J-S21011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JHEN ALEXANDRE SCUTELLA

                            Appellant                    No. 881 WDA 2016


           Appeal from the Judgment of Sentence September 4, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000582-2015


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                  FILED MAY 12, 2017

        Jhen Alexandre Scutella appeals from his judgment of sentence,

entered in the Court of Common Pleas of Erie County, after a jury found him

guilty of false reports to law enforcement authorities.1 After careful review,

we vacate Scutella’s judgment of sentence.2

        The trial court set forth the facts of this case as follows:

        The genesis of [this case] occurred on or about October 15,
        2014. Late that evening, Patrolman James Cousins, City of Erie
        Police Department, was dispatched to the Country Fair
        [convenience store] at 18th and Sassafras Streets, Erie,
        Pennsylvania, due to an altercation in the parking lot between
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 4906(b)(1).
2
  We note that, despite requesting and receiving an extension of time to file,
the Commonwealth failed to submit a brief in this matter.
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      [Scutella] and one of three passengers from [his] white Dodge
      Ram truck. Patrolman Cousins encountered [Scutella’s] vehicle
      a short distance from Country Fair, activated the lights on the
      police cruiser, and followed [Scutella’s] vehicle. [Scutella] pulled
      his vehicle over at 18th and Poplar Streets, a distance of
      approximately three blocks from Reno’s Bar. [Scutella] and the
      occupants exited the vehicle and walked away, and failed to
      heed Patrolman Cousins’ commands for them to stop and return
      to the truck. Patrolman Cousins observed in plain view two clear
      plastic baggies of marijuana in the front compartment area of
      the truck. A search warrant was obtained, and the vehicle was
      towed. A short while later, [Scutella] telephoned the police and
      reported his truck had been stolen. Officer Robert Williams
      received the dispatch with regard to the stolen vehicle report.
      During Officer Williams’ interview with [Scutella], [Scutella] told
      the officer that [he] had parked his car at 18th and Walnut
      Streets, outside Reno’s Bar; he went inside Reno’s; and when he
      exited the bar the vehicle was gone. During the interview,
      Officer Williams warned [Scutella] about being truthful, as the
      police were suspicious of [Scutella’s] motives in reporting the
      vehicle had been stolen, as marijuana had been found inside the
      vehicle.

Trial Court Opinion, 8/15/16, at 1-2 (citations to the record omitted).

      Scutella was charged with false reports to law enforcement authorities

and unsworn falsification to authorities. A jury trial was held on September

15, 2015. After the Commonwealth rested its case in chief, Scutella moved

for, and was granted, judgment of acquittal on the charge of unsworn

falsification to authorities. The jury convicted him of the remaining charge

and, on September 18, 2015, the court sentenced Scutella to six to twelve




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months’ incarceration.        This appeal follows,3 in which Scutella raises the

following issues for our review:

       1. The [t]rial [c]ourt erred in failing to permit [Scutella] to
       introduce evidence of a civil rights action he had filed against the
       police, which he believes would have changed the jury’s decision
       in this case.

       2. The [t]rial [c]ourt erred in failing to grant the portion of
       [Scutella’s] post conviction relief motion where he asserts that
       trial counsel was ineffective in failing to raise an entrapment
       defense on his behalf at trial.

       3. The Commonwealth’s failure to supply a videotape of the
       police officer pulling behind his vehicle constituted a violation of
       Brady v. Maryland[, 373 U.S. 83 (1963)].

Brief of Appellant, at 1.

____________________________________________


3
   Immediately following the imposition of his judgment of sentence, Scutella
filed neither post-sentence motions nor a direct appeal. The trial court set
forth the ensuing procedural history as follows:

       On October 9, 201[5], the Clerk of Courts forwarded to trial
       counsel a pro se Motion for Post Conviction Collateral Relief
       which [Scutella] had submitted for filing [pursuant to the Post
       Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546]. On October
       15, 201[5], the [c]ourt permitted trial counsel to withdraw. On
       October 23, 2015, [Scutella’s PCRA petition] was recorded on
       the docket. PCRA counsel was appointed. PCRA [c]ounsel filed
       a [s]upplemental [PCRA petition] on December 15, 2015. On
       January 6, 2016, the Commonwealth filed a [r]esponse to the
       [s]upplemental [PCRA petition]. On May 27, 2016, the [c]ourt
       reinstated [Scutella’s] direct appeal rights nunc pro tunc. On
       June 17, 2016, [Scutella] filed a [n]otice of [a]ppeal from the
       judgment of sentence[, followed by a court-ordered statement of
       errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
       and an amended Rule 1925(b) statement].

Trial Court Opinion, 8/15/16, at 2-3.



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      Scutella first claims that the trial court erred in denying his motion in

limine requesting that he be allowed to present evidence of a prior civil

rights lawsuit he filed in federal court in which Officer Cousins was a

defendant. Scutella argues that evidence of the lawsuit, which settled prior

to trial, could have been used to demonstrate bias on the part of Officer

Cousins. Although it was Officer Williams who handled Scutella’s false report

of his stolen vehicle, Scutella argues that “Officer Cousins was the first

reporting officer in the events that unfolded [prior to] Scutella’s act of

reporting his vehicle as being stolen. Thus, it is possible that Officer Cousins

could have suggested to Officer Williams how to proceed with the stolen

vehicle claim.”   Brief of Appellant, at 7.    Scutella also asserts that Officer

Cousins’ identification of Scutella as the driver of the white Dodge Ram could

have been prejudiced or biased.

