J-S54033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LAWRENCE R. PECK                         :
                                          :
                    Appellant             :   No. 366 MDA 2019

     Appeal from the Judgment of Sentence Entered February 21, 2019
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-SA-0000220-2018


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                        FILED FEBRUARY 14, 2020

      Appellant, Lawrence R. Peck, appeals from the February 21, 2019

Judgment of Sentence entered in the Dauphin County Court of Common Pleas

following his conviction of Driving While Operative Privilege is Suspended or

Revoked—DUI Related, 75 Pa.C.S. § 1543(b)(1).           On appeal, Appellant

challenges the court’s evidentiary ruling precluding Appellant’s witness,

Katherine Schell, from testifying. After careful review, we affirm.

      The facts, as gleaned from the Notes of Testimony and the trial court’s

Rule 1925(a) Opinion, are as follows. On the evening of January 30, 2018,

Pennsylvania State Police Trooper Ricardo Carrera approached a Honda

Odyssey van registered to Appellant, which was stopped in a residential
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neighborhood.       The encounter resulted in the Commonwealth charging

Appellant with the above offense.1

        On August 8, 2018, the magistrate court convicted Appellant.        On

August 14, 2018, Appellant filed a Notice of Appeal from his summary

conviction.

        On January 29, 2019, Appellant appeared before the trial court for a de

novo Summary Appeal Hearing. At the hearing, Trooper Carrera testified for

the Commonwealth. Appellant and Appellant’s son, Anthony Jones, testified

on Appellant’s behalf.

        Relevantly, Trooper Carrera testified that he observed someone driving

Appellant’s vehicle, then pulling the vehicle over and parking it.    He then

testified that he observed Appellant exit the vehicle from the driver’s seat.

Trooper Carrera described approaching the van and observing the presence of

at least three children and two adults in the van.      In particular, Trooper

Carrera observed a woman—later identified as Katherine Schell—in the front

passenger seat. Trooper Carrera testified that Appellant, who was standing

outside the vehicle, identified himself to Trooper Carrera. Trooper Carrera

testified that he then returned to his patrol car and conducted a PennDOT

record check with the information Appellant had provided. The record check

revealed that Appellant’s license was suspended.




____________________________________________


1   Appellant has ten prior DUI convictions.

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       In Appellant’s defense, Jones and Appellant both testified that Schell,

and not Appellant, had been driving the vehicle. They explained that their

organization, Urban Works, had hired Schell to drive because of Appellant’s

driving record. Both Jones and Appellant offered testimony that the vehicle

had been parked for a few minutes before Trooper Carrera approached it.

They explained that, during those few minutes, the people inside the van said

a prayer, and Appellant and Schell switched seats so that Appellant could

assist Schell in disengaging the trunk latch.2 In sum, Appellant did not dispute

that he was aware of his license suspension arising from a DUI conviction.

Appellant only disputed that he had been operating the vehicle encountered

by Trooper Carrera.

       Appellant attempted to call Schell as a witness. As an offer of proof,

Appellant’s counsel indicated that Schell would testify that Urban Works had

hired her as a driver and that she could not recall any instances in which she

had been a passenger in the vehicle while Appellant was driving. Counsel

conceded that Schell did not have any independent recollection of being in the

vehicle on the evening in question. Accordingly, the Commonwealth objected

to Schell testifying on relevancy grounds. The court sustained the objection

and precluded Schell from testifying, noting that “[w]ithout there being




____________________________________________


2 Appellant and Jones offered conflicting testimony about how Appellant and
Schell changed seats. How the testimony conflicted is not germane to the
instant appeal.

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specific testimony on the day in question, [Schell’s testimony doesn’t qualify

as relevant].” N.T., 1/29/19, at 11.

      Finding the testimony of Trooper Carrera credible, and noting the

inconsistencies in the testimony of Appellant and Jones, the trial court

convicted Appellant. The court sentenced Appellant to a term of 90 days’ to

6 months’ incarceration. Appellant filed a timely Motion for Reconsideration

of Sentence in which he raised an illegal sentence claim.       The trial court

granted the Motion and, on February 21, 2019, resentenced Appellant to a flat

sentence of 90 days’ incarceration.

