J-S19014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

BRIAN MCELVANEY

                         Appellant                   No. 1633 EDA 2014


       Appeal from the Judgment of Sentence entered April 30, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0014085-2013


BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 10, 2015

      Appellant, Brian McElvaney, appeals from the judgment of sentence

the Court of Common Pleas of Philadelphia County entered April 30, 2014.

On appeal, Appellant challenges an evidentiary ruling. Specifically, Appellant

argues the trial court committed a reversible error in allowing the

Commonwealth to ask a rebuttal witness about Appellant’s prior conduct that

did not result in a conviction. We affirm.

      The facts and procedural history of the case can be summarized as

follows. Appellant was charged with aggravated assault, simple assault, and

recklessly   endangering   another   person   (REAP),   following   a   physical

argument Appellant had with his former fiancée, Michelle Soda.             After

Appellant waived his right to a jury trial, the trial court found him guilty of
J-S19014-15



simple assault,1 and sentenced him to 18 months’ probation.2          This timely

appeal followed.

        On appeal, Appellant raises the following issue for our review:

        Did the trial court commit an abuse of discretion as well as an
        error of law and deprive Appellant of a fair trial by permitting the
        Commonwealth to rebut Appellant’s evidence of good character
        with specific instances of misconduct given that the evidence
        was hearsay and violated the rule holding that that it is improper
        to rebut character evidence with evidence of specific bad acts?

Appellant’s Brief at 2.

        Specifically, Appellant argues the trial court erred in allowing the

Commonwealth to question a rebuttal character witness on Appellant’s

criminal conduct that did not result in a conviction. The following exchange

is at issue here:

        [Commonwealth]: Ms. [Cindy] Soda, what have you heard
        about [Appellant] with respect to his character for law abiding
        and peaceful.

        [Defense Counsel]: Objection; calls for hearsay, Your Honor.
        That is what is improper response to what I have presented on
____________________________________________


1
  “[A] person is guilty of assault if he: (1) attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another; (2) negligently
causes bodily injury to another with a deadly weapon; (3) [or] attempts by
physical menace to put another in fear of imminent serious bodily injury[.]”
18 Pa.C.S.A. § 2701(a). Bodily injury is defined as “[i]mpairment of physical
condition or substantial pain,” 18 Pa.C.S.A. § 2301, and serious bodily injury
is defined as “[b]odily injury which creates a substantial risk of death or
which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” Id.
2
    The REAP charge was nolle prossed. N.T. Trial, 4/30/14, at 13.



                                           -2-
J-S19014-15


      the record today. So to hear anything specifically about what
      other people said is hearsay and it is not proper response.

      [Court]: I’ll allow it.

      Witness: I heard that he fought a lot as a kid, and there were
      certain instances where he had people that worked for him and
      that he would withhold money from them and didn’t want to pay
      them. There was this one time the guy had come to the house
      for money. I had just met [Appellant], so I thought [Appellant]
      was in the good.

      [Defense Counsel]: Objection.

      [Court]: Overruled.

      [Commonwealth]: Is there anything else?

      [Witness]: No.

      [Court]: Any questions?

      [Defense Counsel]: No.

      [Court]: Ma’am, you can step down.

N.T. Trial, 4/30/14, at 114-15.

      In support of his argument that the trial court erred in allowing the

Commonwealth to ask, and the witness to respond, about Appellant’s prior

conduct, Appellant relies on Commonwealth v. Morgan, 739 A.2d 1033

(Pa. 1999) (witnesses may not be cross-examined concerning crimes that

did not result in conviction), and Commonwealth v. Busanet, 817 A.2d

1060 (Pa. 2002) (evidence of good character may not be rebutted by

specific acts of misconduct).     Upon review, we conclude Appellant is not

entitled to relief.


                                     -3-
J-S19014-15


     In reviewing the trial court’s ruling, we apply the following standards:

     It is well-established that the admissibility of evidence is within
     the discretion of the trial court, and such rulings will not form
     the basis for appellate relief absent an abuse of discretion.
     Thus, the Superior Court may reverse an evidentiary ruling only
     upon a showing that the trial court abused that discretion. A
     determination that a trial court abused its discretion in making
     an evidentiary ruling may not be made merely because an
     appellate court might have reached a different conclusion, but
     requires a result of manifest unreasonableness, or partiality,
     prejudice, bias, or ill-will, or such lack of support so as to be
     clearly erroneous. Further, discretion is abused when the law is
     either overridden or misapplied.

Commonwealth v. Hoover, J.L., 107 A.3d 723, 729 (Pa. 2014) (citations

and internal quotation marks omitted).

