J-S08043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY O’DONNELL,

                            Appellant                No. 2514 EDA 2014


             Appeal from the Judgment Of Sentence July 23, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000536-2013


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED JANUARY 23, 2015

       Following a bench trial, the trial court found Timothy O’Donnell guilty

of simple assault1 for striking his daughter in the nose. The court sentenced

O’Donnell to 6-12 months’ imprisonment. O’Donnell filed a timely appeal to

this Court, and both O’Donnell and the trial court have complied with

Pa.R.A.P. 1925. O’Donnell raises a single issue in this direct appeal: “The

trial court erred in precluding [O’Donnell] from cross-examining the

[complainant] concerning [her] mental health history.” Brief For Appellant,

p. 18.     We conclude that the trial court acted within its discretion in

precluding this testimony. Accordingly, we affirm.

____________________________________________


1
   18 Pa.C.S. § 2701(a)(1). The court also found O’Donnell guilty of
harassment and disorderly conduct but did not impose any penalty for these
offenses.
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      To place O’Donnell’s single argument in context, we outline the

evidence adduced during trial.         On September 22, 2012, O’Donnell’s

daughter, C.O., took the bus to a local mall without O’Donnell’s permission.

N.T., 4/16/14, pp. 66-67. C.O. took this trip with her friend, M.D. Id. at p.

29.   The O’Donnell family lives across the street from M.D.’s family.      Id.

O’Donnell was upset both because he thought C.O. had taken money from

him and because she was not answering her cell phone. Id. at pp. 66-67.

He spoke with M.D.’s mother at her home and learned their daughters had

gone to the mall. Id. at pp. 9, 66-67.

      O’Donnell began driving towards the mall and found C.O. and M.D.

exiting a cab at a baseball field near their homes. Id. at p. 68. He drove

them back to M.D.’s home, and M.D. got out of the vehicle. Id. at p. 18.

O’Donnell and C.O., both of whom were still in the vehicle, began arguing as

O’Donnell attempted to wrest C.O.’s cell phone from her grasp. Id. at pp.

13, 32. O’Donnell grabbed C.O.’s shirt, ripping the collar, and struck her in

the face. Id. at pp. 32-33.

      M.D.’s mother heard a loud scream and saw C.O. running down the

street with blood on her face.      Id. at p. 13.   She took C.O. inside M.D.’s

residence and contacted the police. Id. at p. 15.         O’Donnell came to the

door, but M.D.’s mother would not permit him inside or allow access to C.O.

until the police arrived.     Id.   The police arrived and observed O’Donnell

yelling profanities at M.D.’s house. Id. at pp. 53, 58.


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        C.O. testified on direct examination that while she was in O’Donnell’s

car he pulled her shirt and punched her in the nose, causing it to bleed. Id.

at 32-33. She stated that O’Donnell grabbed the phone “after he punched

me.”      Id. at 46.       On cross-examination, defense counsel inquired if

O’Donnell bumped her in the nose during their struggle over the cellphone,

and C.O. answered: “I’m not quite sure.” Id. at 47. Defense counsel asked:

“He was tugging at [the phone] and you were tugging back, is that fair to

say?” C.O. agreed. Id.

        C.O. wrote several letters to O’Donnell after the altercation, one of

which said: “I’m sorry for the other letters, but I was really mad, you didn’t

really hit me, I bumped it on the ground.” Id. at 36. C.O. testified that she

wrote this because she did not want O’Donnell to get into trouble, adding:

“Deep down I love my dad.” Id. She testified: “I don’t like when people get

in trouble. I like blame myself for it.” Id. at 37. On cross-examination, C.O.

acknowledged that she was in Horsham Clinic2 when she wrote these letters.

Id. at 38. She stated she was in the clinic “because of the whole issue. And

I got mad and I just was trying to run away.” Id. When asked, “who were

you trying to run away from?” C.O. responded: “This whole situation. I just

don’t feel like I need to go through it.” Id. She further exclaimed: “Because



____________________________________________


2
    The record does not describe the nature of the Horsham Clinic.



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I don’t think — I don’t think I should be in this world...I just don’t think that

people love me.” Id. at 38-39.

      We turn to the line of questions at the heart of this appeal. On cross-

examination, the following exchange took place:

            DEFENSE COUNSEL: C.O., you have had a history of
            mental illness; is that right?

            PROSECUTOR: Objection, your Honor.

            THE COURT: Sustained.

            Q. Did you ever try to injure yourself?

            A. What?

            PROSECUTOR: You don’t even have to answer that
            one.

            Q. You have injured yourself in the past, right?

            PROSECUTOR: Objection.

            THE COURT: Sustained.

            Q. You banged your head into the wall?

            PROSECUTOR: Objection.

            THE COURT: Sustained.

