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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN BLACKWELL

                            Appellant                  No. 575 WDA 2016


             Appeal from the Judgment of Sentence January 7, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005461-2015
                                          CP-02-CR-0006515-2015


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

MEMORANDUM BY MOULTON, J.:                            FILED MARCH 14, 2017

       Kevin Blackwell appeals from the January 7, 2016 judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his bench trial convictions1 for burglary (overnight accommodation with

person present), aggravated assault, terroristic threats (with intent to

terrorize another), unlawful restraint (serious bodily injury), recklessly


____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
        The trial court conducted a bench trial at docket number CP-02-CR-
0005461-2015. Previously, Blackwell had pled guilty at docket number CP-
02-CR-0006515-2015 to three counts of driving under the influence, 18
Pa.C.S. § 3802. On January 7, 2016, the trial court sentenced Blackwell at
both docket numbers. At docket CP-02-CR-0006515-2015, the trial court
sentenced Blackwell to 48 hours’ incarceration, which Blackwell does not
appeal.
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endangering another person, criminal mischief (tampering with property),

and conspiracy to commit burglary.2 We affirm.

       The trial court set forth the factual history of this matter as follows:

               The credible facts presented at trial established that the
           March 3, 2015, incident giving rise to this prosecution
           resulted from prior “bad blood” between Shawn Jackson on
           one side and [Blackwell] and Patrick Benthin on the other.
           Trial evidence revealed that at one point Mr. Jackson and
           [Blackwell] had been friends. However, within the month
           prior to March 3, 2015, Patrick Benthin (who was a friend
           of [Blackwell]’s from California and had recently come to
           Pittsburgh) had been involved in an altercation with Mr.
           Jackson at the Car Line bar.         Immediately after the
           incident at the Car Line bar, [Blackwell] invited Mr.
           Jackson to his house. When Mr. Jackson arrived, he was
           accompanied by two other men.           [Blackwell] told Mr.
           Jackson that Patrick Benthin would be “right out”. Mr.
           Jackson and Patrick Benthin then fought.

              [Blackwell] and Patrick Benthin went to the residence of
           Shawn Jackson and Anita Sheets in the early morning
           hours of March 3, 2015. Mr. Jackson and Ms. Sheets were
           awakened by a loud noise on the front porch of their
           apartment building. [Blackwell] and Patrick Benthin broke
           through the bedroom window of the apartment. They
           were screaming that Mr. Jackson was “a pussy” and telling
           him that he was going to die. They threatened to rape Ms.
           Sheets.    Patrick Benthin immediately approached Mr.
           Jackson and began punching him. The assault escalated
           and moved into the hallway of the apartment. Mr. Jackson
           grabbed a small steak knife that was on the nightstand
           next to his bed. Patrick Benthin continued to punch Mr.
           Jackson and Mr. Jackson stabbed Patrick Benthin in an
           effort to defend himself. After [Blackwell] entered the
           apartment, he confronted Ms. Sheets and pushed her
____________________________________________


       2
       18 Pa.C.S. §§ 3502(a)(1)(i), 2702(a)(1), 2706(a)(1), 2902(a)(1),
2705, 3304(a)(2), and 903, respectively.



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         against a dresser.     As the assault escalated into the
         hallway, [Blackwell] went to assist Patrick Benthin and
         [Blackwell] joined in on the assault and began punching
         Mr. Jackson in the face. Ms. Sheets attempted to assist
         Mr. Jackson. She grabbed a three-foot long wooden board
         that was in the living room area that was undergoing
         constriction. She struck Patrick Benthin and [Blackwell]
         with the wooden board. Both men stopped the attack and
         fled the residence through the same window that they
         entered. As [Blackwell] left the residence, he told Ms.
         Sheets, “I should have let him rape you.” Ms. Sheets
         called 911 and the police responded.

            As a result of the assault, Mr. Jackson suffered a broken
         orbital (cheek) bone, a broken rib, a scratched cornea that
         required surgery, lacerations that required stitches and
         various other bruises and scratches. Ms. Sheets suffered
         minor bruises. [Blackwell] and Patrick Benthin [were]
         arrested . . .

Opinion, 6/30/16, at 2-3 (“1925(a) Op.”).

