J-S51028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LESTER CARNELL STUBBS,

                            Appellant                 No. 3807 EDA 2016


          Appeal from the Judgment of Sentence November 3, 2016
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0003272-2015


BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 22, 2017

       Appellant, Lester Carnell Stubbs, appeals from the judgment of

sentence entered on November 3, 2016, following his conviction of false

imprisonment of a minor by a parent, criminal trespass, endangering the

welfare of a child, recklessly endangering another person and simple

assault.1 We affirm.

       The trial court summarized the relevant facts and procedural history of

this case as follows:

            [Appellant] was arrested and charged with assault,
       endangering the welfare of a child, and related charges arising
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2903(c), 3503(a)(1)(i), 4304(a)(1), 2705, and 2701(a)(1),
respectively.
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     out of an altercation between [Appellant] and his then 15 year-
     old son [(“the victim”)] on August 4, 2015. [Appellant] entered
     the residence where his son was residing with his grandparents
     and forcibly removed him from the premises.          [Appellant]
     transported his son back to his home on Diamond Street in
     Coatesville, PA where he proceeded to assault him. The victim
     eventually ran from [Appellant’s] residence to the Coatesville VA
     Medical Center, where a staff member rendered assistance and
     contacted the police.

           Following a two day jury trial, on April 20, 2016,
     [Appellant] was found guilty of simple assault, recklessly
     endangering another person, endangering the welfare of a child,
     criminal trespass and false imprisonment of a minor where the
     offender is the parent. On November 3, 2016, [Appellant] was
     sentenced to 111/2 to 23 months imprisonment on Count 10,
     false imprisonment of a minor where the offender is a parent
     and 111/2 to 23 months imprisonment on Count 7, endangering
     the welfare of a child, to be served concurrently with Count 10.1
     [Appellant] timely filed his Notice of Appeal on December 2,
     2016.

           1[Appellant]received 3 years’ probation on Count 9,
           criminal trespass, to be served consecutively to
           Counts 10 and 7 and 2 years’ probation for simple
           assault, Count 2, to be served concurrently with
           Count 9 and consecutively to Counts 10 and 7.
           Count 3, recklessly endangering another person,
           merges with Counts 10, 7 and 2.

Trial Court Opinion, 1/27/17, at 1-2. Appellant and the trial court complied

with Pa.R.A.P. 1925.

     Appellant presents the following issues for our review:

     1. Did the trial court err in granting [the] Commonwealth’s
        pretrial motion to exclude school attendance, disciplinary and
        behavioral records and also exclude “indicated” or
        “unfounded” determinations made by Chester County
        Children, Youth and Families?




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      2. Did the trial court err in granting [the] Commonwealth’s
         Motion in Limine to admit evidence of other crimes, wrongs or
         acts pursuant to Pennsylvania Rule of Evidence 404(b)?


Appellant’s Brief at 4.

      Our   standard      of   review    of   evidentiary   determinations        is   well

established:

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

             An abuse of discretion is not merely an error of judgment,
      but is rather the overriding or misapplication of the law, or the
      exercise of judgment that is manifestly unreasonable, or the
      result of bias, prejudice, ill-will or partiality, as shown by the
      evidence of record. An abuse of discretion may result where the
      trial court improperly weighed the probative value of evidence
      admitted against its potential for prejudicing the defendant.

Commonwealth v. Antidormi, 84 A.3d 736, 749-750 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      In his first issue, Appellant argues that the trial court erred in granting

the   Commonwealth’s       pretrial     motion   to   exclude    the   victim’s    school

attendance,    disciplinary    and      behavioral    records,   and   “indicated”      or

“unfounded” determinations made by Chester County Children, Youth and



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Families.    Appellant’s Brief at 15.          Appellant maintains that he sought to

introduce this evidence “to try to explain to this jury why he did the things

that he did in terms of disciplining this child.” Id. at 18. Further, Appellant

contends that:

        [he] sought to introduce evidence that [the victim] was not
        attending school as he should, he was hanging out with the
        wrong crowd, smoking marijuana, and having some discipline
        problems. Appellant was attempting to show that he was having
        many disagreements with [the victim] regarding his behavior,
        school, and his friends. The evidence was offered to show that
        [the victim] had turned against his father and had a motive to
        fabricate the story underpinning the charges.

Id. Appellant argues that this evidence should have been admitted pursuant

to Pa.R.E. 404(b)(2),2 which addresses the permitted uses of evidence

pertaining to crimes, wrongs, or other acts. Id. at 19.

