J. A20035/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
FRANKLYN RAFAEL TABAREZ,                  :          No. 1392 MDA 2016
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, June 29, 2016,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0005664-2014


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED JANUARY 11, 2018

        Franklin Rafael Tabarez appeals from the June 29, 2016 aggregate

judgment of sentence of 4 to 8 years’ imprisonment imposed after a jury

found him guilty of two counts of aggravated assault by physical menace.1

After careful review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts of this case as follows:

                    On August 15, 2014, Special Agent Blake Cook
              of the Department of Homeland Security, along with
              three other agents, contacted [appellant] at his
              residence in Harrisburg.     [Appellant] reluctantly
              complied with Agent Cook’s request to speak with
              him.     Agent Cook identified himself and told
              [appellant] that he was seeking information related
              to a criminal investigation. Agent Cook observed a
              black semi-automatic handgun on a mattress near
              where he and [appellant] conversed. Agent Cook
              spoke about the details of the investigation, gave

1   18 Pa.C.S.A. § 2702(a)(6).
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          [appellant] his business card, and told [appellant] to
          call if he was willing to assist.

                Less than two weeks later, in the late
          afternoon hours of August 27, 2014, Dauphin County
          Probation Services officers (“P.O.[]s[”]) Daniel
          Kinsinger and Daril Foose were on duty in Harrisburg
          conducting home visits and looking for offenders on
          the street. The probation officers wore uniforms
          which included a shirt with the word “Probation” on
          the back and drove a vehicle with an antenna on the
          trunk.

                P.O.s Kinsinger and Foose first encountered
          [appellant] at around dusk when they observed a
          black pickup truck traveling north on Hummel Street
          in front of their vehicle. The black truck stopped, at
          which point a person approached the black truck,
          spoke to [appellant,] then returned to their [sic]
          porch. Kinsinger and Foose had no official interest in
          the black truck at that time. They continued on their
          planned route northbound on Hummel Street, across
          Derry Street and toward Chestnut Street, where they
          intended to visit probation clients.

                As they drove eastbound on Chestnut Street,
          Kinsinger and Foose observed the black truck pull
          into an alley and wait for their vehicle to pass. The
          black truck then pulled out and drove behind them.
          Because P.O. Kinsinger thought this unusual, he
          pulled to the side of the road to determine what
          action the truck would take. [Appellant] followed
          them.     Kinsinger resumed his route eastbound.
          [Appellant] again followed, at a distance of
          approximately half a block.       The officers turned
          south onto 13th Street then east on Derry Street.
          [Appellant] continued to follow. At 14th and Derry
          Streets, [appellant] drove close behind the officers,
          flashed the lights on his vehicle and honked the
          horn. Uncertain as to why the driver would act in
          this manner, P.O. Kinsinger turned onto a one-way
          street. [Appellant] continued to follow at a distance
          of less than one half a block. P.O. Kinsinger turned
          west onto Mayflower Street. [Appellant] stopped his


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          vehicle facing northbound.           It appeared to
          P.O. Foose that [appellant] was attempting to pin the
          officers’ vehicle. The officers heard a loud pop which
          they recognized as a gunshot.

                P.O. Kinsinger notified Dauphin County
          Dispatch that they were being fired upon.            As
          P.O. Kinsinger    proceeded    west,   then      south,
          [appellant]’s vehicle approached at a high rate of
          speed. P.O. Kinsinger turned eastbound onto Vernon
          Street, where [appellant] fired another gunshot.
          Kinsinger drove faster in an attempt to get away
          from [appellant], maintaining contact with County
          Dispatch as to their location. [Appellant]’s vehicle
          nearly struck theirs. [Appellant] drove close to the
          bumper of the officers’ vehicle at approximately
          40 miles per hour.      [Appellant]’s vehicle nearly
          struck the P.O.’s vehicle a second time at 17th and
          Vernon Streets. Kinsinger passed other vehicles in
          an attempt to evade [appellant]. They were able to
          lose [appellant] when he stopped at a traffic light.

