J-S49039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MANUEL MARTINEZ

                            Appellant                No. 122 EDA 2014


       Appeal from the Judgment of Sentence entered February 15, 2013
            In the Court of Common Pleas of Northampton County
               Criminal Division at No: CP-48-CR-0002021-2012


BEFORE: OLSON, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 14, 2014

        Manuel Martinez (“Appellant”) appeals from the judgment of sentence

imposed on February 15, 2013 in the Court of Common Pleas of

Northampton County. Upon review, we affirm.

        Following a jury trial, Appellant was convicted of robbery, simple

assault, theft by unlawful taking and recklessly endangering another

person,1 for robbing taxicab driver Angelo Villamil at gunpoint on April 8,

2012. Mr. Villamil’s girlfriend, April Nieves, was with him in the cab at the

time of the robbery. Both she and Mr. Villamil testified for the prosecution

at trial.


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1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 2701(a)(3), 3921 and 2705.
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       Appellant received an aggregate sentence of six years and five months

to twenty years in state prison. He filed post-trial motions on February 25,

2013, which the trial court denied by order entered on December 3, 2013.

This timely appeal followed.

       In his statement of errors complained of on appeal filed pursuant to

Pa.R.A.P. 1925(b), Appellant raised three issues:

       1. [Appellant] believes, and therefore avers, that the Trial Court
          erred in denying [Appellant’s] counsel the opportunity to
          introduce Ms. Nieves’ admitted criminal conduct to the jury;

       2. [Appellant] believes, and therefore avers, that the verdict as
          to all charges is against the weight of the evidence; [and]

       3. [Appellant] believes, and therefore avers, that the evidence
          produced at Trial was insufficient to sustain a conviction on all
          charges.

Appellant’s Statement of Errors Complained of on Appeal, 1/24/14, at ¶ 9.

       In presenting the Statement of Questions Involved in his brief,

Appellant does not repeat his Rule 1925(b) issues but instead sets forth the

following sole issue: “Whether [the] Trial Court committed reversible error

requiring an arrest of judgment and/or the granting of a new trial?”

Appellant’s Brief at 1.2

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2
  We remind Appellant’s counsel that Pa.R.A.P. 2116 (Statement of
Questions Involved) directs, inter alia:

       a) General rule. The statement of the questions involved must
          state concisely the issues to be resolved, expressed in the
          terms and circumstances of the case but without unnecessary
(Footnote Continued Next Page)


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      Appellant alleges trial court erred by denying him the opportunity to

introduce certain conduct of Ms. Nieves to the jury.        As the trial court

explained:

      Ms. Nieves testified at Trial that she was with Mr. Villamil when
      Appellant robbed them at gunpoint. Ms. Nieves further testified
      that she knew it was Appellant who robbed them because she
      was familiar with him from the neighborhood.            Ms. Nieves
      testified she called Appellant’s girlfriend in an attempt to get the
      money back but that Appellant called Ms. Nieves and told her he
      was not returning anything. Ms. Nieves further testified that she
      was intimidated by both Appellant and his girlfriend at the
      preliminary hearing and that is why she testified that she was on
      heroin at the time of the robbery and did not remember
      anything. However, at Trial, Ms. Nieves emphatically testified
      that Appellant was the person who robbed them.


                       _______________________
(Footnote Continued)

          detail.  The statement will be deemed to include every
          subsidiary question fairly comprised therein. No question will
          be considered unless it is stated in the statement of
          questions involved or is fairly suggested thereby.

The issue as presented in Appellant’s brief is overly broad and does not shed
any light on the issue to be resolved. As such, it fails to comply with Rule
2116. “Generally, questions not presented in the ‘Statement of Questions
Involved’ are deemed waived.” Bailey v. Storlazzi, 729 A.2d 1206, 1210
(Pa. Super. 1999) (citation omitted). However, because the wording of
Issue 1 in Appellant’s 1925(b) statement embodies the argument presented
in his brief, we are willing to overlook this shortcoming, finding that
Appellant’s violation of Rule 2116, while egregious, does not impede our
ability to address the merits of the issue relating to the trial court’s
evidentiary ruling.

Although we are willing to consider Appellant’s challenge to the trial court’s
ruling, we note that Appellant’s brief does not address the weight and
sufficiency of evidence challenges asserted in Issues 2 and 3 of his 1925(b)
statement. Because Appellant has abandoned those issues, we shall not
address them further.



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     There was further evidence presented at Trial that Appellant was
     the person who robbed the victims, Angelo Villamil and April
     Nieves. Mr. Villamil also emphatically testified Appellant robbed
     him at gunpoint by tapping on his taxi-cab window, putting a
     gun to this face and saying “give me the money.” Mr. Villamil’s
     testimony corroborated Ms. Nieves’ testimony regarding the
     events that transpired at the time they were robbed and in the
     moments following the robbery. Mr. Villamil also testified that
     he felt threatened at the preliminary hearing and that is why he
     testified at that time that he could not identify the Appellant as
     the person who robbed him.

