J-S41022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: A.I-S., A           :    IN THE SUPERIOR COURT OF
 MINOR                                   :         PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: A.I-S., A MINOR              :
                                         :
                                         :
                                         :
                                         :    No. 315 EDA 2017

          Appeal from the Dispositional Order December 14, 2016
  In the Court of Common Pleas of Philadelphia County Juvenile Division at
                     No(s): CP-51-JV-0002254-2016


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 07, 2018

      Appellant, A.I.-S., appeals from the order of disposition entered on

December 14, 2016. We vacate and remand.

      On November 22, 2016, the Commonwealth filed a delinquency petition

against Appellant and accused him of acts constituting simple assault,

conspiracy,   and   recklessly   endangering     another   person    (“REAP”).

Delinquency Petition, 11/22/16, at 1.        Appellant’s adjudicatory hearing

occurred on December 13, 2016 and, during this hearing, the Commonwealth

presented the testimony from the complainant, E.C.

      E.C. testified that, at the time of the assault, he, Appellant, and

Appellant’s brother were in school.    E.C. testified that he told Appellant’s

brother “to pull his pants up [because] . . . his butt crack was showing.” N.T.

Hearing, 12/13/16, at 8.    Minutes later, Appellant and Appellant’s brother

attacked E.C. by punching him in his face. Id. at 9-11. E.C. testified that,

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* Former Justice specially assigned to the Superior Court.
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after he was punched, he fought back and began swinging punches at

Appellant. He testified:

        Me and [Appellant], we were swinging at each other. That’s
        when [Appellant’s] brother came up behind me and grabbed
        me, threw me to the ground. That’s when they started
        kicking me out and stomping me out. And I got back up and
        [Appellant’s brother] put me in a headlock. . . . [When I was
        in the headlock, Appellant] just started hitting me. . . .

Id. at 11-13.

      During cross-examination, Appellant’s attorney asked E.C. whether E.C.

was currently on probation. Id. at 24-25. The Commonwealth objected to

the question on the ground of relevance and Appellant’s attorney responded:

        Your Honor, under Davis v. Alaska, [415 U.S. 308 (1974),]
        this is relevant to show bias. If somebody is on probation or
        on any kind of supervision with the Commonwealth, they
        could     potentially  be   testifying  favorably   for   the
        Commonwealth in order to curry favor with the
        Commonwealth.

        Because if [E.C. were] on probation and he was arrested for
        assault, that would be a violation of his prob[ation]. And the
        Supreme Court of the United States made that very clear in
        Davis v. Alaska.

Id. at 25.

      The juvenile court sustained the Commonwealth’s objection and did not

allow Appellant to cross-examine E.C. on his probationary status. Id. at 26.

According to the juvenile court, E.C.’s probationary status was irrelevant

because E.C. was a complaining witness. Id. at 25-26.

      Following E.C.’s testimony, the Commonwealth rested and Appellant

then testified in his own defense. As Appellant testified, E.C. was the initial


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aggressor and Appellant only fought back after E.C. struck both Appellant and

Appellant’s brother. Id. at 31-32.

        At the conclusion of the hearing, the juvenile court adjudicated

Appellant delinquent for acts constituting simple assault.1         Id. at 45.   On

December 14, 2016, the juvenile court signed the dispositional order. The

order declared that Appellant was in need of treatment, supervision, and

rehabilitation and ordered him placed in a residential facility at Mitchell

Residential Program – St. Gabriel’s. Order of Disposition, 12/14/16, at 1.

        Appellant filed a timely notice of appeal. Appellant raises two claims to

this Court:

          1. Did not the juvenile court abuse its discretion and violate
          [Appellant’s] constitutional rights to present a defense, to
          confront the witness against him and to a fair trial, in violation
          of the federal and state constitutions, by refusing to allow
          counsel to pursue a legitimate and critical line of questioning
          regarding the complaining witness’s probationary status
          where such questioning was relevant to the complainant’s
          motive to testify favorably to the Commonwealth and to
          establish a motive to lie and fabricate the events at issue?

          2. Did not the juvenile court err and abuse its discretion in
          adjudicating [Appellant] delinquent where the court failed to
          hold a hearing as to whether [Appellant] was in need of
          treatment, rehabilitation, or supervision, and as such, the
          finding of delinquency was based on insufficient evidence and
          not proven beyond a reasonable doubt?

