J-S59033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RANDALL MAURICE BOWMAN                     :
                                               :
                      Appellant                :   No. 3793 EDA 2015

           Appeal from the Judgment of Sentence November 18, 2015
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0002594-2015


BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED OCTOBER 12, 2017

        Appellant, Randall Maurice Bowman, appeals from the judgment of

sentence entered in the Delaware County Court of Common Pleas, following

his jury trial conviction of simple assault.1 Appellant alleges the trial court

erred in precluding defense counsel from cross-examining the victim to

impeach her credibility. We affirm.

        We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 1/5/17, at 1-6.2 Appellant raises the following


____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 2701(a)(1).

2We note that Appellant timely filed his notice of appeal on December 18,
2015, rather than on December 29, 2015, as stated in the trial court’s
(Footnote Continued Next Page)
J-S59033-17


issue for our review: “Whether the court erred when it refused to allow

defense counsel to cross-examine the victim on certain statements she

made to [Appellant’s] mother regarding [the victim’s] intention to see that

[Appellant] was put in jail, since such testimony had direct bearing on the

victim’s credibility.” Appellant’s Brief at 7 (capitalization omitted).

       Appellant argues that the jury weighed the credibility of the victim’s

testimony more favorably than that of Appellant’s alibi witness due to the

trial court’s failure to allow impeachment evidence during defense counsel’s

cross-examination of the victim. Appellant contends the cross-examination

would have revealed the victim’s prior statements to Appellant’s mother that

indicated the victim had a motive to falsely accuse Appellant of assault so he

would go to jail.      Appellant maintains the court abused its discretion in

denying him the opportunity to question the victim about these prior

statements. Appellant concludes he is entitled to a new trial. No relief is

due.

       This Court has held,

          the scope and limits of cross-examination are within the
          discretion of the trial court and its rulings will not be
          reversed absent a clear abuse of that discretion or an error
          of law. Nevertheless, a witness may be cross-examined as
          to any matter tending to show interest or bias.


(Footnote Continued) _______________________

opinion. See Trial Ct. Op. at 6. Thereafter, the trial court ordered Appellant
to file a Pa.R.A.P. 1925(b) statement, and Appellant timely complied.



                                          -2-
J-S59033-17


Commonwealth v. Mullins, 665 A.2d 1275, 1277 (Pa. Super. 1995)

(citations omitted).   Regarding cross-examination to show interest or bias,

this Court has stated:

         Generally, evidence of interest or bias on the part of a
         witness is admissible and constitutes a proper subject for
         cross-examination.    It is well-settled law that cross-
         examination directed toward revealing possible bias,
         interest or motive of a witness in testifying against the
         defendant is always relevant as discrediting the witness
         and affecting the weight of his testimony.

Commonwealth v. Gentile, 640 A.2d 1309, 1313 (Pa. Super. 1994)

(citations and quotation marks omitted).

      If the hearing judge errs in disallowing certain cross-examination, such

an error is subject to a harmless error analysis.    See id. at 1314.     Our

Supreme Court has stated, “an error can be harmless only if the appellate

court is convinced beyond a reasonable doubt that the error is harmless.”

Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978) (footnote

omitted). To determine whether an error is harmless, “[t]he uncontradicted

evidence of guilt must be so overwhelming, and the prejudicial effect of the

improperly admitted evidence [must be] so insignificant by comparison, that

it is clear beyond a reasonable doubt that the error could not have

contributed to the verdict.” Id. at 168. Thus, an error is harmless if “the

appellate court determines that the error could not have contributed to the

verdict.” Commonwealth v. Rush, 605 A.2d 792, 794 (Pa. 1992).

      Here, the trial court reasoned:


                                     -3-
J-S59033-17


           Appellant’s claim of error concerns an ostensible desire
       by the victim in this matter to send [Appellant] to jail to
       obtain advantage in a custody dispute, the testimonial
       evidence or statements betraying the victim’s motive to
       see [Appellant] in jail purportedly post-dated the incident
       in question. However, the testimony at trial belied any
       chronic custody dispute. Detailed credible evidence led the
       Jury to conclude that the victim was assaulted by []
       Appellant. The finder of fact did not credit the generalized
       alibi testimony provided by [] Appellant’s mother.

