J-A10018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELTON MOLINA                               :
                                               :
                       Appellant               :   No. 2704 EDA 2018

             Appeal from the Judgment of Sentence August 24, 2018
                In the Court of Common Pleas of Carbon County
              Criminal Division at No(s): CP-13-CR-0001109-2014


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                    FILED MAY 31, 2019

         Elton Molina appeals from the judgment of sentence imposed August

24, 2018, in the Carbon County Court of Common Pleas.             The trial court

sentenced Molina to an aggregate term of 11 to 22 years’ imprisonment,

following his jury conviction of robbery1 and related charges for his

participation in a gunpoint holdup of a grocery store in September of 2014.

Molina’s appeal focuses on the trial court’s ruling that precluded him from

introducing proffered evidence based on his failure to file a pretrial notice of

alibi.    Because we agree with Molina that the proposed evidence did not

constitute an alibi, and, therefore, he was not required to file a pretrial notice,

we vacate the judgment of sentence and remand for a new trial.


____________________________________________


1   See 18 Pa.C.S. §3701(a)(1).
J-A10018-19



      The facts underlying Molina’s conviction, as presented during his jury

trial, are aptly summarized by the trial court as follows:

            Around 7:30 P.M. on September 10, 2014, a strong-armed
      robbery occurred at the Tresckow Superfood in Tresckow, Banks
      Township, Carbon County. Pennsylvania State Police obtained
      statements from various witnesses, one of whom identified, in
      general terms, what the two suspects were wearing.

             This witness, Ashley Cannon (hereinafter “Cannon”)
      testified that she was across the street from the Tresckow
      Superfood when she heard a commotion1 and saw two individuals
      walking towards the Superfood. Cannon was able to initially
      identify these two individuals as African-American. One of these
      two individuals was wearing a darker jacket and dark pants. The
      jacket, as Cannon explained, had a hood which this individual had
      used to cover his head, and in the words of Cannon was “pulled
      tight”, presumably in an attempt to obscure his face. Cannon next
      observed these individuals enter the store with the other shorter,
      stockier individual, striking the victim, Manoj Patel, with a gun.
      Molina was observed by Cannon, behind the counter. At that point
      Cannon ran to another location of the residence where she was
      visiting, but returned moments later to observe these same two
      individuals running from the store in the same direction from
      which they came.
         __________
         1  Cannon described the “commotion” as whooping and
         clapping.
         __________

            The State Police also obtained a video from a nearby
      residence which depicts two similarly dressed individuals walking
      towards the scene prior to the time the robbery occurred and then
      moments later that same video shows what appears to be the
      same two individuals running away from the scene.

            Found near the crime scene by the State Police was a right-
      handed glove and a CO2 gun which was seized and retained as
      possible evidence in this investigation.

            The victim, Manoj Patel, also testified regarding this
      incident. He described the attack by these individuals as well as
      the serious injuries he sustained from being struck. He also

                                     -2-
J-A10018-19


     provided testimony that mirrored that of Cannon regarding
     general descriptions of the individuals but more specific
     information regarding what they were wearing. Patel also testified
     that the individual with the hood pulled up was also wearing ski
     goggles.

           During an unrelated criminal investigation involving Molina’s
     co-defendant, Amir Edwards (hereinafter “Edwards”), police
     seized items of evidence from a vehicle including a left-handed
     glove, that matched the right-handed glove found near the crime
     scene, and a set of ski googles and a BC/BS card belonging to the
     victim, Manoj Patel. Edwards was a passenger in that vehicle at
     the time of the stop and prior to seizure of these items.

