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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
HEATHER LYNN HOFFMAN, :
APPELLANT :
:
: No. 2277 EDA 2015
Appeal from the Judgment of Sentence July 7, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002914-2014
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 09, 2016
Appellant Heather Lynn Hoffman seeks review of the Judgment of
Sentence imposed after a jury found her guilty of Simple Assault. 1 She
challenges the trial court’s ruling that the Commonwealth could use
Appellant’s prior convictions for Stalking and summary Harassment to
impeach her character witness’s testimony. After careful review, we affirm.
The Commonwealth charged Appellant with, inter alia, Aggravated
Assault, Simple Assault, and summary Harassment in connection with an
incident that occurred at Brandywine Hospital when she faked a seizure after
medical personnel refused to provide her with Percocet. During the incident,
*
Former Justice specially assigned to the Superior Court.
1
The court also found Appellant guilty of the summary offenses of Disorderly
conduct and Harassment.
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Appellant threw a clipboard at a nurse, causing the nurse to suffer a minor
eye injury and creating a commotion that disrupted the operation of the
emergency room.
At Appellant’s jury trial, the nurse, three other emergency room staff
members, and the responding police officer testified regarding the incident.
After the Commonwealth closed its case, Appellant moved for a judgment of
acquittal, which the court denied. Appellant’s counsel then informed the
court that he had no evidence to put on. After some discussion about the
possibility of Appellant presenting a character witness, including trial
counsel’s acknowledgment that there was a character witness but that
Appellant had not been able to contact her, the court recessed for the day to
give Appellant the opportunity to contact the character witness that she had
attempted to contact through Facebook the prior week. See N.T. Trial,
4/7/15, at 145-46.
The next morning, the character witness was in court ready to testify
as to Appellant’s reputation for peacefulness and nonviolence. Prior to her
testimony, however, Appellant’s attorney informed the court that the
prosecutor had told him that Appellant had convictions from 2003 for
Stalking and summary Harassment that the Commonwealth intended to use
to impeach the witness. Counsel objected, arguing that the Commonwealth
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had not provided him with the facts underlying the prior convictions. 2 After
discussing the Stalking statute, the court ruled that the Stalking conviction
pertained to peacefulness with respect to “trying to create reasonable fear of
bodily injury or cause substantial emotional distress.” N.T. Trial, 4/8/15, at
6.3 The court also ruled that the prior Harassment convictions were also
relevant to Appellant’s reputation for peacefulness. See N.T., 4/8/15, at 9.
The court, thus, concluded that if the character witness testified as to
Appellant’s reputation for peacefulness and nonviolence, the prosecution
could ask the witness if she had knowledge of Appellant’s prior Stalking and
Harassment convictions. Appellant’s counsel then informed the court that
“[i]f that’s the case, then I will not be calling a character witness. I don’t
think it’s a trial strategy worthwhile at this point.” Id. at 7.
2
Appellant states that “[t]he only facts offered to the court surrounding the
Stalking conviction seemed to indicate that the incident involved Appellant’s
former attorney looking to cease communication.” Appellant’s Brief at 19.
3
The Stalking offense under which Appellant was previously charged and
convicted provided, in relevant part:
A person commits the crime of stalking when he engages in a
course of conduct or repeatedly commits acts toward another
person, including following the person without proper authority,
under circumstances which demonstrate either of the following:
(1) An intent to place the person in reasonable fear of bodily injury;
or
(2) An intent to cause substantial emotional distress to the person.
Appellant’s Brief at 18, citing 18 Pa.C.S. § 2709(b) (repealed and replaced
with Section 2709.1, effective Jan. 31, 2003).
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The jury found Appellant guilty of Simple Assault and not guilty of
Aggravated Assault. The court subsequently sentenced Appellant to a term
of two days’ to twenty-three months’ incarceration.
After the denial of her post-sentence motion at a hearing in open court
on August 4, 2015, Appellant filed a timely Notice of Appeal with this Court. 4
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
Did the trial court err in its ruling allowing rebuttal evidence
pertaining to Appellant’s prior convictions of one count of
Stalking and two courts of summary Harassment in response to
the defense’s potential character witness?
Appellant’s Brief at 2.
Appellant contends that the trial court erred in ruling that the
Commonwealth could use her prior convictions of Stalking and Harassment
to impeach her character witness because those convictions cannot be
“probative of violence when the underlying facts of the convictions are
unknown.” Appellant’s Brief at 15. Appellant relies on Commonwealth v.
Hull, 982 A.2d 1020 (Pa. Super. 2009), when she concludes that the trial
4
On August 19, 2015, this Court issued an order to show cause as to why
Appellant’s appeal should not be quashed as interlocutory in light of the
apparently outstanding post-sentence motion. Our review of the record
confirms Appellant’s response that the trial court denied the post-sentence
motion in open court on August 4, 2015. See N.T. Hearing, 8/4/15, at 21.
The appeal is, thus, not interlocutory.
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court’s ruling was “manifestly unreasonable and prejudicial considering [she]
was charged with aggravated assault.”5 Appellant’s Brief at 20-21.
The trial court has discretion over evidentiary matters, particularly
over the scope and manner of cross-examination of a witness.
Commonwealth v. Hoover, 16 A.3d 1148, 1150 (Pa. Super. 2011). That
discretion “will not be disturbed by this Court absent an abuse of that
discretion. An abuse of discretion is not a mere error in judgment but,
rather, involves bias, ill will, partiality, prejudice, manifest
unreasonableness, or misapplication of law.” Id. (citation omitted).