      The decision whether to admit evidence is within the sound discretion

of the trial court and will not be reversed on appeal absent an abuse of that

discretion. Commonwealth v. Foley, 38 A.3d 882, 886 (Pa. Super. 2012).

We will find an abuse of discretion only where the trial court’s ruling “reflects

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support to be clearly erroneous.” Id.

      Relevance     is   the   threshold      for   admissibility   of   evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).                  Pennsylvania

Rule of Evidence 401 provides as follows:

      Rule 401. Test for Relevant Evidence

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      Evidence is relevant if:

      (a) it has any tendency to make a fact more or less probable
      than it would be without the evidence; and

      (b) the fact is of consequence in determining the action.

Pa.R.E. 401. Evidence is relevant if it logically tends to establish a material

fact in the case, tends to make a fact at issue more or less probable or

supports a reasonable inference or presumption regarding a material fact.

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (citation

omitted). “All relevant evidence is admissible, except as otherwise provided

by law.   Evidence that is not relevant is not admissible.”       Pa.R.E. 402.

Finally the court may exclude relevant evidence if its probative value is

outweighed by a 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.

      Here, the trial court concluded that the evidence of Scutella’s prior

lawsuit was irrelevant and, therefore, inadmissible:

      [E]vidence of the prior lawsuit involving Officer Cousins was
      irrelevant. Irrelevant evidence is inadmissible. Evidence of a
      prior lawsuit was irrelevant to the issue of bias or motive, as the
      lawsuit occurred approximately five years earlier.        The suit
      resulted in a settlement, rather than an adjudication of liability.
      Also, . . . it was Officer Robert Williams, not Officer Cousins, to
      whom [Scutella] reported his vehicle had been stolen. With
      regard to [Scutella’s] identity as the operator of the white truck,
      although Officer Cousins testified [Scutella] was the operator,
      [Scutella] himself admitted he was the vehicle operator.




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Trial Court Opinion, 8/15/16, at 5.      We disagree with the trial court’s

rationale and, therefore, remand for a new trial.

      Contrary to the trial court’s finding, Officer Cousins’ testimony was

highly important to the Commonwealth’s case against Scutella. Although it

was Officer Williams who took Scutella’s stolen vehicle report, it is the

testimony of Officer Cousins that was key to demonstrating Scutella’s

knowledge that his truck was not actually stolen. Officer Cousins’ testimony,

if true, demonstrated that Scutella knew that the police sought to speak with

him and, therefore, likely had seen the marijuana in his truck.          This

knowledge on Scutella’s part forms the basis for his alleged motive in

fabricating his claim, i.e., that he reported his truck stolen in an effort to

blame the “thief” for the marijuana present in the vehicle. Scutella’s own

testimony was that he had neither heard nor seen Officer Cousins, and that

he had simply stopped for beer and returned to find his vehicle gone.

Because the two men’s versions of events were wildly inconsistent, Officer

Cousins’ credibility is key to the Commonwealth’s case.      Accordingly, we

agree with Scutella that evidence of the civil action is relevant to show

possible bias on the part of Officer Cousins.       See Commonwealth v.

Rouse, 782 A.2d 1041 (Pa. Super. 2001) (evidence of civil action brought

by defendant against victim relevant to whether victim biased against

defendant in testimony at trial; probative value not outweighed by potential

for jury confusion or prejudice to Commonwealth).




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      Pennsylvania courts have consistently recognized that evidence of bias

is relevant to impeach the credibility of a witness.      The United States

Supreme Court has defined bias as “the relationship between a party and a

witness which might lead the witness to slant, unconsciously or otherwise,

his testimony in favor of or against a party.” United States v. Abel, 469

U.S. 45, 52 (1984). In Commonwealth v. Abu-Jamal, 555 A.2d 846 (Pa.

1989), our Supreme Court adopted the reasoning of the United States

Supreme Court in Abel that “proof of bias is almost always relevant because

the jury, as finder of fact and weigher of credibility, has historically been

entitled to assess all evidence which might bear on the accuracy and truth of

a witness' testimony.”   Abu-Jamal, 555 A.2d at 853.      Here, the fact that

Scutella instituted a civil action against Officer Cousins, and had obtained a

settlement as a result, is clearly relevant to show that Officer Cousins could

have fabricated his testimony to exact revenge.

      Relevancy, however, is not the end of our inquiry.       Under Pa.R.E.

607(b), “the credibility of a witness may be impeached by any evidence

relevant to that issue, except as otherwise provided by statute or these

Rules.” Impeachment evidence is also subject to Rule 403, which provides

that the court may exclude relevant evidence if its probative value is

outweighed by a 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.




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       Here, there exists a possibility that evidence of Scutella’s prior lawsuit

against Officer Cousins might tend to confuse the jury or result in prejudice

to the Commonwealth. However, we do not believe that the dangers of such

potential prejudice and/or confusion outweigh the probative value of the

evidence. Moreover, any possible jury confusion can be minimized or cured

through a cautionary instruction indicating the limited purpose for which the

evidence is being introduced. We therefore hold that evidence of Scutella’s

civil action against Officer Cousins is relevant to show possible bias on the

part of the officer, and that the probative value of that evidence is not

outweighed by its potential to confuse or prejudice the jury. As such, the

trial court abused its discretion when it prevented Scutella from introducing

the evidence for the limited purpose of demonstrating bias, and we vacate

his judgment of sentence.4

       Judgment of sentence vacated; case remanded for proceedings

consistent with the dictates of this memorandum; jurisdiction relinquished.




____________________________________________


4
  Because of our disposition of Scutella’s first issue, we need not address his
remaining appellate claims.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2017




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