     Regarding the specific matter at issue here, we have held:

     In a criminal case, the accused may offer witnesses to testify to
     the accused’s relevant character traits. Pa.R.E. 404(a)(1). The
     Commonwealth may, of course, attempt to impeach those
     witnesses. [Morgan, 739 A.2d at 1035]. For example, when
     cross examining character witnesses offered by the accused, the
     Commonwealth may test the witnesses’ knowledge about
     specific instances of conduct of the accused where those
     instances are probative of the traits in question. Pa.R.E. 405(a).
     However, the Commonwealth may not question the witnesses
     about allegations of other criminal misconduct by the accused
     where those allegations did not result in a conviction. Morgan,
     739 A.2d at 1035-36 (holding it is improper to cross examine
     character witnesses with respect to their knowledge of
     uncharged      criminal     allegations    against    defendant);
     Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607, 611-12
     (1981) (holding it is improper to cross examine character
     witnesses with respect to their knowledge of defendant’s arrests
     not leading to convictions); Pa.R.E. 405(a).

Commonwealth v. Hoover, J., 16 A.3d 1148, 1149-50 (Pa. Super. 2011).




                                    -4-
J-S19014-15


        First, we note that Appellant waived the issue raised on appeal

because he failed to raise it before the trial court. At the time of trial, as

noted above, Appellant challenged the testimony at issue here on hearsay

grounds.      On appeal, Appellant argues the testimony was inadmissible

because it violated Morgan, Busanet, and Pa.R.E. 405.3 The issue raised

on appeal, however, is different from the one raised before the trial court,

and it cannot be deemed fairly comprised in the latter. 4 Because Appellant

failed to preserve it for appellate review, we conclude it is waived. See Pa.

R.A.P. 302; see also Commonwealth v. Smith, 985 A.2d 886, 904 (Pa.
____________________________________________


3
    Rule 405 reads as follows:

        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 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).
4
  Appellant raised the issue at bar here in his Rule 1925 statement.
However, it is well-established that “a party cannot rectify the failure to
preserve an issue by proffering it in response to a Rule 1925(b) order.”
Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015).



                                           -5-
J-S19014-15


2009) (“[It] is beyond cavil that if the ground upon which an objection is

based is specifically stated, all other reasons for its exclusion are waived.”)

(citation and internal quotation marks omitted); Commonwealth v.

Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (“[F]ailure to raise a

contemporaneous objection to the evidence at trial waives that claim on

appeal.”) (citation omitted).

       Additionally, a review of the challenge actually raised by Appellant and

the trial court’s disposition of the same reveals that the trial court properly

overruled the hearsay objection. As noted above, the Commonwealth asked

its witness what she had heard about Appellant’s character for being a law-

abiding and peaceful citizen, to which the witness answered that she heard

Appellant “fought a lot as a kid,” and “would withhold money from” “people

[who] worked for [Appellant].”         N.T. Trial, 4/30/14, at 114-15. As noted,

Appellant objected to this testimony on hearsay grounds.            The trial court

properly overruled the objection.              Indeed, it is well-established that

reputation evidence is admissible as an exception to the hearsay rule.

Commonwealth v. Zeger, 165 A.2d 683, 686-87 (Pa. Super. 1960);

Pa.R.E. 803(21).5



____________________________________________


5
  For purposes of hearsay, reputation concerning character “is reputation
among a person’s associates or in the community concerning the person’s
character.” Pa.R.E. 803(21).



                                           -6-
J-S19014-15


      Even if we were to conclude the trial court erred in not sustaining

Appellant’s objection, as articulated on appeal, we would find the error to be

harmless.   In Commonwealth v. Noel, 104 A.3d 1156 (Pa. 2014), our

Supreme Court held:

      The harmless error doctrine, as announced in Chapman v.
      California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),
      and adopted by this Court in Commonwealth v. Story, 476 Pa.
      391, 383 A.2d 155 (1978), reflects the reality that the accused is
      entitled to a fair trial, not a perfect trial. Commonwealth v.
      Rasheed, 536 Pa. 567, 570–71, 640 A.2d 896, 898 (1994);
      Commonwealth v. Norris, 498 Pa. 308, 316–17, 446 A.2d
      246, 250 (1982). “[A]n error may be harmless where the
      properly admitted evidence of guilt is so overwhelming and the
      prejudicial effect of the error is so insignificant by comparison
      that it is clear beyond a reasonable doubt that the error could
      not have contributed to the verdict.” Story, 476 Pa. at 412-413,
      383 A.2d at 166.

Id. at 1172.

      Additionally, “[w]hen discussing harmless error, we have also stated

that the Commonwealth can meet its burden of showing harmlessness by

persuading us the error did not prejudice the appellant or did so to a de

minimis extent[.]” Hoover, J., 16 A.3d at 1150 (citation omitted).

      Appellant argues the trial court erred in finding the error harmless

because the trial court did not apply the proper standard for making such a

determination i.e., the trial court’s stated error was harmless because the

evidence was sufficient for conviction.     Appellant’s Brief at 14.       While

Appellant might be correct on this point, Appellant fails to appreciate that

the decision on whether the error was harmless must be made by the


                                    -7-
J-S19014-15


reviewing court, not the trial court.         See, e.g., Commonwealth v.

