J-S54029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EARNEST LEE JONES, II                      :
                                               :
                       Appellant               :   No. 139 MDA 2019

       Appeal from the Judgment of Sentence Entered December 19, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0002599-2017


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

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 26, 2019

        Earnest Lee Jones, II, appeals from the judgment of sentence, entered

in the Court of Common Pleas of York County, after a jury convicted him of

one count of aggravated assault1 and one count of strangulation—applying

pressure to throat or neck.2 Upon careful review, we affirm.

        The facts of the case are as follows:

        Rebecca Bennett and [Jones] began dating in late December
        2016. They lived together at 418 Salem Avenue in York City. Both
        [Bennett] and [Jones] were named on the lease. [Jones] was also
        dating a second woman, Dawn Stehler, who[m] he moved into the
        apartment that he shared with [Bennett.3]



____________________________________________


1   18 Pa.C.S.A. § 2702.

2   18 Pa.C.S.A. § 2718(a)(1).

3   Jones, Bennett, and Stehler shared the same apartment simultaneously.
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       On March 26, 2017, [Jones], [Bennett], and [Stehler], went to a
       gathering at [Jones’s] aunt’s house in Lancaster. When they came
       home [Bennett] said something to [Jones] and he became irate.
       [Jones] then attacked [Bennett]. The assault began with [Jones]
       punching [Bennett] in the face repeatedly. He then dragged her
       by her hair across the apartment, from the living room to the
       bathroom.

       Once in the bathroom, [Jones] strangled [Bennett]. He applied
       so much pressure to her throat that she lost consciousness and
       urinated on herself. When [Bennett] regained consciousness[,]
       [Jones] resumed punching her. He then strangled her a second
       time; she did not lose consciousness the second time. [Jones]
       eventually stopped and [Bennett] was able to go to bed.

       However, the fight did not end at that point. [Jones] then began
       threatening [Bennett]. He held a pair of scissors up to her throat
       and told her that he was going to kill her. By the time [Jones’s]
       attack was finished, [Bennett] was left with bruises all over her
       body.

       Throughout this ordeal, [Bennett] felt that she was unable to leave
       the apartment because of the actions of [Jones] and [Stehler].4
       She was finally able to leave the next morning, March 27, 2017.
       [Bennett] first attempted to file for a Protection from Abuse Order
       at the York County Courthouse. However, she was allegedly told
       by the clerk that she needed to go to the hospital because of her
       injuries.

       [Bennett] was seen at York Hospital on March 27, 2018[,] by
       forensic nurse Patti O’Brien. Nurse O’Brien was qualified as an
       expert witness in the field of forensic nursing during trial. Nurse
       O’Brien’s testimony regarding [Bennett’s] injuries was extensive.
       Ultimately, Nurse O’Brien testified that [Bennett’s] injuries were
       consistent with being hit, punched, strangled, and pulled by her
       hair.

       [At trial,] [Jones] gave his own version of how [Bennett] got the
       bruises that showed in Nurse O’Brien’s photos. His explanation
       was that the bruises were self-inflicted; [Bennett] had caused the
____________________________________________


4Prior to Jones’s trial, Stehler pled guilty to false imprisonment for preventing
Bennett from leaving the house on the night of the incident in question.

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      bruising herself when she tried to find a vein in her neck that she
      could inject heroin into. This explanation was rejected by Nurse
      O’Brien.

Trial Court Opinion, 3/14/19, at 4-6 (citations to record omitted).

      Jones was arrested on March 28, 2017. On April 19, 2017, Magisterial

District Judge Joel Toluba held a preliminary hearing, during which Kate

Landis, Esquire, of the York County Public Defender’s Office represented

Jones.   At the preliminary hearing, Bennett testified and Attorney Landis

cross-examined her. Jones was formally arraigned on May 26, 2017, during

which Joshua Neiderhiser, Esquire, of the York County Public Defender’s Office

represented him. On August 9, 2017, a pre-trial conference was held.

      In November 2017, Jones petitioned for new counsel. The court granted

his request, and on December 8, 2017, the court appointed Jonelle Eshbach,

Esquire, to represent Jones. Due to the appointment of new counsel, Jones

filed a motion for continuance.     The court granted Jones’s motion and

postponed the trial until 2018. Before trial commenced, Bennett died of a

drug overdose. On May 2, 2018, the Commonwealth filed a motion in limine

to declare Bennett unavailable and to admit her preliminary hearing testimony

as evidence at trial. The Honorable Harry M. Ness granted this motion. On

May 15, 2018, Jones filed a motion for reconsideration of the Commonwealth’s

motion in limine, which the court denied.

