J-S14019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JOSE JAVIER VASQUEZ                        :
                                               :
                       Appellant               :       No. 96 EDA 2019

      Appeal from the Judgment of Sentence Entered November 30, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007339-2016


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JOSE JAVIER VASQUEZ                        :
                                               :
                       Appellant               :       No. 102 EDA 2019

      Appeal from the Judgment of Sentence Entered November 30, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007340-2016


BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KING, J.:                                   FILED MAY 19, 2020

        Appellant, Jose Javier Vasquez, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for two counts of aggravated assault.1 We reverse Appellant’s


____________________________________________


1   18 Pa.C.S.A. § 2702(a).
J-S14019-20


convictions, vacate the judgment of sentence, and remand for a new trial.

      In its opinion, the trial court accurately set forth the relevant facts of

this case as follows:

         In October of 2014, Appellant was living with [J.R.], with
         whom he had an on-and-off relationship, dating back to
         2010. [J.R.] had a two-year-old daughter…and 11-month-
         old twins…, none of whom were Appellant’s daughters.

         On Sunday, October 12, 2014, the three girls, having spent
         the weekend at [the home of the oldest daughter’s]
         grandmother…returned to [J.R.’s] home. [J.R.] fed, bathed,
         and played with the two babies, before putting them to bed.
         They seemed fine.

         At some point during the night, [J.R.] woke up to find
         Appellant had left their bed. She left the bedroom and found
         the door to the three girls’ bedroom open, which was
         unusual, since she closes it to keep [her] two-year-old…from
         wandering. [J.R.] then went into the bathroom where she
         found Appellant with a rolled up $100 bill and white powder
         on the toilet tank lid, which she believed to be heroin.

         [Appellant] said he thought someone had been trying to get
         in [the house]. They went downstairs and he showed her a
         basement door with holes that he had braced. [J.R.] went
         back to bed and was awakened when the alarm went off.
         The police responded to the home a short time later. [J.R.]
         observed additional holes in the door. The police checked
         the property, then left. She checked the children and
         observed that the twins’ hair seemed to be wet, which struck
         her as unusual. When she asked Appellant if he had gone
         into the children’s room, he said he had and gave the twins
         water because they appeared thirsty.

         On October 13, 2014, at around 10:00 AM, [J.R.] checked
         on the twins and saw that they were still sleeping, which
         was also unusual. Their bottles were not in their bed, but
         were downstairs by the sink, which was also unusual. When
         she tried to give them their bottle, they wouldn’t wake up.
         She attempted to wake them without success.


                                     -2-
J-S14019-20


          [J.R.] asked Appellant to drive them to the hospital. He
          suggested splashing water on the children’s faces, but they
          did not respond to that. So [J.R.] again asked Appellant to
          take them to the hospital. As they prepared to go, the twins
          were placed in their car seats and [J.R.] observed Appellant
          blowing marijuana smoke in their faces.

          When they arrived at the hospital, Appellant did not go in
          with [J.R.] and the children, but only came in later. At the
          hospital, the twins were diagnosed as under the influence of
          drugs, which diagnosis was confirmed by positive drug
          screens for opiates and marijuana.       Narcan was then
          administered to both children.      They remained in the
          hospital for two days.

          When asked how the children might have gotten drugs,
          [J.R.] failed to disclose to medical personnel at the hospital
          and police that Appellant with whom she lived was a user of
          controlled substances. As a result, she was subsequently
          charged and entered a plea of guilty in May of 2015 to two
          counts of endangering the welfare of a child [(“EWOC”)].

(Trial Court Opinion, filed June 20, 2019, at 2-3) (internal citations omitted).

       Procedurally, the Commonwealth charged Appellant at two docket

numbers (one per each victim) with possession of a controlled substance with

the intent to deliver, attempted murder, aggravated assault, recklessly

endangering another person, simple assault, EWOC, and conspiracy.2 Prior to

trial, the Commonwealth moved to preclude the introduction/mention at trial

of a polygraph examination J.R. underwent, as well as any statements J.R.

