J-A03026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    THEODORE COSIOUSE ARNOLD,                  :
                                               :
                      Appellant                :   No. 3660 EDA 2016

             Appeal from the Judgment of Sentence August 22, 2016
    In the Court of Common Pleas of Montgomery County Criminal Division at
                        No(s): CP-46-CR-0005829-2014

BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED FEBRUARY 15, 2018

        Theodore Cosiouse Arnold appeals from the judgment of sentence

entered following his jury trial conviction for aggravated assault, possessing

instruments of crime (“PIC”), simple assault, and two counts of recklessly

endangering another person (“REAP”).1 Arnold contends the trial court erred

when it excluded evidence at trial. We affirm.

        On February 2, 2014, Arnold’s wife, Diana Arnold, (“Wife”) went to the

Montgomery Elks Social Club (“Elks Club”) in Pottstown, Pennsylvania for

drinks. N.T., 3/15/16, at 250-51. When she left the Elks Club, she noticed

Arnold in his vehicle across the street. Id. at 262. Arnold threatened her and

told her to get in the vehicle. Id. Wife refused, and Arnold sped away. Id.

____________________________________________


1   18 Pa.C.S.A. §§ 2702(a)(1), 907(a), 2701(a)(1), and 2705, respectively.
* Retired Senior Judge assigned to the Superior Court.
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Arnold returned and saw Wife speaking with Brandon Germany (“Victim”).

Arnold yelled to Victim something to the effect of, “‘Roll out, she got a

husband[,]’ or ‘That’s my girl’ . . . .” N.T., 3/14/6, at 129. Victim turned to

walk away and Arnold began to shoot at Victim and Wife, id. at 130, striking

Victim in the upper right leg and upper left arm. Arnold fled and evaded law

enforcement for almost five months. N.T., 3/15/16, at 321. Wife gave a

statement to police on the night of the incident identifying Arnold as the

assailant.

      Before trial, on March 4, 2016, the Commonwealth filed a motion in

limine to preclude evidence that Victim was on parole from an aggravated-

assault conviction both at the time of the incident and at the time of trial.

N.T., 3/14/16, at 76. Arnold argued Victim’s parole status was admissible

because it provided a motive to lie. Arnold contended there was inconsistent

testimony, including inconsistencies as to whether Victim entered the bar,

and pointed out that if he had entered the bar he would have violated his

parole. Id. at 79-80. He further argued the testimony would support his

theory that someone else shot Victim. Id. at 80. The trial court granted the

Commonwealth’s motion and precluded the evidence. Id. at 81.

      At Arnold’s jury trial, despite having identified Arnold as the assailant

in her statement to police, Wife testified that she was intoxicated and angry

with Arnold when she spoke with the police on the night of the incident.

N.T., 3/15/16, 282-84. When the prosecution confronted her with her

statement to police in which she identified Arnold as the shooter, she stated

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she did not remember saying that Arnold shot at her and Victim. Id. at 262-

63. On cross-examination, Arnold attempted to cross-examine Wife with

letters she wrote to Arnold after the incident, and the prosecution objected

and moved at sidebar to exclude the letters. Id. at 284-85. Wife sent letters

to Arnold between the time of the incident and Arnold’s trial “essentially

entailing [sic] her regret for implicating [him], and blaming her actions on

her drunkenness and anger toward him.” Trial Court Opinion, 7/6/17, at 15

(“1925(a) Op.”) (footnotes and citations omitted).

      A discussion ensued out of the presence of the jury during which

defense counsel agreed not to cross-examine Wife with the letters unless

she first gave testimony inconsistent with her statements in the letters:

         THE COURT: . . . So I am asking [defense counsel]. I
         understand your reasoning for wanting it, because it
         corroborates what she is saying here. But like I said to you
         at sidebar, if it was the reverse, if it was an identifying
         witness in court who made an identification to police, was
         going to be consistent in court, and wrote a letter to a
         defendant in prison saying, “I identified you. I know it was
         you. You bastard. You should admit it” or anything similar
         – you know, just “I identified you,” that wouldn’t come in,
         because it’s consistent with the testimony in court. Why
         should this letter come in, as it is consistent with her
         testimony in court?

         [DEFENSE COUNSEL]: Well, her testimony in court, as I
         recall it, is she looked at the document and said, “I don’t
         agree with the answer. I didn’t say these things. The only
         thing I remember saying was about Theodore the first
         time, that he came and he left.”

         THE COURT: Well, she didn’t say, “I don’t remember.” She
         said, “Those aren’t the words I would use, [d]oesn’t sound
         like me,” and that she did not agree to saying it.

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       [DEFENSE COUNSEL]: Right. In reference to at least some
       of the words in the statement.

       [THE COURT]: Right.

       [DEFENSE COUNSEL]: Not all of them. Now, the portions
       that I was intending to ask her about would be – there are
       two letters. One is dated November 26, 2014. “I was very
       upset to know you had a new spouse and have learned to
       deal with it. But in court, being announced as the ex-
       spouse, burned a hole in me.” Then later she says. “I was
       drunk that night and you know me and my drinking, I’ll
       say anything.” So this would be a reason – this would be a
       reason why she says that she doesn’t remember.

