J-S56024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    EDWARD CLARK

                             Appellant                  No. 2411 EDA 2016


             Appeal from the Judgment of Sentence March 4, 2016
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0008763-2014


BEFORE: BOWES, STABILE, and PLATT, * JJ.

MEMORANDUM BY STABILE, J.:                         FILED NOVEMBER 30, 2017

        Appellant, Edward Clark, appeals from the March 4, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”) sentencing him to three years of probation for possession with intent

to deliver a controlled substance. Upon review, we affirm.

        The trial court summarized the factual situation as follows.

        Officer Jeffrey Stauffer testified during a bench trial that on July
        11, 2014 at 8:00 p.m. he witnessed [Appellant] attempting to
        complete a drug transaction. An unknown white female handed
        [Appellant] cash after which [Appellant] attempted to retrieve
        something from the soda can he was holding. As officers were
        approaching, [Appellant] looked in their direction and then ducked
        behind a car. [Appellant] dropped the soda can underneath the
        car and walked away. While he was walking, [Appellant] threw a
        silver lid over several parked cars into the middle of the street.
        The officers retrieved the soda can and examined it. Inside the
        can was a pill bottle containing 43 clear glass vials with green caps
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        all containing cocaine. [Appellant] was arrested. The recovered
        lid screwed onto the can.

Trial Court Opinion, 12/15/16, at 1 (citations to the record omitted).

        Following a bench trial on December 8, 2015, Appellant was convicted

of possession with intent to deliver a controlled substance. The trial court

sentenced Appellant on March 4, 2016. On March 11, 2016, Appellant filed a

post-sentence motion, which was denied by operation of law on July 13, 2016.

Appellant filed a timely notice of appeal and a concise statement of errors

complained of on appeal. The trial court issued a Pa.R.A.P. 1925(a) opinion

on December 19, 2016.

        Appellant raises one issue for our review, which we repeat verbatim.

   I.     Was not [A]ppellant denied his right to a fair trial when [A]ppellant
          testified about his character trait for being law-abiding, and the lower
          court then permitted the Commonwealth to cross-examine
          [A]ppellant over objection, about his juvenile arrests which did not
          result in a conviction?

Appellant’s Brief at 3.

        Appellant challenges an evidentiary ruling.       Specifically, Appellant

challenges the trial court permitting impeachment of Appellant’s testimony

regarding his character trait of law-abidingness with evidence of a previous

juvenile adjudication. “The admissibility of evidence is at the discretion of the

trial court and only showing an abuse of discretion, and resulting prejudice,

constitutes reversible error.” Commonwealth v. Kuder, 62 A.3d 1038, 1053

(Pa. Super. 2013) (quoting Commonwealth v. Glass, 50 A.3d 720, 724-25

(Pa. Super. 2012) (additional citations omitted)).      However, “[i]ssues not


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raised in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302. At trial the following exchange occurred between the

Commonwealth and Appellant.

      Q. Do you have any way to validate what you said, that people
      spoke about you being law-abiding and the referrals to other jobs?

      A. I would say just my record.

      Q. Your record?

      A. Yeah.

      Q. What record is that?

      A. The record that I had. No record of me doing anything wrong.

      Q. Are you talking about your criminal record, sir?

      A. Right.

      Q. Did you present your criminal record to employers?

      Mr. Hasiuk: Objection.

      Mr. Wilkoff: Your Honor, he’s opened the door at this point.

      Mr. Hasiuk He’s testifying to a lack of criminal history. I don’t see
      how that’s opening the door to anything the Commonwealth is
      attempting to question him about.

      Mr. Wilkoff: Your Honor, because he raised this issue, I now get
      to impeach him as to his criminal record.

      Mr. Hasiuk: Which he does not have.

      The Court: Overruled

      By Mr. Wikloff:

      Q. Did you bring your criminal record around?

      A. I don’t have a criminal record.

      Q. Sir, were you not arrested in 2007?

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      A. 2007? I don’t –oh yeah. I was arrested, but it was for –it was
      mistaken identity. The case got thrown away because of mistaken
      identity.

      Q. Was that the drug dealing case or the robbery case in 2007?

      A. The robbery case.

      Q. And how about the drug dealing case?

      A. That was – I served five years’ probation for that case.

      Q. I thought you just told this Court you had no criminal record.

      A. As an adult, I was a juvenile, sir.

N.T. Trial (Waiver), 12/8/15, at 45-46.        While Appellant objected to the

question regarding Appellant showing his criminal record to his employer,

Appellant failed to object to the Commonwealth’s inquiry regarding the 2007

arrests. Thus, Appellant has failed to preserve this issue for appeal and the

claim is waived.   See Pa.R.A.P. 302.

      Even if Appellant’s claim was not waived, it is meritless.       Appellant

argues that the inquiry by the Commonwealth regarding Appellant’s juvenile

adjudication violates Pa.R.E. 405(a)(2) because an adjudication is not a

conviction.   Rule 405(a)(2) provides that “[i]n 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)(2). While Appellant is correct that a delinquent adjudication is

not considered a conviction under Section 6354(a) of the Juvenile Act, 42

Pa.C.S.A. § 6354(a), Appellant fails to acknowledge that Section 6354(b)(4)

of that Act also provides that “the disposition of a child under this chapter may


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only be used against him . . . in a criminal proceeding, if the child was

adjudicated delinquent for an offense, the evidence of which would be

admissible if committed by an adult.”         Id.   Instantly, Appellant, while a

juvenile, was adjudicated and served five years of probation in connection

with a drug dealing case.        The Commonwealth used the fact of this

adjudication to impeach Appellant’s testimony that he did not have a criminal

record. Clearly, had Appellant committed this drug offense as an adult, it

would have been admissible for impeachment purposes to rebut his testimony

that he did not have a criminal record. Section 6354(b)(4) allows a juvenile

adjudication to be used for impeachment purposes.            Commonwealth v.

Hannibal, 156 A.3d 197, 211 (Pa. 2016).             Thus, as the evidence of the

adjudication would be admissible for impeachment purposes in the trial sub

judice, the trial court did not abuse its discretion when it permitted the

Commonwealth       to   cross-examine     Appellant     regarding   his   juvenile

adjudication.

      Furthermore, even if the evidence was improperly admitted, the trial

court, sitting as the fact-finder, “would have reached the same ruling even if

it had not allowed [Appellant] to be cross-examined about his juvenile arrest.”

Trial Court Opinion, 12/14/16, at 5; see also Commonwealth v. Gribble,

863 A.2d 455, 462 (Pa. 2004) (“judge sitting as fact finder is presumed to

disregard inadmissible evidence and consider only competent evidence.”)

(citing Commonwealth v. Fears, 836 A.2d 52, 71 n. 19 (Pa. 2003)). Thus,

we find that Appellant’s claim fails.

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     Judgment of sentenced affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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