J-S17008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JOSEPH BRUNNER,

                         Appellant                   No. 806 EDA 2018


       Appeal from the Judgment of Sentence Entered July 21, 2016
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0003741-2015


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 05, 2019

      Appellant, Joseph Brunner, appeals nunc pro tunc from the judgment of

sentence of an aggregate term of 12-25 years’ incarceration, followed by 10

years’ probation, imposed after he was convicted of aggravated assault and

numerous other offenses. We affirm.

      The trial court summarized the procedural and factual history of this

case as follows:
      PROCEDURAL HISTORY

             On November 19, 2014, [Appellant] was arrested and
      charged with, inter alia, [a]ggravated [a]ssault, [c]onspiracy to
      [c]ommit [r]obbery, [p]ossessing an [i]nstrument of [c]rime,
      [r]obbery, and [b]urglary. [Appellant’s] waiver trial took place on
      April 14, 2016, resulting in [Appellant’s] conviction on the stated
      charges. On July 21, 2016, [Appellant] was sentenced to an
      aggregate sentence of 12-25 years[’] state incarceration followed
      by 10 years of probation.
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              On August 2, 2016, [Appellant] filed his [n]otice of [a]ppeal
       to the Superior Court. On August 15, 2016, the [c]ourt filed and
       served on [Appellant] an [o]rder pursuant to Rule 1925(b) of the
       Pennsylvania Rules of Appellate Procedure, directing [Appellant]
       to file and serve a [s]tatement of [e]rrors [c]omplained of on
       [a]ppeal within 21 days of the [c]ourt’s [o]rder. On October 31,
       2016, [Appellant’s] appeal was dismissed for failure to comply
       with Pa.R.A.P. 3517.[1]

              On February 3, 2017, [Appellant] filed a Post[]Conviction
       Relief Act [(PCRA), 42 Pa.C.S. §§ 9541-9546,] petition. On
       October 12, 2017, [Appellant] filed an amended PCRA petition.
       On March 13, 2018, the [c]ourt reinstated [Appellant’s] appeal
       rights by agreement of counsel. On March 15, 2018, [Appellant]
       filed his [n]otice of [a]ppeal to the Superior Court. On April 23,
       2018, Stephen Thomas O’Hanlon was appointed as defense
       counsel. On June 1, 2018, the [c]ourt filed and served on
       [Appellant] an [o]rder pursuant to Rule 1925(b) of the
       Pennsylvania Rules of Appellate Procedure, directing [Appellant]
       to file and serve a [s]tatement of [e]rrors [c]omplained of on
       [a]ppeal within 21 days of the [c]ourt’s [o]rder. On June 17,
       2017, [Appellant] filed his statement of matters complained of on
       appeal….

       EVIDENCE AT TRIAL

             At trial, Ms. Bonita Yates testified that[,] on November 14,
       2014, she was 52 years old and lived at 546 South 52nd Street[]
       in West Philadelphia, Pennsylvania. On the evening of November
       13, 2014, Ms. Yates was at home with John Cox, drinking alcohol
       while she was on multiple medications for her bipolar [disorder
       and] schizophrenia. Ms. Yates repeatedly testified that she has
       no memory of the events that led to the immediate complaint
       because she blacked out as a result of her drug and alcohol
       consumption. Ms. Yates does not remember seeing [Appellant]
       nor having the police come to her home in the early hours of
       November 14.
____________________________________________


1 Pa.R.A.P. 3517 (“Whenever a notice of appeal to the Superior Court is filed,
the Prothonotary shall send a docketing statement form which shall be
completed and returned within ten (10) days in order that the Court shall be
able to more efficiently and expeditiously administer the scheduling of
argument and submission of cases on appeal. Failure to file a docketing
statement may result in dismissal of the appeal.”).

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            Ms. Yates testified that she does not remember giving a
      statement to police at 6:15 A.M. on November 14, 2014[,] at
      Southwest Detectives, located at 55th and Pine Street[] in
      Philadelphia. Because Ms. Yates testified that she does not
      remember giving any statement to police, her statement was read
      into the record as a prior inconsistent statement. Ms. Yates’[s]
      statement details how [Appellant], an old friend of Ms. Yates,
      came to her home with an accomplice and tried to rob her. Ms.
      Yates’[s] statement alleged that [Appellant] forced open Ms.
      Yates’[s] door and his accomplice shot Mr. Cox in the arm. The
      written statement included Ms. Yates’[s] name, date of birth, and
      her handwritten signature at the bottom, which Ms. Yates
      acknowledged as authentic. Ms. Yates testified that she attended
      a preliminary hearing on April 9, 2015, where she also testified
      that she did not remember anything from the night in question.

