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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
FRANCISCO FELIZ,                         :         No. 1958 MDA 2014
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, July 14, 2014,
             in the Court of Common Pleas of Franklin County
             Criminal Division at No. CP-28-CR-0000952-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 22, 2015

      Francisco Feliz appeals from the judgment of sentence of July 14,

2014, following his conviction of one count of indecent assault, complainant

less than 13 years of age. On appeal, appellant contends that the trial court

erred in ruling that the Commonwealth could cross-examine appellant’s

proposed character witnesses regarding a 1992 out-of-state felony weapons

conviction. In light of the trial court’s ruling, appellant declined to call the

character witnesses.     Appellant argues that the 1992 conviction was

irrelevant and inadmissible, as it was too temporally remote and the

proffered witnesses did not know him at that time. Appellant asserts that

any minimal probative value the 1992 conviction had was outweighed by its

potential for prejudice, and that the trial court’s ruling cannot be considered
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harmless error in a case such as this, which boils down to credibility. After

careful review, we are constrained to agree.

     The trial court has summarized the history of this case as follows:

                  On July 15, 2013, the Commonwealth filed an
           Information      that    charged    [appellant]    with
           Aggravated Indecent Assault of a Child, Rape of a
           Child, and Indecent Assault of a Complainant who is
           less than 13 years of age.[1] On March 4, 2014,
           following a trial by jury, [appellant] was acquitted of
           Aggravated Indecent Assault of a Child and Rape of a
           Child but was found guilty of Indecent Assault of a
           Complainant who is less than 13 years of age. On
           July 14, 2014, [appellant] was sentenced to 12 to
           60 months of imprisonment.         On July 21, 2014,
           [appellant] filed his Post Sentence Motion, where he
           sought to vacate his July 14, 2014 sentence and
           receive a new trial. The Post Sentence Motion was
           based on the alleged error of this Court in not
           excluding [appellant]’s prior 1992 New York felony
           weapons conviction that was “too remote and that
           . . . was beyond the scope of the proffered
           testimony, as it occurred . . . before the character
           witnesses came to know [appellant].” [Appellant]
           stated in his Post Sentence Motion that he did not
           call character witnesses due to this Court’s ruling.

                  The Commonwealth responded to [appellant]’s
           Post Sentence Motion by stating that this Court did
           not abuse its discretion as the evidence was relevant
           character evidence that can be used by the
           Commonwealth        to    cross-examine     character
           witnesses.     The Commonwealth claims that the
           inclusion of the 1992 weapons conviction during the
           Commonwealth’s cross-examination of character
           witnesses would assist the jury in making witness
           credibility determinations.


1
  The charges related to appellant’s alleged sexual abuse of J.S., who was
six years old at the time of the alleged offenses. Appellant and his wife,
Miguelina, regularly babysat J.S.


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Opinion and Order, 10/22/14 at 2-3 (emphasis deleted). A timely notice of

appeal was filed on November 17, 2014.               Appellant has complied with

Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed a

Rule 1925(a)    opinion,   relying   on    its   previous   opinion   and   order   of

October 22, 2014, disposing of appellant’s post-sentence motion.

      Appellant has raised the following issue for this court’s review:

            Did the trial court err when it denied Appellant Feliz’s
            motion to exclude from cross-examination of
            proffered character witnesses inquiry about a prior
            out-of-state conviction from 1992 which was too
            remote and beyond the scope of the proffered direct
            testimony?

Appellant’s brief at 4.

            Pennsylvania courts have long recognized the
            importance of character or reputation evidence in
            criminal trials. The purpose of this evidence is to
            show that the accused possesses character traits
            that are at odds with the alleged criminal behavior.
            As we noted in Commonwealth v. Luther, 317
            Pa.Super. 41, 463 A.2d 1073 (1983):

                   Such evidence has been allowed on a
                   theory that general reputation reflects
                   the character of the individual and a
                   defendant in a criminal case is permitted
                   to prove his good character in order to
                   negate his participation in the offense
                   charged. . . .   The rationale for the
                   admission of character testimony is that
                   an accused may not be able to produce
                   any other evidence to exculpate himself
                   from the charge he faces except his own
                   oath and evidence of good character.