                 Harrisburg City Police Officer Scott Johnson
          was working approximately one block away when he
          heard a radio call of shots fired upon [probation]
          officers. He proceeded to the area with his patrol
          vehicle lights and siren engaged. As he neared the
          intersection    of    17th   and     Derry   Streets,
          Officer Johnson saw two vehicles proceed through a
          red light. [Appellant]’s vehicle stopped at the next
          intersection at which point Officer Johnson stopped,
          exited his patrol vehicle with his gun drawn and
          ordered [appellant] out of the vehicle.

                Harrisburg Police Officer Jon Fustine arrived
          within moments of the stop.         Officer Fustine
          observed a black handgun tucked into the passenger
          seat of [appellant]’s vehicle.

                Harrisburg Police Officer Michael Maurer
          responded to the scene to collect evidence.
          Officer Maurer photographed the vehicles and
          recovered two 40-caliber S&W cartridge cases in the
          areas of North 15th Street and Mayflower Streets and


                                   -3-
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              South 14th and Vernon Streets.        He collected a
              semiautomatic pistol tucked into the passenger seat.

                    When the [probation] officers learned that
              police had detained the driver of the black truck,
              they returned to the intersection of 17th and Berryhill
              Streets, where they saw the vehicle and [appellant].

                    P.O. Kinsinger testified that hearing the
              gunshots and nearly being struck by [appellant]’s
              much larger vehicle caused him to fear for his life
              and that of his partner.

                    P.O. Foose testified that the flashing lights,
              beeping and aggressive following made her
              extremely nervous. She feared for her life when she
              heard gunshots and vividly recalls the smell of gun
              powder. Officer Foose believed [appellant] intended
              to harm them.

                    [Appellant] testified that he honked and
              flashed his lights so that the people in the vehicle
              would identify themselves because he “wanted to
              know who those people were”. [Appellant] admitted
              that he fired two shots.

Trial court opinion, 1/6/17 at 2-5 (citations to notes of testimony and

footnotes omitted).

        Appellant was arrested in connection with this incident and proceeded

to a jury trial on May 16, 2016.      Following a two-day trial, appellant was

found guilty of two counts of aggravated assault by physical menace on

May 17, 2016.      The jury acquitted appellant of four counts of aggravated

assault and two counts of assault of a law enforcement officer. 2 As noted,

appellant was sentenced to an aggregate term of 4 to 8 years’ imprisonment


2   18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(2), and 2702.1(a), respectively.


                                       -4-
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on June 29, 2016. On July 11, 2016, appellant filed a timely post-sentence

motion to modify his sentence, which was denied by the trial court on

July 18, 2016.     This timely appeal followed on August 16, 2016.         On

August 19, 2016, the trial court ordered appellant to file a concise statement

of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).

Appellant was subsequently granted an extension by the trial court and filed

a timely Rule 1925(b) statement on September 29, 2016.         The trial court

filed its Rule 1925(a) opinion on January 6, 2017.

      Appellant raises the following issues for our review:

            I.     DID NOT THE [TRIAL] COURT ERR IN
                   OVERRULING [APPELLANT’S] OBJECTION TO
                   THE ADMISSION OF THE COMMONWEALTH’S
                   CRIME-SCENE DIAGRAM WHEN THE EXHIBIT
                   WAS NOT AUTHENTICATED FOR FAIRNESS
                   AND ACCURACY UNDER PA.R.E. 901 AND
                   WHEN    THE    EXHIBIT   INCLUDED    AN
                   UNNECESSARY    AND   PREJUDICIAL  TITLE
                   REFERRING TO THE CHARGED CRIMINAL ACT?

            II.    WAS    NOT   [APPELLANT]   DENIED  HIS
                   CONSTITUTIONAL RIGHT TO A FAIR TRIAL
                   WHEN     THE   [TRIAL]   COURT,   OVER
                   [APPELLANT’S] OBJECTION, PERMITTED A
                   LARGE NUMBER OF UNIFORMED POLICE
                   OFFICERS AND PAROLE OFFICERS TO REMAIN
                   IN THE COURTROOM?

            III.   DID NOT THE [TRIAL] COURT ERR IN DENYING
                   [APPELLANT’S] OBJECTION TO THE DISTRICT
                   ATTORNEY’S INADMISSIBLE, BUT AUDIBLE,
                   SIDE-BAR COMMENTS REFERRING TO A
                   CRIMINAL ARREST OF [APPELLANT] THAT DID
                   NOT LEAD TO A CONVICTION?




