J-S13023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ABDULHAMID M. ALMANSOURI

                            Appellant                     No. 978 WDA 2014


              Appeal from the Judgment of Sentence May 22, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016022-2013
                                          CP-02-CR-0016023-2013


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                                  FILED APRIL 14, 2015

        Appellant, Abdulhamid M. Almansouri, appeals from the May 22, 2014

aggregate judgment of sentence of time served followed by five and one-half

years’ probation after being found guilty of four counts of indecent assault

and three counts of harassment.1 After careful review, we affirm.

        The certified record discloses the following relevant factual background

of this case.     Appellant was employed as a cook at Providence Point, a

retirement home with assisted living facilities and non-assisted living

facilities.   N.T., 4/15/14, at 26-27.         Over the span of several months in

2013, Appellant inappropriately touched four women who also worked in
____________________________________________


1
    18 Pa.C.S.A. §§ 3126(a)(1) and 2709(a)(1), respectively.
J-S13023-15


food services at Providence Point. The first woman, Kathleen Jumblat, who

was a server in the Providence Point deli, testified to two incidents of

nonconsensual touching.    In the first, Appellant wrapped his arms around

her waist from behind. Id. at 30. Within weeks of the first incident, when

she was alone in the walk-in cooler getting supplies, Appellant approached

her from behind without announcing himself and touched her breasts while

she had her arms raised to reach a shelf. Id. at 30-31. The second woman,

Candy Steiner, a cook at Providence Point, also testified that Appellant

“grabbed [her] breast[s]” while she was alone in the walk-in cooler. Id. at

51. The third woman, Kimberly Seibel, a server for one of the dining rooms

at Providence Point, testified to multiple incidents.   She stated that they

always occurred when she was alone either in the vacant dining room or in

the walk-in coolers.   Id. at 67.    The first time, Appellant hugged her,

touching her breasts and buttocks, and would not let her go. Id. at 73. A

few days later, Appellant approached her from behind without announcing

himself while she was at her computer workstation and grabbed her breasts.

Id. at 76-77. Weeks later, Appellant approached her in the walk-in cooler

and touched her breasts again. Id. at 80.

     The fourth woman, Chalise Schultz, worked for a management

company that managed the Providence Point dining rooms.         She testified

that on March 24, 2013, she was sitting at her desk checking e-mails on her

computer when Appellant approached her from behind, reached over her


                                    -2-
J-S13023-15


shoulder, and brushed his hand down her body over her breast. Id. at 89.

Although Appellant did not say what he was doing, Schultz thought he was

attempting to reach the tape behind her computer monitor.                     Id.   She

testified that, while his hand did not linger on her body, “the touch was

deliberate.”    Id. at 99.       Later that day, she told the managing chef at

Providence Point about the incident because her direct supervisor was not

present. Id. at 100. She later reported the incident to the police after she

learned other women had similar experiences with Appellant. Id. at 95.

        By two criminal informations filed on December 23, 2013, the

Commonwealth        charged      Appellant     with   the    aforementioned   offenses.

Specifically, the information filed at docket number CP-02-CR0016022-2013

(docket number 16022) charged Appellant with the indecent assault of

Schultz while the information filed at docket number CP-02-CR-0016023-

2013 (docket number 16023) charged Appellant with three counts each of

indecent assault and harassment for the incidents with the three other

women. On December 26, 2013, the Commonwealth filed its Pennsylvania

Rule of Criminal Procedure 582(B)(1)2 notice that it intended to join the two

____________________________________________


2
    Rule 582 provides, in relevant part, as follows.

               Rule   582.     Joinder--Trial               of   Separate
               Indictments or Informations

               (A) Standards

(Footnote Continued Next Page)


                                           -3-
J-S13023-15


cases and try them together.            Appellant did not raise a challenge to the

joinder. On April 15, 2014, a two-day jury trial commenced. On April 16,

2014, the jury found Appellant guilty of all four counts of indecent assault.

The trial court then found Appellant guilty of the three summary counts of

harassment.      Thereafter, on May 22, 2014, the trial court sentenced


                       _______________________
(Footnote Continued)

                       (1) Offenses charged in separate indictments
                       or informations may be tried together if:

                             (a) the evidence of each of the offenses
                             would be admissible in a separate trial
                             for the other and is capable of separation
                             by the jury so that there is no danger of
                             confusion; or

                             (b) the offenses charged are based on
                             the same act or transaction.

