J-S71012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

RONALD REDDEN

                         Appellant                  No. 103 EDA 2016


          Appeal from the Judgment of Sentence August 19, 2015
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0001975-2015


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 28, 2016

      Ronald Redden appeals the judgment of sentence of seven days to six

months incarceration, plus fines and costs, imposed following his convictions

for driving under the influence – general impairment (“DUI”), driving while

operating privilege is suspended or revoked, driving on roadways laned for

traffic, and careless driving. We affirm.

      Appellant’s offenses arose from the following factual scenario.     On

November 12, 2014, after loading concrete blocks into the bed of his Ford F-

150 pick-up truck, Appellant left his friend’s house in Chester County to

return to his home in Delaware.         While spanning an overpass along

southbound Route 202, Appellant hit a bump, blew out a tire, and lost

control of his vehicle. The truck spun, struck the median, and came to rest


* Former Justice specially assigned to the Superior Court.
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facing northbound in the left lane. A passing motorist alerted police to the

accident. Local police Officer William Cooper responded first to the scene,

followed by State Trooper Wesley Foster.

      When Officer Cooper arrived on location, Appellant was standing

outside the vehicle. No one else was present. Officer Cooper detected the

odor of alcohol emanating from Appellant and noted that he was slurring his

speech.   When asked what had happened, Appellant relayed to the officer

that he hit a bump and lost control of the truck.

      Approximately ten minutes later, Trooper Foster arrived.       Trooper

Foster noted that Appellant smelled of alcohol, slurred his speech, and

presented with bloodshot eyes.       Appellant had difficulty providing the

necessary documentation to the trooper. When he did ultimately provide it,

a routine status check revealed Appellant’s license was revoked.       When

Trooper Foster pressed Appellant as to the cause of the accident, Appellant

changed his version of events, claiming that his friend John McConnell had

been driving the truck.    He maintained that Mr. McConnell fled after the

accident by jumping the median, crossing the northbound lane, and then

jumping off the side of the overpass. To verify this account, Trooper Foster

asked Appellant to call Mr. McConnell, who thereafter denied being the driver

of the truck. Trooper Foster then placed Appellant under arrest for suspicion




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of DUI. Subsequently, Appellant refused a breath test after Trooper Foster

provided Appellant his O’Connell1 warning.

       Appellant was charged with DUI, driving while operating privilege is

suspended or revoked, driving on roadways laned for traffic, careless

driving, and exceeding the registered gross weight. Following a bench trial,

Appellant was convicted of all counts, except violating the registered gross

weight provision. Appellant filed a timely post-sentence motion challenging

the weight of the evidence and requesting that the court reconsider his

sentence. The court denied Appellant’s motion. Appellant then filed a timely

appeal and complied with the strictures of Rule 1925(b). The court filed a

Rule 1925(a) opinion and this matter is now ready for our review.

       Appellant presents two questions for our consideration:

    1. Was the verdict against the weight of the evidence presented?

    2. Did the trial court err in admitting and considering evidence of a
       Criminal Trespass conviction from 2002 on cross-examination of
       a defense witness, Joseph Stein?

Appellant’s brief at 5.

       Appellant first raises a challenge to the weight of the evidence. When

reviewing a weight-of-the-evidence challenge, we do not actually examine

the underlying question; instead, we examine the trial court's exercise of
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1
  Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873
(Pa. 1989). As a result of Appellant’s refusal to allow a blood-test, he
became automatically subject to a twelve-month license suspension.



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discretion in resolving the challenge. Commonwealth v. Konias, 136 A.3d

1014, 1022 (Pa.Super. 2016) (citation omitted). We do not substitute our

view for that of the trial court. Our deference to the trial court is based on

the fact that the trial judge heard and observed the evidence presented. Id.

Simply put, “one of the least assailable reasons for granting or denying a

new trial is the lower court's conviction that the verdict was or was not

against the weight of the evidence and that a new trial should be granted in

the interest of justice.” Id. A new trial is warranted only when the verdict is

“so contrary to the evidence that it shocks one's sense of justice and the

award of a new trial is imperative so that right may be given another

opportunity to prevail.” Id.

      Of equal importance is the precept that, “The finder of fact . . .

exclusively weighs the evidence, assesses the credibility of witnesses, and

may choose to believe all, part, or none of the evidence.” Id. at 1023; see

also Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (“A

determination of credibility lies solely within the province of the factfinder.”);

Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super. 2006) (“It is

not for this Court to overturn the credibility determinations of the

factfinder.”).