            Id. at 49, 463 A.2d at 1077 (citations omitted); see
            also Pa.Stand.Jury Inst. § 3.06(3) (“The law


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            recognizes that a person of good character is not
            likely to commit a crime which is contrary to his
            nature.”)    A defendant who presents character
            testimony runs certain risks, however, character
            witnesses, like other witnesses, can be subjected to
            cross-examination. See Commonwealth v. Scott,
            496 Pa. 188, 195, 436 A.2d 607, 611 (1981). Such
            cross-examination may include questions regarding
            the defendant’s prior convictions for crimes involving
            the relevant character trait. See id.; see also
            Commonwealth v. Vander Weele, 356 Pa.Super.
            152, 157-58, 514 A.2d 189, 191 (1986).             The
            purpose of this type of impeachment is to test the
            accuracy and completeness of the witness’s
            knowledge      of    the   defendant’s     reputation.
            Commonwealth v. Scott, supra at 192, 436 A.2d
            at 609; see also Commonwealth v. Peterkin, 511
            Pa. 299, 318, 513 A.2d 373, 382-83 (1986) (“a
            character witness may be cross-examined regarding
            his knowledge of particular acts of misconduct by the
            defendant to test the accuracy of his testimony and
            the standard by which he measures reputation.”);
            Commonwealth v. Hammond, 308 Pa.Super. 139,
            149, 454 A.2d 60, 65 (1982); Commonwealth v.
            King, 287 Pa.Super. 105, 108, 429 A.2d 1121,
            1122-23 (1981). It is settled that evidence of a
            defendant’s character must relate to his reputation
            “at or about the time the offense was committed.”
            E.g. Commonwealth v. Luther, supra at 50, 463
            A.2d at 1077-78; see also Commonwealth v.
            White, 271 Pa. 584, 587, 115 A. 870, 872 (1922);
            McCormick, Handbook on the Law of Evidence,
            § 191, at 456 (2d Ed. 1972) (character at time of
            alleged crime bears mostly on inference of innocence
            or guilt--reputation evidence confined to reputation
            at that time or reasonable time before).

Commonwealth v. Nellom, 565 A.2d 770, 775 (Pa.Super. 1989) (footnote

omitted).

            It has long been the law that a defendant in a
            criminal trial may introduce evidence of his own good
            character in order to attempt to convince the trier of


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            fact of his innocence.        Commonwealth v.
            Sampson, 445 Pa. 558, 285 A.2d 480 (1971);
            McCormick on Evidence, § 191 (2d ed. 1972). As
            our Court stated in Commonwealth v. Padden,
            160 Pa.Super. 269, 275, 50 A.2d 722, 725 (1947):

                  Evidence of good character is substantive
                  and positive evidence, not a mere
                  make-weight to be considered in a
                  doubtful case, and, according to all our
                  authorities, is an independent factor
                  which may of itself engender a
                  reasonable      doubt   or   produce    a
                  conclusion of innocence.      Hanney v.
                  Com., 116 Pa. 322, 9 A. 339; Com. v.
                  Cleary, 135 Pa. 64, 19 A. 1017; Com. v.
                  Chester, 77 Pa.Superior Ct. 388. To be
                  sure, it is to be considered with all the
                  other evidence in the case. Com. v.
                  Dingman, 26 Pa.Superior Ct. 615. But
                  it is not to be measured with or by
                  other evidence. Its probative value, its
                  power of persuasion, does not depend
                  upon, and is not to be measured by, or
                  appraised according to, the might or the
                  infirmity in the Commonwealth’s case.
                  Hanney v. Com., supra. Even though,
                  under all the other evidence a jury could
                  reach a conclusion of guilt, still if the
                  character evidence creates a reasonable
                  doubt or establishes innocence a verdict
                  of acquittal must be rendered. Com. v.
                  Cate, supra [220 Pa. 138, 69 A. 322].

Commonwealth v. Farrior, 458 A.2d 1356, 1364 (Pa.Super. 1983)

(emphasis in Padden). See also Nellom, 565 A.2d at 776 (“Our Supreme

Court recently reaffirmed the importance of character evidence, holding that,

when evidence of good character has been presented, the trial court must

instruct the jury that ‘character evidence may, in and of itself, (by itself or



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alone) create a reasonable doubt of guilt and, thus, require a verdict of not

guilty.’”), quoting Commonwealth v. Neely, 561 A.2d 1, 3 (Pa. 1989)

(additional citations omitted).

       In the case sub judice, appellant’s proffered character witnesses did

not even know him at the time of the 1992 conviction, which occurred

20 years before his arrest in this case.2 Nevertheless, the trial court found

the evidence was admissible to impeach appellant’s character witnesses and

to assist the jury in determining credibility. (Opinion and Order, 10/22/14 at

11.)     The   trial   court   found   that   the   remoteness   of   appellant’s

1992 conviction went to its weight, not admissibility, and was a jury issue.

(Id. at 10.) The trial court also determined that even assuming, arguendo,

appellant’s prior conviction was inadmissible, it was harmless error where

appellant was found not guilty of two of the three charges and appellant’s

defense did not rely solely on character witnesses.       (Id. at 11-12.)    We

disagree.

       We find this court’s decision in Farrior, supra, to be instructive. In

that case, the trial court determined that the appellant’s proposed character

witnesses could be cross-examined about a 1961 conviction for assault,



2
  Although there was some evidence to support a finding that at least one
character witness knew appellant at the time of the 1992 New York
conviction, the trial court relied on defense counsel’s assertion in the
post-sentence motion that the New York conviction occurred before any of
the defense character witnesses came to know appellant. (Opinion and
Order, 10/22/14 at 11.)


