J-A03025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CHRISTOPHER DEVIN BOULDING              :
                                         :
                   Appellant             :   No. 751 WDA 2018

           Appeal from the Judgment of Sentence April 18, 2018
    In the Court of Common Pleas of Beaver County Criminal Division at
                      No(s): CP-04-CR-0001224-2017


BEFORE:    BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 30, 2019

     Appellant, Christopher Devin Boulding, appeals from the aggregate

judgment of sentence of three to six years of imprisonment imposed on April

18, 2018, following a jury trial on March 12, 2018. We affirm.

     The trial court summarized the facts of the crime as follows:

           The charges in this case arise out of three controlled
     Suboxone drug transactions between the same cooperating
     witness, later identified as Terrance Cox. The first transaction was
     on June 21, 2016. The second and third transactions occurred at
     [Appellant’s] residence in New Brighton, Beaver County[,] on June
     23, 2016[,] and on July 8, 2016, respectively. Detective Robert
     Chamberlain of the Beaver County Drug Task Force was the
     supervising officer for each transaction.

          At trial, the Commonwealth presented the testimony of the
     supervising officer, Detective Robert Chamberlain; the
     cooperating witness, Terrance Cox; two other members of the
     Beaver County Drug Task Force; and a Pennsylvania State Police
     Chemist, John Wall. Mr. Cox also testified to a confrontation that
     he had with [Appellant] at the Beaver County Welfare Office on
     February 14, 2018[,] where [Appellant] called Mr. Cox as a
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03025-19


     witness who was testifying against him and then [Appellant]
     threatened Mr. Cox by saying[,] “Don’t make me have to come
     and kill you.”

           [Appellant] testified at trial and denied that he sold drugs to
     Mr. Cox.

                                    * * *

            On June 21, 2016, Detective Robert Chamberlain of the
     Beaver County Drug Task Force met with a cooperating witness
     (hereinafter “CI”) to facilitate a controlled purchase of Suboxone
     strips from [Appellant]. More specifically, Detective Chamberlain
     discussed with the CI how the buy would be orchestrated; they
     strip searched the CI and searched his vehicle to check for money,
     contraband, and weapons. The officers had the CI place a call to
     [Appellant’s] phone arranging a purchase. Detective Chamberlain
     then observed the following: [Appellant] threw keys out the
     window of his apartment down to the CI, the CI then entered the
     apartment building and went up to [Appellant’s] residence. Both
     the CI and [Appellant] then entered a car in which an unidentified
     female was waiting and she then drove the CI and [Appellant] to
     Beaver Falls. [Appellant] exited the vehicle and the CI and the
     officers witnessed a hand-to-hand exchange with an unknown
     female from which [Appellant] then returned to the vehicle. The
     female drove the vehicle back to [Appellant’s] residence, where
     he exited and returned to his residence. The CI returned to the
     police station, where he gave the police three Suboxone strips in
     sealed foil-type packaging and the police paid the CI $35 to $40
     for the organized buy.

             Two days later, on June 23, 2016, Detective Chamberlain
     facilitated another controlled purchase of Suboxone strips using
     the same CI. The same procedures and protocol were followed,
     and officers again observed the CI place the phone call to
     [Appellant’s] phone arranging the purchase. Once arrangements
     were made, surveillance teams only observed the CI enter the
     apartment building of [Appellant] but did not personally observe
     any narcotics transactions. Again, the CI returned to the police
     station for a debriefing, and officers recovered four Suboxone
     strips, and then paid the CI for the purchase.

           Finally, on July 8, 2016, Detective Chamberlain organized a
     third controlled purchase using the same CI. On this occasion,

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      officers again followed the same safety/search preliminary
      procedures and protocol. The surveillance teams observed a
      hand-to-hand exchange between the CI and [Appellant,] which
      took place out in the open on [Appellant’s] front porch. The CI
      returned to the police station, was again searched, and officers
      recovered four Suboxone strips for which the CI was paid.

Trial Court Opinion, 7/17/18, at unnumbered 2, 3–5 (footnote references to

notes of testimony omitted).