      Following a bench trial on October 22, 2015, the trial court convicted

Blackwell of the above charges.       On January 7, 2016, the trial court

sentenced Blackwell to 3 to 6 years’ incarceration for the burglary

conviction, 1 to 2 years’ incarceration for the unlawful restraint conviction,

consecutive to the burglary conviction sentence, and 3 years’ probation for

the   aggravated assault    conviction,   also   consecutive   to   the   burglary

conviction sentence. After the trial court denied a series of post-sentence

motions, Blackwell filed a timely notice of appeal on April 22, 2016.

      Blackwell’s sole issue on appeal is “[w]hether the trial court abused its

discretion in allowing [Jackson] to invoke his right to remain silent which

interfered with [Blackwell]’s right to cross-examination and right to

confrontation[.]” Blackwell’s Br. at 5. According to Blackwell, the trial court


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erred when it curtailed his counsel’s line of questioning about a prior fight

between Benthin and Jackson. Id. at 12, 24.

     About one month before the burglary and assault, Blackwell and

Benthin were involved in at least two altercations with Jackson. Blackwell’s

counsel questioned Jackson about these incidents, for a limited purpose, to

establish Jackson’s motivation to testify against Blackwell. N.T., 10/22/15,

at 55-56. Jackson testified that about one month before the March 3, 2015

incident, he went to Blackwell’s house, where he and Benthin fought. Id. at

57-59. Blackwell’s counsel then asked for details regarding the incident:

        [BLACKWELL’S COUNSEL]:          Okay.     Who else      was
        outside during the fight? What were their names?

        THE COURT:     Did you bring other people with you is the
        question.

        [JACKSON]: I got a ride out there, because I don’t have
        a driver’s license.

        THE COURT:     No explanation, sir.

        [JACKSON]:     Yes.

        THE COURT:     Answer the question.

        [JACKSON]:     Yes, sir.

        THE COURT:     Did you bring other people?

        [JACKSON]:     I got a ride.

        THE COURT:     Don’t talk over the Judge. That’s a real bad
        idea.

           Did you bring other people with you?

        [JACKSON]:     Yes, sir.

        THE COURT:     How many?


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        [JACKSON]:     Two.

        THE COURT: Okay. So there were three total counting
        you. There were three of them.

           Go ahead, [counsel].

        [BLACKWELL’S COUNSEL]:             And who were those two
        individuals’ names?

        [JACKSON]:     I’d rather not say.

        [BLACKWELL’S COUNSEL]:             Your Honor –

        THE COURT: The [witness]’s assertion of his fifth
        amendment privilege is recognized. Since you are trying
        to bring out some type of conspiracy to commit a criminal
        act, he said he’d rather not say, I view that as his
        assertion of his right to remain silent and not implicate
        himself in criminal conduct. Move on.

        [BLACKWELL’S COUNSEL]:             Okay.   And during the
        fight with Mr. Benthin –

        THE COURT: Potential criminal conduct, I should say.
        I’m not making any conclusions it was. As you know, if it
        tends to prove – if it tends to incriminate him he may
        assert his rights. I recognize his assertion of his right.

Id. at 59-61. Jackson then testified that the men ended the fight and went

their separate ways. Id. at 61-62.

     Blackwell argues that the trial court erroneously concluded that

Jackson’s answer of “I’d rather not to say” was an invocation of his Fifth

Amendment privilege against self-incrimination. Id. at 12, 23. According to

Blackwell, the trial court’s ruling prevented Blackwell from confronting

Jackson through cross-examination, as “the identities of the other persons

were probative to [Blackwell]’s confrontation rights.” Id. at 24. Blackwell

argues that “[t]he age, sex, and physical health of these persons were



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relevant,” as “[Jackson]’s eighty-five-year-old grandfather, or his four-year-

old son would be a stark contrast to a physically fit boxer that was twenty-

eight years of age.” Id. We disagree.