                                     -5-
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             IV.   DID NOT THE [TRIAL] COURT ERR IN
                   PERMITTING THE COMMONWEALTH OVER
                   [APPELLANT’S] OBJECTION TO QUESTION
                   [APPELLANT] REGARDING HIS BEING THE
                   SUBJECT    OF   A   FEDERAL      CRIMINAL
                   INVESTIGATION WHEN SUCH EVIDENCE WAS
                   IRRELEVANT AND DID NOT QUALIFY UNDER
                   THE EXCEPTIONS FOR “PRIOR BAD ACT”
                   EVIDENCE AS SET FORTH AT PA.R.E. 404(b)?

             V.    DID NOT THE [TRIAL] COURT ERR IN
                   PERMITTING THE COMMONWEALTH OVER
                   [APPELLANT’S] OBJECTION TO QUESTION
                   [APPELLANT] REGARDING HIS BEING A
                   FOREIGN NATIONAL WHEN SUCH EVIDENCE
                   WAS IRRELEVANT UNDER PA.R.E. 401 AND
                   402 AND OTHERWISE INADMISSIBLE UNDER
                   PA.R.E. 403?

Appellant’s brief at 6-7 (capitalization in original).   For the ease of our

discussion, we elect to address appellant’s claims in a slightly different order

than presented in his appellate brief.

      We begin by addressing appellant’s claim that his right to a fair trial

was violated “when the [trial] court, over [appellant’s] objection, permitted

a large number of uniformed police officers and parole officers to remain in

the courtroom” during the second day of the trial.       (Id. at 36.)   For the

following reasons, we disagree.

      The record reflects that at the close of the Commonwealth’s case,

appellant’s counsel objected to the presence of “at least a dozen” uniformed

police officers in the courtroom on the grounds that they unfairly prejudiced

appellant:




                                     -6-
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            [Appellant’s counsel]: Judge, I do have to say one
            thing on the record. I just have to put it on the
            record. We have a large presence of police officers
            in the courtroom in full uniform. It looks like full
            street riot uniform to me, the lay observer.

Notes of testimony, 5/16-17/17 at 98. The trial court overruled appellant’s

objection, noting as follows:

            THE COURT: That’s not riot uniform. That’s the
            regular  uniform    of  our   police  department.
            Unfortunately[,] they have to wear the bulletproof
            vests because of what we live with in this
            community.

            ....

            THE COURT: I see no harm. Some of them are
            probation officers, by the way.       They’re here
            watching the trial, I’m sure for the same reasons.
            It’s one or two of their brothers that they believe
            were placed in danger. That’s why they’re here.

Id. at 98-99.

      Upon review, we discern no abuse of discretion on the part of the trial

court in overruling appellant’s objection to the presence of police officers in

the   courtroom.     Our   supreme   court   addressed   a   similar   issue   in

Commonwealth v. Gibson, 951 A.2d 1110 (Pa. 2008). Gibson involved a

defendant who was convicted of first-degree murder where multiple police

officers were present at his trial. In Gibson, the defendant argued that his

trial counsel was ineffective for not objecting to this police presence in the

courtroom and that his rights to a fair trial were violated pursuant to

principles articulated by the United States Supreme Court in Holbrook v.



                                     -7-
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Flynn, 475 U.S. 560 (1986).3 In rejecting this argument, the Gibson court

held that “where the record does not indicate the number of uniformed

officers present or any disturbance caused thereby, we conclude . . . [a

defendant] cannot demonstrate that an unacceptable risk of the jury

considering impermissible factors was created.” Gibson, 951 A.2d at 1139

(citations omitted).4

      Similarly, we acknowledge that although the presence of multiple

uniformed police officers at a jury trial may cause concern with regard to

jurors’ perceptions and courtroom atmosphere, the record does not indicate

that the officers in this instance caused even the slightest disturbance.




