J-A18031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                               :        PENNSYLVANIA
                                            :
                                            :
                 v.                         :
                                            :
                                            :
 KELLY DASHAWN LEWIS                        :
                                            :   No. 336 WDA 2016
                      Appellant

          Appeal from the Judgment of Sentence January 28, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0007104-2015


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

                                                      FILED AUGUST 09, 2018

         I concur with my distinguished colleagues regarding Appellant’s first

issue.     However, regarding the admission of evidence establishing that

Appellant previously impregnated a sixteen-year-old, I would find that the

evidence was irrelevant, inadmissible, and that its introduction was not

harmless error beyond a reasonable doubt. I therefore respectfully dissent as

to that issue.

         This sexual assault case, like most, was largely a battle of credibility.

The Commonwealth presented the testimony of two witnesses: the victim,

T.J., who was ten years old at the time of trial, and eight years old when the

incident occurred; and Detective Rebecca Meder, who authenticated a

recorded statement taken by a forensic interviewer.
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      There is no doubt that T.J.’s testimony, standing alone, was sufficient to

convict.   However, I find that the Commonwealth prejudiced the jury’s

fundamental task of assessing credibility by introducing irrelevant evidence.

The challenged evidence, that Appellant impregnated a sixteen-year-old when

he was twenty-two years old, was introduced in response to the following

exchange during Appellant’s direct testimony:

      Q.   And would you ever have any issue with                 anybody
           inappropriately touching one of your children?

      A.   Yes, ma’am.

      Q.   And why is that? How would you react?

      A.   It cannot be explained, ma’am. I actually would not know the
           reaction.

      Q.   And that hasn’t happened, but can you even think about that
           happening?

      A.   I don’t even want to imagine, ma’am.

      Q.   And do you have any objection to men touching little children?

      A.   Yes, ma’am.

      Q.   Now, you learned about the allegations at some point in time
           later after the fact?

      A.   Yes, ma’am.

      Q.   And once you learned about those allegations, what did you
           do? How did you feel?

      A.   I fe[lt] torn apart. Like, I feel angry, sad. At first, like, how
           can somebody think that I touched their child? And then, like,
           just embarrassed. Just the fact of being accused of something
           like that can tear you apart. It’s hard to explain.


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N.T., 11/4-6/15, at 247-48.     The Commonwealth commenced its cross-

examination by asking questions about Appellant’s seven children and their

ages, and focused on two children in particular:

     Q.   And the children that you have with Sadae Young, which
          children are they?

     A.   It would be Shyann and Serenity.

     Q.   So Shyann is four to five years old?

     A.   Yes, ma’am.

     Q.   And Serenity, who is a baby, one going on two. And how old
          is Sadae?

Id. at 249. Appellant objected, and at sidebar informed the trial judge that

Ms. Young was under eighteen when the oldest of the two children was born.

Appellant argued that the Commonwealth was attempting to place that issue

before the jury for the purposes of establishing sexual deviancy.      Not so,

replied the prosecutor, as the age of Ms. Young impeached his credibility, an

argument that the trial court accepted:

     [COMMONWEALTH]: I believe it goes towards his credibility. Does
     he know her name? How old is she? He said that he has a very
     good relationship with his children, and I just want to explore what
     he does to take care of his children. Is he only talking about the
     two children that he has with her? Because I believe she’s the one
     that lives with them.

     [APPELLANT]: How does that go towards his credibility?

     [COMMONWEALTH]: The questions on direct examination were
     about if he was a good father, what he does with his children, if
     he would be upset if someone would do something to a young
     person, and additionally the other witnesses testified –


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        THE COURT: I think it is relevant on cross-examination to explore
        his family dynamic that you got into on direct with him. You did
        ask him questions that related to his relationship with his children
        and --

        [APPELLANT]: I have no problem with that, Your Honor. My issue
        is going into the ages. I don’t know the ages of the children. That
        was asked on cross-examination. Going into the specific ages of
        the children and then going into the ages in which they were born
        with their respective mothers has nothing to do with the elements
        of the charges here.