allegedly made prior to, during, or after the polygraph examination. On June

25, 2018, the court heard argument on the Commonwealth’s motion. During


____________________________________________


2 The Commonwealth later nolle prossed all charges except for aggravated
assault.

                                           -3-
J-S14019-20


argument, the parties acknowledged the general law of prohibiting the

mention of a polygraph examination or introduction of the results of a

polygraph examination at trial. Nevertheless, Appellant alleged that prior to

the polygraph examination, J.R. admitted to the polygraph examiner that she

had given drugs to the twins.         Appellant argued J.R.’s “admission” was

admissible at trial for impeachment purposes. Appellant further agreed that

he would not reference the polygraph examination itself or bring up the results

of the polygraph examination (i.e., whether deception was indicated);

Appellant sought only to admit J.R.’s “admission.” Following argument, the

court granted the Commonwealth’s motion to preclude, stating the polygraph

examination    and    J.R.’s   alleged    pre-examination      statement      were   so

“intrinsically intertwined” that it could not separate the pre-examination

statement from the context of the polygraph.            (See N.T. Pre-Trial Motion

Hearing, 6/25/18, at 6-11).

      The   next     day,   the   court    revisited   its   ruling   based    on    the

Commonwealth’s concession that the entire case rested on J.R.’s testimony

implicating Appellant.      The court asked the parties if J.R.’s alleged pre-

examination statement could be severed from the context of the polygraph

examination.   The Commonwealth disputed that J.R. definitively made the

alleged admission during the pre-examination and suggested it was unclear

from the written polygraph examination report whether J.R. made the alleged

admission in the pre-examination or during the actual polygraph.                In any


                                          -4-
J-S14019-20


event,   the    Commonwealth         maintained   J.R.’s   alleged   statement   was

inadmissible per the general law in Pennsylvania disapproving of references

to polygraph examinations at trial. After hearing argument from the parties

for a second time, the court affirmed its prior ruling, again stating that J.R.’s

alleged admission was “sufficiently intertwined” with the polygraph process

such that the statement could not be explored without discussion of the

polygraph. (See N.T. Pre-Trial Motion Hearing, 6/26/18, at 38-52).

       On June 27, 2018, Appellant proceeded to a jury trial. 3                  The

Commonwealth presented only two witnesses: J.R. and Detective Kimberly

Boston. During her testimony, J.R., inter alia, recounted the events of October

12-13, 2014. Significantly, J.R. denied that she gave the children any drugs.

J.R. admitted that she did not disclose to medical personnel at the hospital or

to police that Appellant was a drug user; and J.R. pled guilty to two counts of

EWOC in connection with that omission. (See N.T. Jury Trial, 6/27/18, at 37-

96).   During Detective Boston’s testimony, the Commonwealth introduced,

inter alia, three statements J.R. gave to police during the investigation on

November 5, 2014, November 10, 2014, and November 21, 2014,

respectively. While the statements were inconsistent regarding the extent to

which J.R. implicated Appellant in the crimes, the statements remained




____________________________________________


3Following an appropriate colloquy, the court permitted Appellant to proceed
pro se at trial, with the assistance of stand-by counsel.

                                           -5-
J-S14019-20


consistent concerning J.R.’s denial of her role in the offenses. (See N.T. Jury

Trial, 6/28/18, at 31-52).

       Before the close of the Commonwealth’s case-in-chief, the court held a

charging conference, during which Appellant specifically requested a “crimen

falsi” jury instruction concerning J.R.’s guilty plea to EWOC. The court denied

Appellant’s request, stating EWOC is not inherently a crime of dishonesty,

even though the factual predicate for J.R.’s guilty pleas involved being

dishonest. (See N.T. Jury Trial, 6/27/18, at 150-52).

       Appellant testified in his own defense at trial and, inter alia, expressly

denied any role in the offenses. Rather, Appellant maintained he looked out

for the twins’ well-being by driving them to the hospital when J.R. noticed they

were ill and spending the night at the hospital with them. (See N.T. Jury Trial,

6/28/18, at 87-123).

       At the conclusion of trial, on June 29, 2018, the jury found Appellant

guilty of two counts of aggravated assault (causes serious bodily injury). The

court sentenced Appellant on November 30, 2018, to consecutive terms of 7½

to 15 years’ imprisonment for each offense.        Appellant timely filed post-

sentence motions on December 10, 2018,4 which the court denied on

December 27, 2018.         On January 7, 2019, Appellant timely filed separate



____________________________________________


4The docket entries indicate that Appellant filed his post-sentence motions on
December 11, 2018, but the timestamp confirms Appellant timely filed the
post-sentence motions on December 10, 2018.

                                           -6-
J-S14019-20


notices of appeal at each docket. The court subsequently ordered Appellant

to file concise statements of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).      Following the grant of an extension of time, Appellant

timely complied. This Court has consolidated the appeals.