3 Holbrook involved a situation where four uniformed police officers were
present in the first row of a courtroom at the request of the trial court to
provide security, and defendant Flynn subsequently challenged their
presence as inherently prejudicial. Holbrook, 475 U.S. at 562-563. The
Holbrook Court ultimately concluded that Flynn was unable to show he was
denied a fair trial and that there was sufficient cause for this police presence
because there was a state interest in maintaining courtroom security,
offsetting any minor prejudice Flynn may have suffered. Id. at 572. In
reaching this decision, however, the Holbrook Court cautioned that courts
should “not minimize the threat that a roomful of uniformed and armed
policemen might pose to a defendant’s chances of receiving a fair trial.” Id.
at 570.

4 We note that on August 8, 2017, appellant filed motions requesting a
remand for an evidentiary hearing and a continuance to accommodate the
remand. These motions pointed out that the transcript did not indicate that
during trial, the trial court directed a number of appellant’s supporters who
were present in the courtroom to turn their supportive t-shirts inside out.
(See “Application to Remand to Conduct Evidentiary Hearing for Purposes of
Modifying or Correcting Record,” 8/8/17 at 3, ¶¶ 5-6.) In light of the fact
that this has no bearing on our resolution of this issue, we deny appellant’s
motions as moot.


                                     -8-
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Accordingly, appellant is unable to demonstrate that the police presence in

this case created an unacceptable risk of the jury considering impermissible

factors.    See Gibson, 951 A.2d at 1139.             Based on the foregoing,

appellant’s claim that his right to a fair trial was violated must fail.

        Appellant’s next two claims concern the trial court’s various rulings on

the admissibility of evidence, and we will address each of these issues in

turn.   “[T]he admissibility of evidence is a matter addressed to the sound

discretion of the trial court and . . . an appellate court may only reverse

upon a showing that the trial court abused its discretion.” Commonwealth

v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (citations and internal

quotation marks omitted), appeal denied, 124 A.3d 308 (Pa. 2015). “An

abuse of discretion is not merely an error of judgment; rather discretion is

abused 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 or the record.”           Commonwealth v.

Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014), appeal denied, 95 A.3d

275 (Pa. 2014) (citation omitted).

        This court has long recognized that,

              [t]he threshold inquiry with admission of evidence is
              whether the evidence is relevant.          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. In addition, evidence is only admissible where



                                       -9-
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           the probative value of the evidence outweighs its
           prejudicial impact.

                  Otherwise relevant evidence may be excluded
           if its probative value is outweighed by its potential
           for prejudice. The probative value of the evidence
           might be outweighed by the danger of unfair
           prejudice, confusion of the issues, misleading the
           jury, undue delay, pointlessness of presentation, or
           unnecessary presentation of cumulative evidence.

Id. at 750, referencing Pa.R.E. 401, 402, and 403 (case citations and

internal quotation marks omitted).

     Appellant argues that the trial court abused its discretion in admitting

a diagram of the crime scene into evidence because it was not properly

authenticated under Pennsylvania Rule of Evidence 901 and contained “an

unnecessary and prejudicial title: ‘Aggravated Assault.’” (Appellant’s brief

at 30.) We disagree.

     Rule 901 provides, in relevant part, that “[to] satisfy the requirement

of authenticating or identifying an item of evidence, the proponent must

produce evidence sufficient to support a finding that the item is what the

proponent claims it is.” Pa.R.E. 901(a).      Demonstrative evidence, like the

crime scene diagram at issue, may be admitted into evidence “provided that

[it] fairly and accurately represents that which it purports to depict.”

Commonwealth v. McKellick, 24 A.3d 982, 987 (Pa.Super. 2011) (citation

omitted), appeal denied, 34 A.3d 828 (Pa. 2011).          This court has long

recognized that “testimony from a witness who has knowledge that a matter

is what it is claimed to be” is sufficient to satisfy the authentication


                                     - 10 -
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requirement under Rule 901.       Id. at 988 (citations and internal quotation

marks omitted); see also Pa.R.E. 901(b)(1). As with all other evidence, a

trial court should only admit such evidence when “its probative value

outweighs its prejudicial effect.”     Commonwealth v. Serge, 896 A.2d

1170, 1177 (Pa. 2006), certiorari denied, 549 U.S. 920 (2006).

