J-A10020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GUIPING ZHENG,

                            Appellant              No. 533 WDA 2015


           Appeal from the Judgment of Sentence February 2, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003431-2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JULY 11, 2016

       Guiping Zheng appeals from the judgment of sentence of fifteen to

thirty months’ incarceration followed by three years’ probation, imposed

February 2, 2015, following a jury trial resulting in his conviction for

indecent assault, unlawful contact with a minor, endangering the welfare of

children, and two counts of corruption of minors.1 We affirm.

       The evidence adduced at the trial in this matter established that

Appellant lay on top of the victim, E.S., fondled her over her clothing, and

attempted to kiss her. This conduct occurred frequently over the course of

approximately four years, commencing when the victim was six years old.

____________________________________________


1
  See respectively 18 Pa.C.S. §§ 3126(a)(7), 6318(a)(4), 4304(a)(1),
6301(a)(1)(i) and (ii).
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Eventually, the victim revealed the ongoing abuse to her mother who

reported Appellant’s behavior.

     At the trial, which commenced in July 2014, the Commonwealth

presented testimony from the victim and her mother. Of relevance to this

appeal, Appellant objected to a portion of the mother’s testimony:

     [The Commonwealth]: What did you say back to [E.S.], when
     she disclosed to you?

     [Mother]: I tried to keep composed the best I could, because I
     knew she was watching me, like, [h]ow is mommy going to take
     this? It was like she was disclosing a secret to me. Not that she
     thought it was really wrong, but it was a secret. And so she was
     telling me about what was going on.

     [Attorney for Appellant]: I’m going to object to that part of the
     testimony. I think anything that this witness saw is clearly
     relevant.

     [Trial Court]: That this witness saw?

     [Attorney for Appellant]: The objection is what she is thinking or
     what she thought. Clearly what she is telling the jury about
     what happened is relevant.

     [Trial Court]: These are her personal observations of her
     daughter’s demeanor, and I will allow that.       Personal
     observations.

Notes of Testimony (N.T.), 07/17-21/2014, at 78-79.

     Appellant testified on his own behalf, denying the allegations.

Appellant also presented character witnesses. For example, neighbor Ning

Jiang testified as to Appellant’s reputation for having a peaceful and law-

abiding character.   Id. at 153-56.    On cross-examination, the following

exchange took place:

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       [The Commonwealth]:           Ma’am, you know [Appellant]; is that
       correct?

       [Ning Jiang]: Yes.

       [The Commonwealth]: And do you think [Appellant] would tell
       you if he was molesting a juvenile female?

       [Attorney for Appellant]: I’m going to object to that question.

       [Trial Court]:      It   is   appropriate   character   witness   cross.
       Overruled.

       [The Commonwealth]: Do you think [Appellant] would talk to
       you about molesting a little girl?

       [Ning Jiang]: No, I don’t.

Id. at 156. Thereafter, Mr. Nan Wu also testified on Appellant’s behalf. Id.

at 157-63. During cross-examination of Mr. Wu, the Commonwealth asked a

similar question soliciting Mr. Wu’s opinion without objection.          Id. at 161

(“Q: Do you think [Appellant] would tell you if he [was] sexually molesting

a juvenile female?”).

       Following his trial and conviction, in February 2015, the trial court

sentenced Appellant as outlined above.2              Appellant filed post-sentence

motions that were denied by the court.                Thereafter, Appellant timely

____________________________________________


2
  The court imposed seven and one-half to fifteen months’ incarceration for
indecent assault; a consecutive period of seven and one-half to fifteen
months’ incarceration for endangering the welfare of children; and
thereafter, concurrent periods of three years’ probation for indecent assault,
unlawful contact with a minor, and corruption of minors.           See N.T.,
02/02/2015, at 12.; see also Criminal Docket No. CP-02-CR-0003431-2014
at 3-4.



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appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court issued a responsive opinion.

        In this appeal, Appellant contends the trial court erred when it

overruled Appellant’s objections to (1) a portion of the testimony solicited

from the victim’s mother and (2) the cross-examination of Appellant’s

character witnesses.          See Appellant’s Brief at 4-5.3 Thus, Appellant

challenges evidentiary decisions of the trial court.

        The admissibility of evidence is at the discretion of the trial court
        and only a showing of an abuse of that discretion, and resulting
        prejudice, constitutes reversible error.      Where an error is
        deemed to be harmless, a reversal is not warranted. Regarding
        the erroneous admission of evidence, 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 overwhelming and the prejudicial effect of the error was so
        insignificant by comparison that the error could not have
        contributed to the verdict.

