.” Pa.R.E. 403 cmt.
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The trial court provided the following explanation in addressing
Appellant’s first issue:
At bar, [Appellant] was charged with assault, endangering
the welfare of a child, false imprisonment of a minor where the
offender is the victim’s parent, and related charges. The victim’s
psychological, behavioral and discipline records documenting any
misconduct or dishonesty in school are wholly unrelated to the
crimes for which [Appellant] was being tried. Evidence of the
victim’s dishonesty and misconduct in school is not probative of
the victim’s conduct during the alleged criminal episode at issue.
Therefore, this evidence was properly excluded under Pa.R.E.
608(b)(1).
The Commonwealth further sought to exclude from
evidence the findings of Chester County Youth and Families
(CYF) regarding reports of abuse or neglect inflicted upon the
victim by [Appellant]. [Appellant] sought to introduce three
letters from CYF determining that incidents of abuse were
“unfounded,” including the alleged abuse which is the subject of
the instant charges.
The letters from CYF which [Appellant] sought to admit
into evidence are opinions formed by CYF based upon their
investigation and evaluation under Child Protective Services Law.
Accordingly, these letters constitute inadmissible hearsay.
Trial Court Opinion, 1/27/17, at 4-5.
We agree. Pursuant to Pa.R.E. 608, Appellant is not permitted to
introduce specific instances of conduct to impeach the victim’s credibility.
Minich, 4 A.3d at 1072. The evidence sought to be introduced by Appellant,
regarding the victim’s school performance, friends, and disciplinary issues
does not go to the victim’s general reputation for truthfulness. Accordingly,
the trial court did not abuse its discretion in excluding this evidence.
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Moreover, this evidence would not be admissible under Pa.R.E. 404(b).
We cannot reasonably conclude that there exists a “logical connection”
between the victim’s actions of alleged previous misconduct and Appellant’s
crimes that would establish that Appellant’s crimes grew out of or were in
any way caused by the victim’s actions. Cox, 115 A.3d at 337.
Additionally, Appellant’s position that the victim fabricated this incident
and was motivated to do so as a result of Appellant disciplining the victim is
unsustainable. There were independent accounts presented at trial that
supported the victim’s version of events. Specifically, Detective Ryan Wright
testified that on August 4, 2015, the victim appeared at the police station “in
disarray. His clothing was torn. He had blood on his clothing. You could
see in his eyes he had been crying. He had glassy eyes. He was upset.”
N.T., 4/20/16, at 89. Detective Wright further described the victim as
having blood on his sneakers, one or two of his fingers had been cut or
bleeding, bruising to the forehead area and a swollen cheek, and lacerations
on his back shoulder. Id. at 89-94. Thus, Appellant’s claim that the victim’s
accusations are fabricated is unsupported by the evidence.
Furthermore, even if the victim had a history of prior misconduct, such
evidence would not justify Appellant’s actions. The jury clearly determined
that the evidence was sufficient to convict Appellant of the above-referenced
charges. Moreover, admission of this evidence would be more prejudicial
than probative of whether Appellant committed the crimes, in effect
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confusing the issue and drawing the jury’s attention away from the evidence
as related to Appellant’s actions, and therefore would have been
inadmissible on that basis. Pa.R.E. 404(b)(2). Accordingly, we cannot
conclude that the trial court abused its discretion in excluding this evidence.
With regard to admission of the CYF reports, we observe that during
the hearing on the motion in limine, Appellant’s counsel made the following
argument regarding the relevance of the CYF reports:
[Victim] ran away from the home in Philadelphia, which
CYS had – they had taken him out of the father’s home, placed
him in the grandmother’s home – great-grandmother’s home in
Philadelphia, and he ran away from that home likewise and came
back to Coatesville. And he was missing for a period of time.
Father found out where he was. He went to pick him up only
after talking with CYS. And they indicated, yeah, you know, you
have been cleared. You can go pick him up. And that’s what
our client did. And that’s the reason why we should seek to
submit the letter, now to show they did the investigation and it
was unfounded or it’s right or wrong, but just for the fact that he
was not acting on his own accord. He had consulted with CYS.
N.T., 4/19/16, at 16-17. Accordingly, Appellant sought to introduce the CYF
records and reports to establish his reason for going to pick up the victim on
the day of the incident.
In addressing Appellant’s argument, the trial court stated the following
in explaining its ruling:
And then on the determinations made by children, youth
and families, all of those are excluded. The Office of Children,
Youth and Families has an opinion on something, but it’s not
their opinion that should control here. It is the testimony at the
trial and the evaluation of that testimony by the jury that must
control. So a prior opinion of another agency is not appropriate
for testimony here in this trial.
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Further, the standard of proof for the office of CYF is
significantly different from the standard of proof in a criminal
trial. So for that further reason, I find it to be inappropriate to
be introducing records made by children, youth and families.
N.T., 4/19/16, at 26.
We agree. Appellant could provide testimony during trial as to why he
went to L.G. and S.G.’s house on the date of the incident, and in fact
testified that he went there after CYF told him that the victim was at that
location on that date. N.T., 4/20/16, at 157-158. The content of the CYF
reports were not necessary to that position. Moreover, as the trial court
noted, any CYF finding in its reports would result from a different standard
than that appropriate in a criminal proceeding. 23 Pa.C.S. §§ 6301, et.
seq.; See F.R. v. Dep’t of Public Welfare, 4 A.3d 779, 787 (Pa. Cmwlth.