         Appellant raises the following issues for our review:

            DID THE TRIAL COURT ERR AND/OR ABUSE ITS
            DISCRETION WHEN IT DENIED THE REQUEST OF
            APPELLANT TO ADMIT EVIDENCE OF THE HIGHLY RELEVANT
            (AND PRIOR INCONSISTENT) STATEMENT OF THE CO-
            DEFENDANT [J.R.]?

            DID THE TRIAL COURT ERR AND/OR ABUSE ITS
            DISCRETION WHEN IT HELD THAT THE TESTIFYING CO-
            DEFENDANT’S CONVICTION FOR ENDANGERING THE
            WELFARE OF A CHILD (“EWOC”) DID NOT CONSTITUTE
            CRIMEN FALSI WHERE, UNDER THE FACTS OF THIS CASE,
            THE EWOC CONVICTION WAS BASED UPON THE FACT THAT
            CO-DEFENDANT KNOWINGLY AND INTENTIONALLY LIED TO
            MEDICAL CARE PROVIDERS ABOUT HER INFANT
            CHILDREN’S INGESTION OF CONTROLLED SUBSTANCES?

            IS THE VERDICT OF GUILTY WITH RESPECT TO ALL
            CHARGES AGAINST THE WEIGHT OF THE EVIDENCE AND
            SO CONTRARY TO THE EVIDENCE THAT IT SHOCKS ONE’S
            SENSE OF JUSTICE?

            IS THE SENTENCE IMPOSED UNDULY HARSH AND
            EXCESSIVE UNDER THE CIRCUMSTANCES OF THIS CASE
            AND AS APPLIED TO APPELLANT?

(Appellant’s Brief at 8-9) (internal footnotes omitted).

         In his first issue, Appellant argues he sought to introduce at trial a

statement J.R. gave to an investigator prior to being administered a

polygraph examination, in which J.R. admitted that she gave drugs to the

twins.      Appellant asserts he sought to admit only the relevant pre-

                                        -7-
J-S14019-20


examination question and answer and conceded that no reference could be

made to the actual polygraph examination or the results of the polygraph

examination.      Appellant emphasizes that J.R. was one of only two

Commonwealth witnesses in this case and that the entire case rested on J.R.’s

testimony implicating Appellant. Appellant acknowledges the general law that

prohibits references to the results of a polygraph examination at trial.

Appellant stresses, however, that relevant statements made during a pre-

polygraph interview are admissible. Appellant submits that statements made

during a polygraph examination are also admissible—Appellant contends only

the results of a polygraph examination are inadmissible. Appellant highlights

the trial court’s concession in its Rule 1925(a) opinion that it erred by

excluding J.R.’s admission, which would have impeached J.R.’s trial testimony

denying that she gave the twins drugs. Appellant concludes the court’s ruling

severely prejudiced his case, and this Court must vacate and remand for a

new trial. We agree Appellant is entitled to a new trial under the facts of this

case.

        Our standard of review of a trial court’s admission or exclusion of

evidence is well established:

          Admission of evidence is a matter within the sound
          discretion of the trial court, and will not be reversed absent
          a showing that the trial court clearly abused its discretion.
          Not merely an error in judgment, an abuse of discretion
          occurs when the law is overridden or misapplied, or the
          judgment exercised is manifestly unreasonable, or the
          result of partiality, prejudice, bias, or ill-will, as shown by
          the evidence on record.

                                       -8-
J-S14019-20



Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),

cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal

citations and quotation marks omitted). Our scope of review in cases where

the trial court explains the basis for its evidentiary ruling is limited to an

examination of the stated reason. Commonwealth v. Stephens, 74 A.3d

1034, 1037 (Pa.Super. 2013).

      Historically, “[t]he rule in Pennsylvania [was] that reference to a lie

detector test or the result thereof which raises inferences concerning the guilt

or innocence of a defendant is inadmissible.        This rule was established to

protect the defendant in a criminal trial and it is based on this Court’s refusal

to   recognize   the   scientific   accuracy   or    validity   of   such   tests.”

Commonwealth v. Cain, 471 Pa. 140, 155, 369 A.2d 1234, 1241-42 (1977)

(internal citations omitted). See also Commonwealth v. Hetzel, 822 A.2d

747, 767 (Pa.Super. 2003), appeal denied, 576 Pa. 710, 839 A.2d 350 (2003)

(explaining general rule that due to well-known unreliability of polygraph

tests, our courts uniformly have been reluctant to permit any reference to

polygraph examination at trial).