                       (2)    Defendants     charged     in separate
                       indictments or informations may be tried
                       together if they are alleged to have
                       participated in the same act or transaction or
                       in the same series of acts or transactions
                       constituting an offense or offenses.

             (B) Procedure

                       (1) Notice that offenses or defendants charged
                       in separate indictments or informations will be
                       tried together shall be in writing and filed with
                       the clerk of courts. A copy of the notice shall
                       be served on the defendant at or before
                       arraignment.

Pa.R.Crim.P. 582(A)-(B)(1).




                                            -4-
J-S13023-15


Appellant to time served followed by five and one-half years’ probation.3

Appellant did not file a post-sentence motion. Appellant filed a timely notice

of appeal on June 16, 2014.4

       On appeal, Appellant presents the following two issues for our review.

              I.     Was the evidence insufficient to prove, beyond
                     a reasonable doubt, that [Appellant] commited
                     [sic] indecent assault, where the evidence
____________________________________________


3
  Specifically, the trial court sentenced Appellant to time-served followed by
one and one-half years’ probation on the indecent assault conviction at
count 1 of docket number 16022. On the conviction of indecent assault at
count 2 of docket number 16022, the trial court sentenced Appellant to a
term of two years’ probation. On the conviction of indecent assault on
docket number 16023, the trial court sentenced Appellant to a term of two
years’ probation. All the sentences were imposed to run consecutively.
Further, the trial court did not impose any additional penalty for the indecent
assault conviction at count 3 of docket number 16022 or for the three
convictions of harassment in docket number 16022.

       We note there is a discrepancy between the sentencing transcript and
the written sentencing order as to Appellant’s sentence for the conviction of
indecent assault on docket number 16023. Namely, during the sentencing
hearing, the trial court indicated it was imposing two months’ probation on
Appellant, but the written sentencing order and guideline sentence form list
Appellant’s sentence as two years’ probation. We note that this Court has
concluded where there is a conflict between the written sentencing order and
the transcript of the sentencing hearing, the written order controls.
Commonwealth v. Gordon, 897 A.2d 504, 507 n.7 (Pa. Super. 2006).
Accordingly, we calculate Appellant’s aggregate sentence by referring to the
written sentencing order. However, this Court has also held that a trial court
has the inherent authority to correct clerical mistakes in a written sentencing
order when the trial court’s intention to impose a certain sentence as stated
orally   at   the    sentencing   hearing     is  clear   and     unambiguous.
Commonwealth v. Borrin, 12 A.3d 466, 473 (Pa. Super. 2011) (en banc).
4
  The trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925.




                                           -5-
J-S13023-15


                     failed to establish that he intentionally touched
                     Schultz for the purpose of arousing sexual
                     desire?

              II.    Did the trial court err when it instructed the
                     jury    to    disregard    cross[-]examination
                     questioning about Schultz’s pending criminal
                     DUI charges, thus denying him the right to
                     confront the witness against him?

Appellant’s Brief at 7.5

       In his first issue, Appellant contests the sufficiency of the evidence the

Commonwealth presented to convict him of the indecent assault of Schultz.

Id. at 16.     Specifically, Appellant contends “the Commonwealth failed to

prove that he intentionally touched Schultz’s breast for the purpose of

arousing or gratifying sexual desire.” Id. Instead, he suggests the contact

was “purely incidental and accidental … no more than a non-lingering ‘brush’

with the back of the hand.” Id. at 18.

       Our standard of review for challenges to the sufficiency of the evidence

is well settled.    “In reviewing the sufficiency of the evidence, we consider

whether the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the

verdict winner, support the jury’s verdict beyond a reasonable doubt.”

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted), cert. denied, Patterson v. Pennsylvania, --- S.Ct. ---, 2015 WL
____________________________________________


5
  Appellant does not challenge his convictions for three counts of indecent
assault and three counts of harassment at docket number 16022.



                                           -6-
J-S13023-15


731963 (2015).          “The Commonwealth can meet its burden by wholly

circumstantial evidence and any doubt about the defendant’s guilt is to be

resolved by the fact finder unless the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113

(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),

appeal denied, 95 A.3d 277 (Pa. 2014).                As an appellate court, we must

review “the entire record … and all evidence actually received[.]”                   Id.

(internal quotation marks and citation omitted).             “[T]he trier of fact while

passing upon the credibility of witnesses and the weight of the evidence

produced,   is   free    to   believe   all,   part    or   none    of   the   evidence.”