       [The prosecutor], I anticipate, has every intention of
       calling Detective Leahan and explaining this statement and
       then introducing it as substantive evidence for the jury.
                                    ...
       THE COURT: Okay. But why do we need – she’s already
       admitted she was drunk. She already admitted she had a
       lot to drink. She gave us her descriptive drink names. How
       is the statement –

       [DEFENSE COUNSEL]: I’ll tell you –

       THE COURT: It doesn’t impeach it.

       [DEFENSE COUNSEL]: -- what I’ll do. I won’t confront her
       with the letter. I’ll just finish my cross-examination about
       when she was talking that night, she was drunk; are you
       the kind of drunk that will say anything? I’ll just ask her
       that.

       THE COURT: And if she denies that, then this could
       be possible to impeach her with it.

       [DEFENSE COUNSEL]: Okay.

       THE COURT: If she’s denying the information or it
       could, you know, contradict any information, then
       it’s a possibility to impeach her with that.


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           [DEFENSE COUNSEL]: That’s fine. That’s what I’ll do.

N.T., 3/15/16, at 287-92 (emphasis added).

        The jury convicted Arnold of the above-referenced offenses, and the

trial   court   subsequently      sentenced      Arnold   to   four   to   eight   years’

imprisonment for aggravated-assault and one to two years’ imprisonment for

each REAP conviction. The trial court ordered the sentences to run

consecutively to each other, for an aggregate sentence of six to 12 years in

prison.2 After the court denied his post-sentence motions, Arnold filed a

timely notice of appeal.3

        Arnold raises the following issues on appeal:

           1. Did the trial court erroneously grant the prosecutor’s
           motion in limine to exclude evidence that [Victim] was on
           state parole for aggravated assault, where the witness’[s]
           status as a parolee was probative of his motive to testify
           falsely and where [Victim’s] prior assault conviction was
           relevant to the question of whether [Arnold] was
           legitimately in fear of complainant?

           2. Did the trial court erroneously grant the prosecutor’s
           motion in limine to exclude letters written by [Wife] after
           the incident wherein she acknowledged that she falsely
           accused [Arnold] at a time when she was angry and drunk,
           where those letters were proper rebuttal to the
           prosecutor’s claim that [Wife] had, for the purposes of
           trial, fabricated her testimony that she lied about [Arnold]
           to the police while intoxicated?

____________________________________________


2 Arnold received no further penalty for the PIC and simple-assault
convictions.
3 On November 10, 2016, the trial court re-instated Arnold’s direct appeal
rights nunc pro tunc.



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Arnold’s Br. at 4 (italics added).

      We review the trial court’s decision to admit or preclude evidence for

an abuse of discretion. Commonwealth v. Cox, 115 A.3d 333, 336

(Pa.Super. 2015) (en banc). “An abuse of discretion is not a mere error in

judgment but, rather, involves bias, ill will, partiality, prejudice, manifest

unreasonableness, or misapplication of law.” Id. (quoting Commonwealth

v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013)). If we determine that the

trial court erred in admitting or precluding the evidence, we must determine

whether the error was harmless. Commonwealth v. Robinson, 721 A.2d

344, 350 (Pa. 1998). An error is harmless where the appellate court

concludes beyond a reasonable doubt that: (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 overwhelming

and the prejudicial effect of the error was so insignificant by comparison that

the error could not have contributed to the verdict. Id.

      Arnold first argues that the trial court erred when it granted the

Commonwealth’s motion in limine to exclude evidence that Victim was on

state parole for aggravated assault. Arnold claims that Victim’s status as a

parolee would have assisted Arnold’s claim that Victim was the first

aggressor. Arnold’s Br. at 15. He also argues that Victim’s parole status was

admissible to show his motive to provide testimony favorable to the

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prosecution.

     Arnold is not entitled to relief on this issue. He waived any argument

that Victim’s parole status was relevant to show Victim was the first

aggressor because he failed to raise the argument before the trial court.

Instead, in his arguments below, he contended only that the evidence was

admissible to demonstrate Victim’s alleged motive to lie and to establish

someone else was the attacker. See Commonwealth v. Shank, 883 A.2d

658, 672 (Pa.Super. 2005) (citing Commonwealth v. Witherspoon, 392

A.2d 1313, 1314 n.4 (Pa. 1978) (“Where a specific objection is interposed,

other possible grounds for the objection are waived”)); Cf. Pa.R.E. 103.

     Although he preserved his argument that Victim’s parole status was

admissible to demonstrate a motive to provide false testimony, his argument

is meritless. Arnold relies on Davis v. Alaska, 415 U.S. 308 (1974), and

subsequent cases to support his argument. In Davis, a witness who was on

probation told police that he had seen the defendant near stolen property

found near the witness’s house. Id. at 309-10. The defendant sought to use

the witness’s probationary status to show his possible bias and prejudice.