        The basic requisite for the admissibility of any evidence in a case
        is that it be competent and relevant. Though “relevance” has
        not been precisely or universally defined, the courts of this
        Commonwealth have repeatedly stated that evidence is
        admissible if, and only if, the evidence logically or reasonably
        tends to prove or disprove a material fact in issue, tends to
        make such a fact more or less probable, or affords the basis for
        or supports a reasonable inference or presumption regarding the
        existence of a material fact.

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
____________________________________________


2   Pa.R.E. 404 (b)(2) provides:

        This evidence may be admissible for another purpose, such as
        proving motive, opportunity, intent, preparation, plan,
        knowledge, identity, absence of mistake, or lack of accident. In
        a criminal case this evidence is only admissible if the probative
        value of the evidence outweighs its potential for unfair prejudice.



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     Moreover, with respect to the admissibility of evidence regarding a

witness, we are guided by the following:

     Pa.R.E. 608 is tailored to a specific purpose: the admission of
     evidence for purposes of impeaching or bolstering a witness’s
     credibility. It provides:

           Pa.R.E. 608. Evidence of character and conduct
           of witness

           (a) Reputation evidence of character.

                 The credibility of a witness may be
                 attacked or supported by evidence in the
                 form of reputation as to character, but
                 subject to the following limitations:

                 (1) the evidence may refer only to
                 character     for   truthfulness or
                 untruthfulness; and

                 (2) evidence of truthful character is
                 admissible only after the character of the
                 witness for truthfulness has been
                 attacked by reputation evidence or
                 otherwise.

           (b) Specific instances of conduct. Except as
           provided in Pa.R.E. 609 (relating to evidence of
           conviction of crime),

                 1) the character of a witness for
                 truthfulness may not be attacked or
                 supported by cross-examination or
                 extrinsic evidence concerning specific
                 instances of the witness’ conduct;
                 however,

                 2) in the discretion of the court, the
                 credibility of a witness who testifies as to
                 the reputation of another witness for
                 truthfulness or untruthfulness may be
                 attacked         by      cross-examination

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                 concerning specific instances of conduct
                 (not including arrests) of the other
                 witness, if they are probative of
                 truthfulness   or   untruthfulness;  but
                 extrinsic   evidence   thereof   is  not
                 admissible.

     Pa.R.E. 608.

           Pa.R.E. 608 codifies the long established rule limiting the
     type of evidence admissible to challenge a witness’s credibility,
     to evidence of the witness’s general reputation for truthfulness
     or untruthfulness. See Commonwealth v. Payne, 205 Pa.
     101, 104, 54 A. 489, 491 (1903); Commonwealth v. Fisher,
     2000 PA Super 379, 764 A.2d 82, 87 (Pa.Super.2000). Further,
     subsection (b)(1) of this rule specifically prohibits a witness from
     supporting or attacking another witness’s credibility with
     instances of specific conduct. Pa.R.E. 608(b)(1).

           In contrast to the narrow focus of Pa.R.E. 608 on
     truthfulness or untruthfulness, Pa.R.E. 404(a) covers wider
     ground. It provides,

           Pa.R.E. 404. Character evidence not admissible
           to prove conduct; exceptions; other crimes

           (a) Character evidence generally. Evidence of a
           person’s character or a trait of character is not
           admissible for the purpose of proving action in
           conformity therewith on a particular occasion,
           except:

                 (1) Character of accused. In a criminal
                 case, evidence of a pertinent trait of
                 character of the accused is admissible
                 when offered by the accused, or by the
                 prosecution to rebut the same. If
                 evidence of a trait of character of the
                 alleged victim of the crime is offered by
                 an accused and is admitted under
                 subsection (2), evidence of the same
                 trait of character of the accused is
                 admissible if offered by the prosecution.


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                 (2) Character of alleged victim.

                       (i) In a criminal case, subject
                       to limitations imposed by
                       statute,    evidence      of  a
                       pertinent trait of character of
                       the     alleged     victim   is
                       admissible when offered by
                       the accused, or by the
                       prosecution to rebut the
                       same.
                                      ...

                 (3) Character of witness. Evidence of a
                 pertinent trait of character of a witness is
                 admissible as provided in Rules 607
                 (Impeachment        of    Witness),     608
                 (Character and Conduct of Witness) and
                 609 (Evidence of Conviction of Crime).

     Pa.R.E. 404(a) (emphasis added).         Thus, while Pa.R.E. 608
     addresses    only    one    character    trait   (truthfulness  or
     untruthfulness), and prohibits the use of instances of specific
     conduct to establish the trait, Pa.R.E. 404(a) applies to evidence
     regarding any “pertinent” character trait and, through the
     operation of case law codified in Pa.R.E. 405, allows evidence of
     specific conduct to prove the “pertinent” trait.

