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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                                          :
                    v.                    :
                                          :
HEATHER LYNN HOFFMAN,                     :
                                APPELLANT :
                                          :
                                          :       No. 2277 EDA 2015

              Appeal from the Judgment of Sentence July 7, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002914-2014

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                          FILED DECEMBER 09, 2016

        Appellant Heather Lynn Hoffman seeks review of the Judgment of

Sentence imposed after a jury found her guilty of Simple Assault. 1     She

challenges the trial court’s ruling that the Commonwealth could use

Appellant’s prior convictions for Stalking and summary Harassment to

impeach her character witness’s testimony. After careful review, we affirm.

        The Commonwealth charged Appellant with, inter alia, Aggravated

Assault, Simple Assault, and summary Harassment in connection with an

incident that occurred at Brandywine Hospital when she faked a seizure after

medical personnel refused to provide her with Percocet. During the incident,


*
    Former Justice specially assigned to the Superior Court.
1
 The court also found Appellant guilty of the summary offenses of Disorderly
conduct and Harassment.
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Appellant threw a clipboard at a nurse, causing the nurse to suffer a minor

eye injury and creating a commotion that disrupted the operation of the

emergency room.

     At Appellant’s jury trial, the nurse, three other emergency room staff

members, and the responding police officer testified regarding the incident.

After the Commonwealth closed its case, Appellant moved for a judgment of

acquittal, which the court denied.   Appellant’s counsel then informed the

court that he had no evidence to put on. After some discussion about the

possibility of Appellant presenting a character witness, including trial

counsel’s acknowledgment that there was a character witness but that

Appellant had not been able to contact her, the court recessed for the day to

give Appellant the opportunity to contact the character witness that she had

attempted to contact through Facebook the prior week.        See N.T. Trial,

4/7/15, at 145-46.

     The next morning, the character witness was in court ready to testify

as to Appellant’s reputation for peacefulness and nonviolence. Prior to her

testimony, however, Appellant’s attorney informed the court that the

prosecutor had told him that Appellant had convictions from 2003 for

Stalking and summary Harassment that the Commonwealth intended to use

to impeach the witness. Counsel objected, arguing that the Commonwealth




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had not provided him with the facts underlying the prior convictions. 2 After

discussing the Stalking statute, the court ruled that the Stalking conviction

pertained to peacefulness with respect to “trying to create reasonable fear of

bodily injury or cause substantial emotional distress.” N.T. Trial, 4/8/15, at

6.3   The court also ruled that the prior Harassment convictions were also

relevant to Appellant’s reputation for peacefulness. See N.T., 4/8/15, at 9.

The court, thus, concluded that if the character witness testified as to

Appellant’s reputation for peacefulness and nonviolence, the prosecution

could ask the witness if she had knowledge of Appellant’s prior Stalking and

Harassment convictions.     Appellant’s counsel then informed the court that

“[i]f that’s the case, then I will not be calling a character witness. I don’t

think it’s a trial strategy worthwhile at this point.” Id. at 7.

2
  Appellant states that “[t]he only facts offered to the court surrounding the
Stalking conviction seemed to indicate that the incident involved Appellant’s
former attorney looking to cease communication.” Appellant’s Brief at 19.
3
  The Stalking offense under which Appellant was previously charged and
convicted provided, in relevant part:

      A person commits the crime of stalking when he engages in a
      course of conduct or repeatedly commits acts toward another
      person, including following the person without proper authority,
      under circumstances which demonstrate either of the following:

      (1)   An intent to place the person in reasonable fear of bodily injury;
            or
      (2)   An intent to cause substantial emotional distress to the person.

Appellant’s Brief at 18, citing 18 Pa.C.S. § 2709(b) (repealed and replaced
with Section 2709.1, effective Jan. 31, 2003).




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      The jury found Appellant guilty of Simple Assault and not guilty of

Aggravated Assault. The court subsequently sentenced Appellant to a term

of two days’ to twenty-three months’ incarceration.

      After the denial of her post-sentence motion at a hearing in open court

on August 4, 2015, Appellant filed a timely Notice of Appeal with this Court. 4

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issue for our review:

      Did the trial court err in its ruling allowing rebuttal evidence
      pertaining to Appellant’s prior convictions of one count of
      Stalking and two courts of summary Harassment in response to
      the defense’s potential character witness?

Appellant’s Brief at 2.

      Appellant contends that the trial court erred in ruling that the

Commonwealth could use her prior convictions of Stalking and Harassment

to impeach her character witness because those convictions cannot be

“probative of violence when the underlying facts of the convictions are

unknown.” Appellant’s Brief at 15. Appellant relies on Commonwealth v.

Hull, 982 A.2d 1020 (Pa. Super. 2009), when she concludes that the trial




4
  On August 19, 2015, this Court issued an order to show cause as to why
Appellant’s appeal should not be quashed as interlocutory in light of the
apparently outstanding post-sentence motion. Our review of the record
confirms Appellant’s response that the trial court denied the post-sentence
motion in open court on August 4, 2015. See N.T. Hearing, 8/4/15, at 21.
The appeal is, thus, not interlocutory.



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court’s ruling was “manifestly unreasonable and prejudicial considering [she]

was charged with aggravated assault.”5 Appellant’s Brief at 20-21.

       The trial court has discretion over evidentiary matters, particularly

over   the     scope     and   manner     of      cross-examination     of     a   witness.

Commonwealth v. Hoover, 16 A.3d 1148, 1150 (Pa. Super. 2011). That

discretion “will not be disturbed by this Court absent an abuse of that

discretion.    An abuse of discretion is not a mere error in judgment but,

rather,      involves      bias,   ill   will,      partiality,   prejudice,       manifest

unreasonableness, or misapplication of law.” Id. (citation omitted).