           The Commonwealth then produced Michele Berger
     (hereinafter “Berger”) as a witness. Berger was the ex-girlfriend
     of Molina and mother of his child, and was still friendly with him.
     Berger testified that at some time after this incident she had
     occasion to be in Molina’s company and testified that Molina told
     her that the police wanted to talk to him about a robbery. Berger
     also testified that Molina showed her a selfie2 of himself dressed
     in a black sweater (as Berger describes it) and wearing goggles.
     Molina asked Berger “if [she] could recognize him?” She testified
     that she could tell it was him. Berger also testified that Molina
     asked her for money to go to Canada and that Edwards3 pistol
     whipped a man. Berger also testified that while being questioned
     by the police, she was shown the surveillance video from that
     same neighborhood camera and that one of the individuals in that
     video was wearing the same clothing that was worn by Molina in
     the selfie.
        __________
        2 A selfie, for those who are not technologically advanced,
        is a picture of oneself taken by oneself.
        3 Berger testified that Molina referred to Edwards as
        “BooBoo” and that she knew Edwards by that nickname.
        __________

           The Commonwealth also called Lauren Force from the
     Bureau of Forensic Sciences at the Wyoming State Police Lab. Ms.
     Force was qualified as an expert in DNA analysis. She testified
     that she received two known DNA samples, one each from Molina
     and Edwards. She further testified that she analyzed several
     pieces of evidence including the gloves and ski go[g]gles. It was
     her expert opinion that the sample piece taken from the left-

                                    -3-
J-A10018-19


        handed glove contained DNA compatible to that of both Molina
        and Edwards. She further opined that neither of these individuals
        could be excluded as possible sources of the DNA found on this
        glove and based on her analysis that the likelihood of two other
        African–Americans providing that combination of DNA was one in
        790 quadrillion and of two Hispanic individuals, one in 2.8
        quintillion. Force also testified that, as to the goggles, she could
        not provide an opinion as the results of her testing were
        “uninterpretable”, meaning there were too many overlaps in the
        DNA she found to specifically identify a source of the DNA found
        on the go[g]gles.

Trial Court Opinion, 10/18/2018, at 1-5.

        Based on the above-stated evidence, Molina was arrested and charged

with robbery, theft, conspiracy (two counts), and simple assault. 2 The case

proceeded to a jury trial commencing on May 7, 2018.3                   After the

Commonwealth rested its case-in-chief on May 8, 2018, Molina’s counsel

informed the court that a defense witness would not be available until the next

day. See N.T., 5/8/2018, at 129. When the Commonwealth asked for an

offer of proof, Molina’s counsel stated:         “He is going to be doing an

identification of an individual.” Id. The court then recessed the trial until the

next morning.

        On May 9, 2018, defense counsel called Daniel Shitovich as her first

witness.    The Commonwealth immediately asked to approach the court at


____________________________________________


2   See 18 Pa.C.S. §§ 3701(a)(1), 3921(a), 903, and 2701(a)(1), respectively.

3 Molina’s co-defendant, Amir Edwards, entered a guilty plea to one count of
robbery on September 20, 2016. His judgment of sentence was affirmed on
direct appeal by this Court on May 1, 2019. See Commonwealth v.
Edwards, ___ A.3d ___, 2305 EDA 2018 (Pa. Super. 2018) (unpublished
memorandum).

                                           -4-
J-A10018-19



sidebar, where it requested an offer of proof.            See N.T., 5/9/2018, at 2.

Defense counsel explained that Shitovich would establish a foundation for a

video she intended to introduce.               The video purported to show another

individual (not Molina), dressed similarly to one of the perpetrators, using the

victim’s credit cards at a Giant Store in Hazelton several hours after the

robbery at issue. See id. at 2-4. Counsel then intended to call a private

investigator, who would identify the person in the video as Seth Hughes, not

Molina. See id. at 3-4. The Commonwealth objected on the basis that Molina

never provided a pretrial alibi notice. After a lengthy discussion, the trial court

concluded Molina’s counsel was attempting to present a “backdoor alibi”

without having sent the requisite pretrial notice to the Commonwealth, and

precluded the evidence from being admitted at trial.           Id. at 23. The jury

subsequently returned a verdict of guilty on the charges of robbery, theft, and

two counts of conspiracy.4 Thereafter, on August 24, 2018, the trial court

sentenced Molina to an aggregate term of 11 to 22 years’ imprisonment. This

timely appeal follows.5

        Although Molina identifies three issues on appeal, they all focus on the

trial court’s exclusion of his evidence concerning the Giant store surveillance

____________________________________________


4   The jury found Molina not guilty of simple assault.

5 On September 4, 2018, the trial court ordered Molina to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Molina complied with the court’s directive, and filed a concise statement on
September 18, 2018.