Commonwealth v. Minich, 4 A.3d 1063, 1068–1070 (Pa. Super. 2010).

Thus, “whenever the accused seeks to offer character evidence for purposes

of attacking or supporting the credibility of a victim who testifies, the

admissibility of such evidence is governed by Pa.R.E. 608 and proof of

specific incidents of conduct by either cross-examination or extrinsic

evidence is prohibited.” Id. at 1072.

     Additionally, Pa.R.E. 404(b) provides:

     (b) Crimes, Wrongs or Other Acts.


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           (1) Prohibited Uses. Evidence of a crime, wrong, or other
           act is not admissible to prove a person’s character in order
           to show that on a particular occasion the person acted in
           accordance with the character.

           (2) Permitted Uses. This evidence may be admissible for
           another purpose, such as proving motive, opportunity,
           intent, preparation, plan, knowledge, identity, absence of
           mistake, or lack of accident.      In a criminal case this
           evidence is admissible only if the probative value of the
           evidence outweighs its potential for unfair prejudice.

           (3) Notice in a Criminal Case. In a criminal case the
           prosecutor must provide reasonable notice in advance of
           trial, or during trial if the court excuses pretrial notice on
           good cause shown, of the general nature of any such
           evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b).   Our Court has explained, “To be admissible under this

exception, there must be a specific ‘logical connection’ between the other act

and the crime at issue which establishes that the crime currently being

considered grew out of or was in any way caused by the prior set of facts

and circumstances.”    Commonwealth v. Cox, 115 A.3d 333, 337 (Pa.

Super. 2015).

     Moreover, “[t]he court may exclude evidence if its probative value is

outweighed by the danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Pa.R.E. 403. “Unfair prejudice”

is defined as “a tendency to suggest decision on an improper basis or to

divert the jury’s attention away from its duty of weighing the evidence

impartially.” Pa.R.E. 403 cmt.


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      The trial court provided the following explanation in addressing

Appellant’s first issue:

            At bar, [Appellant] was charged with assault, endangering
      the welfare of a child, false imprisonment of a minor where the
      offender is the victim’s parent, and related charges. The victim’s
      psychological, behavioral and discipline records documenting any
      misconduct or dishonesty in school are wholly unrelated to the
      crimes for which [Appellant] was being tried. Evidence of the
      victim’s dishonesty and misconduct in school is not probative of
      the victim’s conduct during the alleged criminal episode at issue.
      Therefore, this evidence was properly excluded under Pa.R.E.
      608(b)(1).

             The Commonwealth further sought to exclude from
      evidence the findings of Chester County Youth and Families
      (CYF) regarding reports of abuse or neglect inflicted upon the
      victim by [Appellant]. [Appellant] sought to introduce three
      letters from CYF determining that incidents of abuse were
      “unfounded,” including the alleged abuse which is the subject of
      the instant charges.

            The letters from CYF which [Appellant] sought to admit
      into evidence are opinions formed by CYF based upon their
      investigation and evaluation under Child Protective Services Law.
      Accordingly, these letters constitute inadmissible hearsay.

Trial Court Opinion, 1/27/17, at 4-5.

      We agree.     Pursuant to Pa.R.E. 608, Appellant is not permitted to

introduce specific instances of conduct to impeach the victim’s credibility.

Minich, 4 A.3d at 1072. The evidence sought to be introduced by Appellant,

regarding the victim’s school performance, friends, and disciplinary issues

does not go to the victim’s general reputation for truthfulness. Accordingly,

the trial court did not abuse its discretion in excluding this evidence.




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      Moreover, this evidence would not be admissible under Pa.R.E. 404(b).

We cannot reasonably conclude that there exists a “logical connection”

between the victim’s actions of alleged previous misconduct and Appellant’s

crimes that would establish that Appellant’s crimes grew out of or were in

any way caused by the victim’s actions. Cox, 115 A.3d at 337.

      Additionally, Appellant’s position that the victim fabricated this incident

and was motivated to do so as a result of Appellant disciplining the victim is

unsustainable.   There were independent accounts presented at trial that

supported the victim’s version of events. Specifically, Detective Ryan Wright

testified that on August 4, 2015, the victim appeared at the police station “in

disarray. His clothing was torn. He had blood on his clothing. You could

see in his eyes he had been crying. He had glassy eyes. He was upset.”

N.T., 4/20/16, at 89.     Detective Wright further described the victim as

having blood on his sneakers, one or two of his fingers had been cut or

bleeding, bruising to the forehead area and a swollen cheek, and lacerations

on his back shoulder. Id. at 89-94. Thus, Appellant’s claim that the victim’s

accusations are fabricated is unsupported by the evidence.