Commonwealth v. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation

omitted), appeal denied, 99 A.3d 925 (Pa. 2014).                   “Because evidentiary

sufficiency is a question of law, our standard of review is de novo and our

scope of review is plenary.”      Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,

135 S. Ct. 145 (2014).

     Instantly, Appellant was convicted of indecent assault.                   A person

commits indecent assault “if the person has indecent contact with the

complainant [or] causes the complainant to have indecent contact with the

person … for the purpose of arousing sexual desire in the person or the

complainant and[] the person does so without the complainant’s consent[.]”


                                         -7-
J-S13023-15


18   Pa.C.S.A. §   3126(a)(1).     Appellant   concedes that the     evidence

established he touched Schultz’s breast without her consent. Id. at 15-16.

Appellant’s sole argument is that his contact with Schultz’s breast was

accidental. Id. at 16.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict-winner, the evidence belies Appellant’s contention that the

contact was accidental. Schultz testified that prior to the incident she was

alone in the office, seated at her computer with her back to the doorway of

the office. N.T., 4/15/14, at 89, 94. Schultz stated that she was not aware

anyone else was in the office until the moment Appellant touched her breast.

Id. at 89.    She indicated that Appellant reached over her shoulder and

“slipped” his hand “down [her] breast.” Id. She also stated that “the touch

was deliberate” and demonstrated how Appellant touched her to the jury.

Id. at 99. She was startled by the touching and asked Appellant what he

was doing.    Id. at 89.   Appellant did not verbally respond but started to

reach for the tape that was behind her computer monitor.       Id.    Schultz

moved the tape to the end of her desk and asked Appellant if he needed

tape. Id. He did not respond, and instead “kind of got mad and stormed

out of the office.” Id. at 90. Schultz reported the incident to the managing

chef later that day. Id. at 100. This evidence was sufficient to enable the

jury to conclude that the contact was intentional and “for the purpose of

arousing sexual desire.” 18 Pa.C.S.A. § 3126(a)(1). Accordingly, the jury


                                    -8-
J-S13023-15


was free to infer that Appellant intentionally initiated the nonconsensual

contact with Schultz’s breast to arouse sexual desire in himself or her, and

the totality of the evidence supports the jury’s verdict beyond a reasonable

doubt.   See Patterson, supra.       As a result, Appellant is not entitled to

relief on his first issue. See Diamond, supra.

      In his second issue, Appellant contends that the trial court erred in

excluding evidence of Schultz’s pending DUI charges and instructing the jury

to disregard that evidence. Id.at 19. Appellant maintains he had the right

to introduce evidence of Schultz’s possible bias in the form of self-interest in

the outcome of his trial pursuant to the confrontation clauses of both the

Sixth Amendment of the United States Constitution and Article 1, Section 9

of the Pennsylvania Constitution. Id. at 20-22, citing Commonwealth v.

Evans, 512 A.2d 626, 631 (Pa. 1986).

      We begin by noting our well-settled standard for deciding issues of the

admissibility of evidence.

            The 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) (citation

omitted), appeal denied, 87 A.3d 319 (Pa. 2014).

                                     -9-
J-S13023-15


      Before we may reach the merits of this claim, we must address the

Commonwealth’s contention that Appellant has not preserved this issue for

our review.     See Commonwealth’s Brief at 11-17.       During the cross-

examination of Schultz, the trial court ruled to exclude the evidence that

Schultz had a pending DUI charge at the time she reported the indecent

assault to police as follows.

            [Defense counsel]: And then you went to the police
            when?

            [Schultz]: In September.

            [Defense counsel]: And the police didn’t contact
            you, you contacted them?

            [Schultz]: Yes.

            [Defense counsel]: And when did you go to the
            police; do you know the exact day?

            [Schultz]: I can’t recall.

            [Defense counsel]:      Does September 23rd sound
            about right?

            [Schultz]: Uh-huh.

            [Defense counsel]: I’m not saying this to embarrass
            you. I have to ask you this question. Did you get in
            trouble with some criminal charges in August?

            [Schultz]: I’m sorry, what?

            [Defense counsel]: Did you get in trouble with some
            criminal charges in August before you went to the
            police on this incident?

            [Schultz]: Yes, but it doesn’t have anything to do
            with this case.

                                     - 10 -
J-S13023-15



            [Defense counsel]: But is it pending?