                                           -5-
J-A10018-19



video. Specifically, Molina argues the trial court erred or abused its discretion

in concluding: (1) the proposed evidence constituted alibi evidence, for which

Molina had neglected to file a pretrial notice of alibi; (2) the evidence was, in

any event, not relevant; and (3) any error of the trial court was harmless.

See Molina’s Brief at 4.

       Our review of a challenge to the trial court’s exclusion of evidence at

trial is guided by the following:

       The admissibility of evidence is within the sound discretion of the
       trial court, wherein lies the duty to balance the evidentiary value
       of each piece of evidence against the dangers of unfair prejudice,
       inflaming the passions of the jury, or confusing the jury.
       Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (2010);
       Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 141
       (2007). We will not reverse a trial court’s decision concerning
       admissibility of evidence absent an abuse of the trial court's
       discretion.    Flor, 998 A.2d at 623; Commonwealth v.
       Champney, 574 Pa. 435, 832 A.2d 403, 416 (2003).

Commonwealth v. Chamberlain, 30 A.3d 381, 420 (Pa. 2011), cert. denied,

566 U.S. 986 (2012).

       In his first issue, Molina contends the trial court “misapplied the law of

alibi defense” when it determined his proposed evidence constituted an alibi,

and, accordingly, excluded the evidence because Molina failed to provide

pretrial notice to the Commonwealth pursuant to Pa.R.Crim.P. 567.6
____________________________________________


6 We note Molina consistently, and incorrectly, cites to Pennsylvania Rule of
Criminal Procedure 305. The requirement that a defendant must file a pretrial
notice of alibi was originally codified in Rule 305. However, in 2001, that Rule
was renumbered as Rule 573, under the heading, “Pretrial Discovery and
Inspection.” See Pa.R.Crim.P. 573, Note. Subsequently, in 2006, Rule 567



                                           -6-
J-A10018-19



       When a defendant intends to offer an alibi defense at trial, Rule 567

requires the defendant file a notice of the alibi with the court, and serve it on

the Commonwealth. See Pa.R.Crim.P. 567(A). The Rule mandates:

       The notice shall contain specific information as to the place or
       places where the defendant claims to have been at the time of the
       alleged offense and the names and addresses of the witnesses
       whom the defendant intends to call in support of the claim.

Pa.R.Crim.P. 567(A)(2). Furthermore, if a defendant fails to file and serve the

requisite notice of alibi, Subsection (B)(1) provides:

       [T]he court may exclude entirely any evidence offered by the
       defendant for the purpose of proving the defense, except
       testimony by the defendant, may grant a continuance to enable
       the Commonwealth to investigate such evidence, or may make
       such other order as the interests of justice require.

Pa R.Crim.P. 567(B)(1).          Accordingly, “[t]he imposition of sanctions for

violations of [Rule 567] rests in the sole discretion of the trial court.”

Commonwealth v. Zimmerman, 571 A.2d 1062, 1067 (Pa. Super. 1990)

(citations omitted), appeal denied, 600 A.2d 953 (Pa. 1991), cert. denied, 503

U.S. 945 (1992).

       In the present case, Molina concedes he did not file a pretrial notice of

alibi defense. However, he insists the evidence he intended to present did not

constitute an alibi, and, therefore, he was not required to provide Rule 567

notice. We agree.




____________________________________________


was codified to pertain specifically to the notice requirements for an alibi
defense. See Pa.R.Crim.P. 567 (“Notice of Alibi Defense”), Comment.

