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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                      1   IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

OREMA SMITH,

                            Appellant                     No. 3445 EDA 2015


       Appeal from the Judgment of Sentence Entered October 14, 2015
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010225-2014

BEFORE:     BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED APRIL 06, 2017

        Appellant, Orema Smith, appeals from the judgment of sentence of 9

to 23 months' house arrest, imposed after she was convicted, following           a

non -jury   trial,   of aggravated      assault,   simple assault, and   recklessly

endangering another person.            On appeal, Appellant solely challenges the

lower court's decision to exclude certain evidence at trial.         After careful

review, we affirm.

        The trial court summarized the facts of this case as follows:

               Robin Smith testified that she is an employee of the
        Philadelphia Sanitation Department, and that on May 27, 2014,
        at about 7:45 AM, she was at 2600 Glenwood Street, to
        rendezvous with her co-workers to start her shift on a sanitation
        truck.    At that time, [Appellant], [who was] also a City
        Sanitation Worker, commenced an argument with Smith about


*   Former Justice specially assigned to the Superior Court.
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        [Smith's] alleged involvement         with the       father of one of
        [Appellant's] children.
               Smith and her crew then left the location[;] however,
        [Appellant] got into her personal vehicle, followed the truck on
        which Smith was working, and pulled in front of the truck,
        forcing it to stop at 26th and Haggard Streets. [Appellant] exited
        her vehicle with a Club in her hand.'
           ' Club   is a brand name   that has become generic term for
                                                         a
           a device used to secure a vehicle steering wheel. The Club
           involved in this incident was photographed by police. The
           Club in that photograph was identified by Smith, and the
           photograph was placed in evidence as C-2.
               Carrying the Club, [Appellant] approached the vehicle in
        which Smith was riding. Smith's partner, Elmo Swanson, exited
        the vehicle and attempted to restrain [Appellant], as he yelled
        for Smith to lock the door. [Appellant] went around to the
        driver's side, opened the door and spit on Smith and the driver.
              [Appellant] jumped up on the steps to the truck, swinging
        the Club, and striking Smith. Swanson was also struck with the
        Club as he was attempting to intervene. Smith was struck with
        the Club on the left side of her head. She received medical
        treatment and [had a] follow-up appointment, and suffered a
        "knot" to her head. The formal diagnosis was "contusion of the
        scalp."
Trial Court Opinion (TCO), 5/26/16, at 2 (citations to the record omitted).

        Following this incident, Appellant was arrested and proceeded to              a

non -jury trial on May 19, 2015.       At the close thereof, she was convicted of

the above -stated offenses.     On October 14, 2015, Appellant was sentenced

to an aggregate term of 9 to 23 months' house arrest.             She filed   a   timely

notice of appeal, and also timely complied with the trial court's order to file       a

Pa.R.A.P. 1925(b) statement. The court filed       a   Rule 1925(a) opinion on May

26, 2016. Herein, Appellant raises one issue for our review:



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              Did the trial court err in denying the admissibility of the
        Unemployment Compensation Board of Review [(UCB)] [h]earing
        transcripts at trial, when admission of the transcript was highly
        relevant to the credibility of the Commonwealth['s] witnesses as
        it contained numerous contradictions to the trial testimony of
        those witnesses?
Appellant's Brief at 4.

        We begin by noting that,

        [t]he standard of review employed when faced with a challenge
        to the trial court's decision as to whether or not to admit
        evidence is well settled. Questions concerning the admissibility of
        evidence lie within the sound discretion of the trial court, and a
        reviewing court will not reverse the trial court's decision absent a
        clear abuse of discretion. Commonwealth v. Hunzer, 868 A.2d
        498 (Pa. Super. 2005). Abuse of discretion is not merely an error
        of judgment, but rather where the judgment is manifestly
        unreasonable or where the law is not applied or where the
        record shows that the action is a result of partiality, prejudice,
        bias or ill will. Id.

Commonwealth v. Young, 989 A.2d 920, 924             (Pa. Super. 2010) (citation

omitted).

        Here, Appellant challenges the trial court's decision to preclude the

admission of     a   transcript of testimony offered by Anthony Alford at   a UCB

hearing.'    Alford, who was an employee of the sanitation department and

witnessed the altercation between Appellant and Smith, was called to the

stand by the defense at trial.       See N.T. Trial, 5/19/15, at 41-42.     During

defense counsel's direct -examination of Alford, he testified that the initial

interaction between Smith and Appellant involved only "arguing at first." Id.


' Appellant does not provide any details about the UCB hearing, including
what parties were involved in that proceeding.