Mitchell, 839 A.2d 202, 214-15 (Pa. 2003).            Here, despite Appellant’s

allegation to the contrary, there is no indication that the trial court (acting as

factfinder) relied on the allegedly inadmissible evidence.          Therefore, it

appears the error did not prejudice Appellant.        Additionally, we find the

evidence against Appellant overwhelming.           The trial court, sitting as

factfinder, found the following:

      1.    Michelle Soda and [Appellant] were engaged to be married
      for approximately on a year. Ms. Soda broke off relationship.
      After Ms. Soda called off the engagement, she remained in a
      romantic relationship with [Appellant] for approximately two
      months thereafter.

      2.   A[] physical altercation occurred between Ms. Soda and
      [Appellant] on October 20, 2013 at their home.

      3.    Ms. Soda came home that evening at about 8:00 p.m. and
      saw [Appellant] sleeping on the couch located on the first floor
      of their apartment.

      4.    Ms. Soda checked [Appellant]’s cell phone while he was
      asleep and noticed a series of suspicious texts and calls made to
      other women. She woke him up and confronted him about the
      texts and calls.

      5.    [Appellant] became irate and an argument ensued.

      6.    The argument then escalated into physicality and violence.
      After [Appellant] told Ms. Soda bluntly that the calls were not
      “any of her business,” [Appellant] proceeded to push and shove
      Ms. Soda against the wall by her hands. He then picked up Ms.
      Soda and threw her across the hallway.

      7.    More specifically, he cradled Ms. Soda and acted as if he
      was going to body slam her over his leg. He picked her up over
      his shoulder and threw her approximately three or four feet into
      a wall.

                                      -8-
J-S19014-15



     8.    They were standing just prior to that assault near a
     stairwell—[Appellant] threw her away from the stairwell.

     9.   Ms. Soda weighs 90 lbs and is four-ten and a half.

     10. After Ms. Soda landed on the ground, the argument
     continued. [Appellant] continued to shout at Ms. Soda. He held
     Ms. Soda against the wall as he proceeded to yell at her.

     11. Scared that the situation had gotten out of hand, Ms. Soda
     yelled for her daughter to call [9-1-1].

     12. Ms. Soda went downstairs and things calmed down. Ms.
     Soda wrestled free of [Appellant] and called his parents. They
     live around the corner.

     13. Five minutes later, they arrived at the house. Ms. Soda
     stayed in the bedroom until they showed up and answered the
     door when they arrived.

     14. [Appellant]’s parents took the daughter out of the house
     and gave her to his sister, who was waiting in the car. This
     enraged [Appellant].

     15. As Ms. Soda was standing there telling his parents about
     the altercation, [Appellant] shoved her in the shoulder. She flew
     back onto the ground.

     16. At that time, [Appellant’]s parents, [Appellant] and Ms.
     Soda were all standing upstairs in his bedroom arguing.
     [Appellant]’s parents tried to get him to come with them and
     leave the house. He refused.

     17. Again, while standing near the stairwell, [Appellant]
     grabbed Ms. Soda and tried to push her down the stairs.

     18. Ms. Soda held onto the wall of where the stairs were, at
     which point his mother came and attempted to stop him.

     19. Eventually, Ms. Soda did fall down the stairs and could not
     hold on any longer. He did not throw her, but she lost her grip
     as he was pushing her.


                                   -9-
J-S19014-15


      20.   She landed on her side at the bottom of the stairs.

      21. While [Appellant]’s parents were present, Ms. Soda called
      [9-1-1].

      22. [Appellant]’s parents indicated they were going to leave;
      however, Ms. Soda asked that they stay in the house and remain
      there with her. His mom said that she would spend the night.
      The parents slept in his daughter’s bedroom and his room.

      23.   The police arrived hours later.

      24. Ms. Soda did not answer the their knock, as she was . . .
      trying [not] to get her then[-]boyfriend in any trouble.

      25. When she awoke the next day, she noticed a number of
      bruises and marks on her body.

      26. That morning, Ms. Soda went to the police station at 8:00
      or 8:30 a.m.

      27. Ms. Soda’s injuries included bruised palms and wrists,
      soreness in her elbow and some marks on her back.

Trial Court Opinion, 9/25/14, at 2-5 (citations to record omitted).

      In light of the foregoing, we would conclude that the evidence of guilt

is so overwhelming and the prejudicial effect of the error, if any, is so

insignificant by comparison that it is clear beyond a reasonable doubt that

the error, if any, could not have contributed to the verdict.

      Judgment of sentence affirmed.




                                     - 10 -
J-S19014-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




                          - 11 -