Appellant’s Brief at 3.




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1   18 Pa.C.S.A. § 2701(a).

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      First, Appellant claims that the trial court committed an evidentiary

error. We have explained:

        [Our] standard of review for a trial court’s evidentiary rulings
        is narrow. The admissibility of evidence is solely within the
        discretion of the trial court and will be reversed only if the
        trial court has abused its discretion. 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.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (internal

quotations and citations omitted).       “To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.

Super. 2012) (internal quotations and citations omitted).       “A party suffers

prejudice when the trial court’s error could have affected the verdict.”

Commonwealth v. Tyack, 123 A.3d 254, 257 (Pa. Super. 2015) (internal

quotations and citations omitted).

      Contrariwise, “an erroneous ruling by a trial court on an evidentiary

issue does not require us to grant relief where the error was harmless.”

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005). Our Supreme

Court has held:

        Harmless error exists where: (1) the error did not prejudice
        the defendant or the prejudice was de minimis; (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

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         overwhelming and the prejudicial effect of the error was so
         insignificant by comparison that the error could not have
         contributed to the verdict.

Id. (internal quotations and citations omitted).    “An error will be deemed

harmless where the appellate court concludes beyond a reasonable doubt that

the error could not have contributed to the verdict.” Id. at 528. “If there is

a reasonable possibility that the error may have contributed to the verdict, it

is not harmless. The burden of establishing that the error was harmless rests

upon the Commonwealth.” Id. (internal citations omitted).

       Appellant claims that the juvenile court erred when it refused to allow

him to cross-examine E.C. on his probationary status. Appellant’s Brief at 10.

The Commonwealth agrees that the juvenile court erred in this regard and

agrees that Appellant is entitled to relief on this issue.2 Commonwealth’s Brief

at 5. We appreciate the Commonwealth’s candor on appeal and agree that

the juvenile court erred when it sustained the Commonwealth’s objection and

refused to allow Appellant to cross-examine E.C. on his probationary status.

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2 The juvenile court declared that Appellant waived his claim on appeal
because, during Appellant’s case-in-chief, Appellant did not recall E.C. as a
witness and (again) asked E.C. about his probationary status. Juvenile Court
Opinion, 4/24/17, at 5. Simply stated, Appellant was not required to recall
E.C. as a witness to preserve his claim of error. In the case at bar, during
Appellant’s cross-examination of E.C., the juvenile court clearly sustained the
Commonwealth’s objection to Appellant’s question regarding E.C.’s
probationary status and the juvenile court clearly refused to allow Appellant
to cross-examine E.C. on his probationary status. N.T. Hearing, 12/13/16, at
24-26. This is sufficient to preserve Appellant’s current claim of error. See,
e.g., Pa.R.E. 103(b) (“Once the court rules definitively on the record--either
before or at trial--a party need not renew an objection or offer of proof to
preserve a claim of error for appeal”).


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Davis, 415 U.S. at 317 (holding that the defendant possessed the right to

cross-examine a juvenile identifying witness on his probationary status

because “[t]he claim of bias which the defense sought to develop was

admissible to afford a basis for an inference of undue pressure because of [the

witness’] vulnerable status as a probationer, as well as of [the] possible

concern that [the witness] might be a suspect in the investigation”);

Commonwealth v. Simmon, 555 A.2d 860, 863 (Pa. 1989) (“a prosecution

witness's juvenile probationary status is relevant to show bias regardless of

whether the person appears as the victim/complainant”); Commonwealth v.

Murphy, 591 A.2d 278, 280 (Pa. 1991) (“[i]t was incumbent upon defense

counsel to bring to the jury's attention the possibility that [the witness] had a

motive for testifying against the defendant, whether based upon a formal

agreement with the prosecution or a subjective belief that she would receive

favorable treatment with regard to her juvenile probation”).        Further, the

juvenile court’s error was not harmless, as E.C.’s testimony was the sole

evidence against Appellant in this case. See N.T. Hearing, 12/13/16, at 5-28.

        Therefore, we vacate the dispositional order, vacate the adjudication of

delinquency, and remand for a new hearing.3

        Order of disposition vacated. Adjudication of delinquency vacated. Case

remanded. Jurisdiction relinquished.




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3   In light of our holding, Appellant’s second claim on appeal is moot.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/18




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