J-S20034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

BRANDON W. GROVER

                         Appellant                  No. 1708 WDA 2014


          Appeal from the Judgment of Sentence of June 10, 2014
              In the Court of Common Pleas of Potter County
            Criminal Division at No.: CP-53-CR-0000047-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                              FILED MAY 22, 2015

      Brandon W. Grover appeals from the judgment of sentence entered

June 10, 2014. We affirm.

      Grover’s jury conviction arose from an alleged bar brawl that occurred

around 1:30 a.m. on August 13, 2011 at the Northwoods Tavern in

Coudersport, Pennsylvania. Grover, who was a former amateur boxer, and

his girlfriend, Jessica Snyder attacked Patrick and Karen Nelson as the

Nelsons were leaving the bar. Grover and Snyder inflicted broken noses and

concussions upon both Nelsons. In addition, Grover kicked Patrick Nelson in

the ribs and head while wearing steel-toed boots.

      On May 8, 2014, Grover testified in his own defense at a jury trial. As

described by the trial court:

      The Commonwealth, acting in good faith, relied on a certificate
      of disposition dated January 29, 2014, from the Honorable
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       Daniel J. Guiney indicating [Grover’s prior] conviction for
       burglary [committed in Willing, New York]. [Grover] essentially
       denied the conviction for burglary and his attorney objected.

       In point of fact, however, the New York records supplied by
       Justice Guiney were inaccurate.        Mr. Grover in reality had
       entered a plea of guilty to criminal trespass, petty larceny[,] and
       criminal mischief in satisfaction of charges which originally
       included burglary. All of the crimes to which Mr. Grover pled are
       in fact misdemeanors, not felonies.

Trial Court Opinion (“T.C.O.”), 8/25/2014, at 1 (record citation omitted).

       The    jury   convicted     Grover      of   attempted   aggravated   assault,

aggravated assault, attempted simple assault, and simple assault.1 On June

10, 2014, the trial court sentenced Grover to a term of incarceration of not

less than seventy-two nor more than one hundred fifty months.                Grover

timely filed a post-sentence motion, requesting a new trial.             The court

denied the motion on August 25, 2014, and Grover timely appealed.                 On

October 15, 2014, Grover filed a statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and on November 3, 2014, the trial

court adopted its August 25, 2014 memorandum pursuant to Pa.R.A.P.

1925(a).

       Grover raises one issue for our review:

       Did the trial court err by not granting [Grover] a new trial after
       the court was made aware the evidence and records of
       [Grover’s] prior record that were submitted to the jury as
       rebuttal evidence to impeach [Grover’s] credibility were incorrect
       and he was not in fact convicted of burglary in New York State?
____________________________________________


1
       See 18 Pa.C.S.A. §§ 901(a), 2701(a), and 2702(a).



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Grover’s Brief at 1.

      Grover contends that he is entitled to a new trial because “[t]he

introduction of the incorrect records from New York is akin to impeaching

[Grover’s] credibility with arrests which did not lead to convictions, which is

impermissible.” Id. at 3. We disagree.

      Our standard of review is well-settled:

      On appeal from an order of the trial court denying an appellant’s
      motion for a new trial, our review is limited to a determination of
      whether there has been an abuse of discretion or an error of law
      on the part of the trial court. In the absence of either of these
      elements, the order denying a new trial will not be disturbed.

Commonwealth v. Farrior, 458 A.2d 1356, 1358 (Pa. Super. 1983)

(citations omitted).

      Impeachment evidence is evidence which is presented as a
      means of attacking the witness’ credibility. There are several
      principal ways to attack a witness’ credibility: evidence offered to
      attack the character of a witness for truthfulness, evidence
      offered to attack the witness’ credibility by proving bias, interest,
      or corruption, evidence offered to prove defects in the witness’
      perception or recollection, and evidence offered to contradict the
      witness’ testimony.

Commonwealth v. Palo, 24 A.3d 1050, 1055-56 (Pa. Super. 2011)

(citation omitted).    Pennsylvania Rule of Evidence 609, which governs the

admission of impeachment evidence, provides in relevant part as follows:

      Rule 609.        Impeachment by Evidence of a Criminal
      Conviction

         (a) In General. For the purpose of attacking the credibility
      of any witness, evidence that the witness has been convicted of
      a crime, whether by verdict or by plea of guilty or nolo


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     contendere, must be admitted if it involved dishonesty or false
     statement.

         (b) Limit on Using the Evidence After 10 Years. This
     subdivision (b) applies if more than 10 years have passed since
     the witness’s conviction or release from confinement for it,
     whichever is later. Evidence of the conviction is admissible only
     if:

           (1) its probative value substantially outweighs its
        prejudicial effect; and

            (2) the proponent gives an adverse party reasonable
        written notice of the intent to use it so that the party has a
        fair opportunity to contest its use.

Pa.R.E. 609.

     In making this determination, the following factors should be
     considered:

        1) the degree to which the commission of the prior offense
        reflects upon the veracity of the defendant-witness; 2) the
        likelihood, in view of the nature and extent of the prior
        record, that it would have a greater tendency to smear the
        character of the defendant and suggest a propensity to
        commit the crime for which he stands charged, rather than
        provide a legitimate reason for discrediting him as an
        untruthful person; 3) the age and circumstances of the
        defendant; 4) the strength of the prosecution’s case and
        the prosecution’s need to resort to this evidence as
        compared with the availability to the defense of other
        witnesses through which its version of the events
        surrounding the incident can be presented; and 5) the
        existence of alternative means of attacking the defendant’s
        credibility.