                                           -7-
J-A10018-19



      “The long-accepted definition of alibi is ‘a defense that places the

defendant at the relevant time in a different place than the scene involved and

so removed therefrom as to render it impossible for him to be the guilty

party.’”   Commonwealth v. Roxberry, 602 A.2d 826, 827 (Pa. 1992)

(quotation omitted).     See also Black’s Law Dictionary (10th Ed. 2014)

(defining “alibi” as “[a] defense based on the physical impossibility of a

defendant’s guilt by placing the defendant in a location other than the scene

of the crime at the relevant time.”).       Indeed, “[a]ll that is required [to

demonstrate an alibi defense is] that, due to separation, it is impossible for

the defendant to have committed the crime.” Commonwealth v. Dennis,

17 A.3d 297, 302 (Pa. 2011). A panel of this Court has explained:

      There is a difference between a “general denial of guilt” and an
      alibi. When the defendant generally denies his guilt, he is simply
      saying “I didn't do it.” An alibi defense, on the other hand, not
      only declares “I didn't do it” but also says: “and it
      couldn't possibly have been me since I was someplace else when
      the crime occurred.”

Commonwealth v. Hall, 867 A.2d 619, 636 (Pa. Super. 2005) (internal

citation omitted), appeal denied, 895 A.2d 549 (Pa. 2006). Obviously, the

focus of an alibi defense is the location of the defendant at the time of the

crime.

      As noted supra, a defendant who intends to present an alibi defense at

trial must file a pretrial notice of this defense pursuant to Rule 567. “The

purpose of the Rule is to insure ‘both the defendant and the State ample

opportunity to investigate certain facts crucial to the determination of guilt or


                                      -8-
J-A10018-19



innocence.’”   Commonwealth v. Lyons, 833 A.2d 245, 257 (Pa. Super.

2003) (quotation omitted), appeal denied, 879 A.2d 782 (Pa. 2005).           In

Commonwealth v. Fernandez, 482 A.2d 567 (Pa. Super. 1984), a panel of

this Court considered whether the notice rule violated a defendant’s

constitutional right to present a defense. See id. at 571. In concluding it did

not, and that the trial court properly excluded the defendant’s alibi evidence

in the absence of proper notice, the panel opined:

             Rule [567] addresses the delicate balance between the
      interest of the accused in presenting a full and complete defense
      and the interest of the Commonwealth in avoiding fabricated
      alibis, unfair surprise, and the inevitable delay of justice wrought
      by an “eleventh-hour defense.” See Williams v. Florida, 399
      U.S. 78, 81–82, 90 S.Ct. 1893, 1895–1896, 26 L.Ed.2d 446
      (1983). Appellant’s argument is all the more poignant where he
      faces life sentences for his murder convictions.

            The Supreme Court of the United States has expressly
      reserved the question of the constitutionality of the preclusion of
      witness alibi testimony for noncompliance with notice provisions.
      Wardius v. Oregon, 412 U.S. 470, at 472 n. 4, 93 S.Ct. 2208,
      at 2211 n. 4, 37 L.Ed.2d 82 (1973); Williams v. Florida, 399
      U.S. at 83 n. 14, 90 S.Ct. at 1897 n. 14, 26 L.Ed.2d 446
      (1970). Williams is of particular interest to us. There, the Court
      held that a Florida statute requiring advance notice of an alibi
      defense was valid on its face. The Court reasoned that there is
      ample room in the adversary system for a rule “designed to
      enhance the search for truth in the criminal trial by insuring both
      the defendant and the State ample opportunity to investigate
      certain facts crucial to the determination of guilt or innocence.”
      399 U.S. at 82, 90 S.Ct. at 1896. Rule [567] serves this same
      pursuit of justice and is constitutional on its face.

Id. at 571-572.

      From these cases, we extract the following principles. An alibi defense

is one that places the defendant at a different location than the scene of the


                                     -9-
J-A10018-19



crime, so that it would have been physically impossible for the defendant to

commit the offense. Furthermore, when a defendant intends to present an

alibi defense, he must provide notice to the Commonwealth, detailing his

location at the time of the crime, and listing any persons he was with, so that

the Commonwealth may conduct its own investigation of the defense before

trial.