      Nevertheless, this Court has stated:

         The polygraph has been acknowledged by the courts of this
         Commonwealth to be a valuable tool in the investigative
         process. Its use does not per se render a confession
         involuntary. A confession is not involuntary merely
         because it was made in anticipation of, during, or
         following a polygraph examination. See 89 A.L.R.3d
         236, and cases there gathered.    In Pennsylvania, an

                                      -9-
J-S14019-20


         inculpatory statement made during a pre-test interview was
         held admissible in Commonwealth v. Cain, 471 Pa. 140,
         1[5]6, 369 A.2d 1234, [1242] (197[7]) [(plurality)]
         (Opinion of Eagen, J., in support of affirmance).

Commonwealth v. Smith, 463 A.2d 1113, 1115 (Pa.Super. 1983) (some

internal citations omitted) (emphasis added).

      Thus, there have been scenarios where our courts have admitted

statements made before, during, or after a polygraph examination, without

mention or reference to the actual results of the polygraph examination.

See, e.g., Commonwealth v. Schneider, 562 A.2d 868 (Pa.Super. 1989),

appeal denied, 525 Pa. 598, 575 A.2d 564 (1990) (holding court properly

denied motion to suppress confession given to police after polygraph

examination; explaining statement given after being advised that one has

failed lie detector test may be admitted into evidence).              See also

Commonwealth v. Santiago, 591 A.2d 1095, 1104 n.15 (Pa.Super. 1991)

(en banc), appeal denied, 529 Pa. 633, 600 A.2d 953 (1991) (“Santiago I”)

(noting trial court did not admit appellant’s second statement to police at trial

“at least in part because the trial court labored under the false apprehension

that such a statement was inadmissible merely because it was made during a

polygraph examination”) (emphasis in original). Compare Commonwealth

v. Brockington, 500 Pa. 216, 220, 455 A.2d 627, 629 (1983) (holding trial

court properly barred admission of results of polygraph examination; results

of polygraph examination are inadmissible even where parties stipulate to

their admission, as stipulation to admissibility cannot enhance reliability of

                                     - 10 -
J-S14019-20


results of polygraph examination); Commonwealth v. Handfield, 34 A.3d

187 (Pa.Super. 2011), appeal denied, 617 Pa. 636, 54 A.3d 347 (2012)

(holding court did not err in limiting cross-examination of witness concerning

results of witness’ polygraph examination; specifically, appellant had sought

to ask witness whether condition of witness’ plea agreement was that witness

take and pass polygraph examination, whether witness passed or failed

polygraph examination, and if witness failed polygraph, did witness still reap

benefit of plea agreement); Commonwealth v. Kemp, 410 A.2d 870, 872

(Pa.Super.    1979)   (reversing   and       remanding   for   new   trial   where

Commonwealth introduced testimony that its witness took and passed lie

detector test, which raised inference that test certified truth of testimony

implicating accused; “The inference carried the weight of scientific evidence

while in fact that evidence was unreliable”).

      Instantly, the trial court addressed this issue in its Rule 1925(a) opinion

as follows:

         Here, Appellant alleges that it was error for the [c]ourt to
         preclude testimony and cross-examination as to statements
         made to a polygraph examiner by Commonwealth witness,
         [J.R.], in the course of the pre-interview, prior to the actual
         polygraph examination. Specifically, [J.R.] was asked: “Did
         you give drugs to these children?” To which she responded:
         “Yes.”

         After hearing extensive argument, the [c]ourt granted the
         Commonwealth’s motion in limine…

                                   *     *      *

         In this case the [c]ourt was focused on the context of the

                                       - 11 -
J-S14019-20


          statement—given in relation to a polygraph—rather than the
          statement itself. This was error. The [c]ourt could and
          should have ruled in limine that the witness could be
          impeached with her prior statement given in the context of
          questioning by a law enforcement officer, but without
          mention that the questioning was part of a polygraph
          examination.      Such a solution would have honored
          Pennsylvania law that the results of polygraph
          examinations are inadmissible, but statements given in
          relation to or during such examinations are admissible.