             Detective Mary Kuchinsky testified that Ms. Yates came in
      to give a statement around 6 A.M. on November 14, 2014. The
      detective testified, “I ask them, and from my observations, if
      somebody’s intoxicated or under the influence of drugs, I would
      never take an interview from them.” Detective Kuchinsky testified
      that Ms. Yates was coherent and did not appear to be sedated or
      on medication at the time of the interview. Detective Kuchinsky
      identified Ms. Yates’[s] statement detailing the robbery and
      shooting by [Appellant] and his accomplice, which she had
      recorded. Detective Kuchinsky testified that Ms. Yates did[ not]
      read very well, so she read the statement back to Ms. Yates, who
      confirmed the accuracy of the statement at the time it was made.

            Philadelphia Police Officer Jacob Hollis testified that he
      received a radio call for a shooting at 546 South 52 nd Street
      around 4:45 A.M. on November 14, 2014. Officer Hollis testified
      that[,] when he arrived at the scene[,] he saw that John Cox was
      shot in the right elbow, and that there was blood on the apartment
      door from Mr. Cox’s wound. Officer Hollis testified, “The door
      frame looked like it was forced open.” Philadelphia Detective
      Dennis Slobodian then testified that he went to the hospital and
      met with Mr. Cox who was being treated for a gunshot wound.
      Detective Slobodian also went to Ms. Yates’[s] home and
      discovered a bullet hole through the rear door.

Trial Court Opinion (TCO), 11/6/2018, at 1-4 (internal citations and footnotes

omitted).


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       Presently, Appellant raises a single issue for our review:

       Did the trial court err in overruling Appellant’s counsel’s objection
       and allowing the Commonwealth to read into the [r]ecord Bonita
       Yates’[s] statement when the [c]ourt made an assessment as to
       Ms. Yates’[s] lack of memory, when Ms. Yates should not have
       been subject to Brady/Lively[2] impeachment as a result, and
       when Appellant suffered irreparable harm when the statement
       was read in because Appellant was unable to properly confront
       this key witness?

Appellant’s Brief at 4.

       We acknowledge the following:
       Our courts long have permitted non-party witnesses to be cross-
       examined on prior statements they have made when those
       statements contradict their in-court testimony. Such statements,
       known as prior inconsistent statements, are admissible for
       impeachment purposes. Brady, … 507 A.2d [at] 68 …; P[a].R.E.
       613(a). Further, a prior inconsistent statement may be offered
       not only to impeach a witness, but also as substantive evidence if
       it meets additional requirements of reliability. Lively, … 610 A.2d
       [at] 9-10…; P[a].R.E. 803.1.[3] The test is a two-part inquiry: 1)
       whether the statement is given under reliable circumstances; and
       2) whether the declarant is available for cross-examination.
       Commonwealth v. Brewington, 740 A.2d 247, 254 (Pa. Super.
       1999), appeal denied, … 758 A.2d 660 ([Pa.] 2000). With respect
       to the first prong, that the statement is given under reliable
       circumstances, our [S]upreme [C]ourt has deemed reliable only
       certain statements; among them is a statement that is “reduced
       to a writing and signed and adopted by the witness.” Lively, …
       610 A.2d at 10. See also P[a].R.E. 803.1(1). With respect to the
       second prong, cross-examination, the inconsistent statement
       itself must be the subject of the cross-examination in order to
       satisfy the test. Commonwealth v. Romero, … 722 A.2d 1014,


____________________________________________


2Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992); Commonwealth v.
Brady, 507 A.2d 66 (Pa. 1986).

3 The official comment to Pa.R.E. 803.1(1) sets forth that the rule “is
consistent with prior Pennsylvania case law[,]” specifically naming Brady and
Lively. Comment to Pa.R.E. 803.1(1).

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     1017 ([Pa.] 1999), cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145
     L.Ed.2d 293 (1999).3
        3 In Romero, our [S]upreme [C]ourt held that the cross-
        examination prong was not satisfied because the witness in
        that case, Barbosa, refused to answer any questions about
        his prior statement and was held in contempt of court as a
        result. The Romero [C]ourt found Barbosa’s refusal to
        explain the statement foreclosed the defendant’s right to
        confront witnesses against him….

Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa. Super. 2002).