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which occurred 19 years prior to trial.       Farrior, 458 A.2d at 1361.      Of

appellant’s eleven proposed character witnesses, only two had known him in

excess of 19 years. Id. It was unclear from the record how long two other

proposed witnesses had known him.          Id.   As a result of the trial court’s

ruling, no character witnesses were called on the appellant’s behalf. Id. at

1360. On appeal, this court held that with respect to those witnesses who

had not known the appellant at the time of the conviction, the conviction

was too remote in time to have any bearing on the credibility of the

witnesses:

             In this case, appellant’s assault conviction occurred
             nineteen years prior to trial. With respect to the
             witnesses who had known appellant for substantially
             shorter periods of time, we are of the opinion that
             the impeachment value of questions concerning the
             conviction would be negligible and would be
             overwhelmingly outweighed by their prejudicial
             effect. With respect to the two character witnesses
             who had known appellant at the time of the
             conviction, however, such questions would have
             been proper because the conviction was related to
             the length of time concerning which the witnesses
             would testify. See generally Michelson v. U.S.,
             335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).
             Therefore, the trial court’s ruling, as it related to the
             two character witnesses who had known appellant at
             the time of the conviction was correct. As to the
             other proposed witnesses, however, the ruling was
             erroneous.

Id. at 1361.

     Similarly, in Commonwealth v. Hammond, 454 A.2d 60 (Pa.Super.

1982), disapproved of on other grounds by Commonwealth v.



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Brachbill, 555 A.2d 82 (Pa. 1989), the trial court permitted the prosecution

to cross-examine the appellant’s character witnesses concerning a prior

conviction for attempted assault which occurred 14 years prior to trial,

before any of the character witnesses knew the appellant. Id. at 65. This

court held that the ruling was in error, as the conviction was too remote to

be an effective tool for impeachment:

              This sole prior conviction occurred in the state of
              Virginia in 1966. All of the character witnesses
              testified to having met appellant subsequent to
              1966. It is not unlikely that appellant reformed after
              serving two years, and subsequently enjoyed a
              reputation as a peaceful and law-abiding citizen as
              testified to by his witnesses.           Under these
              circumstances, the remoteness of the conviction may
              outweigh its effectiveness as a tool of impeachment,
              and may have served only to prejudice appellant.

Id. (citation omitted).

      Following this court’s decisions in Hammond and Farrior, it is clear

that the trial court erred in ruling that appellant’s proposed character

witnesses could be cross-examined regarding his 1992 out-of-state weapons

conviction.   The past conviction occurred more than 20 years before trial,

and the character witnesses did not know him at that time.                 The

1992 conviction was simply not relevant to impeach the witnesses’ credibility

concerning appellant’s reputation in the community at the time of the

alleged offenses.

      Furthermore, we disagree with the trial court that its ruling constituted

harmless error. As stated above, evidence of good character can, in and of


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itself, create reasonable doubt, particularly in a case such as this, which

comes down to credibility.

              In Pennsylvania, the importance of good character
              evidence is well-recognized. “[E]vidence of good
              character is to be regarded as evidence of
              substantive fact just as any other evidence tending
              to establish innocence and may be considered by the
              jury in connection with all of the evidence presented
              in the case on the general issue of guilt.”
              Commonwealth v. Luther, supra at 49, 463 A.2d
              at 1077.     Character evidence is substantive and
              positive evidence, not a mere “make weight” to be
              considered in a doubtful case. Id. (quotation and
              citation omitted).

Nellom, 565 A.2d at 776.         See also Farrior, 458 A.2d at 1364 (“the

evidence that the proposed character witnesses would have presented

concerning appellant’s law abiding reputation, if believed by the jury, may

have created a reasonable doubt as to his guilt of the crime charged. Thus,

we cannot say that the trial court’s ruling which resulted in the appellant’s

decision not to call his character witnesses did not effect [sic] the outcome

of the case.” (emphasis in original)).     Cf. Hammond, 454 A.2d at 65-66

(finding harmless error where the appellant admitted to shooting his wife

and asked for a finding of voluntary manslaughter which he received).

         As is typical in the child sexual abuse context, there were no

third-party eyewitnesses and little, if any, forensic evidence.        The case

boiled down to whom the jury believed, appellant or J.S. By its erroneous

ruling     that   appellant’s   proposed    character   witnesses     could   be

cross-examined about his 1992 New York conviction, the trial court denied


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appellant the use of a major portion of his defense. For these reasons, it is

necessary to remand for re-trial on the charge of indecent assault.

      Judgment of sentence reversed. Remanded for new trial. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2015




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