       With respect to proving character, our rules of evidence provide that

the accused may offer witnesses to testify to the accused’s relevant

character traits.       Pa.R.E. 404(a)(1).       In addition, Pa.R.E. 405 provides, in

relevant part:

       Rule 405. Methods of Proving Character.

       (a)    By Reputation. When evidence of a person’s character or
              character trait is admissible, it may be proved by
              testimony about the person’s reputation. Testimony about
              the witness’s opinion as to the character or character trait
              of the person is not admissible.

              (1)   On cross-examination of the character witness, the
                    court may allow an inquiry into relevant specific


5
  In Hull, this Court concluded that the allegation, that trial counsel provided
ineffective assistance of counsel by failing to present a character witness in
his rape trial, was of arguable merit. Hull is factually and procedurally
distinguishable from the instant case and provides no support for Appellant’s
argument.



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                  instances of the person’s conduct probative of the
                  character trait in question.

           (2)    In a criminal case, on cross-examination of a
                  character witness, inquiry into allegations of other
                  criminal conduct by the defendant, not resulting in
                  conviction, is not permissible.

Pa.R.E. 405(a).

     Once an accused “opens the door” with respect to his or her reputation

for peacefulness and non-violence, cross-examination of a character witness

as to his or her knowledge of misconduct of the accused that resulted in a

conviction related to those traits is permissible to test the witness’s

credibility. Commonwealth v. Fletcher, 861 A.2d 898, 915-16 (Pa. 2004).

See also Hoover, 16 A.3d at 1149-50 (same).         Such cross-examination

also “test[s] . . . the standard by which [the character witness] measures

reputation.” Fletcher, supra at 916 (citations omitted).

     A distinction is drawn between cases where it is sought to prove
     particular acts of misconduct and those where the purpose of the
     examination is to test the accuracy of the testimony by showing
     either that the witness is not familiar with the reputation
     concerning which he has testified or that his standard of what
     constitutes good repute is unsound. Commonwealth v.
     Becker, [ ] 191 A. 351, 356 ([Pa.] 1937). Evidence of the
     former is inadmissible. Evidence of the latter may be shown,
     provided the actual purpose of the cross-examination is not to
     show commission by the defendant of a specific crime of which
     he or she is not now accused, but to test only the credibility of
     the character witness. Commonwealth v. Hurt, [ ] 60 A.2d
     828, 829 ([Pa. Super.] 1948).




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Commonwealth v. Adams, 626 A.2d 1231, 1233 (Pa. Super. 1993). See

generally Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence

§ 405.02 et seq. (2016 ed. LexisNexis Matthew Bender).

      In the instant case, Appellant avers that “[t]he only facts offered to

the court surrounding the Stalking conviction seemed to indicate that the

incident   involved    Appellant’s    former    attorney    looking   to     cease

communication. Without the facts surrounding these incidents, allowing the

Commonwealth to submit these convictions as evidence of Appellant’s

violent character was an abuse of discretion.” Appellant’s Brief at 20. She

concludes that “[t]he ruling was manifestly unreasonable and prejudicial

considering Appellant was charged with Aggravated Assault.” Id. at 21. We

cannot agree.

      At trial, the trial court stated the following to Appellant:

      . . . [T]he bottom line is the reason for the rule is that if a
      person testifies as to your character in the community, [] you
      can explore their level of knowledge to see if they know about
      the conviction. It’s not getting to the merits of the underlying
      conviction, it’s just the fact there’s a conviction.

                                  ***

      What I’m ruling is if you put a character witness on for
      peacefulness, and there’s a prior 2003 stalking conviction,
      which, on either section of stalking seems to touch on the area
      of peacefulness, on either trying to create reasonable fear of
      bodily injury or cause substantial emotional distress. [sic] Even
      if someone . . . said I’m not guilty and testifies, the fact there’s
      that conviction is something the Commonwealth would ask a
      witness on cross-examination about the knowledge of that
      particular prior.
                                ****


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N.T., 4/8/16, at 5 – 7.

      Based on our reading of the relevant case law and the trial transcript,

we conclude that the trial court properly exercised its discretion in ruling

that the Commonwealth could use Appellant’s stalking conviction to cross-

examine her character witness who intended to testify as to Appellant’s

reputation for peacefulness and non-violence.     Appellant provides no case

law to support her implication that defense counsel should have been

provided with the facts underlying Appellant’s prior convictions to determine

if they actually pertained to violence or peacefulness.     Most significantly,

Appellant did not challenge below, and does not challenge here, the trial

court’s conclusion that “either section of [the Stalking offense] seems to

touch on the area of peacefulness, on either trying to create reasonable fear

of bodily injury or cause substantial emotional distress.” N.T. at 6.

      Accordingly, because we conclude that the trial court did not abuse its

discretion in ruling that Appellant’s prior convictions could be used to

impeach her character witness, we affirm Appellant’s judgment of sentence. 6

      Judgment of sentence affirmed.


6
  Appellant also contends in her Brief that the “short notice” she received
regarding the Commonwealth’s intention to use the prior convictions violated
Pa.R.E. 404(b)(3). See Appellant’s Brief at 17-18. Appellant failed to raise
this sub-issue before the trial court and it is, thus, waived. See Pa.R.A.P.
302(a).     Moreover, in light of Appellant’s last-minute notice to the
Commonwealth and the trial court of the existence of her character witness,
the Commonwealth’s notice to defense counsel of Appellant’s prior
convictions was sufficient.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2016




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