     Here, the trial court concluded that Ms. Yates’s statement satisfied the

above-stated, two-prong test. It reasoned:
     At trial, Ms. Yates testified [that] she couldn’t remember giving
     the statement to police, making her testimony inconsistent with
     the prior [statement] to police. Her inconsistent statement is
     admissible as substantive evidence because it meets the reliability
     and cross-examination requirements. As to the first prong of the
     test, Ms. Yates’[s] statement is reliable because it was voluntarily
     given and recorded by a Philadelphia detective, who credibly
     testified to the legitimacy of the statement. Ms. Yates adopted
     that statement at the time she made it by affixing her signature
     to the bottom. Further, the content of Ms. Yates’[s] statement,
     such as Appellant’s forced entry and shooting, is corroborated by
     the testimony of the officers who investigated the scene of the
     crime.     Likewise, as to the second prong, the declarant’s
     availability for cross-examination, Ms. Yates was available for
     cross-examination. At trial, Ms. Yates was examined on direct
     about the contents of her statement and defense counsel was
     afforded an opportunity to cross-examine her. Ms. Yates[’s]
     statement was therefore admissible as substantive evidence
     under the Brady/Lively rule.

TCO at 5-6.

     Appellant, however, argues that Ms. Yates’s statement could not be used

as substantive evidence because “there was a ruling that [she] was credible

when she testified that she did not remember the underlying facts and her



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statement to police.”      Appellant’s Brief at 11 (referring to N.T. Trial,

4/14/2016, at 81-82). Thus, Appellant says Ms. Yates “could not be properly

subjected to Brady/Lively impeachment because there was never a judicial

determination that [she] was not being frank or truthful. In fact, … there was

a determination that [Ms. Yates] was being frank and truthful.” Id. Moreover,

Appellant contends that he “was denied his Constitutional Confrontation rights

because he was effectively unable to cross-examine [Ms. Yates] on her prior

statement, the only substantive evidence against Appellant.”       Id. at 12

(citation omitted).

      We reject Appellant’s arguments. First, we disagree with Appellant that

the trial court found Ms. Yates’s memory loss to be credible.     Rather, the

following occurred at trial:
      [The Commonwealth]: Your Honor, I mean, if you’re going to pick
      a victim to rob, [Appellant] picked the perfect victim. He was
      hoping that if it ever did come to court, which he probably wasn’t
      counting on, he was hoping that this is exactly the dialogue that
      would be taking place, that Ms. Bonita Yates would be [] being
      bashed for who she is.

      [The court]: She seems all right today. I mean, she came in here,
      she sat there, she hasn’t been drinking. And if she’s taking meds,
      she’s not overdoing it. But she seems okay today.

      So it comes down to, can I believe the detective when the
      detective says she was okay that night. She came in and we
      talked and she was fine. Because the only evidence that she was
      drinking, … the first cop on the scene, he doesn’t say anything
      about drinking or drugs, either; does he?

      [Appellant’s attorney]: I don’t think he asked her.

      [The court]: So the only one who says that she was drinking is
      her as an explanation for why she doesn’t remember anything
      now.

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       [The Commonwealth]: Correct.

                                           ***

       [The Court]: [] Count one is aggravated assault, I’m convinced
       [Appellant] did it, along with the conspiracy with somebody else
       unidentified.   Simply because I believe the detective.     The
       detective said she spoke to the complainant that night and she
       gave a lucid account of what took place.

       I saw [Ms. Yates] in court today. I mean, she’s not – there’s no
       reason to doubt her today. She probably was intimidated, she
       lives in the neighborhood, she’s concerned. [Appellant] was on
       the phone telling people to go out and talk to her, talk to Cox. [4]
       [Appellant’s] not going to benefit from that. I’m not going to allow
       him to benefit from that. She’s just afraid when she comes into
       court. But that night, having just been robbed, she told the
       detective what happened.

N.T. at 76-77, 81-82. Rather than crediting Ms. Yates’s memory loss, the trial

court found that Ms. Yates was intimidated and afraid of coming to court, and

it declared that it would not let Appellant benefit from directing people to

approach her about the case. Further, the trial court accepted the testimony

of the detective, who stated that Ms. Yates seemed coherent during the

interview and did not appear to be under the influence at the time. Thus, it




____________________________________________


4 For context, the Commonwealth admitted into evidence prison phone calls
made by Appellant, where he was ostensibly instructing another person to talk
to Ms. Yates and Mr. Cox before trial. See N.T. at 66-68; Commonwealth’s
Exhibit 4; see also Commonwealth’s Brief at 3-4. Further, Detective
Kuchinsky — who interviewed Ms. Yates on the night in question — testified
that Ms. Yates told her during the interview, “I’m scared for my family. Now
I’m going to have to move. He know[s] where my mom lives.” N.T. at 57;
see also Commonwealth’s Exhibit 1.