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at 42.     At that point, defense counsel asked Alford if he had provided

testimony at     a UCB   hearing two months prior to Appellant's trial, and Alford

responded that he had.        Id. at   43.    Then, defense counsel asked that the

transcript of the UCB hearing be marked as an exhibit, at which point the

Commonwealth objected to the admission of that evidence.            Id.   When the

trial court asked defense counsel for an offer of proof regarding the

relevancy of the transcript, defense counsel responded:

        [Defense Counsel]: Given the charge ... of aggravated assault,
        we need to know when it happened. And in response to when
        the first physical altercation occurred and an injury was
        sustained, they have to prove [Appellant] was the initiator,
        which [Appellant] and their witnesses say never occurred.
Id. at 44-45.     The trial court disagreed with counsel that Alford's testimony

at the UCB hearing was relevant, and refused to admit the transcript.        Id. at
45.2




2
  In the trial court's Rule 1925(a) opinion, it elaborates on why it denied
admission of the transcript, stating:

              Here, the [d]efense sought to introduce the transcript of
        the testimony of its own witness, Anthony Alford, before the
        [UCB]. The purpose according to the [d]efense['s] offer of proof
        was to demonstrate that the witness had testified to an earlier
        physical altercation between [Appellant] and Robin Smith, which
        the [d]efense alleged, could have been the occasion on which
        Smith suffered the head injury. This testimony was not relevant
        to the charges; accordingly, the [c]ourt declined to allow this
        attempted impeachment by the [d]efense of its own witness.
              Moreover, the [d]efense had already adduced testimony []
        that, contrary to Smith's testimony, the initial confrontation did
(Footnote Continued Next Page)


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      On appeal, Appellant presents a confusing       argument that does not

convince us that the court abused its discretion in making this evidentiary

ruling. Aside from citing general legal principles regarding the admissibility

of relevant evidence, Appellant's entire argument consists of the following:

           Alford testified at trial that the initial argument
      between [Smith] and Appellant was merely verbal ..., but
      he testified at the UC[B] Hearing that the argument
      became physical as well....     Appellant's counsel tried to
      further explore this issue but the trial court did not permit her.
            Far from cumulative evidence, Alford's previous statement
      corroborated the entire defense theory of the case - that
      [Smith], not Appellant, was the primary aggressor in the initial
      altercation, and when the police became involved[, Smith] lied
      and told police that she was the victim and that Appellant had in
      fact even used a weapon. Credibility of witnesses is always
      relevant to a factual determination of guilt on a specific charge.
            The trial court misinterpreted the purpose of Appellant's
      counsel['s] introducing the UC[B] Hearing transcript.        The
      purpose was not to establish a self-defense because there were
      two separate and distinct incidents, as noted by the trial court.
      The purpose of the evidence was to substantiate the defense
      theory of the case that the Commonwealth witnesses were not
      being truthful about what happened and that a weapon was
      never used.




(Footnote Continued)

      have    physical aspect. Thus, the evidence that [Alford] had
              a
      previously said the same thing[] was merely cumulative.
TCO at 3-4.




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Appellant's Brief at 8-9 (citations to the notes of testimony omitted;

emphasis added).3

        Not only does Appellant fail to cite or discuss any legal authority to

support her arguments, but she also did not explain before the trial court, or

discuss on appeal, what specific testimony Alford provided at the UCB

hearing.       This omission is detrimental to Appellant's claim for several

reasons. First, Appellant's above -emphasized, cursory description of Alford's

UCB hearing      testimony does not even demonstrate that it was inconsistent

with his testimony at trial. Again, just prior to defense counsel's attempting

to    introduce the UCB hearing transcript, Alford had only stated that

Appellant and Smith were "arguing       at first."   N.T. Trial at 42 (emphasis

added).       We fail to see how that statement contradicts his purported UCB

hearing testimony that the argument "became physical as well[,]" and

Appellant offers no developed discussion to clarify this point.     Appellant's

Brief at 8.




3
  We recognize that Appellant presents an additional paragraph addressing
why the UCB hearing transcript should have been admitted to show that
another witness, Elmo Swanson, also "made contradictory statements" at
the UCB hearing. Appellant's Brief at 9. Appellant admits, however, that
her "counsel did not attempt to introduce this portion of the UCB [h]earing
transcript to impeach Swanson...." Id. Accordingly, Appellant has waived
this claim for our review. See Pa.R.A.P. 302(a) ("Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.").



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        Second, Appellant's failure to specifically outline what Alford said at

the UCB hearing prevents us from determining whether she is correct that

his testimony at that proceeding could have been used to demonstrate       "that
the Commonwealth witnesses were not being truthful...." Appellant's Brief at

9.    Appellant does not point to what specific statements Alford made at the

UCB hearing      that would have contradicted testimony by    a   Commonwealth

witness at her trial.

        Third, Appellant fails to identify any particular testimony by Alford at

the UCB hearing that would have been relevant to substantiating her claim

that Smith was the initial aggressor, or that she did not strike Smith with    a

weapon.     Her vague comment that Alford testified at the UCB hearing that

the 'argument became physical' does not convince us that his testimony

would have established either of these points.

        In sum, based on Appellant's lack of explanation regarding what Alford

said at the UCB hearing, we conclude that she has not demonstrated that his

testimony at that proceeding was relevant to her defense, or that it was

admissible to attack the credibility of the Commonwealth's witnesses. Thus,

the trial court did not abuse its discretion by deeming Alford's UCB hearing

testimony irrelevant and inadmissible.

        Judgment of sentence affirmed.




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Judgment Entered.




J
     /
     seph D. Seletyn,
Prothonotary


Date: 4/6/2017




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