     Throughout the Trial the victims testified they lied at the
     preliminary hearing because they felt threatened or intimidated
     by the Appellant. Both witnesses testified they were positive it
     was Appellant who robbed them, and that they gave the same
     statement to the police the morning of the robbery. Moreover,
     the responding officer’s testimony corroborated the testimony of
     both Mr. Villamil and Ms. Nieves. Officer Albert Strydesky, of the
     Bethlehem Police Department, testified at Trial that he was
     dispatched to the scene of an armed robbery just after six
     o’clock in the morning (6:00AM) on April 8, 2012. Officer
     Strydesky testified that Mr. Villamil reported to him that they
     were “robbed at gunpoint by a Hispanic male wearing a black
     hooded sweatshirt” and both Mr. Villamil and Ms. Nieves
     reported the Appellant used a black semi-automatic gun during
     the robbery.     Further, Officer Strydesky testified there was
     nothing about either Mr. Villamil or Ms. Nieves that would have
     led him to believe they were impaired in any way at the time
     they gave statements about the robbery. Officer Strydesky also
     confirmed Ms. Nieves’ testimony regarding the phone call placed
     to Appellant’s girlfriend and the phone call received from
     Appellant stating he was not going to return the money.

Trial Court Opinion (“T.C.O.”) pursuant to Pa.R.A.P. 1925(a), 2/17/14, at 8-

9 (references to Notes of Testimony omitted).

     As for the conduct Appellant wanted to bring before the jury, the trial

court explained:

     Here, Appellant avers this Court erred by not allowing the
     Commonwealth’s witness, Ms. Nieves, to be questioned about an

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      incident which occurred in the District Attorney’s Office while Ms.
      Nieves was waiting to testify at Trial. * * * She took money from
      a jar but, after being confronted by Office Staff, returned a
      portion or all of the money. The Prosecuting Attorney did not
      learn of this incident until after Ns. Nieves testified and she was
      excused.

Id. at 5-6 (references to Notes of Testimony omitted).

      Appellant argues:

      The fact that [Ms. Nieves’] uncharged criminal conduct occurred
      during the trial, prior to her taking the witness stand, was
      incredibly material to the issue of her credibility. Further, the
      victim of the uncharged criminal conduct was the District
      Attorney’s Office, the very same office to whom she was
      testifying on their behalf [sic], and also the Authority who would
      prosecute her for her admitted criminal conduct. Therefore, her
      criminal conduct is at the very forefront of her state of mind and
      credibility when she took the witness stand.           Ms. Nieves’
      subjective state of mind in that she had a strong reason to lie
      and to testify in a manner that would help the prosecutor should
      have been brought to the Jury’s attention during cross
      examination. Ms. Nieves’ admitted uncharged criminal conduct
      was highly relevant and probative and should have been brought
      before the Jury. Finally, Ms. Nieves was never prosecuted for
      her admitted theft from the District Attorney’s Office which
      further solidifies her subjective state of mind and reason to lie
      and testify in a way that would help the Prosecutor.

Appellant’s Brief at 7 (citation omitted).

      Appellant contends the trial court improperly prevented him from

attacking Ms. Nieves’ credibility by introducing evidence of her misconduct.

Generally, the credibility of any witness may be attacked by any party by

any evidence relevant to that issue. Pa.R.E. 607(a) and (b). “Evidence is

relevant if it logically tends to establish a material fact in the case or tends




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to   support     a    reasonable      inference   regarding   a   material    fact.”

Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002).

       This Court has stated:

       In reviewing a trial court’s ruling on the admissibility of
       evidence, our standard of review is one of deference. It is firmly
       established, questions concerning the admissibility of evidence
       lie within the sound discretion of the trial court, and [a reviewing
       court] will not reverse the court’s decision on such a question
       absent a clear abuse of discretion.

Commonwealth v. Baker, 963 A.2d 495, 503-04 (Pa. Super. 2008)

(internal quotation and citation omitted).        An abuse of discretion requires

“not merely an error of judgment, but where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.”    Id. at 504

(internal quotation and citation omitted).3



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3
   Appellant’s Statement of Scope and Standard of Review suggests that
“[t]he standard of review herein is whether or not the Trial Court committed
reversible error requiring arrest of judgment and/or the granting of a new
trial.” Appellant’s Brief at iii. We remind Appellant’s counsel that:

       “Scope of review” refers to “the confines within which an
       appellate court must conduct its examination.” In other words,
       it refers to the matters (or “what”) the appellate court is allowed
       to examine. In contrast, “standard of review” refers to the
       manner in which (or “how”) that examination is conducted.

Pa.R.A.P. 2111, Note (quoting Morrison v. Commonwealth, Dept. of
Public Welfare, 646 A.2d 565, 570 (Pa. 1984)).