            [Schultz]: Yeah, it is.

            [Defense counsel]: Thank you.

            [Trial court]: I’m going to ask the jury to disregard
            the last series of questions and issues. [Schultz] is
            right, it doesn’t have anything to do with this case.

                  You understand what the rules are?

            [Defense counsel]: Yes, ma’am.

            [Trial court]: Then I suggest you follow them from
            now on.

                  You may step down, Miss Schultz.

N.T., 4/15/14, at 103-104.

      After the trial court dismissed the jury following the first day of

testimony, the trial court initiated the following exchange with counsel,

outside of the presence of the jury.

            [Trial court]: You understand to impeach you must
            have a conviction of crimen falsi.

            [Defense counsel]: It was not under that basis that
            I was introducing that evidence.

            [Trial court]: What basis was it?

            [Defense counsel]: Under Brady [v. Maryland, 373
            U.S. 83 (1963)], in any case, it is my good faith
            belief that I can get into that from the standpoint
            that there would be some -- basically the
            Commonwealth would give her some type of benefit
            for her testimony.

            [Trial court]: That’s something you made up.

                                       - 11 -
J-S13023-15



           [Defense counsel]:     I did not make it up, Your
           Honor.

           [Trial court]: No, it is not the law, but you made it
           up. What is she charged with, murder?

           [Defense counsel]: It is a DUI.

           [Trial court]: Yeah, that’s a good faith belief. She is
           going to get the same sentence everybody else gets.
           Do you think that the Commonwealth is going to
           start bribing victims to come in and testify? Well, I
           don’t.

Id. at 110-111.

     The trial court thus excluded Schultz’s testimony regarding pending

DUI charges against her. Id. at 104. Pennsylvania Rule of Evidence 103

governs the preservation of a challenge to a ruling to exclude evidence.

           Rule 103. Rulings on Evidence

           (a) Preserving a Claim of Error. A party may
           claim error in a ruling to admit or exclude evidence
           only:

                                        …

                  (2) if the ruling excludes evidence, a party
                  informs the court of its substance by an offer
                  of proof, unless the substance was apparent
                  from the context.

           (b) Not Needing to Renew an Objection or Offer
           of Proof. 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.

Pa.R.E. 103(a)(2)-(b).


                                   - 12 -
J-S13023-15


       According to Rule 103, Appellant’s challenge was preserved once the

trial court issued its ruling to exclude the evidence after learning of the

substance of the evidence. See Pa.R.E. 103(a)(2). The Commonwealth, in

arguing that Appellant did not preserve this issue, improperly attempts to

place a higher burden of preservation on Appellant than Rule 103

mandates.6      However, Appellant’s challenge was preserved when the trial

court made its definitive ruling to exclude the evidence. See Id. at 103(b).

Accordingly, Appellant was not required to take any further action to

preserve the issue.        See Id. at 103(a)(2)-(b).   Therefore, we conclude

Appellant’s issue is properly before us.

       Turning to the merits of Appellant’s evidentiary challenge, our

Supreme Court, in Evans, held that evidence of pending criminal charges


____________________________________________


6
  Specifically, the Commonwealth contends that Appellant has not preserved
his challenge to the evidentiary ruling because he cited Brady, instead of
the applicable case, Evans. Commonwealth’s Brief at 13. Further, the
Commonwealth alleges Appellant waived his claims by failing to explain that
the rule announced in Evans, applied to victims as well as other witnesses
and included possible favorable treatment by the prosecution. Id. at 14-15.
The Commonwealth also contends the issue was waived because Appellant
did not inform the court that Evans applies to evidence of “potential” bias in
addition to evidence of actual bias. The Commonwealth’s argument relies on
the discussion that took place after the trial court had ruled to exclude the
evidence. At the time of this discussion, the issue had been preserved for
appellate review. See Pa.R.E. 103(b). Therefore, we decline to find waiver
based on these arguments.         Further, even though Appellant cited the
incorrect case, he provided the rationale of Evans, i.e., that he sought to
show the victim’s self-interest in the outcome of the case. N.T., 4/15/14, at
110. Therefore, the Commonwealth’s claims are without merit.



                                          - 13 -
J-S13023-15


against a witness may be introduced to impeach the credibility of the

witness, reasoning as follows.