         In the case sub judice, Molina sought to present evidence that another

person, wearing clothing similar to one of the perpetrators in the surveillance

video, was caught on video in a Giant grocery store several hours after the

robbery, using Patel’s credit cards. See N.T., 5/9/2018, at 4. The trial court

determined this evidence constituted a “back door alibi:”

         Since Molina was attempting to show that the person in the store
         video was the person who committed the crime and was present
         at the scene of the crime wearing clothing similar to that observed
         by eyewitnesses and on a video and on Molina’s selfie and was
         someone other than himself, he is therefore placing himself
         elsewhere. By doing this, he was attempting to present an alibi
         defense or as this Court called it, a “back door alibi” by attempting
         to show someone else was at the scene wearing clothing observed
         and proving to be worn by the perpetrator as shown by the
         Commonwealth.

Trial Court Opinion, 10/18/2018, at 16-17.         Because Molina failed to notify

the Commonwealth of this proposed evidence before trial pursuant to Rule

567, the court excluded the evidence.

         Here, however, we agree with Molina that his proposed evidence did not

place him at a different location than the scene of the crime at the time of the

offense. See Roxberry, supra; Molina’s Brief at 20. In fact, the evidence


                                        - 10 -
J-A10018-19



did not speak to Molina’s whereabouts at all.       Rather, Molina’s proposed

testimony - that another person, dressed similarly to the perpetrator who was

“identified” as Molina,7 was using the victim’s credit cards a few hours after

the crime – could create a reasonable doubt as to the identity of the

perpetrator. A defendant is not required to notify the Commonwealth before

trial of all exculpatory evidence he intends to present, including evidence such

as in the present case, which supports a mistaken identity defense.

       While the trial court found Molina’s proposed evidence constituted a

“back door alibi,” it provides no authority for its ruling. Our research confirms

an alibi constitutes evidence that the defendant was somewhere other than

the scene of the crime; evidence that does not pertain to the defendant’s

location at the time of the crime does not constitute an alibi. Accordingly, we

conclude the trial court erred when it precluded Molina’s proposed evidence

because he did not provide the Commonwealth with pretrial notice of an alibi

defense pursuant to Pa.R.Crim.P. 567.8
____________________________________________


7 It bears emphasis that the only witness who “identified” Molina as one of the
masked robbers was Berger, and her identification was based solely on the
clothing the perpetrator was wearing. Although Berger identified Molina in the
surveillance footage on direct examination, she admitted under cross-
examination that she believed the person was him because the perpetrator
was “wearing the outfit that [Molina] had the selfie in.” N.T., 5/8/2018, at
76. She also stated, “He wears that outfit a lot.” Id. at 83.

8 The trial court’s insistence that Molina was attempting to “plac[e] himself
elsewhere” by introducing this evidence runs afoul of a defendant’s burden of
proof in a criminal case. Trial Court Opinion, 10/18/2018, at 16-17. Indeed,
Molina has no burden to explain where he was on the night of the robbery;



                                          - 11 -
J-A10018-19



       In his second issue on appeal, Molina argues the trial court’s alternative

basis for precluding the proposed evidence fails as well. The trial court found

that even if the evidence did not constitute “a true alibi defense,” the court

“could have limited or denied this testimony on pure relevancy or hearsay

grounds.” Trial Court Opinion, 10/18/2018, at 17. The court opined:

       [The private investigator] could not have testified to any more
       than that he observed a person wearing similar clothing. He would
       not have been able to identify the person in the store video; he
       would not be able to make a comparison of the person in that
       video to the person in the other video; he would not be able to
       testify as to what that other person was doing … all of that would
       be inadmissible hearsay and properly excluded. Further, the
       quality of the evidence was suspect as well. As proffered by
       Molina, all [the private investigator] would testify to would be that
       the clothing was “similar” to that worn by the person identified by
       Commonwealth witnesses. There were no identifying logos or
       insignias on the clothing worn by the person in the Commonwealth
       video. Thus, it would be pure speculation for [the private
       investigator] to say definitely that it was the exact same clothing
       worn by the individual in the Commonwealth’s video, Molina’s
       selfie shown to Berger as well as the testimony of the
       eyewitnesses and the victim himself.
                                         …

              Even if Molina was attempting to show “misidentification” as
       a defense here, his proffered testimony falls woefully short to
       evidence this defense. The clothing worn by the individuals is not
       on trial; [Molina] is and the testimony proposed to be elicited from
       [the private investigator] was not going to the issue of
       misidentification of the person involved. Thus, it was properly
       excluded.