2010) (comparing section 509 of the criminal code and section 6303(b) of
the Child Protective Services Law (“CPSL”) and stating that “[w]hile there is
little doubt that the Crimes Code and the CPSL are linked in some ways, it is
clear, as acknowledged by our Supreme Court in [P.R. v. Department of
Public Welfare, 801 A.2d 478 (Pa. 2002)], that the Crimes Code standard
applies in criminal proceedings, while the CPSL standard applies to
administrative proceedings.”).3
____________________________________________
3 “Although the decisions of the Commonwealth Court are not binding upon
this Court, they may serve as persuasive authority.” Commonwealth v.
Rodriguez, 81 A.3d 103, 107 n.7 (Pa. Super. 2013).
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Additionally, these documents would not be admissible under Pa.R.E.
404(b)(2) because the reports and findings of CYF did not present a “logical
connection” between those CYF investigations and the crimes for which
Appellant was convicted which would establish that the crime currently being
considered grew out of or was in any way caused by those investigations.
Cox, 115 A.3d at 337. Further, if the CYF documents and reports were to be
admitted at trial, such evidence would confuse the issues and draw the
jury’s attention away from considering the evidence as related to the
charges against Appellant. Thus, the evidence would be more prejudicial
than probative and would have been excluded on that basis. Pa.R.E. 403.
Accordingly, the trial court did not abuse its discretion in precluding
admission of this evidence. Appellant’s first issue lacks merit.
In his statement of questions involved, Appellant presents the
following second issue: “Did the trial court err in granting Commonwealth’s
Motion in Limine to admit evidence of other crimes, wrongs or acts pursuant
to Pennsylvania Rule of Evidence 404(b)?” Appellant’s Brief at 4. Despite
presenting this second issue in his statement of the questions involved,
Appellant has failed to present or develop an argument on this issue in the
argument section of his brief. See Pa.R.A.P. 2119(a) (“The argument shall
be divided into as many parts as there are questions to be argued; and shall
have at the head of each part-in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by such discussion
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and citation of authorities as are deemed pertinent.”) Thus, we find this
issue waived for failure to develop it. See Pa.R.A.P. 2101 (if the defects in
the appellant’s brief are substantial, “the appeal or other matter may be
quashed or dismissed.”); see also Commonwealth v. Jones, 815 A.2d
598, 604 n.3 (Pa. 2002) (where appellant failed to address an issue raised in
his statement of questions involved in the body of his brief, the claim was
waived.); Commonwealth v. Jackson, 431 A.2d 944, 945 n.1 (Pa. 1981)
(where issue presented in the “Statement of Questions Involved” section of
defendant’s brief was not addressed in “the ‘Argument’ portion of his brief,”
it was waived).
Had this issue not been waived, and to the extent Appellant makes
limited reference to this issue in the discussion of his first issue, we would
conclude it lacks merit. Appellant, in the context of the argument on his first
claim, asserts that: “The court’s pretrial rulings excluding all records and
testimony regarding [the victim’s] attendance and disciplinary problems
which would have shown [the victims’] motive to fabricate coupled with the
court’s admitting prior allegations of Appellant’s abusive behavior had a
crippling effect on the defense.” Appellant’s Brief at 19.
In this case, the Commonwealth sought to present evidence of
Appellant’s prior physical, emotional, and verbal abuse of the victim prior to
August 4, 2015, to establish motive, intent, absence of mistake, common
plan, scheme, or design and the res gestae of the crime pursuant to Pa.R.E.
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404(b). N.T., 4/19/16, at 5-8. “Evidence of crimes other than the one in
question is not admissible solely to show the defendant’s bad character or
propensity to commit crime.” Commonwealth v. Collins, 703 A.2d 418,
422 (Pa. 1997); Pa.R.E. 404(b)(1) (providing that “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion, the person acted in accordance with
the character.”). Nevertheless:
This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
Pa.R.E. 404(b)(2). See also Melendez–Rodriguez, 856 A.2d 1278, 1283
(Pa. Super. 2004) (reiterating “other crimes” evidence is admissible to show
motive, intent, absence of mistake or accident, common scheme or plan,
and identity). “Additionally, evidence of other crimes may be admitted
where such evidence is part of the history of the case and forms part of the
natural development of the facts.” Commonwealth v. Lauro, 819 A.2d
100, 107 (Pa. Super. 2003) (quoting Collins, 703 A.2d at 423). Moreover,
in Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988), our Supreme Court
explained:
Another “special circumstance” where evidence of other crimes
may be relevant and admissible is where such evidence was part
of the chain or sequence of events which became part of the
history of the case and formed part of the natural development
of the facts. This special circumstance, sometimes referred to as
the “res gestae” exception to the general proscription against
evidence of other crimes, is also known as the “complete story”
rationale, i.e., evidence of other criminal acts is admissible “to
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complete the story of the crime on trial by proving its immediate
context of happenings near in time and place.”
Id. at 497 (citations omitted).
In addressing Appellant’s claim, the trial court explained its holding as
follows:
[Appellant] was charged with assault, endangering the welfare of
a child, and related charges. Evidence of [Appellant’s] prior
physical, emotional and verbal abuse of the victim prior to
August 4, 2015[,] is admissible to provide a common plan or
scheme on the part of [Appellant] as well as intent, motive and
absence of mistake. This evidence is part of the “natural
sequence” or development of the events in question. The
victim’s prior instances of physical and mental abuse at the
hands of [Appellant] “complete the story” and explain the
pattern of abuse that eventually led to the assault on August 4,
2015. Finally, this evidence is admissible to explain why the
victim did not report the abuse immediately.
Trial Court Opinion, 1/27/17, at 9 (internal citations omitted).
We agree. Thus, were we to reach the merits of Appellant’s second
issue, we would affirm on the basis of the trial court’s explanation and
reasoning.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2017
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Com. v. Stubbs, L.
Combined Opinion