          In sum, while the multiple statements of [J.R.], including in
          connection with the polygraph examination, may have
          presented some logistical issues in presentation of [J.R.’s]
          admission, and Commonwealth rehabilitation with prior
          consistent    statements,     those    hurdles   were    not
          insurmountable. Because the admission was so significant
          to the defense theory of the case, and because it could have
          been introduced without mention of a polygraph exam or
          results, it was error to exclude [J.R.’s] admission that she
          gave drugs to the children.

(Trial Court Opinion at 6-8) (internal citations omitted) (emphasis in original).

       Initially, we observe that the written polygraph examination report does

not make certain whether J.R. answered “yes” to the question “did you give

drugs to these children” during the pre-examination interview or during the

actual   polygraph     examination.        The     report   appears   to   support   the

Commonwealth’s position that J.R. made the alleged admission during the

actual polygraph examination.5 In either scenario, however, we agree with

____________________________________________


5 The written polygraph examination report indicates two relevant polygraph
questions were posed to J.R.: (1) “Did you give any of those drugs to those
children?” J.R. responded: “Yes”; and (2) “Did you give any of those drugs to
those children on that night?” J.R. responded: “No.” The report further states,
“deception indicated” as to those questions, but does not specify which



                                          - 12 -
J-S14019-20


the trial court’s Rule 1925(a) analysis that the court could have admitted J.R.’s

“admission” without reference to the actual polygraph examination or to the

results of the polygraph examination. See Santiago I, supra; Schneider,

supra; Smith, supra.

       Notably, no other testimony/evidence at trial referenced an admission

by J.R. to giving the twins drugs. While Appellant attempted to impeach J.R.’s

testimony by highlighting J.R.’s prior inconsistent statements to police, those

statements were inconsistent only to the extent of detail in which J.R.

implicated Appellant in the offenses but consistently denied J.R.’s role in the

offenses.    Compare Commonwealth v. Santiago, 654 A.2d 1062, 1082

(Pa.Super. 1994) (“Santiago II”), appeal denied, 541 Pa. 651, 664 A.2d 540

(1995), cert. denied, 516 U.S. 995, 116 S.Ct. 532, 133 L.Ed.2d 437 (1995)

(explaining statement of Commonwealth witness in pre-polygraph interview,

that witness had not seen defendant with gun prior to victim’s murder, was

contrary to witness’ testimony at appellant’s trial; statement, therefore, was

relevant to enable defense to impeach testimony of key Commonwealth

witness; nevertheless, witness’ pre-polygraph interview statement was


____________________________________________


response was deceptive. (See Exhibit A attached to Commonwealth’s Brief).
The Commonwealth suggests J.R. was “deceptive” in her response to question
1, in which she admitted giving the children drugs. The Commonwealth’s
suggestion in this regard is nothing more than speculation. Even if the
Commonwealth were correct, the results of J.R.’s polygraph examination
would be inadmissible under prevailing law.



                                          - 13 -
J-S14019-20


cumulative of other evidence, so prosecution’s failure to disclose witness’ prior

inconsistent pre-polygraph statement did not constitute due process violation

under Brady6). Although we recognize the potential logistical difficulties in

introducing J.R.’s statement and the Commonwealth’s ability to rehabilitate

her, we agree with the trial court’s Rule 1925(a) analysis that such “hurdles

were not insurmountable.” Under these circumstances, the court’s evidentiary

ruling was error and Appellant is entitled to a new trial.           See Montalvo,

supra.

        In his second issue, Appellant argues he sought a ruling that J.R.’s

convictions for EWOC constituted crimen falsi offenses, i.e., crimes involving

dishonesty. Appellant asserts it is undisputed that J.R.’s EWOC convictions

were based on her failure to disclose to medical personnel how her children

were exposed to drugs. Appellant claims the facts of J.R.’s EWOC convictions

involve dishonesty and making false statements. Appellant contends the trial

court improperly analyzed only the statutory elements of the crime of EWOC,

without also analyzing the underlying facts of J.R.’s convictions. Appellant

claims    the    court’s    ruling    was      particularly   egregious   where   the

Commonwealth’s case hinged on J.R.’s testimony implicating Appellant.

Appellant concludes the court erred by ruling J.R.’s convictions did not

constitute crimen falsi offenses and failing to issue the appropriate jury



____________________________________________


6   Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

                                          - 14 -
J-S14019-20


instruction, and this Court should vacate and remand for a new trial.       We

agree the court’s ruling was error.