       Both the Sixth Amendment to the United States Constitution and

Article One, Section Nine of the Pennsylvania Constitution secure the right of

the accused to confront witnesses against him. See U.S. Const. amend. VI;

Pa. Const. art. I, § 9.     “Whether [a]ppellant was denied [his] right to

confront a witness under the confrontation clause of the Sixth Amendment is

a question of law for which our standard of review is de novo and our scope

of review is plenary.”      Commonwealth v. Yohe, 39 A.3d 381, 384

(Pa.Super. 2012) (quoting Commonwealth v. Dyarman, 33 A.3d 104, 106

(Pa.Super. 2011)).

       The Confrontation Clause “provides that all criminal defendants enjoy

‘the   right   to    confront   and   cross-examine    adverse    witnesses.’”

Commonwealth v. Rosser, 135 A.3d 1077, 1087-88 (Pa.Super. 2016)

(quoting Commonwealth v. Laird, 988 A.2d 618, 630 (Pa. 2010)). “The

main and essential purpose of confrontation is to secure for the opponent

the opportunity of cross-examination.”      Davis v. Alaska, 415 U.S. 308,

315-16 (1974) (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed.

1940)). However, this right “is not absolute.” Rosser, 135 A.3d at 1088.

“The trial court may place reasonable limits on defense counsel’s cross-

examination of a prosecution witness ‘based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’[s]

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safety, or interrogation that is repetitive or only marginally relevant.’” Id.

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). “Generally

speaking, the Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.” Id. (quoting Delaware v.

Fensterer, 474 U.S. 15, 20 (1985)).

       In Rosser, we articulated a two-part test to determine “whether a

limitation on cross-examination violates the Confrontation Clause”:

           First, we inquire whether the limitation prejudiced the
           examination of that particular witness. In other words,
           absent the limitation, would the jury have received a
           “significantly different impression” of the witness’s
           credibility? [Van Arsdall, 475 U.S.] at 679-80 . . . .
           Second, if there was error, we must determine whether it
           was harmless beyond a reasonable doubt; if so, reversal is
           not warranted. Id. at 681 . . . .

135 A.3d at 1088.

       We conclude that the trial court’s decision to prevent further

questioning regarding the identity of the two individuals who were with

Jackson one month before the crime did not violate Blackwell’s right to

confront witnesses.3 The testimony Blackwell sought to elicit from Jackson
____________________________________________


       3
        Blackwell’s brief argues that the trial court erred in concluding that
Jackson invoked his Fifth Amendment privilege against self-incrimination and
therefore violated Blackwell’s right to confront witnesses under the Sixth
Amendment and Article One, Section Nine of the Pennsylvania Constitution.
See Blackwell’s Br. at 12-23. Even if we agreed with Blackwell that the trial
court erred in finding that Jackson properly invoked his Fifth Amendment
privilege, we would conclude that such error was harmless because the
(Footnote Continued Next Page)


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was, at most, marginally relevant.               The trial court allowed Blackwell to

inquire about the prior fight to establish Jackson’s motive to testify against

Blackwell. The identities of the two persons Jackson brought to that fight is

irrelevant to that determination.          Further, the trial court would not have

received a “significantly different impression” of Jackson’s credibility had it

instructed Jackson to answer the question.                The trial court found that

Blackwell “was permitted to clearly develop the record that there were two

prior altercations involving the parties” and “the existence of the ‘bad blood’

between the parties.” 1925(a) Op. at 10. Further, the trial court found that

“the identities of the persons with Mr. Jackson at [Blackwell]’s residence had

no bearing on [its] verdict because other trial evidence was so overwhelming

that any error was harmless.” Id. We conclude that curtailing this line of

questioning did not violate Blackwell’s right of confrontation.            See Van

Arsdall, 475 U.S. at 679 (quoting Fensterer, 474 U.S. at 20) (“[T]rial

judges retain wide latitude insofar as the Confrontation Clause is concerned

to impose reasonable limits on . . . cross-examination based on concerns

about . . . interrogation that is . . . only marginally relevant.”).

      Judgment of sentence affirmed.


                       _______________________
(Footnote Continued)

names of Jackson’s accomplices were, at most, marginally relevant to the
proceedings.      See Commonwealth v. Molina, 33 A.3d 51, 66-71
(Pa.Super. 2011) (applying harmless error analysis to Fifth Amendment
violation). The incident occurred one month prior to the burglary and the
identities of these accomplices had no bearing on Jackson’s credibility.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2017




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