        THE COURT: It doesn’t have to do with the elements. I think it
        does have to do with his credibility with regard to his own
        description of his disgust, and I wrote down a number of words he
        used -- incredulous, embarrassed. He didn’t say incredulous. He
        said torn apart, embarrassed. I do think it is relevant cross-
        examination. I’ll allow it.

Id. at 250-51.

        At this juncture, I note that the Commonwealth, trial court, and the

Majority all condition the admissibility of this evidence on Appellant’s

testimony.1 In other words, all appear to accept that the following argument,

absent Appellant’s own testimony, would be improper: “Ladies and gentlemen

of the jury, Appellant sexually touched the eight-year-old victim. You may

find it more likely that he did so because, when he was twenty-two, he had

sex with a sixteen-year-old girl.”2




____________________________________________


1   We may affirm on any basis.

2As indicated on cross-examination, Ms. Young had just turned seventeen
when the child was born. N.T., 11/4-6/15, at 253.

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         Presuming we all agree that argument would be improper, what did

Appellant say that opened the door to this otherwise inadmissible evidence?

The Commonwealth observes that Appellant

         made his reaction to the charges of touching a child in a sexually
         inappropriate manner a part of the case through his direct
         testimony.    The    trial  court    found    the     prosecutor’s
         cross[-]examination relevant to explore the truthfulness of his
         assertion that such a claim would embarrass him, considering
         what he would have confronted after impregnating a female
         between the age of 16 and 17 years.

Commonwealth’s brief at 18-19.        The Majority agrees, and affirms on this

basis:

         We agree with the trial court. The Commonwealth’s question was
         used for the limited purpose of rebutting Lewis’s own statement
         (and defensive strategy) that it was abhorrent for an older person
         to touch a minor person. Lewis had “opened the door” to this line
         of inquiry when he answered questions related to his relationship
         with his children and the possibility of them being touched by an
         older person.[fn] As such, we conclude the rebuttal evidence was
         relevant and was not used solely to establish Lewis showed
         criminal propensity towards assaulting minors.


              [fn] Furthermore, it merits mention that in his appeal,
              Lewis attempts to minimize the fact he was
              significantly older than Young and that they did have
              a relationship while she was a minor.

Majority Memorandum at 16-17.

         I respectfully disagree. Appellant’s testimony that he objected to men

touching “little children” does not open the door to evidence of his dalliance

with a sixteen-year-old. I agree that those two things are similar in kind in

that both generically involve sexual acts with a person under eighteen.


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J-A18031-17



However, both do not involve “little children” as one involves sex with a

sixteen year old and one involves sexually touching an eight year old.3

Therefore, I cannot agree that his relationship with Ms. Young casts doubt on

Appellant’s testimony that the accusation of sexually touching an eight-year-

old caused embarrassment, whereas his relationship with Ms. Young

apparently did not.

         Respectfully, the Majority declines to discuss how this evidence

impeaches Appellant’s credibility as opposed to simply denigrating his

character. The Majority implicitly concludes that Appellant’s embarrassment

at being accused of sexually touching an eight-year-old could not be genuine

because of his sexual relationship with Ms. Young. I do not believe that those

two things are equivalents. I believe that the Rules of Evidence sanction the

admission of evidence on those grounds.           The evidence that Appellant

impregnated a sixteen-year-old girl attacked his character, was a specific

instance of misconduct, and suggested a propensity to commit the crime at

issue.

         Finally, with respect to the question of admissibility, the Commonwealth

does not seriously contend that the trial court properly accepted the evidence.


____________________________________________


3 In Pennsylvania, the age of consent is sixteen, while the legality of sex with
a thirteen, fourteen, or fifteen year old depends on the age of the other party.
See 18 Pa.C.S. § 3122.1 (statutory sexual assault). In contrast, consensual
sex with someone under thirteen is impossible. See 18 Pa.C.S. § 3131(c)
(rape of a child).