Commonwealth v. Kuder, 62 A.3d 1038, 1053 (Pa. Super. 2013) (internal

citations omitted; quotation marks omitted; formatting modified).

        Appellant   asserts    that    the     mother’s   testimony   constituted   an

inappropriate lay opinion, as it was not rationally based on her perceptions.

See Appellant’s Brief at 41-43. Appellant’s assertion is without support in

the record.

____________________________________________


3
    We have reversed the order of the issues raised by Appellant.



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       A witness is permitted to offer her opinion, where it is rationally based

upon her perception.        See, e.g., Commonwealth v. Counterman, 719

A.2d 284, 301 (Pa. 1998) (concluding that a medical social worker could

testify to her personal observations of the appellant’s condition and

appearance, including that appellant “did not appear to be grieving over the

deaths of his children”); see also Pa.R.E. 701(a) (permitting a lay witness

to offer opinion testimony “rationally based on the witness’s perception”).

       As noted above, the victim disclosed Appellant’s longtime abuse to her

mother. The mother testified to her daughter’s demeanor at the time of the

disclosure. See N.T., 07/17-21/2014, at 78-79. Appellant objected to this

testimony, but the trial court overruled the objection, stating, “These are her

personal observations of her daughter’s demeanor, and I will allow that.”

Id.   This testimony was proper.               See Counterman, 719 A.2d at 301;

Pa.R.E. 701. Thus, we discern no abuse of the trial court’s discretion. See

Kuder, 62 A.3d at 1053.

       Appellant also asserts that the Commonwealth’s cross-examination of

his character witness, Ms. Ning Jiang, was improper. 4            Appellant elicited

testimony from Ms. Jiang that Appellant had a reputation in the community

for being peaceful and law-abiding.            See N.T., 07/17-21/2014, at 153-56.

____________________________________________


4
 Appellant did not specifically object to similar questioning of Mr. Nan Wu.
Accordingly, any claim pertaining to his testimony is waived. See, e.g.,
Commonwealth v. Montalvo, 641 A.2d 1176, 1184-85 (Pa. Super. 1994).



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Thereafter in response, the Commonwealth challenged this testimony,

questioning Ms. Jiang, “[D]o you think [Appellant] would tell you if he was

molesting a juvenile female?”       Id. at 156.     According to Appellant, this

question was improper because it called for Ms. Jiang’s opinion of Appellant’s

character. See Appellant’s Brief at 26-28 (citing in support Pa.R.E. 405(a)

(“Testimony about the witness's opinion as to the character or character trait

of the person is not admissible.”)). Moreover, according to Appellant, with

this single query the Commonwealth’s cross-examination of Ms. Jiang

unfairly prejudiced Appellant because it worked to undermine his credibility.

Id. at 32-37.

      We conclude that Appellant is entitled to no relief. We agree that the

Commonwealth’s question, as phrased, elicited the personal opinion of Ms.

Jiang and that such opinion testimony is inadmissible from a character

witness.     See Pa.R.E. 405(a).         However, we are also mindful that the

Commonwealth is permitted to cross-examine a character witness “to test

the accuracy of [her] testimony and the standard by which [she] measures

reputation.” Commonwealth v. Morgan, 739 A.2d 1033, 1036 (Pa. 1999);

see   also    Trial   Court   Opinion,    08/04/2015,   at   8   (noting   that   the

Commonwealth’s question challenged Appellant’s law-abiding character).

Accordingly, despite the awkward phrasing of the Commonwealth’s question,

we discern no abuse of the trial court’s discretion in overruling Appellant’s

objection.


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      As a result of the Commonwealth’s cross-examination, Appellant’s

evidence of good character was merely tempered by Ms. Jiang’s concession

that Appellant may not disclose criminal activity to her. Appellant suggests

that this concession so undermined the credibility of his denial of culpability

that a new trial is warranted. We disagree. Even were we to conclude that

the trial court abused its discretion, any resulting prejudice to Appellant was

de minimis.   Simply put, we are not persuaded that the Commonwealth’s

single question diminished the effectiveness of Ms. Jiang’s character

testimony such that Appellant is entitled to a new trial. Thus, to the extent

the trial court could have directed the Commonwealth to re-phrase its

question in manner more clearly compliant with Rule 405(a), we deem the

court’s error to be harmless. Kuder, 62 A.3d at 1053.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




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