      Appellant assails the trial court’s determination that he was driving

when the accident occurred.      He contends that the trial court abused its

discretion in conferring undue weight to Officer Cooper’s testimony that he

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admitted to being the driver of the truck. Rather, Appellant posits, the trial

court should have given greater weight to his witnesses. He argues that the

testimony of his friend, Joe Stein, revealed that Appellant was not driving

the truck when he left Mr. Stein’s residence prior to the accident.              In

addition,   John   McConnell    testified   that   he   was   driving   the   truck.

Furthermore, Appellant asserts that he consistently denied operating the

vehicle.    As such, any statements he made to the contrary were either

misspoken or misunderstood and can be attributed to his state of

intoxication during the evening in question.            In light of this evidence,

Appellant concludes that the trial court abused its discretion in denying his

weight of the evidence claim.

      In considering this issue, the trial court determined “the evidence

strongly supports the verdict,” and thus, it is “not contrary to the evidence

as to shock one’s sense of justice.” Trial Court Opinion, 5/2/16, at 21. In

reviewing the evidence proffered by the Commonwealth, the trial court

noted that Officer Cooper arrived within thirty seconds after the accident

was reported, and observed only Appellant at the scene. The court credited

the officer’s testimony as to Appellant’s original account of the accident,

including his admission that he was operating the vehicle.              The court

emphasized Appellant’s apparent lack of concern for his friend, Mr.

McConnell, who purportedly jumped from the overpass.




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         Additionally, the court did not credit the testimony of either of

Appellant’s witnesses.      Specifically, it observed that Mr. McConnell initially

denied driving the vehicle while conversing with Trooper Foster over the

phone shortly after the accident. Mr. McConnell then made no attempt to

clarify the record during the months preceding Appellant’s trial. Hence, the

trial court did not abuse its discretion in ruling the verdict was not so

contrary to the evidence as to shock one’s sense of justice.

         Next, Appellant challenges the trial court’s ruling regarding the

admissibility of Mr. Stein’s past conviction for a crime in the nature of crimen

falsi.    Our standard of review of the trial court’s evidentiary rulings is as

follows:

         Questions concerning the admission of evidence are left to the
         sound discretion of the trial court, and we, as an appellate court,
         will not disturb the trial court’s rulings regarding the admissibility
         of evidence absent an abuse of discretion.             An abuse of
         discretion is not merely an error of judgment, but is rather the
         overriding or misapplication of the law, or the exercise of
         judgment that is manifestly unreasonable, or the result of bias,
         prejudice, ill-will or partiality, as shown by the evidence or
         record. If in reaching a conclusion the trial court overrides or
         misapplies the law, discretion is then abused and it is the duty of
         the appellate court to correct the error.

Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa.Super. 2016) (citations

and internal quotation marks omitted). The admissibility of prior convictions

in the nature of crimen falsi is governed by Pa.R.E. 609. Pennsylvania Rule

of Evidence 609 reads, in pertinent part:




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      (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
            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 (a) and (b).

      Appellant contends the trial court abused its discretion in permitting

the Commonwealth to question Mr. Stein regarding a 2003 conviction for

criminal trespass. First, Appellant asserts that Commonwealth v. Walker,

559 A.2d 579 (Pa.Super. 1989), which found criminal trespass to be an

inherently crimen falsi offense, was called into question by this Court’s

decision in Commonwealth v. Davis, 17 A.3d 390 (Pa.Super 2011).

Alternatively, Appellant avers that, as Mr. Stein’s conviction occurred more

than ten years ago, the Commonwealth failed to demonstrate that its

probative value substantially outweighed its prejudicial effect.

      As resolution of this matter involves an interpretation of the statute

related to criminal trespass, we set it forth at the outset:



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     (a)    Buildings and occupied structures.—

        (1)       A person commits an offense if, knowing that he is
           not licensed or privileged to do so, he:

               (i) enters, gains entry by subterfuge or surreptitiously
                   remains in any building or occupied structure or
                   separately secured or occupied portion thereof; or

              (ii) breaks into any building or occupied structure or
                   separately secured or occupied portion thereof.
     ....

     (b)    Defiant trespasser.—

        (1)       A person commits an offense if, knowing that he is
           not licensed or privileged to do so, he enters or remains in
           any place as to which notice against trespass is given by:

               (i) actual communication to the actor;

              (ii) posting in a manner prescribed by law or reasonably
                   likely to come to the attention of intruders;

              (iii) fencing or other enclosure manifestly designed to
                    exclude intruders;

            (iv) notices posted in a manner prescribed by law or
                 reasonably likely to come to the person’s attention at
                 each entrance of school grounds that visitors are
                 prohibited without authorization from a designated
                 school, center or program official; or

              (v) an actual communication to the actor to leave school
                  grounds as communicated by a school, center or
                  program official, employee or agent or a law
                  enforcement officer.

