J-S54038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

RICHARD CLARK STEWART

                           Appellant                    No. 25 MDA 2014


         Appeal from the Judgment of Sentence entered October 23, 2013
                 In the Court of Common Pleas of Luzerne County
                 Criminal Division at No: CP-40-CR-0003981-2012


BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED NOVEMBER 05, 2014

         Appellant, Richard Clark Stewart, appeals from the trial court’s October

23, 2013 judgment of sentence imposing one year of probation for recklessly

endangering another person and a $200.00 fine for reckless driving.          We

affirm.

         Appellant’s conviction resulted from a May 30, 2012 incident in which

Appellant repeatedly drove his vehicle in the direction of the complainants,

forcing them to take cover behind a parked truck. Appellant proceeded to

an October 23, 2013 bench trial, the record of which reflects the following

facts.     One of the complainants, John Simonitis (“Simonitis”), owns a

business located near Appellant’s residence. N.T. Trial, 10/23/13, at 12. As

Simonitis and his employee Darcy Hunter (“Hunter”) were working outside of

Simonitis’ building, Appellant approached them in his Volkswagen SUV. Id.
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at 16.       Appellant drove directly toward Simonitis and Hunter and

accelerated.   Id.   Simonitis and Hunter jumped behind a truck to protect

themselves. Id. Appellant made figure eights in the road and accelerated in

the direction of Simonitis and Hunter four or five times.   Id. at 17. Each

time, Appellant swerved away from the parked truck at the last second. Id.

Appellant testified in his own defense. He claimed he was out looking for his

dog, which had gotten loose. Id. at 92-94, 97. He also claimed his erratic

driving was due to a number of potholes in the road that he swerved to

avoid. Id.

     At the conclusion of trial, the trial court found Appellant guilty of the

aforementioned offenses, and imposed a sentence immediately.        Appellant

filed post-sentence motions on October 31, 2013, and the trial court denied

those motions on November 20, 2013.        Appellant filed a timely notice of

appeal on December 18, 2013.

     Appellant raises a single issue.     He argues the trial court erred in

excluding Appellant’s testimony about a private criminal complaint he filed

against Simonitis several weeks before the May 30, 2012 incident.

According to Appellant, the trial court should have permitted defense counsel

to ask Appellant questions about his private criminal complaint against

Simonitis. Appellant argues those questions were relevant to Simonitis’ bias

and motive to fabricate evidence against Appellant.




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      Admission or exclusion of evidence rests within the sound discretion of

the trial court. Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. Super.

2013). We will reverse the trial court’s decision only if Appellant can meet

the “heavy burden” of demonstrating the trial court’s abuse of discretion:

            It is not sufficient to persuade the appellate court that it
      might have reached a different conclusion[;] it is necessary to
      show an actual abuse of the discretionary power. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather exists 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.

Id.

      Appellant cites Commonwealth v. Birch, 616 A.2d 977 (Pa. 1992), in

support of the vital importance of evidence demonstrating witness bias. In

Birch, the defendant caught the victim and another person in the act of

stealing the defendant’s car. Id. at 978. The defendant observed one of the

car thieves holding a metallic object the defendant believed to be a gun. Id.

The defendant shot the victim, resulting in a severe injury to the victim’s

hip. Id. Prior to trial, the prosecution filed a motion in limine seeking to

prevent the defense from cross-examining the victim about his civil claim

against the defendant.    Id.   The trial court granted the motion, reasoning

that the victim’s civil suit against the defendant was irrelevant. Id.

      Our Supreme Court concluded the trial court erred. “As a general rule,

evidence of interest or bias on the part of a witness is admissible and

constitutes a proper subject for cross examination.” Id. “It is particularly

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important that, where the determination of a defendant’s guilt or innocence

is dependent upon the credibility of a prosecution witness, an adequate

opportunity be afforded to demonstrate through cross-examination that the

witness is biased.”   Id.      The Supreme Court reasoned the victim had

incentive “to perpetuate a version of the facts that minimized his own

criminal involvement and negated the possibility that the defendant acted in

self-defense.”   Id. at 979.     “Indeed, [the victim] may have viewed the

possibility of obtaining convictions upon these charges as a means of

substantially bolstering his action for damages.”    Id.   Thus, the Supreme

Court ordered a new trial. Id.

      We believe Birch is inapposite here.      The record does not support

Appellant’s contention that the trial court excluded evidence of Appellant’s

private criminal complaint against Simonitis. Rather, Simonitis testified–on

cross-examination by Appellant’s counsel–that Appellant filed a private

criminal complaint against him.     N.T. Trial, 10/23/13, at 25-26.   The trial

court overruled the Commonwealth’s relevance objection.        Id.    Simonitis

testified that Appellant filed the complaint against him approximately two

weeks before the May 30, 2012 incident.       Id. at 27.   Appellant’s counsel

asked Simonitis for his reaction to Appellant’s complaint.    Id. at 28.   The

trial court overruled the Commonwealth’s objection to that question, stating:

“You’re looking for bias here, I’m assuming?” Id. Simonitis denied that he




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threatened to file his own private criminal complaint if Appellant did not drop

the complaint against Simonitis. Id. at 29.

      While Appellant was on the stand, his counsel once again asked about

Appellant’s private criminal complaint against Simonitis:

           Q.    Did you ever file a criminal complaint against Mr.
      Simonitis?

             [Prosecutor]: Objection, Your Honor. We’ve already heard
      this testimony in relation to bias. I think it would be duplicative
      at this point.

              THE COURT: Sustained. It’s not relevant.

      By [Appellant’s Counsel]:

             Q.    Were you ever told by Mr. Simonitis or his counsel
      that if you didn’t drop that case, he would file against you?

              A.      Yes.

           [Prosecutor]: I’m going to make the same objection, Your
      Honor.

              THE COURT: Sustained. Move on, counsel.

Id. at 97-98.

      Thus,     the    trial   court   prohibited   further   questioning   regarding

Appellant’s private criminal complaint after it was already aware of it

through Simonitis’ testimony. Indeed, during Simonitis’ testimony, the trial

court, in its own words, described defense counsel’s line of questioning as an

attempt to demonstrate Simonitis’ bias. N.T. Trial, 10/23/13, at 28. In its

opinion, the trial court explained that it was aware of Appellant’s private

criminal complaint against Simonitis by virtue of Simonitis’ testimony.



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Appellant’s Brief at 24.1 The trial court opined that it did not need to hear

the same evidence through Appellant’s testimony, and that additional

evidence concerning the private criminal complaint would not have altered

its verdict. Id.

       The case on appeal is far different from Birch, where the prosecution’s

witness hoped to prevail against the defendant in a civil suit based on the

same facts that were at issue in the defendant’s criminal trial.        Here,

Appellant argues that the allegations against him are retaliation for

Appellant’s private criminal complaint against Simonitis.     The trial court

permitted testimony regarding Appellant’s private criminal complaint and

was aware of Simonitis’ potential bias. Appellant’s argument lacks merit.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




____________________________________________


1
   Appellant attached the trial court’s opinion to its brief as an appendix.
Appellant used consecutive pagination throughout his brief, including the
appendices.



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