      On November 1, 2018, the jury found Jones guilty of the above-named

offenses. On December 19, 2018, the court sentenced Jones to ten to twenty


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years of imprisonment for aggravated assault, and thirty-five to seventy

months of imprisonment for strangulation.

      On January 18, 2019, Jones timely filed a notice of appeal. On January

30, Jones filed a court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. On February 15, 2019, Jones filed an amended Rule

1925(b) statement. Jones raises the following issues on appeal:

   1. Whether the trial court erred by ruling that Bennett’s preliminary
      hearing testimony was admissible pursuant to Pa.R.E. 804(b)(1);

   2. Whether the trial court erred by refusing Jones’s motion in limine
      to prohibit the admission of Bennett’s preliminary hearing
      testimony pursuant to Pa.R.E. 804(b);

   3. Whether the verdicts were inconsistent with the evidence; and

   4. Whether the trial court improperly admitted impeachment
      evidence against defense witness Stehler of her prior conviction
      for false imprisonment.

Brief of Appellant, at 6-7.

      Jones first argues that the court abused its discretion by admitting

Bennett’s preliminary hearing testimony without affording him an opportunity

to fully and fairly cross-examine her. Id. at 30.

      A claim regarding a defendant’s full and fair opportunity to cross-

examine    a   witness   implicates   the   right   to   confrontation   under   the

Pennsylvania and United States Constitutions.            See Commonwealth v.

Bazemore, 614 A.2d 684, 685 (Pa. 1992) (“Under both our federal and state

constitutions a criminal defendant has a right to confront and cross-examine

witnesses against him.”).     As such, “our standard of review over the trial

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court’s admission of the contested testimony is de novo and our scope of

review is plenary.” Commonwealth v. Mitchell, 152 A.3d 355, 358 (Pa.

Super. 2016).

      If a witness is unavailable, his or her statements are not excluded by

the rule against hearsay if the former testimony was: (1) given as a witness

at a trial, hearing, or lawful deposition, whether during the current proceeding

or a different one; and (2) is now offered against a party who had an

opportunity and similar motive to develop it by direct, cross-, or redirect

examination. See Pa.R.E. 804(b)(1); see also Bazemore, supra, at 685

(stating defendant only deprived of full and fair opportunity when “the defense

has been denied access to vital impeachment evidence either at or before the

time of the prior proceeding at which that witness testified.”).

      We have previously examined the admissibility of statements made by

unavailable witnesses during preliminary hearings as follows:

      Our Supreme Court has made clear that the admission at trial of
      previously [recorded] testimony depends upon conformity with
      applicable evidentiary rules and the defendant’s constitutional
      right to confront witnesses against him. Commonwealth v.
      Leak, 22 A.3d 1036, 1043–[10]44 (Pa. Super. 2011). See also
      Commonwealth v. Rizzo, [] 726 A.2d 378, 380 n.2 ([Pa.] 1999)
      (“Pennsylvania law permits the admission of prior recorded
      testimony from a preliminary hearing as an exception to the
      hearsay rule when the witness is unavailable, the defendant had
      counsel, and the defendant had a full and fair opportunity for
      cross-examination at the preliminary hearing.”); Pa.R.E.
      804(b)(1).

      Where testimonial evidence is at issue, however, the Sixth
      Amendment demands what the common law required:
      unavailability and a prior opportunity for cross-examination.”

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      Commonwealth v. Allshouse, [] 36 A.3d 163, 171 ([Pa.] 2012)
      (citing Crawford v. Washington, 541 U.S. 36, 68 [] (2004)).
      Whether prior testimony was given at trial or at any other
      proceeding, where, as here, admission of that prior testimony is
      being sought as substantive evidence against the accused, we
      conclude that the standard to be applied is that of full and fair
      opportunity to cross-examine.    [Bazemore, supra, at 687]
      (emphasis in original).

      The Commonwealth may not be deprived of its ability to present
      inculpatory evidence at trial merely because the defendant,
      despite having the opportunity to do so, did not cross-examine
      the witness at the preliminary hearing stage as extensively as he
      might have done at trial. Leak, supra, at 1045 (citation omitted).