18 Pa.C.S. § 3503 (a) and (b).

     In Walker, supra, we stated that “[t]he crime of criminal trespass

involves either entering or remaining in a place, while knowing that one is

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not licensed or privileged to do so.”          Walker, supra at 582.   Moreover,

since “the offense involves the commission of an act that the offender

knows he or she is not licensed or privileged to do, it reflects adversely on

the offender’s honesty.”       Id. (emphasis in original). Hence, we concluded

that criminal trespass is an offense in the nature of crimen falsi, and the trial

court should have permitted the defendant to impeach the witness on that

basis.

         This Court revisited the Walker decision in Davis, supra.       Therein,

the appellant asserted that the trial court erred in precluding impeachment

of a witness regarding that witness’s prior convictions for defiant trespass

under 18 Pa.C.S. § 3503(b).            Davis argued that, as criminal trespass is

inherently crimen falsi pursuant to Walker, then defiant trespass must also

be crimen falsi, since both crimes require knowledge of a lack of license or

privilege to enter.

         In analyzing Davis’s claim, this Court first observed that Walker did

not carry precedential value.         We noted that one member of the Walker

panel concurred in result, another dissented, and therefore, it did not reflect

the opinion of the majority of the panel.2           Only one subsequent case,

____________________________________________


2
  Judge Montemuro’s dissent in Commonwealth v. Walker, 559 A.2d 579
(Pa.Super. 1989), was not premised upon a disagreement concerning the
majority’s findings with regard to criminal trespass as a crimen falsi offense.
Despite Judge Montemuro’s dissent to a separate issue, he nevertheless
(Footnote Continued Next Page)


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Commonwealth v. Hall, 867 A.2d 619 (Pa.Super. 2005), adopted the

Walker court’s holding that criminal trespass is crimen falsi, but did so

without relying on its reasoning.          Hence, we determined that Hall did not

provide a basis to apply Walker’s reasoning to defiant trespass.

      Notwithstanding Walker’s lack of precedential effect, this Court in

Davis refrained from extending the Walker decision to defiant trespass. In

so holding, we reasoned that to be found guilty of criminal trespass, “a

defendant typically either ‘gains entry by subterfuge or surreptitiously

remains in any building or occupied structure[.]’” Davis, supra at 389. In

comparison, defiant trespass “does not require the defendant to act with

‘subterfuge,’ or ‘surreptitiously[.]’”       Id.    As such, defiant trespass “merely

requires that a person enter a place with knowledge of a lack of license or

privilege . . . [which] does not of necessity involve either dishonesty or false

statement.” Id. at 398-399. Thus, we determined that defiant trespass was

not inherently a crime in the nature of crimen falsi.

      We find that Davis, supra, calls into question the determination that

criminal trespass is an inherently crimen falsi crime pursuant to Walker,

supra.     We agree with the reasoning presented in Davis that mere

knowledge of a lack of license or privilege does not necessarily reflect
                       _______________________
(Footnote Continued)

concurred in the majority’s result. As such, Walker carries no precedential
value since two judges concurred in the result reached by the authoring
judge, Judge Hoffman.



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negatively upon a person’s character for honesty.         In that sense, the

Walker court’s analysis did not go far enough.          Nevertheless, we are

persuaded by the analysis in Davis that requiring a defendant to act with

subterfuge, or gain entry surreptitiously, under 18 Pa.C.S. § 3503(a)(1)(i),

implicates deceitful conduct.

      Herein, the record does not reveal whether Mr. Stein was convicted of

criminal trespass pursuant to 18 Pa.C.S. § 3503(a)(1)(i) or (ii). Insofar as a

conviction for criminal trespass under § 3503(a)(1)(ii) does not require

subterfuge or surreptitious entry, it is unclear whether it constitutes an

offense in the nature of crimen falsi. Hence, in light of the record before us,

we cannot determine whether the trial court abused its discretion in

permitting testimony regarding Mr. Stein’s past criminal trespass conviction.

      Assuming, arguendo, that the trial court erred, we find any error to be

harmless. Harmless error exists, inter alia, where the error did not prejudice

the defendant or the prejudice was de minimis.           Commonwealth v.

Ballard, 80 A.3d 380, 398 (Pa. 2013). Instantly, the trial court indicated

that “this offense of a lesser crimen falsi conviction was not to be given

much weight,” and that “the conviction had no effect on [the] court’s

weighing the credibility of Mr. Stein.” Trial Court Opinion, 4/28/16, at 24.

The court’s decision to convict Appellant was premised upon its conclusions

that Officer Cooper was being truthful about Appellant’s initial statement and

Trooper Foster was believable when he reported that Mr. McConnell denied

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that he was driving the truck on November 12, 2014. Since any error in the

introduction of Mr. Stein’s prior conviction did not affect the trial court’s

verdict herein, we find no prejudice to Appellant, and thus, this claim does

not warrant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2016




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