The trial court refused to admit the evidence, but the U.S. Supreme Court

concluded that doing so violated the defendant’s Sixth Amendment right to

effective cross-examination. The Court explained that the witness’s status as

a probationer “was admissible to afford a basis for an inference of undue

pressure because of [the witness’s] vulnerable status as a probationer, as

well as of [the witness’s] possible concern that he might be a suspect in the

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investigation.” Id. at 317-18 (footnote and citations omitted).

      However, following Davis, the Pennsylvania Supreme Court refused to

require the admission of evidence that a witness in a criminal trial was on

parole where the defendant failed to make an adequate offer of proof of

probative value. Commonwealth v. Walker, 740 A.2d 180, 185 (Pa.

1999). There, a witness testified at trial that he was the victim of a robbery,

and the defense sought to introduce evidence that the witness, who ran a

speakeasy out of his home, was on parole when he first spoke to police. Id.

at 181. The Court concluded that, under the facts of the case, the defense

had made an insufficient proffer to establish the evidence’s probative value.

The Court reasoned that the witness: received no advantage by reporting

the robbery; would not have reported the robbery out of fear that the other

party might jeopardize his parole; and would have refrained from reporting

the robbery if he had been concerned about the police discovering that he

ran an illegal speakeasy. Id. at 185. Further, the Court noted that the

defendant was able to cross-examine the witness about the speakeasy and

“argue . . . that the desire to get the case over with motivated [him] to

cooperate with police and identify [the defendant].” Id.

      Here, the trial court granted the Commonwealth’s motion to preclude

the evidence, because, in context, Arnold failed to make a sufficient offer of

proof to demonstrate that Victim’s parole status was relevant, overcome the

general rule that prior bad acts are inadmissible, or show that the probative

value of the evidence overrode the risk of unfair prejudice. The trial court

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explained:
         Victim could not and did not identify [Arnold] as the
         assailant; Victim simply testified as to what occurred on
         February 2, 2014, and his resulting injuries. Defense
         counsel, in his argument on the Commonwealth’s Motion,
         did not contend Victim was the first aggressor (nor was
         there evidence to support such a theory), but instead
         stated the purpose of introducing Victim’s parole status
         was to test the credibility of Victim’s statement that he did
         not enter the Elks Lodge bar at any point, which could
         have potentially been a violation of his parole. In fact, the
         main defense theory put forth by defense counsel was that
         [Arnold] was not the assailant and that it was rather some
         unknown third party.

1925(a) Op. at 8 (citations omitted). The trial court further noted that

Arnold could address his credibility concerns while cross-examining Victim

without introducing Victim’s parole status. Id.

      We conclude that the record supports the trial court’s findings and that

its decision to preclude evidence that Victim was on parole was not an abuse

of discretion. See Walker, 740 A.2d at 295-96. Furthermore, even if the

trial court had erred in precluding evidence of Victim’s parole status, the

error was harmless. As the trial court noted, Victim did not identify Arnold,

but rather merely explained “the circumstances of the shooting and his

injuries.” 1925(a) Op. at 12; see Robinson, 721 A.2d at 350 (noting error

is harmless where error did not prejudice defendant or prejudice was de

minimis).

      Arnold next argues that the trial court erred when it excluded the

letters Wife sent to Arnold. Arnold argues the letters were admissible under



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Pennsylvania Rule of Evidence 6134 as a prior consistent statement.

However, as established by the discussion quoted above, N.T., 3/15/16, at

287-92, Arnold did not present this argument to the trial court. He therefore

waived it. See Witherspoon, 392 A.2d at 1314 n.4; Shank, 883 A.2d at

672. Further, defense counsel agreed with the trial court’s treatment of the

issue at trial. He will not now be heard to complain. Commonwealth v.

Freeman, 827 A.2d 385, 406 (Pa. 2003) (refusing to review issue where

“the subject of this objection was a matter that was specifically discussed by

the parties with the trial judge, resulting in an agreement on how to

respond.”).

        Moreover, any error in admitting the letters was harmless. As the trial

court noted, Arnold’s counsel “was able to question [Wife] on cross-
____________________________________________



4   Pennsylvania Rule of Evidence 613(c) provides:
           (c) Witness’s Prior Consistent Statement to
           Rehabilitate. Evidence of a witness’s prior consistent
           statement is admissible to rehabilitate the witness’s
           credibility if the opposing party is given an opportunity to
           cross-examine the witness about the statement and the
           statement is offered to rebut an express or implied charge
           of:
           (1) fabrication, bias, improper influence or motive, or
           faulty memory and the statement was made before that
           which has been charged existed or arose; or
           (2) having made a prior inconsistent statement, which the
           witness has denied or explained, and the consistent
           statement supports the witness’s denial or explanation.
Pa.R.E. 613(c).



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examination regarding her alleged drunkenness at the time of her

identification of [Arnold] as the assailant to law enforcement, and how the

same    might   have   affected   the    veracity   of   her   statements   to   law

enforcement.” 1925(a) Op. at 18. Arnold is not entitled to relief on his

second issue.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/18




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