With respect to proving character, our rules of evidence provide that
the accused may offer witnesses to testify to the accused’s relevant
character traits. Pa.R.E. 404(a)(1). In addition, Pa.R.E. 405 provides, in
relevant part:
Rule 405. Methods of Proving Character.
(a) By Reputation. When evidence of a person’s character or
character trait is admissible, it may be proved by
testimony about the person’s reputation. Testimony about
the witness’s opinion as to the character or character trait
of the person is not admissible.
(1) On cross-examination of the character witness, the
court may allow an inquiry into relevant specific
5
In Hull, this Court concluded that the allegation, that trial counsel provided
ineffective assistance of counsel by failing to present a character witness in
his rape trial, was of arguable merit. Hull is factually and procedurally
distinguishable from the instant case and provides no support for Appellant’s
argument.
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instances of the person’s conduct probative of the
character trait in question.
(2) In a criminal case, on cross-examination of a
character witness, inquiry into allegations of other
criminal conduct by the defendant, not resulting in
conviction, is not permissible.
Pa.R.E. 405(a).
Once an accused “opens the door” with respect to his or her reputation
for peacefulness and non-violence, cross-examination of a character witness
as to his or her knowledge of misconduct of the accused that resulted in a
conviction related to those traits is permissible to test the witness’s
credibility. Commonwealth v. Fletcher, 861 A.2d 898, 915-16 (Pa. 2004).
See also Hoover, 16 A.3d at 1149-50 (same). Such cross-examination
also “test[s] . . . the standard by which [the character witness] measures
reputation.” Fletcher, supra at 916 (citations omitted).
A distinction is drawn between cases where it is sought to prove
particular acts of misconduct and those where the purpose of the
examination is to test the accuracy of the testimony by showing
either that the witness is not familiar with the reputation
concerning which he has testified or that his standard of what
constitutes good repute is unsound. Commonwealth v.
Becker, [ ] 191 A. 351, 356 ([Pa.] 1937). Evidence of the
former is inadmissible. Evidence of the latter may be shown,
provided the actual purpose of the cross-examination is not to
show commission by the defendant of a specific crime of which
he or she is not now accused, but to test only the credibility of
the character witness. Commonwealth v. Hurt, [ ] 60 A.2d
828, 829 ([Pa. Super.] 1948).
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Commonwealth v. Adams, 626 A.2d 1231, 1233 (Pa. Super. 1993). See
generally Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence
§ 405.02 et seq. (2016 ed. LexisNexis Matthew Bender).
In the instant case, Appellant avers that “[t]he only facts offered to
the court surrounding the Stalking conviction seemed to indicate that the
incident involved Appellant’s former attorney looking to cease
communication. Without the facts surrounding these incidents, allowing the
Commonwealth to submit these convictions as evidence of Appellant’s
violent character was an abuse of discretion.” Appellant’s Brief at 20. She
concludes that “[t]he ruling was manifestly unreasonable and prejudicial
considering Appellant was charged with Aggravated Assault.” Id. at 21. We
cannot agree.
At trial, the trial court stated the following to Appellant:
. . . [T]he bottom line is the reason for the rule is that if a
person testifies as to your character in the community, [] you
can explore their level of knowledge to see if they know about
the conviction. It’s not getting to the merits of the underlying
conviction, it’s just the fact there’s a conviction.
***
What I’m ruling is if you put a character witness on for
peacefulness, and there’s a prior 2003 stalking conviction,
which, on either section of stalking seems to touch on the area
of peacefulness, on either trying to create reasonable fear of
bodily injury or cause substantial emotional distress. [sic] Even
if someone . . . said I’m not guilty and testifies, the fact there’s
that conviction is something the Commonwealth would ask a
witness on cross-examination about the knowledge of that
particular prior.
****
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N.T., 4/8/16, at 5 – 7.
Based on our reading of the relevant case law and the trial transcript,
we conclude that the trial court properly exercised its discretion in ruling
that the Commonwealth could use Appellant’s stalking conviction to cross-
examine her character witness who intended to testify as to Appellant’s
reputation for peacefulness and non-violence. Appellant provides no case
law to support her implication that defense counsel should have been
provided with the facts underlying Appellant’s prior convictions to determine
if they actually pertained to violence or peacefulness. Most significantly,
Appellant did not challenge below, and does not challenge here, the trial
court’s conclusion that “either section of [the Stalking offense] seems to
touch on the area of peacefulness, on either trying to create reasonable fear
of bodily injury or cause substantial emotional distress.” N.T. at 6.
Accordingly, because we conclude that the trial court did not abuse its
discretion in ruling that Appellant’s prior convictions could be used to
impeach her character witness, we affirm Appellant’s judgment of sentence. 6
Judgment of sentence affirmed.
6
Appellant also contends in her Brief that the “short notice” she received
regarding the Commonwealth’s intention to use the prior convictions violated
Pa.R.E. 404(b)(3). See Appellant’s Brief at 17-18. Appellant failed to raise
this sub-issue before the trial court and it is, thus, waived. See Pa.R.A.P.
302(a). Moreover, in light of Appellant’s last-minute notice to the
Commonwealth and the trial court of the existence of her character witness,
the Commonwealth’s notice to defense counsel of Appellant’s prior
convictions was sufficient.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
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