      A jury convicted Appellant of three counts of Manufacture, Delivery, or

Possession with Intent to Manufacture or Deliver, 35 P.S. § 780-113(a)(30),

and three counts of Criminal Use of Communication Facility, 18 Pa.C.S. §

7512(a). Trial Court Opinion, 7/17/18, at unnumbered 1. Appellant did not

file post-sentence motions. Appellant filed a timely notice of appeal on May

18, 2018. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following two issues in this appeal:

      Question 1: Whether the Court of Common Pleas committed
      reversible error when it sustained the Commonwealth’s objection
      to the question whether the detective leading the criminal
      investigation into the Appellant’s alleged drug sales was aware
      that the confidential informant he had used had previously been
      convicted of providing false information to law enforcement by
      falsely incriminating another person in violation of 18 Pa.C.S. §
      4906(a)?

      Question 2: Whether the Court of Common Pleas committed
      reversible error when it granted the Commonwealth’s motion to
      preclude cross-examination of the confidential informant about his
      prior conviction for providing false information to law enforcement
      by falsely incriminating another person in violation of 18 Pa.C.S.
      § 4906(a) based on Rule 609(b)(2) of the Pennsylvania Rules of
      Evidence even though the Commonwealth had received notice of
      Appellant’s intention to ask that question earlier in the trial?

Appellant’s Brief at 6–7.

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        “It is well-established that the admissibility of evidence is within the

discretion of the trial court, and such rulings will not form the basis for

appellate relief absent an abuse of discretion.” Commonwealth v. Rivera,

983 A.2d 1211, 1228 (Pa. 2009) (citation and quotation marks omitted).

        [T]he Superior Court may reverse an evidentiary ruling only upon
        a showing that the trial court abused that discretion.
        Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 636
        (2010). A determination that a trial court abused its discretion in
        making an evidentiary ruling “may not be made ‘merely because
        an appellate court might have reached a different conclusion, but
        requires a result of manifest unreasonableness, or partiality,
        prejudice, bias, or ill-will, or such lack of support so as to be clearly
        erroneous.’” Id. (quoting Commonwealth v. Sherwood, 603
        Pa. 92, 982 A.2d 483, 495 (2009)). Further, discretion is abused
        when     the    law     is     either   overridden     or    misapplied.
        Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277,
        1281 (2005).

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014).

        We address Appellant’s issues in tandem, as they are intertwined.

Appellant     argues   that   the   trial   court   erred   when   it   sustained   the

Commonwealth’s objection to Appellant’s question to Detective Chamberlain

whether the detective knew that the CI had been convicted of providing false

information to law enforcement when the CI previously falsely incriminated

another person in violation of 18 Pa.C.S. § 4906(a) (False reports to law

enforcement authorities). Appellant’s Brief at 17. That statute provides, in

part:

        § 4906. False reports to law enforcement authorities

        (a) Falsely incriminating another.--Except as provided in
        subsection (c), a person who knowingly gives false information to

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J-A03025-19


       any law enforcement officer with intent to implicate another
       commits a misdemeanor of the second degree.

       (b) Fictitious reports.--Except as provided in subsection (c), a
       person commits a misdemeanor of the third degree if he:

              (1) reports to law enforcement authorities an offense
              or other incident within their concern knowing that it
              did not occur; or

              (2) pretends to furnish such authorities with
              information relating to an offense or incident when he
              knows he has no information relating to such offense
              or incident.

18 Pa.C.S. § 4906 (a), (b).

       Appellant contends the trial court compounded the error by denying

Appellant’s questioning of the CI about the prior conviction, although Appellant

confusingly maintains that he did not intend to ask the CI about the prior

conviction for False Reports. Appellant’s Brief at 17, 23. Appellant suggests

that the trial court erred, after precluding Appellant from asking Detective

Chamberlain about the CI’s conviction under 18 Pa.C.S. § 4906(a), in denying

Appellant’s request to question the CI, accompanied by a cautionary

instruction to the jury.      Appellant’s Brief at 23–24.1

____________________________________________


1  Appellant makes an ineffectual and seemingly unrelated argument that the
trial court misstated trial testimony when describing the events of June 21,
2016, the date of the first drug buy. Appellant’s Brief at 18. Appellant makes
a similar argument regarding the trial court’s explanation of testimony
regarding the drug sale on July 8, 2016. Appellant’s Brief at 20–21. It appears
that he advances this contention because he asserts, contrary to the trial
court, that no member of the drug task force “actually witnessed a ‘hand-to-
hand’ transfer of illegal drugs.” Appellant’s Brief at 18. Thus, Appellant