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did not accept Ms. Yates’s claim that she had been drinking on the night in

question, and consequently could not remember.5




____________________________________________


5 Appellant does not argue that, even if the trial court had discredited Ms.
Yates’s memory loss, her prior statement to police fails to qualify as a prior
inconsistent statement under the Brady/Lively rule and Pa.R.E. 803.1(1).
Thus, he has waived this argument. Lackner v. Glosser, 892 A.2d 21, 29-
30 (Pa. Super. 2006) (“[A]rguments which are not appropriately developed
are waived. Arguments not appropriately developed include those where the
party has failed to cite any authority in support of a contention.”) (citations
omitted).

Nevertheless, we point out that — since the time of Appellant’s trial in 2016
— Pa.R.E. 803.1 has been amended to include a provision specifically for a
prior statement by a declarant-witness who claims an inability to remember
the subject matter of his or her statement, and the court finds the claimed
inability to remember to be incredible. See Pa.R.E. 803.1(4) (effective April
1, 2017). The comment to that rule provides, in pertinent part:
       The purpose of this hearsay exception is to protect against the
       “turncoat witness” who once provided a statement, but now seeks
       to deprive the use of this evidence at trial. It is intended to permit
       the admission of a prior statement given under demonstrably
       reliable    and    trustworthy     circumstances,        see,    e.g.,
       Commonwealth v. Hanible, 30 A.3d 426, 445 n.15 (Pa. 2011),
       when the declarant-witness feigns memory loss about the subject
       matter of the statement.
In Hanible, our Supreme Court determined that the defendant’s counsel was
not ineffective for failing to object to the introduction of a witness’s prior
inconsistent statement under Pa.R.E. 803.1(1) where, among other things,
the witness later claimed at a murder trial that the police forced him to make
and sign the prior statement, and that he actually knew nothing about the
murders. See Hanible, 30 A.3d at 436, 445-46. Similar to the witness in
Hanible, Ms. Yates did not dispute that she made the statement and did not
deny its contents, but represented that she could not recall the incident
because she had been drinking. Thus, even though Ms. Yates did not deny
the contents of her prior statement at trial, we would likewise deem Ms.
Yates’s prior statement admissible under Pa.R.E. 803.1(1).


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     Second, we determine that Appellant was not denied his Constitutional

Confrontation rights because he “was effectively unable to cross-examine [Ms.

Yates] on her prior statement….”      See Appellant’s Brief at 12 (citation

omitted). At the outset, we agree with the Commonwealth that Appellant has

waived this argument by failing to cite to any authority in support.     See

Lackner, supra; see also Commonwealth’s Brief at 7 (arguing waiver).

Notwithstanding, even if not waived, no relief would be due on this basis. In

Carmody, we rejected a similar argument, ascertaining that a previously

signed and adopted written statement could be admitted as substantive

evidence even though the complainant in that case later testified that her

statement was unreliable because she was intoxicated at the time she gave

it. See Carmody, 799 A.2d at 145, 148-49. In her written statement given

to police on the night in question, that complainant described an assault in

detail, but later at a preliminary hearing represented that she “had been

drinking on the night of the incident and had a ‘blackout.’ As a result, she

could not remember anything that happened on that night.         Further, she

claimed that nothing she said or wrote on that date was reliable.” Id. at 145.

On appeal, this Court rejected the position that the complainant’s “blackout

precluded any meaningful opportunity to cross-examine her on the veracity of

her written statement.” Id. at 148. Instead, we observed that both parties

had the opportunity to question the complainant as to why she said one thing

on the night in question and something entirely different at the preliminary

hearing.   See id. at 149.      We stated that “[t]he substance of [the

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complainant’s] answers does not dictate whether she was subject to cross-

examination. The question is whether she testified about the prior statement,

not what she responded when she testified.”      Id. (emphasis in original).

Accordingly, this Court concluded that the complainant’s written statement

was admissible as substantive evidence under the Brady/Lively rule. Id.

     As the Commonwealth points out, like the defendant in Carmody,

Appellant had the chance to cross-examine Ms. Yates “about a variety of

topics, including the medications she was taking on the date in question, her

alcohol use, and whether her illness ever caused her to hallucinate.     Had

[Appellant] chosen, he also could have elicited more information about her

claimed memory loss or other susceptibilities.” Commonwealth’s Brief at 8-9

(citations omitted). We agree. Accordingly, we would conclude that the trial

court did not improperly admit Ms. Yates’s statement as substantive evidence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




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