           [W]henever a prosecution witness may be biased in
           favor of the prosecution because of outstanding
           criminal charges or because of any non-final criminal
           disposition against him within the same jurisdiction,
           that possible bias, in fairness, must be made known
           to the jury. Even if the prosecutor has made no
           promises, either on the present case or on other
           pending criminal matters, the witness may hope for
           favorable treatment from the prosecutor if the
           witness presently testifies in a way that is helpful to
           the prosecution. And if that possibility exists, the
           jury should know about it.

                 The jury may choose to believe the witness
           even after it learns of actual promises made or
           possible promises of leniency which may be made in
           the future, but the defendant, under the right
           guaranteed in the Pennsylvania Constitution to
           confront witnesses against him, must have the
           opportunity at least to raise a doubt in the mind of
           the jury as to whether the prosecution witness is
           biased. It is not for the court to determine whether
           the cross-examination for bias would affect the jury's
           determination of the case.

Evans, supra at 631-632 (footnote omitted). “The opportunity to impeach

a witness is particularly important when the determination of a defendant’s

guilt or innocence depends on the credibility of the questioned witness.”

Commonwealth v. Mullins, 665 A.2d 1275, 1278 (Pa. Super. 1995).

Accordingly, this Court has held that the rule announced in Evans applies

equally to the impeachment of a victim. Id. However, “[n]ot every denial

of an accused’s right to cross-examine with respect to an unrelated case

requires a new trial. If the error did not control the outcome of the case, it

                                    - 14 -
J-S13023-15


will be deemed harmless.”          Mullins, supra at 1279, citing Delaware v.

Van Arsdall, 475 U.S. 673, 681 (1986).             In conducting a harmless error

analysis, we evaluate “the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or

absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the prosecution’s case.”

Van Arsdall, supra at 684.

       Here, Appellant attempted to cross-examine Schultz, the victim, as to

her potential bias and possible motive to bring accusations against

Appellant. After careful review, we conclude that even if we were to assume

the trial court’s exclusion of the testimony regarding Schultz’s pending DUI

charges was an error under Evans, it was a harmless error.7 The evidence

of pending DUI charges was not strong impeachment.              The crime of DUI

does not involve dishonesty, and it did not show Schultz had actual bias.

Appellant did not make an offer of proof of a quid-pro-quo agreement

between Schultz and the district attorney’s office.         There was simply no
____________________________________________


7
  “This [C]ourt may affirm [the trial court] for any reason, including such
reasons not considered by the [trial] court.” Commonwealth v. Clemens,
66 A.3d 373, 381 n.6 (Pa. Super. 2013) (citation omitted). Additionally, we
“may affirm a judgment based on harmless error even if such an argument
is not raised by the parties.” Commonwealth v. Allshouse, 36 A.3d 163,
182 (Pa. 2012), cert. denied, Allshouse v. Pennsylvania, 133 S. Ct. 2336
(2013).




                                          - 15 -
J-S13023-15


evidence that Schultz went to the police with the accusations against

Appellant to gain favorable treatment in her DUI case.     Instead, Schultz

explained that she went to the police because she heard other women had

similar experiences with Appellant. N.T., 4/15/14, at 95. Further, the trial

court permitted Appellant to impeach Schultz’s credibility in other ways.

Appellant elicited Schultz’s admission that she did not report the incident

immediately. Id. at 101. Instead, she reported it only in connection with

reporting a yelling match later that day between her and Appellant. Id. at

102.   Schultz did not inquire into the status of her report or follow up by

reporting it to her direct supervisor even though she met with her direct

supervisor the day following the incident. Id. Schultz also conceded that

she did not raise the incident again until her unemployment meeting after

she was involuntarily terminated. Id. at 103. In light of the foregoing, we

conclude the error was harmless.

       Moreover, Schultz was one of four witnesses who testified to

Appellant’s indecent assaults.     Her allegations fit a pattern that was

corroborated by the testimony of the three other victims.         Appellant

approached all of the victims at Providence Point when they were alone.

Once isolated, Appellant then made nonconsensual contact with their

breasts. Comparing the corroborating testimony of the other three victims

and the extent of impeachment permitted in the cross-examination of

Schultz with the limited value of the impeachment evidence leads us to


                                   - 16 -
J-S13023-15


conclude that the exclusion of the pending DUI charges was harmless error.

See Mullins, supra; Van Arsdall, supra.

     Based on the foregoing, we affirm the May 22, 2014 judgment of

sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015




                                  - 17 -