Id. at 17-18.



____________________________________________


rather, he need only hold the Commonwealth to its burden to prove beyond a
reasonable doubt that he was one of the perpetrators.

                                          - 12 -
J-A10018-19



       Molina    maintains,     however,       that   the   proffered   evidence   was

“undoubtedly relevant” because it “tended to show that another individual

committed the crime in question.” Molina’s Brief at 22. Again, we agree.

       Pursuant to Pennsylvania Rule of Evidence 401, “[e]vidence is relevant

if: (a) it has any tendency to make a fact more or less probable than it would

be without the evidence; and (b) the fact is of consequence in determining

the action.” Pa.R.E. 401. The trial court’s ruling focuses on only one aspect

of the proposed evidence – that is, a person wearing clothing similar to one of

the perpetrators was captured on surveillance video hours after the robbery.

If that was the full extent of Molina’s proposed evidence, we would agree with

the court’s decision. However, the court ignores several key points concerning

the evidence Molina sought to present.

       First, according to counsel’s proffer, the Giant surveillance video was

provided to the defense by the Commonwealth, and pursuant to the state

trooper’s investigation, “[t]he person in the video used the [victim’s] credit

cards[.]”    See N.T., 5/9/2018, at 3.             Second, counsel stated the Giant

surveillance video provided “a very clear shot of that person’s face” and it is

clear the person was not Molina.9 N.T., 5/9/2018, at 14. When asked why

the evidence was relevant, counsel explained: “He used the credit cards of

the victim and he is wearing the exact same outfit that [Molina] was allegedly

wearing when the robbery took place.” Id. at 4.
____________________________________________


9 Counsel also stated her private investigator ultimately identified the person
in the Giant video as Seth Hughes. See N.T., 5/9/2018, at 3-4.

                                          - 13 -
J-A10018-19



      Third, the trial court downplays the similarities in the clothing worn by

the perpetrator and the person observed in the Giant video. Both Cannon and

Patel described one of the perpetrators as wearing light colored shorts and a

dark jacket or hoodie, with the hood tight around his face, and covering his

eyes with ski goggles. See N.T., 5/7/2018, at 100, 119, 142. Neither was

able to identify the face of the perpetrator, and their description of the clothing

was generic. The jury had the opportunity to observe the surveillance video

of the perpetrators on the street, and a still photo that was derived from the

video.   See id. at 102, 166.       Although Berger identified Molina on the

surveillance video, she acknowledged she did so based solely on the clothing

the perpetrator was wearing. See N.T., 5/18/2018, at 76. She explained

Molina had shown her a photograph of himself wearing tan pants, a black

sweater and goggles, which matched the outfit of the perpetrator in the video.

See id. at 57-58, 76. That “selfie,” however, was not introduced into evidence

or shown to the jury. Accordingly, the similarities between Molina’s outfit in

the “selfie” and the perpetrator’s generic black jacket and tan shorts was

based solely on Berger’s opinion. As Molina’s counsel argued before the trial

court:

      [I]t is not just about the clothing he was wearing. This is the same
      – this person used the victim’s credit cards less than four hours
      later, on the same day, wearing the same outfit. It’s not just a
      person off the street.

N.T., 5/9/2018, at 19.




                                      - 14 -
J-A10018-19



      Therefore, we find that, to the extent the trial court precluded Molina’s

proffered evidence on relevancy grounds, the court abused its discretion. The

fact that another person (not Molina) was wearing the same clothing as the

perpetrator hours after the robbery while attempting to use the victim’s stolen

credit cards is relevant to Molina’s misidentification defense.

      Lastly, Molina addresses the trial court’s ultimate determination that,

even if its decision was incorrect, the ruling would constitute harmless error.

See Molina’s Brief at 23-28.