           Further, the proposition that the proffered testimony
       suggesting a motive to fabricate to frame [] Appellant to
       gain custodial advantage does not logically flow from the
       assertion that the victim said to [] Appellant’s mother that
       she wanted to see [] Appellant in jail at some time after
       the assault at issue. It is too remote, collateral and
       irrelevant to the disposition of the question of whether []
       Appellant assaulted the victim. Any alleged statement by
       the victim expressing desire to see [] Appellant go to jail
       [is] not germane to the issues at trial. This court did not
       abuse its discretion in excluding such testimony on cross-
       examination.

                               *    *    *

          Appellant’s contention is that the underlying pre-text is
       that the victim was motivated to fabricate the assault by a
       custody dispute of some kind. However, [] Appellant did
       not develop any testimony or evidence of a running
       custody dispute thereby raising a question of a motive to
       fabricate. The testimony as a whole suggests that custody
       was fairly informal and the parties co-parented by an
       arrangement whereby [] Appellant was permitted to
       appear at the victim’s residence and babysit and have
       visitation while the victim attended school and worked
       part-time.     There was also evidence the paternal
       grandmother rendered some daycare and visitation.

                               *    *    *

          Because [] Appellant failed to articulate any prejudice
       as the result of this [c]ourt’s exclusion of cross-
       examination related to any post-incident statement(s) to

                                   -4-
J-S59033-17


         the effect that the victim wanted to see [Appellant] in jail
         and further, where this [c]ourt committed no abuse of
         discretion in excluding the irrelevant cross-examination, []
         Appellant’s claim of error lacks merit.

Trial Ct. Op. at 10-11, 12-13 (record citations omitted).

      Thus, even if the trial court improperly excluded cross-examination of

the victim regarding the alleged statements she made to Appellant’s mother

following the assault, the error was harmless because it did not prejudice

Appellant and the evidence of guilt was so overwhelming that any prejudicial

effect of the error could not have contributed to the verdict.            See

Commonwealth v. Melvin, 103 A.3d 1, 20 (Pa. Super. 2014). Detective

Edward Silberstein, one of the detectives who responded to the victim’s 911

call, testified that he met with the victim within ten to fifteen minutes after

the assault occurred and that she was emotionally upset and had “apparent

injuries” that were “consistent with an assault, a punch to the face.” N.T.,

9/23/15, at 124. The detective observed that the victim “had a laceration,

which was bleeding, to her lip. Her lip was swollen and her tooth was loose.

And along her gum line there was apparent blood from bleeding.”         Id. at

125-26. The victim provided the detective with a detailed statement of the

assault, and the detective took photographs of the victim’s injuries, which

were introduced into evidence. Id. at 124, 126. Therefore, combined with

the victim’s own testimony, the photographic evidence and testimony of the

detective corroborated the victim’s testimony that the assault occurred and




                                     -5-
J-S59033-17


overwhelmingly established the Commonwealth’s case.   Accordingly, we

affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

     PJE Bender joins the Memorandum.

     Judge Ott Concurs in the Result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017




                                   -6-
                                                                           Circulated 09/26/2017 04:49 PM




                                                                       '

     IN THE COURT OF' COMMON PLEAS OF DELAWARE COUNTY,
                   P�NNSYLVANIA - CRIMINAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA,
                   APPELLEE,                               NO. 3793 EDA 2015
                    v.                                     (No. CP-23-CR-
                                                           00002594-2015)
RANDALL MAURICE BOWMAN,
                   APPELLANT.


CAPPELLLI, J.                                             DATE: January 5, 2017


                                     OPINION

       The Defendant, hereinafter, "Appellant", contends the trial court erred in

excluding certain cross-examination questioning concerning the victim's purported

post-incident statement's to the Appellant'smother to the effect that victim

intended to make sure the Appellant was put in jail.

      Appellant' s claim· of error lacks merit. The defendant's Judgment of

Sentence should be affirmed.

I. Factual and Procedural Background

       On Wednesday, February 12, 2014 at approximately 7;25 PM the Upper

Darby police department responded to a 911 call in the area of Brief Ave and West

Chester Pike for a domestic assault.(N. T. 9/23/2015, pages 88-91 ).




                                          1
       Upon arrival Officer James Lutz of the Upper Darby Township Police

Department located the victim who reported she was assaulted by the father of her

child, that is, Appellant, Randall Bowman, inside her vehicle. The victim had

visible injuries to her lip and complained of a loose front tooth. (N.T. 9/23/2015,

page 97).

       At Upper Darby Township Police Headquarters, Detective Edward

Silverstein obtained a signed written statement from the victim in reference the

a�sault. (N.T. 9/23/2015, page 97).