            THE WITNESS: I told you my life is worthless. I told
            you I am worthless. (At this time, the witness exits
            the courtroom)

            PROSECUTOR: Judge, can I ask you know, how
            many questions remain? I’m not trying to limit Mr.
            Keightly’s cross- examination, but I certainly want to
            move on from that line of questioning.




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           THE COURT: All right. Mr. Keightly, can you give me
           an idea.

           DEFENSE COUNSEL: It is killing me, Your Honor. I
           am going to just cut it off and have Mr. O’Donnell
           speak to the Court, if that is okay. I mean, I don’t
           have it in my heart to cross examine this girl
           anymore. You know it is —

           THE COURT: Well, I mean, you have the duty to
           cross examine her and represent your client. What
           does your client want to do?

           DEFENSE COUNSEL: Well —

           THE COURT: Do you want to speak with him?

           (Discussion off the record between defense counsel
           and the defendant)

           DEFENSE COUNSEL: He says he doesn’t want to put
           her through it anymore. He would like to tell his side
           and then have your Honor make a decision.

           PROSECUTOR: The Commonwealth will waive any
           redirect examination as well then. We will just move
           on to the next witness.

           (At this time, the witness returns to the courtroom)

           PROSECUTOR: Good news, you are done.

           (Witness excused)

Id. at pp. 48-51.    O’Donnell now argues that the trial court erred in

sustaining the Commonwealth’s objections and precluding him from cross-

examining C.O. on her mental health history. Brief For Appellant, pp. 18-26.

     In general, the admission of evidence

           is a matter vested within the sound discretion of the
           trial court, and such a decision shall be reversed only

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            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.

Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super.2009).

Furthermore, when determining the admissibility of evidence of a witness’

mental instability,

            [t]he crucial determination that a trial judge must
            make. . .is whether [this evidence] is related to the
            subject of the litigation or whether it affects the
            testimonial ability of the witness so as to impeach
            him. The evidence can be said to affect the credibility
            of a witness when it shows that his mental
            disorganization in some way impaired his capacity to
            observe the event at the time of its occurrence, to
            communicate his observations accurately and
            truthfully at trial, or to maintain a clear recollection
            in the meantime.

Commonwealth v. Mason, 518 A.2d 282, 285 (Pa.Super.1986).

      O’Donnell has waived this argument.       O’Donnell’s attorney withdrew

his attempt to cross-examine C.O. on her mental health history by stating

“[O’Donnell]. . .doesn’t want to put her through it anymore” after C.O.

exited the courtroom during her cross-examination. N.T., 4/16/14, pp. 49-

51.   Commonwealth v. Moore, 635 A.2d 625, 628 (Pa.Super.1993)

(defendant waived relevancy objection to toxicologist’s testimony about


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defendant’s blood alcohol content at time of testing where relevancy

objection was withdrawn during trial).

      Even if O’Donnell preserved this argument for appeal, it is devoid of

merit.   O’Donnell seems to believe that C.O. has some mental illness

because C.O. has had treatment at the Horsham Clinic and because of C.O.’s

testimony that she feels worthless and unloved.            O’Donnell fails to

demonstrate, however, that C.O.’s alleged mental illness “in some way

impaired [her] capacity to observe the [critical] event[s] at the time of

[their] occurrence, to communicate [her] observations accurately and

truthfully at trial, or to maintain a clear recollection in the meantime.”

Mason, supra, 518 A.2d at 285. Absent this showing, cross-examination

concerning C.O.’s alleged mental illness is inadmissible. The trial court thus

acted within its discretion by precluding questions on this subject.

      Finally, even if the trial court abused its discretion, such error was

harmless, because the court admitted other evidence of C.O.’s mental illness

which it factored into the verdict.    Harmless error is error that does not

prejudice the defendant.    Commonwealth v. Adams, 39 A.3d 310, 322

(Pa.Super.2012). “[A]n error will be deemed harmless where the appellate

court is convinced beyond a reasonable doubt that the error could not have

contributed to the verdict.”   Id.   “Where there is a reasonable probability

that an error might have contributed to the conviction, the error is not

harmless.”    Commonwealth v. Story, 383 A.2d 155, 163 (Pa.1978).


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O’Donnell submitted evidence of C.O.’s mental health through his own

testimony. N.T., 4/16/14, p. 73 (“I had counselors coming out to the house

once, twice a week.       They were going to her school. . .She was on

medication.    You know, going back to doctors trying to – they were

switching her medications because they were trying to see what works

best”).   The trial court considered C.O.’s condition and wrote: “Testimony

from both [O’Donnell] and [C.O.] made this court aware of some of her

mental health history. . .yet this court did not credit [O’Donnell’s] version of

what occurred in the vehicle.” Pa.R.A.P. 1925(a) Opinion, p. 5.

      For these reasons, we affirm O’Donnell’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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