      Instantly, the record reflects that the trial court acted within its

discretion in admitting the crime scene diagram into evidence. At trial, the

Commonwealth laid a proper foundation under Rule 901(b)(1) by presenting

the testimony of Officer Maurer, who collected the forensics evidence at the

scene. (Notes of testimony, 5/16-17/17 at 85.) Officer Mauer’s testimony

clearly established that the evidence in question was what it was purported

to be, a diagram of the area where the crimes in question occurred.

Specifically, Officer Maurer testified as follows:

            Q.     In this case did you respond to the area of
                   14th and Derry Street and surrounding blocks
                   for that purpose?

            A.     Yes.

            Q.     When did you arrive?

            A.     Shortly after I heard it announced over the
                   radio the incident was taking place. I
                   responded from Front and Paxton. I drove east
                   on Paxton Street and north on 17th Street, and
                   I found the two vehicles involved parked near
                   17th and Berryhill.

            Q.     Now, I’m going to show you what is marked --
                   a small copy pursuant to local rule -- as
                   Commonwealth Exhibit No. 1. Does that fairly


                                      - 11 -
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                    and accurately depict the area      that   you
                    processed in August of 2014?

             A.     Yes.

             [COMMONWEALTH]: Your Honor, I move for the
             admission of Commonwealth Exhibit No. 1.

             [APPELLANT’S COUNSEL]: My previous objections to
             that exhibit, Your Honor, are on the record.

             THE COURT: And we note your exception, and it is
             admitted.

Id. at 85-86.

      Based on our review of the record, we discern no reason to believe

that the crime scene diagram in question depicts anything other than “that

which it purports to depict.” Serge, 896 A.2d at 1177. Moreover, we agree

with the trial court that the inclusion of the phrase “Aggravated Assault” on

the diagram in question was “merely reflective of the crime charged,” and

did not have such an undue prejudicial impact that a new trial was

warranted.      (Trial court opinion, 1/6/17 at 7.)   Accordingly, appellant’s

authentication argument fails.

      Appellant next argues that the trial court abused its discretion in

denying his objection to various comments that the Commonwealth made on

appellant’s prior arrest during a sidebar conference.    (Appellant’s brief at

38.) Appellant avers that these comments were overheard by the jury and

he suffered “unfair prejudice” as a result.   (Id. at 40-42.)    This claim is

meritless.



                                     - 12 -
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      The record reflects that this matter arose following appellant’s attempt

to introduce testimony that he had no prior criminal record.         Specifically,

appellant testified on direct examination as follows:

            Q.    And you have a license to carry that gun?

            A.    Yes. I have had a license for four years.

            Q.    In order to get that license, they do a
                  background check.

            A.    Yes. They check everything. Everything.

            Q.    So you have no record?

            A.    No, because this is the first time in my --

Notes of testimony, 5/16-17/17 at 108.

      Following the Commonwealth’s objection to this testimony, the

following discussion took place at sidebar:

            [COMMONWEALTH]: Your Honor, the question was,
            do you have a prior criminal record. Ordinarily, I
            would object to that because that is improper
            character evidence. I have forgone the objection for
            two reasons.      One, the defendant has forgone
            presenting character testimony, so I'll give him this
            benefit. Ordinarily I would object to this, but I do
            have to note that he does have an arrest record in
            New York. It does not appear to have resulted in
            conviction. I do not intend to pursue that, but I note
            that for the record that I’m forgoing that because
            he’s decided not to present character testimony. I
            just wanted to make a record of that.

            [APPELLANT’S COUNSEL]: I have to take exception
            because an arrest record and a conviction are
            different. If there is no conviction, then common
            parlance says you don’t have a record.



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            THE COURT: I think they can hear you. Why are
            you taking an exception? He’s not going to raise it.

            [APPELLANT’S COUNSEL]: The jury just heard this.

            THE COURT: I don’t think they heard anything. I
            think you’re overreacting.

Id. at 108-109.

      Contrary to appellant’s contention, the record does not reflect that the

jury was exposed to any improper comments made during sidebar. Rather,

the trial court made a brief observation that the jury could overhear

appellant’s counsel and then concluded that it did not hear any of the

substantive sidebar discussion.        Thereafter, the trial court overruled

appellant’s anticipatory objection, and appellant failed to request a further

curative instruction on this matter.    Accordingly, we find that his claim of

prejudice is waived and no relief is due.          See Commonwealth v.