       The victim reported the Appellant punched her in the face· and began

choking her for about 2 minutes as they argued inside her car. Appellant yelling at

the victim to "shutthe fuck up bitch". The Appellant then broke off the attack and

jumped out of the car and fled towards the 69th St. transportation terminal located

in Upper Darby Township.(N.T. 9/23/2015, pages 91M95). Digital photographs of

the victim's injuries from the assault were obtained at that time.(N.T. 9/23/2015,

pages 104-5).

      Thereafter on February 14, 2014 the Appellantwas charged with violations

of the crimes code including: 18 §2701 §§(A) (1), simple assault, a misdemeanor

of the 2nd degree, 18 §2706 §§(A) (1), terroristic threats with intent to terrorize

another, a misdemeanor of the first degree, and 18 §2709 §§(A) (1) harassment, a

summary offense.


                                           2
       The Jury Trial in this matter proceeded on September 23, 2015 at which time
                       '
the Commonwealth presented the testimony of the victim and the investigating

Detective together with the victim's statement and the Detective's photographs of

the victim's injuries. (N.T. 9/23/15).

      The portion of the record to which the Appellant takes issue is located at

N.T. 9/23/2015 at pages 116 - 118, wherein the following exchange occurred on

the record:

              By Mr. Sprague:

              Q       so you did have interactions with Randall's mother, correct?

              By Sabrina Crews:

              A      yes.

              Q      you're relatively close to her?

              A      yes.


              Ms. Smith(ADA):
                                              ***

                     Your Honor, I'm going to object, relevance.

              The Court:

                     sustained for last comment.

              Mr. Sprague:

                    pardon?

              The Court:

                    For the last comment.

              By Mr. Sprague:

                                              3
 Q      At any time did you tell Randall's mother that you were
        going to see that he went to jail?          ·


 Ms. Smith:
       Objection, relevance.

 The Court:
       Sustained.

Mr. Sprague:
        May I--

The Court:
      Sidebar?

Mr, Sprague:

        Yes, Your Honor.

                                 ***
(Sidebar discussion)

The Court:
      Go ahead.

Mr. Sprague:              .
       [inaudible] the Commonwealth brought into
       direct and also the statement that
       they are involved in a relationship [inaudible].

Ms. Smith:
      [inaudible] beyond the scope of direct. I never once mention mother.
      And it's hearsay.

The Court:
      well, it's not hearsay from [inaudible] and how's --
      I mean what's the point? How does that- -how is that
      a defense

Mr. Sprague:
       [inaudible].




                                 4
             The Court:
                   what's your - -where you going with it? What are you trying to
                   accomplish?                                        ·

             Mr. Sprague:
                     [inaudible] - -

             the court:
                    um-hum.

             Mr. Sprague:
                    - - [inaudible] testified that there were interactions after this
                    incident. And that essentially this is a custody dispute and [inaudible] and
                    that's what it's motivated--                                     ·

             Ms. Smith:
                   this is the whole thing I was saying in the back, you know. She is here as
                   an alibi witness, not to talk about the relationship and, you know
                   [inaudible].

             Sprague:
                    [inaudible].

             Ms. Smith:
                   I'm objecting to hearsay. I'm just letting him know now-So - -

            The Court:
                  Thank you. [Inaudible] how this relates to the alibi or [inaudible].

            (Sidebar discussion concluded)
                                             ***
            The Court:
                  Back on the record. The objection sustained. Move on with
                  questioning, please.


      After the Jury Trial concluded, the Appellant was convicted of simple

assault, a misdemeanor of the 2nd degree and sentenced on November 18, 2015 to

no less than 12 months to no more than 24 months incarceration and ordered to

complete anger management classes prior to any release and not to have contact



                                             5
 with his victim. The defendant was not RRR1 eligible and was otherwise to comply

 with the rules and regulations governing probation and/or parole.

        On December 29, 2015 the Defendant filed a timely Notice of Appeal to the

Pennsylvania Superior Court.

II.    ISSUE

       In his concise statement of errors complained of on appeal, Appellant raises

the following:

I.     The court erred- when it refused to allow defense counsel to cross-examine

the victim on certain statements she madeto the defendant's mother regarding her

intention to see that he was put in jail since such testimony had direct bearing on

the victim's credibility. (SeeN.T. 9/23/2015 at pages 116-118).

ill.   ANALYSIS

       Besides the unsupported assertion that this Court committed an abuse of

discretion tantamount to reversible error in excluding certain cross-examination

surrounding the victim's purported intention to see that the defendant was put in

jail, the Appellant does not develop his claimoferror beyond arguing that the

cross-examination was improperly excluded because "such testimony had a direct

bearing on the victim's credibility".