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       The Commonwealth essentially reiterates the trial court’s position,

discussed infra. In addition, it points out that Appellant “admitted that he did

not provide written notice to use the CI’s false reports conviction,”

Commonwealth’s Brief at 5. Despite Appellant’s denial, the Commonwealth

suggests that Appellant was attempting to attack the CI’s credibility, and it

could have done so through “three retail convictions and two felonies.” Id.

       The trial court properly prohibited Appellant’s use of the CI’s prior

conviction for False Reports to Law Enforcement during Appellant’s cross-

examination of Detective Chamberlain. Clearly, Appellant cannot do indirectly

what he is precluded from accomplishing directly.      We agree with the trial

court’s representation that Appellant conceded he was unable to use the CI’s

prior conviction to impeach credibility because it was more than ten years old.

Trial Court Opinion, 7/17/18, at unnumbered 3; N.T., 3/9/18, at 71–72 (“I’m

not using [the false report] to impeach his credibility. I’m trying to use it to

impugn his integrity of the investigation. . . . I’m not able to use it because

it’s more than 10 years.”). The trial court opined that when Appellant posed

the question to Detective Chamberlain, the Commonwealth had not yet

presented the testimony of the CI. Thus, the Commonwealth objected at that



____________________________________________


maintains that “the only person who was in a position to implicate the
Appellant in any delivery of a controlled substance was the” CI. Id. at 21.
The police described in detail the procedure involved in strip-searching the CI
before and after the transactions, and the jury obviously agreed and accepted
the extent of the drug task force members’ observations.

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J-A03025-19


point, claiming the question properly should be posed to the CI, not the

detective. N.T., 3/9/18, at 71. Therefore, the trial court determined the CI’s

prior conviction “was not ‘relevant at this point in trial.’” Trial Court Opinion,

7/17/18, at unnumbered 12 (footnoted omitted); N.T., 3/9/18, at 72.

       The trial court explained:

              In this case, an undocumented, 14 year old prior conviction
       for False Reports, in a case with no evidence of any intervening
       convictions for the same crime, in a case with no evidence that
       the cooperating witness was providing false information in this
       investigation, and, in a case where the cooperating witness was
       monitored closely from the beginning of each transaction to the
       conclusion of each transaction, the criminal history of the
       cooperating witness does not reveal anything about the
       circumstances of the crime of Delivery of a Controlled Substance
       and Criminal Use of a Communication Facility. Therefore, that
       evidence was properly excluded from the evidence at trial for the
       purpose for which [Appellant] intended to use that evidence: to
       impugn the integrity of the investigation of Detective Chamberlain
       into the drug dealing activities of [Appellant].

Trial Court Opinion, 7/17/18, at unnumbered 14. The trial court went on to

examine the proper procedure for attempting to impeach the credibility of a

witness as set forth in Pa.R.E. 609.2

____________________________________________


2   The rule provides, in pertinent part:

       Rule 609. Impeachment by Evidence of a Criminal
       Conviction

       (a) In General. For the purpose of attacking the credibility of
       any witness, evidence that the witness has been convicted of a
       crime, . . . must be admitted if it involved dishonesty or false
       statement.




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J-A03025-19


              By the terms of Pa.R.E. 609 and for the purposes of
       attacking the credibility of any witness, evidence that the witness
       has been convicted of a crime, whether by verdict or by plea of
       guilty or nolo contendere, must be admitted if it involved
       dishonesty or false statement. Pa.R.E. Rule 609(a). If more
       than ten years have passed since the witness’s conviction
       or release from confinement for the prior conviction, whichever is
       later, evidence of that conviction is only admissible if: (1)
       its probative value substantially outweighs its prejudicial
       effect; and (2) the proponent gives an adverse party
       reasonable written notice of the intent to use it so that the
       party has a fair opportunity to contest its use. Pa.R.E.[]
       609(b).