      The well-established analysis for determining if an erroneous evidentiary

ruling constituted harmless error is as follows:

      Harmless error exists if the record demonstrates either: (1) the
      error did not prejudice the defendant or the prejudice was de
      minimis; or (2) the erroneously admitted evidence was merely
      cumulative of other untainted evidence which was substantially
      similar to the erroneously admitted evidence; or (3) the properly
      admitted and uncontradicted evidence of guilt was so
      overwhelming and the prejudicial effect of the error was so
      insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671–672 (Pa. 2014), cert.

denied, 135 S.Ct. 164 (U.S. 2014).

      In the present case, the trial court concisely opined:

      [E]ven if the trial court was incorrect in its ultimate ruling, the
      refusal to allow this evidence is harmless error in light of the
      cumulative testimony identifying Molina as the perpetrator of
      these offenses, including Berger’s testimony, DNA evidence and
      Molina’s statements to Berger.




                                     - 15 -
J-A10018-19



Trial Court Opinion, 10/18/2018, at 19.10 However, Molina asserts, and we

agree, the evidence presented at trial was not so overwhelming that the error

could not have contributed to the verdict. See Molina’s Brief at 25-28.

       As noted supra, the “identification” testimony was speculative at best.

Neither Patel nor Cannon identified Molina as one of the robbers.

Furthermore, Berger identified him based solely on the clothing worn by the

perpetrator, which she claimed was the same as clothing Molina was wearing

in a “selfie” he showed her a few days later. Although Berger also testified

that Molina made some incriminating statements to her, none of his

statements amounted to an explicit confession,11 and the weight to be

accorded Berger’s testimony was a question for the fact-finder. Finally, with

regard to the DNA evidence, the only item which contained Molina’s DNA

____________________________________________


10 The Commonwealth does not provide any further analysis of this argument.
See Commonwealth’s Brief at 6-7.
11 Berger testified she and Molina spent the evening of September 13, 2014,

together and stayed up all night drinking. See N.T., 5/8/2018, at 62-63.
Sometime during the night, she claimed Molina told her “officers wanted to
talk to him about something” and that “there was an incident with a robbery.”
Id. at 56. On direct examination, Berger testified Molina “just told me that
his friend [Edwards] – they got in a car and robbed somebody” and that
Edwards “[p]istol whipped a man.” Id. at 57. She also stated he showed her
picture of himself wearing tan pants, a black sweater and goggles, and asked
“Can I recognize him.” Id. at 58. Berger said they separated the next
morning, but Molina called her later that afternoon and asked her for money
“[t]o go to Canada” because “he wanted to run.” Id. at 58-59. Under cross-
examination, Berger conceded that Molina did not “exactly” say he committed
a robbery, but rather, he told her “his friend did.” Id. at 66. However, she
did later state Molina told her his motive was “[t]o help pay his father[’s]
rent.” Id. at 87.



                                          - 16 -
J-A10018-19



profile was the left-handed glove, which was not recovered at the crime scene.

See N.T., 5/8/2018, at 44, 115.            While we could find this evidence was

sufficient to sustain Molina’s conviction, we are hard pressed to conclude the

evidence supporting an inference guilt was so overwhelming, and the

prejudicial   effect   of   precluding     Molina’s   proffered   evidence   was   so

insignificant, that it could not have contributed to the verdict. 12 Accordingly,

Molina is entitled to a new trial.

         In summary, we conclude:          (1) the trial court erred in determining

Molina’s proposed evidence constituted an alibi defense, and (2) the court

abused its discretion in finding that even if its initial ruling was incorrect, the

proffered evidence was either not relevant, or was so insignificant in light of

the overwhelming evidence of guilt that its ruling was harmless error.

Consequently, we vacate the judgment of sentence and remand for a new

trial.

         Judgment of sentence vacated.             Case remanded for a new trial.

Jurisdiction relinquished.




____________________________________________


12Neither the trial court nor the Commonwealth suggest the prejudice from
the precluded evidence was de minimis, or that the precluded evidence would
have been simply cumulative of other properly admitted evidence. See
Hairston, supra.

                                          - 17 -
J-A10018-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/19




                          - 18 -