      This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal:

      In a prosecution for Driving Under Suspension, did not the court
      err in sustaining the Commonwealth’s objection to [Appellant’s]
      proffer of testimony from Katherine Schell, when the witness did
      not have an independent recollection of driving the vehicle on the
      date in question, but would have described that it was both her
      habit and the routine practice of [Appellant’s] organization for her
      to serve as driver?

Appellant’s Brief at 4.

      Appellant’s issue challenges the trial court’s evidentiary ruling.

Appellant argues that the court erred in precluding Schell from testifying on

relevance grounds based on Appellant’s concession that Schell did not have

an independent recollection of the evening in question. Id. at 12. He asserts

that Schell’s testimony was admissible pursuant to Pa.R.E. 406 as evidence of

Schell’s habit or of Urban Work’s routine practice. Id.

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      The admission of evidence is within the discretion of the trial court.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015). “An abuse of

discretion will not be found based on a mere error of judgment, but rather

occurs where the court has reached a conclusion that overrides or misapplies

the law, or where the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will.”   Woodard, supra at 494

(citation omitted). An abuse of discretion by the trial court, and a showing of

resulting prejudice, constitutes reversible error. Commonwealth v. Glass,

50 A.3d 720, 724-25 (Pa. Super. 2012).

      Generally, all relevant evidence is admissible, and evidence is relevant

if it has “any tendency to make a fact more or less probable then it would be

without the evidence.”    Pa.R.E. 401.    See also id. at 402 (discussing the

general admissibility of relevant evidence.     A court may exclude relevant

evidence where the danger of unfair prejudice outweighs its probative value.

Pa.R.E. 403.

      Evidence of habit of a person or of the routine practice of an

organization, whether corroborated or not and regardless of the presence of

eyewitnesses, is relevant to prove that the conduct of the person or

organization on a particular occasion was in conformity with the habit or

routine practice. Pa.R.E. 406. The Comment to Rule 406 explains that the

“concepts of ‘habit’ and ‘routine practice’ denote conduct that occurs with fixed

regularity in repeated specific situations[,]” and instructs that a court should




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determine whether one’s actions are habitual or routine on a case-by-case

basis. Id. at Cmt.

       Instantly, Appellant proffered that: (1) Schell did not have an

independent recollection of who was driving the van on the night in question

or even if she had been present; (2) that Urban Works hired her as a driver;

and (3) that she did not recall any instances where she was a passenger in

the van while Appellant drove it. N.T. at 11. Appellant’s vague offer of proof

failed to provide any additional information indicating that Schell would testify

about, for example, when Urban Works hired Schell as a driver or how often

she drove the vehicle. See, e.g., Commonwealth v. Sanchez, 848 A.2d

977, 984 (Pa. Super. 2004) (holding that “two instances of forgery do not rise

to the level of ‘continuous and systematic’ conduct” for purposes of

admissibility under Rule 406). Thus, the trial court did not abuse its discretion

in concluding that Appellant’s offer of proof did not establish that Schell would

testify that she drove the vehicle with “fixed regularity in repeated specific

situations.”3
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3 Moreover, even if the trial court erred in making an evidentiary ruling, we
may affirm the judgment of sentence if that error was harmless.
Commonwealth v. Wright, 742 A.2d 661, 667 (Pa. 1999) (Castille, J.,
concurring and dissenting). “[T]he doctrine of harmless error is a technique of
appellate review designed to advance judicial economy by obviating the
necessity for a retrial where the appellate court is convinced that a trial error
was harmless beyond a reasonable doubt.” Commonwealth v. Allshouse,
36 A.3d 163, 182 (Pa. 2012) (citation and internal quotation marks omitted).
Harmless error exists when, inter alia, the erroneously admitted evidence was
merely cumulative of other, substantially similar, evidence. Commonwealth



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       Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/14/2020




____________________________________________


v. Green, 162 A.3d 509, 519 (Pa. Super. 2017) (en banc). Here, even if the
trial court had erred, its error would be harmless because Appellant’s proffered
evidence was cumulative of his own testimony and that of his son, that Urban
Works had hired Schell to drive the van.


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