Trial Court Opinion, 7/17/18, at unnumbered 15 (emphasis added). The trial

court also examined the factors set forth in Commonwealth v. Hoover, 107

A.3d 723, 725 (Pa. 2014), stating:

             In weighing the probative value versus prejudicial impact of
       older crimen falsi conviction in this case, the [c]ourt has
       considered:

          1) The degree to which the commission of the prior offense
          reflects upon the veracity of the defendant-witness; 2) the
          likelihood, in view of the nature and extent of the prior
____________________________________________


       (b) Limit on Using the Evidence After 10 Years.              This
       subdivision (b) applies if more than 10 years have passed since
       the witness’s conviction or release from confinement for it,
       whichever is later. Evidence of the conviction is admissible only
       if:

          (1) its probative value substantially outweighs its prejudicial
          effect; and

          (2) the proponent gives an adverse party reasonable written
          notice of the intent to use it so that the party has a fair
          opportunity to contest its use.

Pa.R.E. 609 (a), (b).


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J-A03025-19


         record, that it would have a greater tendency to smear the
         character of the defendant and suggest a propensity to
         commit the crime for which he stands charged, rather than
         provide a legitimate reason for discrediting him as an
         untruthful person; 3) the age and circumstances of the
         defendant; 4) the strength of the prosecution’s case and the
         prosecution’s need to resort to this evidence as compared
         with the availability to the defense of other witnesses
         through which its version of the events surrounding the
         incident can be presented; and 5) the existence of
         alternative means of attacking the defendant’s credibility.

      Commonwealth v. Hoover, 107 A.3d 723, 725 (Pa. 2014),
      (quoating [sic] Commonwealth v. Randall, 528 A.2d 1326,
      1328 (Pa. 1987).

            In this case, factor five (5), the existence of alternative
      means of attacking the witness’[s] credibility weighs heavy in the
      [c]ourt’s decision to exclude the evidence of the 2003 conviction
      for False Reports. As summarized above, counsel for [Appellant]
      impeached the cooperating witness with four prior crimen falsi
      convictions that were within the ten year look back period. He
      argued that because the crimen falsi convictions were recent, the
      implication was that the cooperating witness was not someone
      who did these things long ago but has long since been
      rehabilitated. He argued that the cooperating witness was a thief,
      capable of thievery and willing to lie and steal. Thus, there was
      other evidence of impeachment of the witness that was
      aggressively used by counsel for [Appellant].

Trial Court Opinion, 7/17/18, at unnumbered 16. See N.T., 3/9/18, at 144–

156 (cross-examination of the CI).

      Moreover, Appellant cross-examined Detective Chamberlain regarding

potential bias by the CI, as well as the CI himself regarding his other crimen

falsi convictions for retail theft. N.T., 3/9/18, at 72; 144. Further, as the trial

court held, “There was no notice given to the Commonwealth that [Appellant]

intended to cross[-]examine the [CI] with the 14[-]year[-]old False Reports


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conviction or, that [Appellant] was to cross[-]examine the Detective with that

evidence,” a key component of Pa.R.E. 609 (b)(2).         Trial Court Opinion,

7/17/18, at unnumbered 15. The trial court proceeded within its discretion

and thoughtfully considered and balanced the probative value versus the

prejudicial impact of the old crimen falsi conviction and examined the factors

set forth in pertinent case law.

      We agree with the trial court that in light “of the value of the evidence,

the existence of alternative means of attacking the witness’[s] credibility, the

prejudicial effect, the time that has passed since the conviction, and Counsel’s

lack of written notice as required by statute,” it was proper to proscribe the

jury’s consideration of the CI’s fourteen-year-old conviction of False Reports.

Trial Court Opinion, 7/17/18, at unnumbered 17.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2019




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