Palo, 24 A.3d at 1056.

     At trial, Patrick and Karen Nelson; Chandra Livingston, the bartender;

Jonathan Huff, the bar’s deejay; and the investigating police officers,

Troopers Andrew Mincer and Mark VanVolkenburg, all testified that Grover


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and Snyder attacked the Nelsons without provocation. Testifying in his own

defense, Grover admitted to striking and kicking Patrick Nelson in the head

three times.     Notes of Testimony (“N.T.”), 5/8/2014, at 89-92.   However,

Grover claimed that Karen Nelson had “raised a beer bottle like she [was]

going to hit Jessica with it,” and that Grover only fought Patrick Nelson in

defense of Snyder. Id. at 89.

       At the conclusion of trial, to impeach Grover’s credibility, the

Commonwealth introduced “a certificate of disposition from Allegany County,

Willing Town Court in the State of New York . . . showing that Mr. Grover

was charged with burglary and showing a disposition for that charge.” Id.

at 115-16.2

       During closing arguments, the Commonwealth argued as follows:

       Thank you, Your Honor. May it please the Court, Mr. Banik, Mr.
       Grover, ladies and gentlemen[] of the jury[,] good afternoon.
       Ladies and gentlemen, there can be no doubt in this case
       whatsoever that Mr. Nelson was blind si[ded], violently attacked
       and suffered serious bodily injury. Mr. Nelson and his wife again
       were at the Northwoods having a few beers. You’ve heard
       testimony from all these witnesses here today that they were not
       the aggressors, that Patrick was blind si[ded], never touched
       Jessica Snyder whatsoever. And you heard from Mr. Huff, who
       was the eye witness to the whole thing, about what transpired.
       This is not a situation that Mr. Grover would have you believe
____________________________________________


2
      The     Commonwealth     also  elicited testimony     from    Trooper
VanVolkenburg that Grover had three prior assaultive behavior convictions in
Pennsylvania.     N.T. at 66-70 (describing Grover’s prior convictions for
disorderly conduct for aggressive behavior, simple assault, reckless
endangerment of another person, and an unrelated charge of simple assault
in three different incidents).



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      that where Patrick was attacking his [girlfriend] and [he] used
      some sort of self-defense to protect her.

      And showing that previous burglary involvement up in State of
      New York as Judge will instruct you the purpose of introducing
      that is to suggest that Mr. Grover in his background is not the—
      the argument is that he’s not honest and truthful. And you can’t
      consider it for any other purpose, the entry of that burglary
      conviction.

      And you’ve heard all the witnesses testify exactly contrary to
      what Mr. Grover said here today. I submit to you Mr. Grover
      has a clear bias. These are very serious charges. He has bias to
      fabricate or lie. . . .

Id. at 121-22.

      The trial court instructed the jury, inter alia, as follows:

      Now, ladies and gentlemen, I do want to cover something very
      carefully with you. There was evidence offered in this case
      indicating that the defendant has a number of prior criminal
      convictions. And I’m talking about the testimony elicited by the
      Commonwealth as to . . . burglary.          This evidence is not
      evidence of the defendant’s guilt. The only purpose for which it
      is admissible is to assist you in determining the defendant’s
      reputation for telling the truth and truthfulness of the testimony
      he offered. You are not to form guilt or innocence of those prior
      convictions but you can consider it only to help you judge the
      credibility, believability, and truthfulness of the testimony
      offered by the defendant as a witness in this case.

Id. at 132-33.

      It is undisputed that Grover did not, in fact, have a prior conviction for

burglary in New York but had “entered a plea of guilty to criminal trespass,

petty larceny[,] and criminal mischief in satisfaction of charges which

originally included burglary.”   T.C.O. at 1.    Thus, it was error by the trial

court to permit the introduction of evidence as to that specific crime.



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Nonetheless, we conclude that admission of this statement constitutes

harmless error.

      “Harmless error is present when the properly admitted evidence of

guilt is so overwhelming and the prejudicial effect of the error is so

insignificant by comparison that it is clear beyond a reasonable doubt that

the error could not have contributed to the verdict.”            Commonwealth v.

Garcia, 712 A.2d 746, 749 (Pa. 1998).

      First, of the prior charges to which Grover actually pled guilty—

criminal trespass, petty larceny, and criminal mischief—it is well-settled that

“criminal   trespass   is   an    offense    in   the   nature     of   crimen    falsi.”

Commonwealth v. Walker, 559 A.2d 579, 583 (Pa. Super. 1989).

Therefore, the Commonwealth would still have been permitted to impeach

Grover’s credibility using crimen falsi pursuant to his conviction in New York.

      Second, the victims and multiple eyewitnesses testified consistently

that Grover attacked Patrick Nelson without provocation.                Grover himself

admitted    to   punching   and    kicking    Nelson    in   the   chest    and    face.

Furthermore, the trial court properly admitted evidence of prior convictions

in Pennsylvania for disorderly conduct for aggressive behavior, two counts of

simple assault, and reckless endangerment of another person arising from

three separate incidents as character rebuttal evidence pursuant to

Pa.R.E. 404.

      In light of this record, the effect of the erroneous admission of a

burglary charge was “so insignificant by comparison that it is clear beyond a

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reasonable doubt that the error could not have contributed to the verdict.”

Garcia, 712 A.2d at 749. Accordingly, the admission of the burglary charge

was harmless error, and the trial court did not abuse its discretion in

denying Grover’s motion for a new trial.      See Farrior, 458 A.2d at 1358.

Grover’s issue does not merit relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2015




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