      Furthermore, even if the victim had a history of prior misconduct, such

evidence would not justify Appellant’s actions. The jury clearly determined

that the evidence was sufficient to convict Appellant of the above-referenced

charges.   Moreover, admission of this evidence would be more prejudicial

than probative of whether Appellant committed the crimes, in effect


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confusing the issue and drawing the jury’s attention away from the evidence

as   related   to   Appellant’s   actions,   and   therefore   would   have   been

inadmissible on that basis.       Pa.R.E. 404(b)(2).     Accordingly, we cannot

conclude that the trial court abused its discretion in excluding this evidence.

      With regard to admission of the CYF reports, we observe that during

the hearing on the motion in limine, Appellant’s counsel made the following

argument regarding the relevance of the CYF reports:

             [Victim] ran away from the home in Philadelphia, which
      CYS had – they had taken him out of the father’s home, placed
      him in the grandmother’s home – great-grandmother’s home in
      Philadelphia, and he ran away from that home likewise and came
      back to Coatesville. And he was missing for a period of time.
      Father found out where he was. He went to pick him up only
      after talking with CYS. And they indicated, yeah, you know, you
      have been cleared. You can go pick him up. And that’s what
      our client did. And that’s the reason why we should seek to
      submit the letter, now to show they did the investigation and it
      was unfounded or it’s right or wrong, but just for the fact that he
      was not acting on his own accord. He had consulted with CYS.

N.T., 4/19/16, at 16-17. Accordingly, Appellant sought to introduce the CYF

records and reports to establish his reason for going to pick up the victim on

the day of the incident.

      In addressing Appellant’s argument, the trial court stated the following

in explaining its ruling:

             And then on the determinations made by children, youth
      and families, all of those are excluded. The Office of Children,
      Youth and Families has an opinion on something, but it’s not
      their opinion that should control here. It is the testimony at the
      trial and the evaluation of that testimony by the jury that must
      control. So a prior opinion of another agency is not appropriate
      for testimony here in this trial.

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              Further, the standard of proof for the office of CYF is
       significantly different from the standard of proof in a criminal
       trial. So for that further reason, I find it to be inappropriate to
       be introducing records made by children, youth and families.

N.T., 4/19/16, at 26.

       We agree. Appellant could provide testimony during trial as to why he

went to L.G. and S.G.’s house on the date of the incident, and in fact

testified that he went there after CYF told him that the victim was at that

location on that date. N.T., 4/20/16, at 157-158. The content of the CYF

reports were not necessary to that position.       Moreover, as the trial court

noted, any CYF finding in its reports would result from a different standard

than that appropriate in a criminal proceeding.       23 Pa.C.S. §§ 6301, et.

seq.; See F.R. v. Dep’t of Public Welfare, 4 A.3d 779, 787 (Pa. Cmwlth.

2010) (comparing section 509 of the criminal code and section 6303(b) of

the Child Protective Services Law (“CPSL”) and stating that “[w]hile there is

little doubt that the Crimes Code and the CPSL are linked in some ways, it is

clear, as acknowledged by our Supreme Court in [P.R. v. Department of

Public Welfare, 801 A.2d 478 (Pa. 2002)], that the Crimes Code standard

applies in criminal proceedings, while the CPSL standard applies to

administrative proceedings.”).3

____________________________________________


3 “Although the decisions of the Commonwealth Court are not binding upon
this Court, they may serve as persuasive authority.” Commonwealth v.
Rodriguez, 81 A.3d 103, 107 n.7 (Pa. Super. 2013).



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      Additionally, these documents would not be admissible under Pa.R.E.

404(b)(2) because the reports and findings of CYF did not present a “logical

connection” between those CYF investigations and the crimes for which

Appellant was convicted which would establish that the crime currently being

considered grew out of or was in any way caused by those investigations.

Cox, 115 A.3d at 337. Further, if the CYF documents and reports were to be

admitted at trial, such evidence would confuse the issues and draw the

jury’s attention away from considering the evidence as related to the

charges against Appellant.    Thus, the evidence would be more prejudicial

than probative and would have been excluded on that basis. Pa.R.E. 403.

Accordingly, the trial court did not abuse its discretion in precluding

admission of this evidence. Appellant’s first issue lacks merit.