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To its credit, the brief concedes that the logic relating this evidence to

credibility is questionable. “Given the opportunity for reflection and study,

which the role of an appellate advocate provides, the Commonwealth’s

attorney must acknowledge that the position of its trial prosecutor might be

more tenuous than she or the trial court perceived.” Commonwealth’s brief

at 19. For the foregoing reasons, I find that the rationale for admitting the

evidence was not merely tenuous, but untenable. Therefore, I would hold that

the trial court erred by admitting the evidence.

      The remaining question is whether the error warrants a new trial. Our

Supreme Court has set forth the following test:

      [A]n erroneous ruling by a trial court on an evidentiary issue does
      not require us to grant relief where the error was harmless. The
      Commonwealth bears the burden of demonstrating harmless
      error. 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. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (citations

omitted).

      The Commonwealth’s brief sought to establish the error was harmless

beyond a reasonable doubt for these reasons:

      But even if this Court finds the testimony irrelevant, any error was
      harmless. On direct examination appellant informed the jury that
      he had fathered seven children despite only being 27
      years–old. According to that direct testimony, appellant tried to

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J-A18031-17


       stay involved in his children’s lives and didn’t turn his back on his
       responsibilities. The jury was instructed that they were not to let
       any sympathy, prejudice, or emotion influence their verdict. The
       jury did not act as a mere rubber stamp as it acquitted appellant
       of Endangering Welfare of Children.

Commonwealth’s brief at 19-20 (citations omitted).

       The Commonwealth appears to suggest that the admission of testimony

regarding Appellant having seven children at a young age was so damning

that the irrelevant evidence at issue was either de minimis or cumulative in

comparison.4      This argument underscores my point that the evidence was

introduced not for credibility purposes, but character.       However, “an error

cannot be harmless if there is a reasonable possibility the error might have

contributed to the conviction.” Commonwealth v. Cooley, 118 A.3d 370,

380 (Pa. 2015) (citation omitted).               The Commonwealth assesses the

testimony as bearing only upon the jury’s evaluation of Appellant’s testimony,

whereas I view the prejudicial effect as bolstering T.J.’s account in terms of

Appellant’s propensity to commit the act. Since T.J.’s credibility was vitally

important, I find that there is a reasonable possibility that the error might

have contributed to the verdict.5

____________________________________________


4 As it relates to that point, having seven children by twenty-seven is the type
of fact that would, I do not doubt, give pause to many jurors. However, moral
judgments of Appellant’s past are not legally relevant to the question of
harmless error regarding the introduction of the challenged evidence.
5 To the extent the Commonwealth attaches dispositive significance to the
jury’s acquittal of endangering the welfare of children, I disagree. The



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       Finally, I note that the Majority’s analysis of harmless error materially

differs from that set forth in the Commonwealth’s brief. My learned colleagues

determine that “the evidence of Lewis’s relationship with Young was de

minimis in comparison to the overwhelming credibility evidence he introduced

in the form of family members who testified that they never saw Lewis near

the victim at the party in question or observed that the victim was upset at

any point.” Majority Memorandum at 17-18. In short, the Majority concludes

that any prejudice occasioned by the Commonwealth’s introduction of his

sexual relationship with Ms. Young was offset by evidence presented by

Appellant’s own witnesses.


____________________________________________


acquittal is a relevant consideration, as cited by the Commonwealth. See
Commonwealth v. Green, 162 A.3d 509, 522 (Pa.Super. 2017) (finding
error harmless; “The jury's verdict makes clear the admission of the
challenged testimony did not control the verdict.”).

Notwithstanding, the relevance of the acquittal is simply one factor to be
considered. There is no per se rule that acquittal of any offense demonstrates
that evidentiary errors were harmless; indeed, that would simply encourage
prosecutors to charge crimes of questionable applicability. Herein, the jury
acquitted Appellant of endangering the welfare of a child, which, inter alia,
required proof that Appellant violated a duty of care towards T.J. The evidence
on this point was rather lacking.