Mitchell, supra, at 358-59 (quotation marks omitted).

      Here, Bennett’s preliminary hearing testimony is admissible as an

exception to the hearsay rule under Rule 804(b)(1). Bennett was unavailable

for trial as a result of her death, Jones had counsel at the time of the

preliminary hearing, and Jones had a full and fair opportunity to cross-

examine Bennett at that hearing, and did so.        See Preliminary Hearing,

4/19/17, at 16–29; see also Rizzo, supra, at 380 n.2. Jones argues that

had his prior counsel, Attorney Landis, had information regarding Bennett’s

motive, intoxication, and bias prior to the preliminary hearing, Attorney Landis

would have cross-examined Bennett more thoroughly. Brief of Appellant, at

31.   Attorney Landis, however, had the opportunity to ask Bennett any

relevant questions. See Preliminary Hearing, 4/19/17, at 16–29. Notably,

Attorney Landis asked Bennett whether she was intoxicated during the

incident at issue. Id. at 18. Simply because Attorney Landis did not cross-

examine Bennett as extensively as she may have at trial, does not mean she

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did not have the opportunity to do so. See Leak, supra, at 1045. Moreover,

there is no evidence that the Commonwealth denied Jones “access to vital

impeachment evidence” prior to, or at the time of, the preliminary hearing.

See Bazemore, supra, at 686. Therefore, the preliminary hearing transcript

was properly admitted as evidence under Rule 804(b)(1).

      Jones next asserts that the trial court erred in denying his motion for

reconsideration to prohibit the admission of Bennett’s preliminary hearing

testimony. Brief of Appellant, at 39. Because we have determined that the

testimony was properly admitted, this claim is meritless and we need address

it no further.

      Jones next asserts that the verdicts were inconsistent with the evidence.

Brief of Appellant, at 40. Jones, however, fails to develop this argument with

citations and analysis of pertinent case law.    See id. at 40–42.    For this

reason, we find this issue is waived on appeal. See Pa.R.A.P. 2119(a); see

also Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa. Super. 2012)

(claim waived where appellant offered no pertinent case law or other authority

in support of his position).

      Lastly, Jones asserts the trial court improperly admitted impeachment

evidence of Stehler’s prior conviction for false imprisonment.        Brief of

Appellant, at 42.   Prior to assessing the merit of this claim, we must first

determine whether the issue has been preserved on appeal.




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     Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal. Pa.R.A.P. 302(a). Failure to object

to testimony at trial constitutes waiver of the claim on appeal.

Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008).

     Here, Jones failed to object to the Commonwealth’s introduction of

evidence of Stehler’s prior conviction of false imprisonment.     N.T. Trial,

10/31/18, at 246. When the Commonwealth brought in the evidence, the

following exchange occurred:


     [ATTORNEY ROBERTS]: You pled guilty to a charge of false
     imprisonment; [is] that right?

     [STEHLER]: Right.

     ATTORNEY ESHBACH: Objection. Calls for knowledge of the law
     that a layperson [would not] have.

     THE COURT: She would have filled out a [g]uilty [p]lea [c]olloquy.
     She would have some understanding as to what she pled guilty
     to.

     ATTORNEY ESHBACH: I object to the form of the question. Asking
     her what the elements are.

     THE COURT: [Attorney Roberts,] [d]o you want to rephrase the
     question?

Id. (emphasis added). Attorney Eshbach solely objected to the form of the

question, never contesting the content of the Commonwealth’s impeachment




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evidence. Because Jones failed to lodge a timely objection, he has waived his

claim on appeal. See Pa.R.A.P. 302.5

       Judgment affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




____________________________________________


5 Even if Jones had raised this issue in the trial court, the evidence would have
been admissible.       Prior to Jones’s trial, Stehler pled guilty to false
imprisonment of Bennett. At trial, Stehler testified that she never physically
prevented Bennett from leaving the apartment, which was inconsistent with
her guilty plea. N.T. Trial, 10/31/18, at 245. The Commonwealth used this
prior inconsistent statement to impeach Stehler’s credibility pursuant to
Pa.R.E. 613.       Thus, the court properly admitted the evidence.            See
Commonwealth v. Brown, 448 A.2d 1097, 1102 (Pa. Super. 1982) (stating
prior inconsistent statement may be used to impeach witness so long as there
is “evidence that the statement was made or adopted by the witness whose
credibility is being impeached.”).

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