Sandusky, 77 A.3d 663, 670 (Pa.Super. 2013) (stating, “[e]ven where a

defendant objects to specific conduct, the failure to request a remedy such

as a mistrial or curative instruction is sufficient to constitute waiver.”

(citation omitted)).

      Appellant’s final two claims concern the scope of the Commonwealth’s

cross-examination of him during trial.        Our supreme court has long

recognized that “[t]he scope of cross-examination is within the trial court’s

discretion, and this Court cannot disturb the trial court’s determinations




                                    - 14 -
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absent a clear abuse of discretion or an error of law.” Commonwealth v.

Ramtahal, 33 A.3d 602, 609 (Pa. 2011).

     Appellant avers that the trial court abused its discretion in permitting

the Commonwealth to elicit testimony from him during cross-examination

that Federal agents had visited him 12 days prior to the incident in question

and informed him that he was the subject of a federal criminal investigation.

(Appellant’s brief at 42.) Appellant maintains this testimony was irrelevant

and inadmissible and that “[a]ny minimal relevance [wa]s certainly

outweighed by undue prejudice[.]” (Id. at 45.) For the following reasons,

we disagree.

     Here, the Commonwealth cross-examined appellant as follows:

           Q.    I want to ask you now about the visit you had
                 from Homeland Security, the four agents.
                 Twelve days before the shooting you were
                 visited by four federal agents.

           A.    Yes.

           Q.    One of them was Agent Cook, who testified
                 earlier today.

           A.    Yes.

           Q.    They showed you their credentials?

           A.    Yes.

           Q.    They told you that because you were the
                 subject of a federal investigation --

           [APPELLANT’S COUNSEL]: Objection.           Objection,
           Judge. Objection on relevance.



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            THE COURT: I’m sorry.

            [APPELLANT’S COUNSEL]: Objection first of all on
            relevance; second of all, that wasn’t the testimony
            from Officer Cook; and, thirdly, this is beyond the
            scope of direct.

Notes of testimony, 5/16-17/17 at 120. The trial court overruled appellant’s

objection. (Id. at 121.)

      Upon review, we conclude that appellant opened the door to this line

of questioning by placing at issue his credibility as to whether he knew that

the individuals he fired upon– POs Kinsinger and Foose –were law

enforcement officers. Appellant was charged, inter alia, with two counts of

assault of a law enforcement officer, 18 Pa.C.S.A. § 2702.1.           One of the

requisite elements under Section 2702.1 is that the defendant has

knowledge that the person he is firing upon is a law enforcement officer.

Specifically, Section 2702.1 provides, in relevant part, as follows:

            A person commits a felony of the first degree who
            attempts to cause or intentionally or knowingly
            causes bodily injury to a law enforcement officer,
            while in the performance of duty and with
            knowledge that the victim is a law enforcement
            officer, by discharging a firearm.

Id. § 2702.1(a) (emphasis added).

      The record reflects that appellant testified on direct examination that

he was not aware that the persons he fired his gun at were law enforcement

officers and that he had no reason to harm the police:

            [A.]   The police -- when the car in front of me went
                   into the alley, I followed him because I wanted


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                  to take a picture. I did not know they were
                  parole officers, never, because they never
                  identified themselves. And I honked and I
                  flashed my lights at them so they could
                  identify themselves, because I wanted to know
                  who those people were.

           ....

           Q.     Do you have any reason to harm anyone in law
                  enforcement?

           A.     Never, because I have several members of my
                  family in my country who are policemen, and
                  that was also my dream to become a
                  policeman.

           Q.     You have no problem with anyone in the
                  probation department here in Harrisburg?

           A.     Absolutely no.     I play ball against a team of
                  police officers.

Notes of testimony, 5/16-17/17 at 104, 111-112.