      Our review of this issue implicates the following legal principles:

         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,
         shall be admitted if it involved dishonesty or false
         statement. Pa.R.E. 609(a). Crimes involving dishonesty or
         false statement are commonly referred to as crimen falsi
         crimes. Crimen falsi involves the element of falsehood, and
         includes everything which has a tendency to injuriously
         affect the administration of justice by the introduction of
         falsehood and fraud.

         When deciding whether a particular offense is crimen falsi,
         one must address both the elemental aspects of that offense
         and the conduct of the defendant which forms the basis of
         the anticipated impeachment.        Accordingly, this Court
         employs a two-step procedure to determine whether a crime
         is crimen falsi. First, we examine the essential elements of
         the offense to determine if the crime is inherently crimen
         falsi—whether dishonesty or false statement are a
         necessary prerequisite to commission of the crime. Second,
         if the crime is not inherently crimen falsi, this Court then
         inspects the underlying facts that led to the conviction to
         determine if dishonesty or false statement facilitated the
         commission of the crime. The burden of proof is upon the
         party offering the conviction during cross-examination.

Commonwealth v. Davis, 17 A.3d 390, 395 (Pa.Super. 2011), appeal

denied, 611 Pa. 678, 29 A.3d 371 (2011) (most internal citations and

quotation marks omitted) (emphasis in original).

      The Crimes Code defined the offense of EWOC during the relevant

timeframe as follows:

         § 4304. Endangering welfare of children


                                      - 15 -
J-S14019-20


         (a)   Offense defined.—

         (1) A parent, guardian or other person supervising the
         welfare of a child under 18 years of age, or a person that
         employs or supervises such a person, commits an offense if
         [she] knowingly endangers the welfare of the child by
         violating a duty of care, protection or support.

18 Pa.C.S.A. § 4303(a)(1) (effective January 29, 2007 to August 27, 2017).

      Instantly, we initially note that the jury heard about J.R.’s EWOC

convictions and the factual basis for her convictions at various points

throughout trial. Thus, it is undisputed that the court permitted evidence of

J.R.’s EWOC convictions at trial.    When Appellant specifically requested a

“crimen falsi” jury instruction at the charging conference, however, the court

declined Appellant’s request because the statutory elements of EWOC are not

“inherently” crimen falsi. Indeed, in its Rule 1925(a) opinion, the court stated:

“Because there is no element of dishonesty or false statement set forth in the

statute, the crime of [EWOC] is not a crimen falsi.” (Trial Court Opinion at 9).

      Nevertheless, the trial court failed to conduct the second part of the two-

step analysis, namely, an inspection of “the underlying facts that led to the

conviction to determine if dishonesty or false statement facilitated the

commission of the crime.” See Davis, supra. The record makes clear the

factual basis for J.R.’s EWOC convictions involved dishonesty or a false

statement to medical personnel and police concerning how the twins might

have been exposed to drugs. Consequently, the trial court improperly ruled

that J.R.’s EWOC convictions did not constitute crimen falsi offenses and


                                     - 16 -
J-S14019-20


should have issued the appropriate jury instruction.7 See Commonwealth

v. Cole, 2020 WL 400234, 2020 PA Super 12 (filed Jan. 24, 2020) (explaining

that in Pennsylvania, witness may be impeached by prior conviction if crime

involved dishonesty or false statement; appellant was entitled to jury

instruction regarding relevancy of witness’ crimen falsi convictions, and how

jury could utilize that evidence in assessing her credibility). Accordingly, we

reverse Appellant’s convictions, vacate the judgment of sentence, and remand

for a new trial.8

       Convictions reversed. Judgment of sentence vacated. Case remanded

for new trial. Jurisdiction is relinquished.




____________________________________________


7 The Commonwealth concedes the trial court’s failure to classify J.R.’s EWOC
convictions as crimen falsi offenses was improper (see Commonwealth’s Brief
at 18), but insists the error was harmless because the jury heard about J.R.’s
convictions. Because we have already decided this case warrants a new trial
based on our disposition of issue one, we do not need to consider whether the
trial court’s error was harmless. Instead, we offer the analysis of Appellant’s
second issue as guidance for the trial court upon remand so that it does not
make the same mistake for a second time.

8 Based on our disposition, we do not need to reach Appellant’s third issue
challenging the weight of the evidence or fourth issue challenging the
discretionary aspects of sentencing.

                                          - 17 -
J-S14019-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2020




                          - 18 -