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       With respect to acts of misconduct, our Supreme Court has recognized

that “[t]he admission of evidence of prior bad acts is solely within the

discretion of the trial court, and the court’s decision will not be disturbed

absent an abuse of discretion.” Commonwealth v. Patterson, 91 A.3d 55,

68 (Pa. 2014) (citing Commonwealth v. Chmiel, 889 A.2d 501, 534 (Pa.

2005)).    Further, our rules of evidence provide that “the character of a

witness for truthfulness may not be attacked or supported by cross-

examination or extrinsic evidence concerning specific instances of the

witness’ conduct.” Pa.R.E. 608(b)(1).4

       The issue of Ms. Nieves’ conduct was brought to the attention of the

trial court and Appellant’s counsel by counsel for the Commonwealth on

December 4, the day after Ms. Nieves testified.          Notes of Testimony,

12/4/12, at 113. Appellant’s counsel requested that the jury be told about

the incident. Id. Counsel for the Commonwealth countered that Ms. Nieves’

uncharged criminal conduct was not the type of action that could be the

subject of impeachment and argued it would inject collateral matters into

the trial. Id. at 113-14. The trial court ruled the conduct was irrelevant and

not probative. Id. at 114.

       The trial court explained that it did not allow cross-examination of Ms.

Nieves concerning her misconduct because the trial court “did not believe
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4
  Pa.R.E. 608(b) and Pa.R.E. 609 provide an exception for evidence of
conviction of a crime, an exception that does not apply in this case.



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any bias existed at the time and that such cross-examination would be

improper impeachment evidence.” T.C.O. at 5. The trial court recognized

there were no criminal charges pending against Ms. Nieves as a result of the

incident involving taking and returning money while she was waiting to

testify.   Id.   The trial court found no reason to believe Ms. Nieves was

biased when she testified and no reason to believe she would receive any

favorable treatment for testifying in favor of the prosecution.      Id. at 6.

Consequently, the trial court determined that excluding evidence of the

uncharged criminal conduct did not constitute error. Id. Again, “questions

concerning admissibility of evidence lie within the sound discretion of the

trial court.”     Baker, 963 A.2d at 504.        Moreover, “[t[he controlling

precedent in this Commonwealth provides that specific acts of alleged

misconduct cannot be introduced to impeach a witness.” Commonwealth

v. Peer, 684 A.2d 1077, 1083 (Pa. Super. 1996).         We find no abuse of

discretion in the trial court’s preclusion of cross-examination relating to Ms.

Nieves’ alleged act of misconduct.

      We recognize that generally “defense counsel must be permitted to

cross-examine a Commonwealth witness on possible favorable treatment or

expectations of such favorable treatment in exchange for testimony for the

prosecution.     Failure to allow cross-examination to reveal possible bias of

this nature is error and will require a new trial unless the error can be shown

to have had no impact on the outcome of the case.”        Commonwealth v.


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Hyland, 875 A.2d 1175, 1187 (Pa. Super. 2005) (citation omitted). If the

error did not control the outcome of the case, the error will be deemed

harmless. Id.

      This Court has determined that disallowing cross-examination of a

witness relating to pending criminal charges, as well as possible bias,

constitutes    harmless   error   when   the   testimony   of   that   witness   is

corroborated by other witnesses at trial.      See, e.g., Commonwealth v.

Gentile, 640 A.2d 1309, 1314 (Pa. Super. 1994); Commonwealth v.

Culmer, 604 A.2d 1090, 1095 (Pa. Super. 1992). As the trial court noted in

its 1925(a) opinion, the testimony offered by Ms. Nieves was corroborated

by the other eyewitness in the case, Angelo Villamil. T.C.O. at 6. Both Ms.

Nieves and Mr. Villamil testified that they were in Mr. Villamil’s taxi when

Appellant robbed Mr. Villamil at gunpoint.        Id. (references to Notes of

Testimony omitted).       Both recognized Appellant as “Manny,” whom they

knew from the neighborhood.        Id. Further, the responding officer, Officer

Strydesky, corroborated the testimony of both Ms. Nieves and Mr. Villamil

about the robbery itself and corroborated the testimony of Ms. Nieves

regarding the phone call placed to Appellant’s girlfriend as well as the return

call made by Appellant to Ms. Nieves during which he stated he was not

going to return the money.        Id. at 8-9 (references to Notes of Testimony

omitted).     Therefore, even if disallowing cross-examination of Ms. Nieves




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was error, it was harmless in light of the corroborating evidence of other

witnesses, including the eyewitness testimony of Mr. Villamil.5

       While we do not find any abuse of discretion for disallowing cross-

examination of Ms. Nieves, we also note that any error resulting from the

trial court’s ruling was rendered harmless in light of the corroborating

testimony of other witnesses at trial. Appellant’s claim fails for lack of merit.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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5
  We also note that the testimony offered by Ms. Nieves was consistent with
the statements she made immediately after the robbery. Therefore, there is
no issue of establishing a motive for “fabricating evidence” through cross-
examination as was the situation in cases cited by Appellant in support of
allowing cross-examination to establish motive. See Appellant’s Brief at 6.




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