Additionally, I submit that the legal significance of acquittals in a harmless
error analysis goes towards corroboration of de minimis prejudice, not, as the
Commonwealth suggests, an independent justification for a finding of de
minimis prejudice.     Finally, the corroborative effect of an acquittal is
doubtlessly stronger in cases where there is other evidence tending to
establish guilt. Id. (noting the error was de minimis “by comparison to the
properly admitted and uncontradicted evidence of [Green]’s guilt”). Such
evidence is absent here, as the case was solely a question of credibility.


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         The   Majority’s   harmless   error   analysis   compares   the   prejudice

occasioned by informing the jury Appellant impregnated Ms. Young with

testimony from his family members about the incident in question. I fail to

see how this Court can determine the latter testimony renders the former

evidence de minimis in “comparison,” as the two things cannot be

meaningfully compared.

          Furthermore, the Majority’s belief that Appellant’s own fact witnesses

cured the admission of the erroneously introduced evidence does not comport

with a harmless error analysis. The jury did not credit the alternative version

offered by Appellant’s witnesses, since it convicted him. When determining

whether an error is harmless by reviewing the evidence supporting the verdict,

we examine the uncontradicted evidence of guilt, not uncredited defense

evidence that contradicted the Commonwealth’s facts.             To opine, as the

Majority does, that Appellant was not prejudiced because the jury failed to

credit his version of events is to fault him for not presenting overwhelming

evidence to the jury that he was innocent.                The Majority cannot find

overwhelming uncontradicted evidence of guilt in this case because it does not

exist.

         Additionally, even if I were to accept this Court could assess the defense

evidence in this manner, the record demonstrates that the jury could have

credited all of Appellant’s witnesses and still found him guilty. I briefly review

the relevant testimony.


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       Appellant’s grandmother, Cordova Long-Eberhardt, testified that she did

not know if T.J. was at the party. N.T., 11/4-6/15, at 151. She also agreed

that she could not see the kitchen, where T.J. testified that the incident

occurred, from her vantage point in the dining room, where she remained

throughout the party. Id. at 153-54 (“Q. [W]hen you’re sitting in the dining

room, you cannot see the entire kitchen? A. Right.”); (“Q. [Y]ou spent the

entire duration of the party . . . in between the dining room and your bedroom?

A. Right.”). Rosa Coleman, Appellant’s aunt through marriage, agreed that

she was not with Appellant the entire day. Id. at 177 (“A. Was I with him?

Not the entire day, no.”).       Appellant’s uncle, James Edward Long, likewise

could not state that the incident did not occur. Id. at 196 (“Q. And you were

not in the kitchen every moment of the party; is that correct? A. No. I had

to go out and attend to the grill.”). The same was true of Keaira Redmon and

Kevin Fowler. Id. at 211 (“A. I can’t say we were there 24/7 next to each

other[.]”); 229 (“Q. And you were with Kelly. You weren’t with him every

second of the day? A. No.”). Thus, no witness could firmly state Appellant

did not commit the crime.6

       Appellant deserves his conviction and sentence if T.J.’s testimony was

accepted as true, but the jury did not need to know when he had sex with the

____________________________________________


6 Additionally, the Commonwealth suggested on cross-examination that the
witnesses were biased because of their relationship to Appellant. N.T., 11/4-
6/15, at 157 (Long-Eberhardt), 167 (Coleman), 192 (Long), 220 (Redmon),
231 (Fowler).


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mother of two of his children in making that determination. Its cognizance of

Appellant’s sexual history with a sixteen-year-old, with the implicit suggestion

that the sex occurred at even earlier ages, is the type of error that I believe

could reasonably contribute to the verdict in a case of this nature.         Cf.

Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992) (“In a case such

as this, where there are only two direct witnesses involved, credibility of the

witnesses is of paramount importance, and character evidence is critical to

the jury’s determination of credibility.”). I would therefore grant a new trial.




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