       This court properly excluded the wholly undeveloped and collateral line of

cross-examination by defense counsel into whether the victim of the alleged assault


                                         6
made post-incident statements to the Appellant's mother to the effect she intended

to see that the defendant was put in jail. This court expressly notes the proffered

testimony-has marginal, if any; relevance and probity.

       Appellant made no effort to create any connection, factual predicate or offer

of proof of how such a post-incident statement(s) had any bearing on the likelihood

of whether or not the criminal conduct and assault actually took place and that the

Appellant was the perpetrator. That is, Appellant does not aver how the excluded

evidence would have disproven the Commonwealth's claims or proven the

Appellant's alibi defense ·which the trier of fact plainly rejected here.

       There was evidence offered by the Commonwealth at trial for the finder of

fact to conclude Appellant assaulted the victim as charged. Further, the Jury heard

the alibi testiniony and clearly was not persuaded.

      The Jury credited the Commonwealth's evidence and found the Defendant

guilty beyond a reasonable doubt of simple assault. Even assuming testimony

elicited an admission that sometime after being assaulted, the victim said to the

Appellant's mother that she wanted to see Appellant goto jail, that-testimony does

not undermine the victim's credibility. That testimony makes no fact of

consequence relevant to the assault and the identity of the perpetrator more or less

likely. In fact, seeing that the Appellant goes to jail deals with punishment after

conviction over which the victim has no control. The Court controls any sentence.


                                           7
       Also, one could reasonably infer that the victim of an assault who was also

 choked and sustained a lacerated lip and loosened tooth would honestly want to see

 her assailant punished with incarceration.

       The sidebar argument by defense counsel in support of the excluded line of

 questioning clearly shows he intended to somehow substantiate an argument that

 the victim's allegations were driven by "a custody dispute and ... [inaudible] and

 that's what it's motivated=-". (N.T. 9/23/2015, page 118).

       The mere unsupported assertion that the excluded testimony has a direct

bearing on the victim's credibility is neither persuasive of an abuse of discretion

nor of the commission of prejudicial error by this court.

       Appellant's claim concerns the trial court'sexclusion of certain evidence.

The decision to admit or to exclude evidence lies within the sound discretion of the

trial court. The standard of review is very narrow; the Pennsylvania Superior Court

will only reverse upon a showing that the trial court clearly abused its discretion or

committed an error of law. To constitute reversible error, an evidentiary ruling

must not only be erroneous, but also harmful or prejudicial to the complaining

party. Commonwealth v. Robertson, 874 A.2d 200, 1209 (Pa. Super. 2005).

      Furthermore, "[a]ll relevant evidence is admissible, except as otherwise

provided by law. Evidence that is not relevant is not admissible." Pa.R.E. 402.

Evidence is relevant if "(a) it has any tendency to make a fact more or less


                                          8
 probable than it would be'without the evidence;" and "(b) the fact is of

 consequence in determining the action." Pa.R.E. 401. The comment to Rule 401

 also directs that: "Whether evidence has a tendency to make a given fact more or

 less probable is to be determined by the court in the light of reason, experience,

 scientific principles and the other testimony offered in the case." Pa.R.E. 401.

 "The court may exclude relevant evidence if its probative value is outweighed by a

danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence." Pa.R.E. 403.

       "[a]n accused has a fundamental right to present evidence so long as the

evidence is relevant·and not excluded by an established evidentiary rule."

Commonwealth v.Ward, 509, 605 A.2d 796, 797 (Pa. 1992) (citing Chambers v.

Mississippi, 410 U.S. 284 (1973)). In determining the admissibility of evidence,

the trial court must decide whether the evidence is relevant and, if so, whether its

probative value outweighs its prejudicial effect. Commonwealth v. Crews, 536 Pa.

508, 640 A.2d 395 (l994);see, e.g., Commonwealth v. Dollman, 518 Pa. 86, 541

A.2d 319 (1988). "Evidence is relevant if it logically tends to establish a material

fact in the case, tends to make a fact at issue more or less probable, or supports a

reasonable inference or presumption regarding the existence of a material fact."

Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 699 (1992). Evidence that


                                          9
 merely advances an inference of a material fact may be admissible, even where the

 inference to be drawn stems only from human experience. See, e.g., Dollman (jury

 could have interpreted disposal of victim's body as evidencing consciousness of

 guilt); See also, Crews, 536 Pa.at 523, 640 A.2d at 402.Commonwealtlt v. Hawk,

 709 A.2d 373, 376 (Pa. 1998). "The admissibility of evidence is a matter

committed to the sound discretion of the trial court; an appellate court may reverse

a trial court's ruling only upon a showing that the trial court abused its discretion."

Id.

       Appellant's claim of en-or concerns an ostensible desire by the victim in this

matter to send the defendant to jail to obtain advantage in a custody dispute, the

testimonial evidence or statements betraying the victim's motive to see the

defendant in jail purportedly post-dated the incident in question. However, the

testimony at trial belied any chronic custody dispute. Detailed credible evidence

led the Jury to conclude that the victim was assaulted by the Appellant. The finder

of fact did not credit the generalized alibi testimony provided by the Appellant's

mother. (See, N.T 9/23/2015, page 120, there was no pending custody

acion/order).

      Further, the proposition that the proffered testimony suggesting a motive to

fabricate to frame the Appellant to gain custodial advantage does not logically flow

from the assertion that the victim said to the Appellant's mother that she wanted to


                                          10
 see the Appellant in jail at some time after the assault at issue. It is too remote,

 collateral and irrelevant to the disposition of the question of whether the Appellant

 assaulted the victim. Any alleged statement by the victim expressing desire to see

 the Appellant go to jail are not germane to the issues at trial. This court did not

 abuse its discretion in excluding such testimony on cross-examination.

        Although the Appellant didn't develop the argument at trial, presumably

 evidence of the victim's motive to fabricate would supposedly materially discredit

the victim's assault story. Appellant contends he had a viable alibi in the form of

his mother's testimony that he was at her residence at the pertinent time on the

evening the incident occurred.

       Appellant's argument lacks merit because the fact finder determined from

the testimony elicited at trial that the assault occurred as a rapid escalation of a

verbal argument that turned into a domestic assault quickly. The victim testified

that the verbal argument arose out of the defendant's unwillingness to retrieve a

meal for the victim from a crowded GIANT Food Store on the evening of the

incident in question. In turn, the victim who had driven the Appellant to the

GIANT Food Store then headed for the transportation terminal at 69th Street.

Along the way the victim testified that the Appellant's remarks became

increasingly vulgar which prompted the victim to pull-over and ask the Appellant

to step out of her car.


                                           11
       The finder of fact could and did conclude that a verbal argument then turned

physical after the Appellant exited the victim's car only to re-enter and punch the

victim inthe face and·choke her when she called him a "deadbeat". The assault

lacerated her lip and loosened her tooth.

       Appellant's contention is that the underlying pre-text is that the victim was

motivated to fabricate the assault by a custody ·dispute of some kind. However, the

Appellant did not develop any testimony or evidence of a running custody dispute

thereby raising a question of a motive to fabricate. The testimony as a whole

suggests that custody was fairly informal-and the parties co-parented by an

arrangement whereby the Appellant was permitted to appear at the victim's

residence and babysit and-have visitation while the victim attended school and

worked part-time.(N.T. 9/23/2015, pages 89, 111). There was also evidence the

paternal grandmother rendered some daycare and visitation. (N.T. 9/23/2015,

pages 114, 120).

      Appellant's issue concerning the trial court's ruling on cross-examination is

subject to the following standard of review:

             "The scope of cross-examination is within the sound
            discretion of the trial court, and we will not reverse
            the trial court's exercise of discretion ill absence of
            an abuse of that·discretion. Generally, every
            circumstance relating to the direct testimony of an
            adverse witness or relating to anything within his or
            her knowledge is a proper subject for cross-
            examination, including any matter which might

                                         12
             qualify or diminish the impact of direct
             examination." Jacobs v. Chatwani, 922 A.2d 950,
             965 (Pa.Super. 2007).

      Because the Appellant failed to articulate any prejudice as the result of this

Court's exclusion of cross-examination related to any post-incident statement(s) to

the effect that the victim wanted to see the defendant in jail and further, where this

Court committed no abuse of discretion in excluding the irrelevant cross-

examination, the Appellant's claim of error lacks merit.

IV.   CONCLUSION

      Forall the-foregoing reasons, this Court's decision should be AFFIRMED.



                                              BY THE COURT:




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