      In his statement of questions involved, Appellant presents the

following second issue: “Did the trial court err in granting Commonwealth’s

Motion in Limine to admit evidence of other crimes, wrongs or acts pursuant

to Pennsylvania Rule of Evidence 404(b)?” Appellant’s Brief at 4. Despite

presenting this second issue in his statement of the questions involved,

Appellant has failed to present or develop an argument on this issue in the

argument section of his brief. See Pa.R.A.P. 2119(a) (“The argument shall

be divided into as many parts as there are questions to be argued; and shall

have at the head of each part-in distinctive type or in type distinctively

displayed—the particular point treated therein, followed by such discussion


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and citation of authorities as are deemed pertinent.”)       Thus, we find this

issue waived for failure to develop it. See Pa.R.A.P. 2101 (if the defects in

the appellant’s brief are substantial, “the appeal or other matter may be

quashed or dismissed.”); see also Commonwealth v. Jones, 815 A.2d

598, 604 n.3 (Pa. 2002) (where appellant failed to address an issue raised in

his statement of questions involved in the body of his brief, the claim was

waived.); Commonwealth v. Jackson, 431 A.2d 944, 945 n.1 (Pa. 1981)

(where issue presented in the “Statement of Questions Involved” section of

defendant’s brief was not addressed in “the ‘Argument’ portion of his brief,”

it was waived).

      Had this issue not been waived, and to the extent Appellant makes

limited reference to this issue in the discussion of his first issue, we would

conclude it lacks merit. Appellant, in the context of the argument on his first

claim, asserts that:   “The court’s pretrial rulings excluding all records and

testimony regarding [the victim’s] attendance and disciplinary problems

which would have shown [the victims’] motive to fabricate coupled with the

court’s admitting prior allegations of Appellant’s abusive behavior had a

crippling effect on the defense.” Appellant’s Brief at 19.

      In this case, the Commonwealth sought to present evidence of

Appellant’s prior physical, emotional, and verbal abuse of the victim prior to

August 4, 2015, to establish motive, intent, absence of mistake, common

plan, scheme, or design and the res gestae of the crime pursuant to Pa.R.E.


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404(b). N.T., 4/19/16, at 5-8. “Evidence of crimes other than the one in

question is not admissible solely to show the defendant’s bad character or

propensity to commit crime.”      Commonwealth v. Collins, 703 A.2d 418,

422 (Pa. 1997); Pa.R.E. 404(b)(1) (providing that “[e]vidence of a crime,

wrong, or other act is not admissible to prove a person’s character in order

to show that on a particular occasion, the person acted in accordance with

the character.”). Nevertheless:

     This evidence may be admissible for another purpose, such as
     proving motive, opportunity, intent, preparation, plan,
     knowledge, identity, absence of mistake, or lack of accident.

Pa.R.E. 404(b)(2). See also Melendez–Rodriguez, 856 A.2d 1278, 1283

(Pa. Super. 2004) (reiterating “other crimes” evidence is admissible to show

motive, intent, absence of mistake or accident, common scheme or plan,

and identity).   “Additionally, evidence of other crimes may be admitted

where such evidence is part of the history of the case and forms part of the

natural development of the facts.”     Commonwealth v. Lauro, 819 A.2d

100, 107 (Pa. Super. 2003) (quoting Collins, 703 A.2d at 423). Moreover,

in Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988), our Supreme Court

explained:

     Another “special circumstance” where evidence of other crimes
     may be relevant and admissible is where such evidence was part
     of the chain or sequence of events which became part of the
     history of the case and formed part of the natural development
     of the facts. This special circumstance, sometimes referred to as
     the “res gestae” exception to the general proscription against
     evidence of other crimes, is also known as the “complete story”
     rationale, i.e., evidence of other criminal acts is admissible “to

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      complete the story of the crime on trial by proving its immediate
      context of happenings near in time and place.”

Id. at 497 (citations omitted).

      In addressing Appellant’s claim, the trial court explained its holding as

follows:

      [Appellant] was charged with assault, endangering the welfare of
      a child, and related charges. Evidence of [Appellant’s] prior
      physical, emotional and verbal abuse of the victim prior to
      August 4, 2015[,] is admissible to provide a common plan or
      scheme on the part of [Appellant] as well as intent, motive and
      absence of mistake.      This evidence is part of the “natural
      sequence” or development of the events in question.         The
      victim’s prior instances of physical and mental abuse at the
      hands of [Appellant] “complete the story” and explain the
      pattern of abuse that eventually led to the assault on August 4,
      2015. Finally, this evidence is admissible to explain why the
      victim did not report the abuse immediately.

Trial Court Opinion, 1/27/17, at 9 (internal citations omitted).

      We agree. Thus, were we to reach the merits of Appellant’s second

issue, we would affirm on the basis of the trial court’s explanation and

reasoning.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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