     However, the fact that appellant was informed by Federal agents a

mere 12 days prior to the incident in question that he was subject to a

federal investigation creates reasonable inference that he believed the

individuals who initially followed him in an unmarked dark-colored Ford

sedan through four different street turns and then parked and waited for him

outside his garage for “almost six minutes” were law enforcement officers of

some kind and related to the underlying federal investigation. (See id. at

29-30, 47-49, 101-102.) This inference goes directly to whether he testified

credibly on direct examination. Moreover, appellant’s testimony that he was

aware he was under investigation by law enforcement is clearly relevant to


                                      - 17 -
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whether he possessed a motive to do harm against said law enforcement

officers, and far outweighed any potential for prejudice.

      “[E]vidence of bias, interest, or corrupt motive is generally admissible

and a proper inquiry on cross-examination.” Commonwealth v. Murray,

83 A.3d 137, 159 (Pa. 2013) (citation omitted). Our supreme court has long

recognized that “[c]ross-examination may be employed to test a witness’

story, to impeach credibility, and to establish a witness’ motive for testifying.

Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citation

omitted), certiorari denied, 549 U.S. 848 (2006).               Courts in this

Commonwealth are “not required to sanitize the trial to eliminate all

unpleasant facts from the jury’s consideration where those facts are relevant

to the issues at hand . . . .”    Antidormi, 84 A.3d at 752 (citation and

internal quotation marks omitted). Based on the foregoing, we discern no

abuse of discretion on the part of the trial court in permitting the

Commonwealth to cross-examine appellant in this manner.

      In his final claim, appellant argues that the trial court abused its

discretion in permitting the Commonwealth to cross-examine him with

regard to the fact that he was not a citizen of the United States and was

subject to deportation if convicted in this matter.5 (Appellant’s brief at 48.)

Specifically, the Commonwealth cross-examined appellant as follows:




5 The record reflects that appellant was born in the Dominican Republic.
(See notes of testimony, 5/16-17/17 at 122.)


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           Q.    Now, you obviously have concerns for your
                 future?

           A.    Yes.

           Q.    You are a national of the Dominican Republic?

           A.    Yes. I was born and raised.

           [APPELLANT’S      COUNSEL]:         Objection    as   to
           relevance.

           [D.A. CHARDO]: Judge, you’re going to instruct the
           jury that they can consider any future consequences
           of an adverse verdict in evaluating his credibility as a
           witness. If he knows he’s subject to removal if
           convicted, that is a greater incentive than any other
           defendant.

           THE COURT: Your objection is overruled.

           Q.    You are not an American citizen; is that
                 correct?

           A.    Yes. No, I was not born here.

           Q.    And you’re not a naturalized citizen?

           A.    I have a visa.

           Q.    You know that if you’re convicted of an
                 offense, you may be subject to removal from
                 this country?

           A.    I perfectly understand it.

Notes of testimony, 5/16-17/17 at 122-123.

     Appellant   maintains   that   he   was   unfairly    prejudiced   by   the

Commonwealth’s line of inquiry because at the time of his jury trial, “[t]he

nation was in the midst of a contentious presidential campaign in which



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immigration reform was a central focus [and t]he winning candidate vowed

to build a massive wall to keep ‘bad hombres’ out of the United States of

America.” (Appellant’s brief at 50.) We disagree.

      Contrary to appellant’s contentions, our review of the record indicates

that this line of questioning was not inflammatory or done so with the intent

to arouse the jury’s sensibilities.    Rather, appellant’s status as a foreign

national was relevant to his interest in the outcome of the case, namely,

avoiding deportation if convicted, and was clearly a matter of credibility for

the jury’s consideration.     Although we have found no authority in this

Commonwealth       that     has   specifically   addressed   the   scope     of

cross-examination on this particular issue, our supreme court’s holding in

Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), is particularly helpful.

In Lesko, our supreme court recognized that a trial court is permitted to

instruct the jury that it may consider whether the defendant has a vital

interest in the outcome of the trial in evaluating his credibility. Id. at 397;

see also Pennsylvania Suggested Standard Criminal Jury Instruction

§ 3.09(2). Based on the foregoing, appellant’s final claim of trial court error

must fail.




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J. A20035/17

     For all the foregoing reasons, we affirm appellant’s June 29, 2016

judgment of sentence.     Motion to remand for an evidentiary hearing and

motion to continue denied as moot.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/2018




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